New rules and regulations don’t always apply equally to all. In certain cases, people or corporations are grandfathered in, meaning they get to continue under the previous rules and not be subject to the new rules. Updates to building codes, for example, usually contain a grandfather clause that allows older buildings to remain as they are as long as they continue to be maintained according to the building codes in effect when they were built.
And that’s a good thing. That grandfather clause means we aren’t required to update our homes’ insulation, electrical wiring, HVAC systems, plumbing, and window size and placement every time the building codes change.
That’s how grandfathering usually works these days, by making certain legal or regulatory changes less burdensome and expensive.
But the grandfather clause has a more sinister genesis that goes back to the end of the Civil War.
After the Thirteenth Amendment freed America’s slaves in 1865 and the Fourteenth Amendment granted them citizenship in 1868, Congress ratified the Fifteenth Amendment in January 1870, establishing that the right 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.” Thus black men were constitutionally granted the right to vote.
Although the former Confederate states were obligated to accept these amendments, they weren’t thrilled with the idea of allowing those they had so long oppressed a voice in government. The Fifteenth Amendment barred authorities from simply turning away dark-skinned voters, but they found other ways to suppress the black vote.
Before the Civil War, it had been illegal in many slave states to teach slaves to read and write. Knowing that most former slaves were illiterate, legislators established a literacy requirement: A man had to prove he could read and write before he would be allowed to vote. Blacks in the South were also kept in poverty, both by law and through social pressures, so, in some states, legislators set unreasonable poll taxes and established property ownership restrictions for voters. These restrictions, combined with intense and often violent intimidation tactics, including lynching, were effective in suppressing the voting rights not only of black Americans but of Native Americans, too.
But they also threatened to disenfranchise poor and illiterate white farmers, who, on the whole, could be counted on to vote for the Southern cause. To avoid this eventuality, Southern lawmakers created what came to be called the grandfather clause.
The grandfather clause exempted men from the new voting regulations if they or one of their ancestors — thus grandfather — had been legally allowed to vote before a date prior to the ratification of the Fifteenth Amendment. In short, if you had a white grandfather, you were allowed to bypass the literacy test, poll tax, and other restrictions and go directly to the voting booth.
Grandfather clauses were common in state constitutions for four decades, effectively protecting the white vote and disenfranchising men of color.
But in 1907, Oklahoma became a state. Its constitution did not include a grandfather clause, instead granting suffrage to all adult male citizens who could meet the literacy and poll tax requirements. But shortly before the 1910 election, legislators created a grandfather clause and enacted it as an amendment to the state constitution. It shielded from voting restrictions not only men from established white families but also recent (European) immigrants. What’s more, the wording of the amendment essentially allowed election officials to limit administration of the literacy test only to dark-skinned men. All pretense of fairness was gone.
Election Day in Oklahoma went as you might expect. In polling places across the state, whites were ushered into the voting booths unchallenged, and blacks were administered all sorts of tests. And even those tests were often straight-up farces: At least one black college graduate was recorded as having failed the literacy test and been denied a vote.
Though the outcome was predictable, after this election, someone with power finally stepped up. U.S. attorneys John Embry and William Gregg brought two Oklahoma election officials, Frank Guinn and J.J. Beal, up on criminal charges. To the surprise of many, they were convicted in an Oklahoma court in 1911.
They appealed their conviction all the way to the U.S. Supreme Court, which heard Guinn v. the United States in 1913. In 1915, the Court handed down its unanimous ruling: Not only were the convictions upheld, but Oklahoma’s grandfather clause was ruled unconstitutional. Oklahoma’s amendment was invalidated, and Alabama, Georgia, Louisiana, Maryland, North Carolina, and Virginia were forced to alter similar regulations.
Sadly, this wasn’t the great victory it should have been, as the states affected by the ruling scrambled to enact new regulations that would have the same suppressive effect as their old grandfather clauses. Oklahoma, for example, passed a law that required everyone except those who had voted in 1914 to register to vote within an eleven-day period or face permanent disenfranchisement. (It would take another twenty-three years for that law to be struck down.)
When the Voting Rights Act of 1965 abolished literacy tests and other racist voting restrictions, the grandfather clause ceased to become a viable legal tactic for voter suppression. But the phrase lived on, co-opted into other legal contexts.
I don’t believe that a word’s history defines its future, but I do believe there is value in understanding how our history has shaped our language, especially when that history is difficult to stomach.
The evolution of language cannot be separated from our evolution as a civilization. We use words to record our history, but the words we use to tell that history can themselves reveal an even deeper story. By understanding the social and political forces that helped create words and phrases like grandfather clause, we better understand our own history and how our language shapes and is shaped by that history.