A grandfather clause, also known as grandfather policy, grandfathering, or grandfathered in, is a provision in which an old rule continues to apply to some existing situations while a new rule will apply to all future cases. Those exempt from the new rule are said to have grandfather rights or acquired rights, or to have been grandfathered in. Frequently, the exemption is limited, as it may extend for a set time, or it may be lost under certain circumstances; for example, a grandfathered power plant might be exempt from new, more restrictive pollution laws, but the exception may be revoked and the new rules would apply if the plant were expanded. Often, such a provision is used as a compromise or out of practicality, to allow new rules to be enacted without upsetting a well-established logistical or political situation. This extends the idea of a rule not being retroactively applied.
The term originated in late nineteenth-century legislation and constitutional amendments passed by a number of Southern U.S. states, which created new requirements for literacy tests, payment of poll taxes and residency and property restrictions to register to vote. States in some cases exempted those whose ancestors (i.e., grandfathers) had the right to vote before the American Civil War or as of a particular date from such requirements. The intent and effect of such rules was to prevent former African-American enslaved persons and their descendants from voting but without denying poor and illiterate whites the right to vote.[1] Although these original grandfather clauses were eventually ruled unconstitutional, the terms grandfather clause and grandfather have been adapted to other uses.
The original grandfather clauses were contained in new state constitutions and Jim Crow laws passed between 1890 and 1908 by white-dominated state legislatures including Alabama, Georgia, Louisiana, North Carolina, Oklahoma, and Virginia.[2] They restricted voter registration, effectively preventing African Americans from voting.[3] Racial restrictions on voting in place before 1870 were nullified by the Fifteenth Amendment.
After Democrats took control of state legislatures again before and after the Compromise of 1877, they began to work to restrict the ability of blacks to vote. Paramilitary groups such as the White League, Red Shirts, and rifle clubs had intimidated blacks or barred them from the polls in numerous elections before what they called the Redemption (restoration of white supremacy). Nonetheless, a coalition of Populists and Republicans in fusion tickets in the 1880s and 1890s gained some seats and won some governor positions. To prevent such coalitions in the future, the Democrats wanted to exclude freedmen and other blacks from voting; in some states they also restricted poor whites to avoid biracial coalitions.
White Democrats developed statutes and passed new constitutions creating restrictive voter registration rules. Examples included imposition of poll taxes and residency and literacy tests. An exemption to such requirements was made for all persons allowed to vote before the American Civil War, and any of their descendants. The term grandfather clause arose from the fact that the laws tied the then-current generation's voting rights to those of their grandfathers. According to Black's Law Dictionary, some Southern states adopted constitutional provisions exempting from the literacy requirements descendants of those who fought in the army or navy of the United States or of the Confederate States during a time of war.
After the U.S. Supreme Court found such provisions unconstitutional in Guinn v. United States (1915), states were forced to stop using the grandfather clauses to provide exemption to literacy tests. Without the grandfather clauses, tens of thousands of poor Southern whites were disenfranchised in the early 20th century. As decades passed, Southern states tended to expand the franchise for poor whites, but most blacks could not vote until after passage of the 1965 Voting Rights Act.[4] Ratification in 1964 of the Twenty-fourth Amendment to the United States Constitution prohibited the use of poll taxes in federal elections, but some states continued to use them in state elections.
The 1965 Voting Rights Act had provisions to protect voter registration and access to elections, with federal enforcement and supervision where necessary. In 1966, the Supreme Court ruled in Harper v. Virginia Board of Elections that poll taxes could not be used in any elections. This secured the franchise for most citizens, and voter registration and turnout climbed dramatically in Southern states.
