GRANDFATHER CLAUSE

A portion of a statute that provides that the law is not applicable in certain circumstances due to preexisting facts.

Grandfather clauses, which were originally intended to prevent black people from voting, were named for provisions adopted by the constitutions of some states. Such amendments sought to interfere with an individual's right to vote by setting forth difficult requirements. For example, common requirements were ownership of a large amount of land or the ability to read and write portions of the state and federal constitutions. The name grandfather clause arose from the exceptions that were made for veterans of the Civil War. If the veterans were qualified to vote prior to 1866, their descendants were also qualified. Thus, in effect, if a person's grandfather could vote, he could vote without further restrictions.

These statutes accomplished precisely what was intended, since nearly all slaves and their descendants were disqualified from voting because they could not satisfy the statutory requirements.

In the 1915 case of Guinn v. United States, 238 U.S. 347, 35 S. Ct. 926, 59 L. Ed. 1340, the supreme court of the united states examined a grandfather clause that was added to the Oklahoma constitution shortly following its admission to the Union. The 1910 constitutional amendment required that prospective voters pass a literacy test in order to qualify to vote. However, anyone who was entitled to vote on January 1, 1866, or any time earlier under any form of government, or who at that time lived in a foreign country, was exempt from satisfying the literacy test requirement. The lineal descendants of such exempted persons also were exempt from such a requirement. In reality, the amendment recreated and perpetuated the very conditions that the fifteenth amendment was intended to destroy, even though race was never mentioned as a voter qualification.

The Court held that the clause was in violation of the Fifteenth Amendment, which states that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Oklahoma argued that states had the power to set forth voter qualifications. Therefore, the statute in controversy did not violate the Fifteenth Amendment since race was not mentioned as a voter qualification. The Supreme Court was in agreement that states have the right to determine who is qualified to vote; however, they are permitted to do so only within constitutional limits. The limit that proscribes consideration of the race of voters extends to sophisticated as well as simpleminded discrimination, and equality under the law cannot be based upon whether a person's grandfather was a free man.

Oklahoma undertook to change its law following this decision. The revised statute said that everyone who was able to vote as a result of the grandfather clause automatically continued to be eligible and those who had been denied voting rights were given twelve days in 1916 to register to vote. If they were out of the county where they resided or if they were prevented from registering by sickness or unavoidable circumstances, they were given an additional fifty days in 1916 to register. After that time black persons who tried to register to vote were turned away, since the time to register outside the grandfather clause had ended in 1916.

In the 1939 case of Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281, the Supreme Court rejected Oklahoma's new scheme, calling it another example of an attempt by a state to thwart equality in the right to vote regardless of race or color. The Court ruled that the proposed remedy, in the form of such a limited registration period, was inadequate. A group of citizens who lacked the habits and traditions of political independence deserved a greater opportunity to register to vote.

The term grandfather clause in its current application refers to a legislative provision that permits an exemption based upon a preexisting condition. For example, through the application of grandfather clauses, certain prerogatives are extended to those regularly engaged in a particular profession, occupation, or business that is regulated by statute or ordinance. Such a clause might allow an individual, who has been in continuous practice in a particular profession for a specific period, to circumvent certain licensing requirements.

Grandfather Clause

The grandfather clause was among the legal devices designed by southern legislatures to limit African-American suffrage following Reconstruction. Literacy and property tests were imposed on potential voters, except for those who had been entitled to vote before black enfranchisement as well as their sons and grandsons. The grandfather clause was thus technically an exemption written into laws restricting suffrage but an exemption that allowed virtually all whites to retain the vote and that effectively disfranchised almost all African Americans.

The Mississippi constitution of 1890 represented the first attempt to eliminate black voting, and by World War I almost all the ex–Confederate states had adopted some form of black disfranchisement legislation. These included poll taxes, literacy requirements, property-holding requirements, the white primary, and an array of similar provisions designed to circumvent the Fifteenth Amendment to the U.S. Constitution, which prohibits states from limiting suffrage on the basis of race.

In 1898 Louisiana introduced the first grandfather clause, which stated that "no male person who was on January 1st 1867 or at any date prior thereto entitled to vote … and no son or grandson of any such person … shall be denied the right to register and vote in this state by reason of his failure to possess the educational or property qualifications." Variants of this approach were the fighting grandfather clause, which exempted descendants of veterans, or Mississippi's "understanding" clause, which exempted those who could verbally interpret the state constitution to the satisfaction of white registration officials.

The grandfather clauses' effects were temporary. Only current white voters were exempted, and all new voters had to meet the literacy test. In practice, literacy tests resulted in a substantial reduction in white as well as black voting, since few whites would publicly proclaim their illiteracy to take the exemption. In 1914 the U.S. Supreme Court found grandfather clauses unconstitutional, and the southern states shifted to other forms of disfranchisement legislation.

See also Black Codes; Jim Crow

Bibliography

Key, V. O., Jr. Southern Politics in State and Nation. New York: Knopf, 1949.

Keyssar, Alexander. The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books, 2000.

Kousser, Morgan. The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910. New Haven, Conn., and London: Yale University Press, 1974.

michael w. fitzgerald (1996)
Updated bibliography

GRANDFATHER CLAUSE

This expression, born of legislative skulduggery, has survived to serve more acceptable purposes. A number of southern states, seeking to circumvent the fifteenth amendment's prohibition against racial discrimination in the field of voting rights, adopted literacy tests for voter eligibility. These provisions standing alone would have disqualified not only most black registrants but also a large number of whites. Under a typical exception, however, an illiterate might be registered if he had been eligible to vote before some date in 1865 or 1866, or if he were the descendant of a person eligible at that time. The Supreme Court, in guinn v. united states (1915) and Lane v. Wilson (1939), held such grandfather clauses invalid.

More recently, the same term has described any legislative exception relieving from regulation a person who has been engaging in a certain practice for a period of time. A new zoning law, for example, might limit land use in one zone to single-family residences, but contain a grandfather clause allowing the continuation of businesses or apartment houses already operating there. In part, such an exception is designed to avoid constitutional problems that arguably might arise in its absence. (See taking of property; vested rights; substantive due process.) But the exception itself may be challenged as unconstitutional. In new orleans v. dukes (1976), the city had prohibited the sale of food from pushcarts in the French Quarter, but had exempted pushcart vendors who had been operating there more than eight years. The Supreme Court unanimously upheld this grandfather clause against an equal protection attack. Quite properly, the Court omitted mention of Lane v. Wilson; it did say, however, that in cases of economic regulation, "only the invidious discrimination " was invalid.

Kenneth L. Karst
(1986)

Bibliography

Schmidt, Benno C., Jr. 1982 Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 3: Black Disfranchisement from the KKK to the Grandfather Clause. Columbia Law Review 82:835–905.

GRANDFATHER CLAUSE

GRANDFATHER CLAUSE, a legal provision exempting someone from a new qualification or regulation. More specifically, through seven southern state constitutional amendments passed from 1895 to 1910, grandfather clauses exempted men who had the right to vote on 1 January 1867 or, in some states, those who had fought in American wars and their descendants, from literacy or property tests for voting. Proponents contended that poor, illiterate whites would still be able to vote, while African Americans, who could not vote in the South in 1866, would again be disfranchised. Grandfather clauses were temporary and were declared unconstitutional under the Fifteenth Amendment by the U.S. Supreme Court in Guinn and Beal v. United States (1915).

BIBLIOGRAPHY

Kousser, J. Morgan. The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910. New Haven, Conn.: Yale University Press, 1974.

J. MorganKousser

See alsoDisfranchisement .