When New Orleans lawyer Ernest Benjamin Kruttschnitt died in 1906, praise came from all quarters. A partner in one of the city’s most illustrious law firms, Kruttschnitt (1852-1906) had tried many of the most important cases of his time. A long-time president of the New Orleans School Board, he twice turned down opportunities to become governor of the state, even as he remained a prominent figure in state politics.
“It is doubtful if the death of any private citizen would have caused the sorrow and genuine regret that flows in one great stream from the death of E.B. Kruttschnitt,” read his obit in a New Orleans newspaper. “Men, women, and children from all walks in life mourn him with a sincerity born of admiration, respect, and love.”
But a far different portrait of Kruttschnitt has emerged in recent years, largely stemming from his position as president of the second State Constitutional Convention in 1898. Turns out my second great grand uncle, related to me through my father’s mother, was a big-time racist, something no one talked about at the dinner table.
Kruttschnitt was the driving force behind Louisiana’s efforts in the late nineteenth century to deny African-Americans the right to vote. And he used his legal acumen to craft revisions to the state constitution in 1898 that allowed for non-unanimous jury verdicts in criminal trials, so that largely white juries could overrule objections from black jurors.
Lately, academics looking back his speeches and actions have been ripping Kruttschnitt a new one. In a recent research paper fashioned into a law journal article, Bidish Sarma goes after Kruttschnitt for using his lawyer talents to pernicious, racist ends. He questions why Kruttschnitt’s portrait still hangs over the entrance to the state law library in New Orleans.
“His inflammatory and racist rhetoric does not taint our memory because although E.B. Kruttschnitt made his wicked agenda clear to his like-minded friends, he circumvented legal scrutiny through the deployment of race-neutral language in the laws he drafted and the Constitution he helped create. Combined with pervasive judicial apathy, this tactic succeeded, and represents his enduring, if unspoken, legacy. And, it is a tactic that was not only effective then, but also continues to disenfranchise African-Americans today.”
When he talks about “race-neutral language,” Sarma refers to non-unanimous jury verdicts. Louisiana was one of the few states that allowed this practice, which has since been wiped from the books. This is how it could work: If whites out-numbered blacks on a jury, and a black person was being tried unjustly for a crime, white jury members could simply gang up to convict the person, notwithstanding opposition from blacks on the jury. These days, the entire jury needs to agree.
Louisiana law, of course, no longer denies African-Americans the right to vote through property requirements and educational qualifications. But Sarma contends that Louisiana prosecutors can still use peremptory strikes to exclude “otherwise-qualified African-Americans from serving on a jury. And, though the U.S. Constitution technically prohibits prosecutors from using peremptory strikes to purposely discriminate on the basis of race, the State has discovered that E.B. Kruttschnitt’s old trick still works in this context.”
That Kruttschnitt was a white supremacist isn’t conjecture. He left behind a raft of public statements that pretty much seal the deal. In a speech to open the second constitutional convention, Kruttschnitt stated that his goal was to cleanse Louisiana of folks he claimed “degraded our politics.” He said he wanted “to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.” Yikes.
Kruttschnitt was a prominent member of the state’s Democratic party, which ruled elections with an iron fist. The party was tested in the 1896 state elections by a coalition of Republican and Populist party foes known as the Fusion Party. The group of black and white farmers, along with wealthy sugar farmers who had felt the pinch of recession, united in an attempt to unseat Democratic governor Murphy J. Foster.
Massive violence was reported on election day in 1896. The democratically controlled state election commission reported a narrow Foster victory. Yet Populist party candidates, according to commission records, didn’t receive a single vote in many predominately black parishes. Something was wrong; either the commission tampered with the votes or blacks had been bulldozed into voting for Democrats. There were armed protests against the results.
Democrats hoped to take more control through the constitutional convention two years later. They were encouraged by a 1896 U.S. Supreme Court decision, Plessy v. Ferguson, that allowed for “separate but equal” treatment of races. It ushered in an era of legally enforced segregation.