Other contextsThere is also a rather different, older type of grandfather clause, perhaps more properly a grandfather principle in which a government blots out transactions of the recent past, usually those of a predecessor government. The modern analogue may be repudiating public debt, but the original was Henry II's principle, preserved in many of his judgments, "Let it be as it was on the day of my grandfather's death", a principle by which he repudiated all the royal grants that had been made in the previous 19 years under King Stephen.[5]
 People aren't exempted from new regulations because they're old and crotchety, even if that's what it sounds like when we say they're "grandfathered in." The term "grandfathered" has become part of the language. It's an easy way to describe individuals or companies who get to keep operating under an existing set of expectations when new rules are put in place. The troubled HealthCare.gov website reassures consumers that they can stay enrolled in grandfathered insurance plans that existed before the Affordable Care Act was enacted in 2010. Old power plants are sometimes grandfathered from having to meet new clean air requirements. But like so many things, the term "grandfather," used in this way, has its roots in America's racial history. It entered the lexicon not just because it suggests something old, but because of a specific set of 19th century laws regulating voting. The 15th Amendment, which prohibited racial discrimination in voting, was ratified by the states in 1870. If you know your history, you'll realize that African-Americans were nevertheless kept from voting in large numbers in Southern states for nearly a century more. Various states created requirements — literacy tests and poll taxes and constitutional quizzes — that were designed to keep blacks from registering to vote. But many poor Southern whites were at risk of also losing their rights because they could not have met such expectations. "If all these white people are going to be noncitizens along with blacks, the idea is going to lose a lot of support," says James Smethurst, who teaches African-American studies at the University of Massachusetts. The solution? A half-dozen states passed laws that made men eligible to vote if they had been able to vote before African-Americans were given the franchise (generally, 1867), or if they were the lineal descendants of voters back then. This was called the grandfather clause. Most such laws were enacted in the early 1890s. "The grandfather clause is actually not a means of disenfranchising anybody," says Michael Klarman, a Harvard law professor. "It was a means of enfranchising whites who might have been excluded by things like literacy clauses. It was politically necessary, because otherwise you'd have too much opposition from poor whites who would have been disenfranchised." But protecting whites from restrictions meant to apply to African-Americans was obviously another form of discrimination itself. "Because of the 15th Amendment, you can't pass laws saying blacks can't vote, which is what they wanted to do," says Eric Foner, a Columbia University historian. "But the 15th Amendment allowed restrictions that were nonracial. This was pretty prima facie a way to allow whites to vote, and not blacks." Some state legislatures enacted grandfather clauses despite knowing they couldn't pass constitutional muster. The Louisiana state constitutional convention adopted a grandfather clause even though one of the state's own U.S. senators warned it would be "grossly unconstitutional." For that reason, nearly every state put a time limit on their grandfather clauses. They hoped to get whites registered before these laws could be challenged in court. "Once you've got people removed from the rolls, it becomes less necessary," Smethurst says. "The white people are on the rolls, and the black people are not." African-Americans typically lacked the financial resources to file suit. The NAACP, founded in 1909, persuaded a U.S. attorney to challenge Oklahoma's grandfather clause, which had been enacted in 1910. Of the more than 55,000 blacks who were in Oklahoma in 1900, only 57 came from states that had permitted African-Americans to vote in 1867, according to Klarman's book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. In 1915, the Supreme Court ruled unanimously in Guinn v. United States that grandfather clauses were unconstitutional. The court in those days upheld any number of segregationist laws — and even in Guinn specified that literacy tests untethered from grandfather clauses were OK. The justices were concerned that the grandfather clause was not only discriminatory but a clear attempt by a state to nullify the federal Constitution. It "was so obvious an evasion that the Supreme Court could not have failed to declare it unconstitutional," The Washington Post wrote at the time. The decision had almost no effect, however. The Oklahoma Legislature met in special session to grandfather in the grandfather clause. The new law said those who had been registered in 1914 — whites under the old system — were automatically registered to vote, while African-Americans could only register between April 30 and May 11, 1916, or forever be disenfranchised. That law stayed on the books until a Supreme Court ruling in 1939. The intent of the grandfather clause, however, was not strictly to placate some whites while discriminating against blacks, says Spencer Overton, author of Stealing Democracy: The New Politics of Voter Suppression. It was also about power. In that era, most African-Americans voted Republican, the party of Abraham Lincoln. "The whole objective of excluding African-Americans was not just white supremacy," Overton says. "It was, 'We're Democrats; they're Republicans; and we're going to exclude them.' I'm not saying there weren't racial overtones, but there were significant partisan overtones as well." The same trick had been used against white immigrants in the Northeast. It's worth remembering that Massachusetts and Connecticut were the first states to impose literacy tests, in hopes of keeping immigrants — who often supported Democrats in a largely Republican region — from voting. At least one grandfather clause in the South was based on a Massachusetts statute from 1857, says Overton, who teaches law at George Washington University. Perhaps it's because the grandfather clause was not solely about race — and because it was banned a century ago — most people use the term "grandfathered in" and never realize it once had racial connotations. "This term 'grandfather' has been kind of deracialized," Overton says. "It's really a very convenient, shorthand term. We probably would not be as comfortable with using it if we associated it with grandfather clauses in the past and poll taxes and things like that." |
After the Civil War the grandfather clause was used to ensure that
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