The Constitution of 1868

In 1864, an election was held in which only those who had taken Arkansas’ Oath of Future Loyalty to the federal government were eligible to vote. A governor and legislature were elected, but given the situation in Arkansas the government had very little power outside of Little Rock. When the war ended a second round of elections was held to elect U.S. representatives. Because less than 7,000 people voted, Congress refused to seat the delegation and the state Supreme Court struck down the Arkansas loyalty oath.

The election of 1866, the first in Arkansas in which former Confederates could vote, saw all of the Unionists swept from office. The new legislature did not pass restrictive “Black Codes” like many other southern states during the same period, but it did not vote to allow the former slaves to vote, hold office, serve on juries, have access to public education or marry whites. Not surprisingly, the legislature did not ratify the Fourteenth Amendment, a failure that would be its undoing.

The Fourteenth Amendment, among other items, reversed a prior ruling that African Americans were not citizens of the United States. It forbade states to deprive anyone of the rights of citizenship, including the right to vote, to infringe fundamental rights without due process of law, or deny equal protection of the laws.

Of the former Confederate states, only Tennessee ratified the Fourteenth Amendment. Failure on the part of the remaining Confederate states to do so led to the passage of the Military Reconstruction Act. This act divided the Confederate states, with the exception of Tennessee, into five military districts, denying them their former identities as states.
The Reconstruction Act followed, pronouncing existing governments in the South provisional. Former Confederate states were allowed to return to the Union only after they had adopted a new constitution that provided for universal manhood suffrage, and had ratified the Fourteenth Amendment.

The constitution had to be approved by a majority of the registered voters. To register to vote, men had to meet the qualifications stated in the Fourteenth Amendment, which excluded anyone who: “. . . had having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Needless to say, this provision excluded a great many white Arkansans.

Arkansas, which was in the Fourth Military District, quickly went about the business of holding a constitutional convention. White Unionists gathered in Little Rock to make plans. African American leaders formed clubs and political societies to mobilize the black population and register voters. Many of Arkansas’ African Americans joined the Union League. Some 2,000 black men attended a league rally in Helena in May 1867. The league helped register over 20,000 African American voters before the November election.

Eight African American men were selected as delegates to the Constitutional Convention. Two, William H. Grey and James White, represented Phillips County. James White was a Baptist minister who had never been enslaved. At the time of the convention he was thirty-seven-years-old and had been a resident of Arkansas for three years. White was one of the four black members of the convention who took an active role in the proceedings.

Perhaps the most influential of the black delegates was William H. Grey who came to Helena with his family in 1865. Grey, like White, had never been a slave. Before moving to Helena he was a servant of Virginia Governor Henry A. Wise. Grey learned a great deal about politics and parliamentary procedure while working for Wise and he used his knowledge and skills at the convention. Black suffrage was a major issue. Grey played down the notion that black suffrage would lead to black domination. How, he asked, could four million black people scattered across the country rule thirty million white people? Grey’s education was evident in his eloquent speeches, “Give us the right of suffrage; establish a school system that will give us opportunities to educate our children; leave the door ajar that leads to peace and power; and if by the next generation we do not place ourselves beyond the reach of mortal men, why then take them away from us if not exercised properly. But, sir, we have no fears of failing to secure those rights.”

The delegates at the Constitutional Convention approved the new constitution on February 1, 1868, by a vote of forty-six to twenty. On the day of the vote, James White spoke, “My race has waited with patience, and endured the afflictions of slavery of the most inhuman kind, for two hundred and fifty years, and today I find a majority of the Constitutional Convention that is willing to confer upon me what God intended that I should have.”

The 1868 Arkansas Constitution contained all of the provisions required by the Second Reconstruction Act for Arkansas to be readmitted to the Union. It gave black men in Arkansas the vote for the first time and established a public school system, albeit a segregated one. This victory for African Americans in Arkansas would not last. The fruits of the 1868 constitution were swept away in later years. It would be another one hundred years until all of those rights were regained.