In his speech to open the convention, Kruttschnitt made it sound as if he had benevolent intentions. He said he wanted to protect people who would later be denied the right to vote. He said the action was being taken in the belief that the State should protect “the weaker classes, should guard them against the machinations of those who would only use them to further their own base ends….We owe it to the ignorant, we owe it to the weak, to protect them just as we would protect a child.”
Open hearings were held by a committee of the constitutional convention to solicit changes to the state constitution. Kruttschnitt and Governor Foster visited the committee on February 24th in an attempt to influence its deliberations, according to Struggle for Mastery: Disfranchisement in the South 1888-1908. Author Michael Perman wrote that the pair would forcefully intervene at critical moments during the committee’s deliberations.
The committee recommended, and the convention ultimately accepted, that men or lineal descendants of men who were voters before 1867 should not have to meet the educational, property, or tax requirements for voting then in existence. This effectively allowed all white males to vote while denying the franchise to black men and other men of color. Also, those who had voted prior to the advent of Radical Reconstruction in 1867, or whose father or grandfather had so voted, were exempt from the requirements. This was the so-called grandfather clause.
The convention also established a literacy test for voters, which was waived if you owned property worth $300 or more. Voters had to be at least 21 years of age and have resided in the state for two years. And when you voted, you had to show your poll tax receipts from at least the two prior years.
When the committee’s plan reached the convention floor, Kruttschnitt kicked off the debate with a two-hour speech. He said that the committee’s proposal would “undo the greatest crime of the nineteenth century.” By this he was referring to the 15th Amendment to the U.S. Constitution that allowed black men to vote.
Two aspects of Kruttschnitt’s speech, according to Perman, were particularly interesting. The first was his defense of the committee’s rejection of voter registration enacted in 1897 and a requirement that voters pay a poll tax. The committee had seriously considered both measures before a visit from Kruttschnitt and Foster, after which they were set aside.
“The party chairman insisted that these provisions were objectionable because they would contribute to corruption and fraud. The small number of eligible voters clustered near the county seats in the rural districts would be preyed on by courthouse rings, and the poll taxes of urban voters would be paid by ward bosses. But Kruttschnitt kept the real reasons for opposing the measures to himself,” writes Perman, noting that Kruttschnitt was afraid registration would eliminate too many white voters on whom his party depended.
As for the poll tax, Perman wrote that “Foster had formed a close alliance with a political machine in New Orleans and wanted it to return to power over the Citizen’s League. John Fitzpatrick and his ward bosses adamantly opposed the poll tax because it threatened to eliminate the machine’s poor and working-class constituency, and the remedy of paying the tax for each voter was likely to be prohibitively expensive.”
The second intriguing aspect of the speech dealt with the plight of white voters. Kruttschnitt wanted to protect as many white votes as possible. In a previous speech to rally support for a convention, Kruttschnitt had held out hope that the convention could execute a plan that would “sacrifice the fewest number of white” voters, who, he was sure, would have “the patriotism to give up their citizenship to accomplish the results sought.”
He dismissed the “understanding clause” as inappropriate because it would encourage fraud among registrars in Louisiana, where the opposing party was strong enough to win control of the election machinery. “As the Democratic chairman was fully aware, the fusion alliance had probably won a majority of votes in 1896,” Perman wrote.
In his closing remarks, Kruttschnitt commented on the awkward franchise tests the convention had thought up. He noted that the new requirements had been harshly criticized by newspapers. “What care I whether it be more or less ridiculous or not. Doesn’t it let the white man vote, and doesn’t it stop the Negro from voting, and isn’t that what we came here for?”
The new voting requirements served their intended purpose. By 1890, only 5,320 blacks were registered to vote in Louisiana, compared to 130,344 in 1897. Kruttschnitt had predicted confidently during the election campaign of 1890 that as a result of the convention two years before, “the negro vote will not exceed 5,000.”