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Excerpted From: Travis Crum, The Superfluous Fifteenth Amendment?, 114 Northwestern University Law Review 1549 (2020) (541 Footnotes) (Full Document)


TravisCrumThe Fifteenth Amendment lives in the Fourteenth Amendment's shadow. The Supreme Court expansively interprets the Fourteenth Amendment to prohibit a wide range of racial discrimination in voting. By contrast, the Court has failed to clarify the Fifteenth Amendment's scope in voting rights cases. Contemporary doctrine thus treats the Fourteenth Amendment as the font for voting rights, whereas the Fifteenth Amendment is a constitutional afterthought--a superfluous amendment.

There is an irony here. Despite its broad language, the Fourteenth Amendment was originally understood by the Reconstruction generation to not encompass the right to vote. As the second Justice Harlan once remarked, the Fifteenth Amendment's existence “alone is evidence that [Congress] did not understand the Fourteenth Amendment to have” “extend[ed] the suffrage.”

Passed by the lame-duck Fortieth Congress in 1869 and ratified by the states in 1870, the Fifteenth Amendment was the final act in the trilogy of Reconstruction Amendments. Its broad prohibition of racial discrimination in voting and its clause empowering “Congress ... to enforce [its provisions] by appropriate legislation” represent the crowning achievement of Reconstruction. In less than a decade, the United States fought a bloody Civil War to preserve the Union and transformed itself from a slaveholding nation to a multiracial democracy.

This Article aims to bring the Fifteenth Amendment out of the shadows--an endeavor particularly appropriate given that this year marks the Amendment's 150th anniversary. This Article argues that the Reconstruction Framers' deliberate decision to pass the Fifteenth Amendment as an amendment-- as opposed to a statute--provides a powerful reason for differentiating between the Reconstruction Amendments. In particular, this decision sheds light on the scope of Congress's Fourteenth and Fifteenth Amendment enforcement authorities and provides a historical and textual basis for differentiating between them, namely, the civil versus political rights divide.

In making this claim, this Article highlights an unappreciated debate--which I call the Article V debate--in the lame-duck Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. To underscore that debate's importance, this Article asks a deceptively complicated question: Why did Congress pass the Fifteenth Amendment instead of the Voting Rights Act of 1869?

Given our contemporary understanding of the Fourteenth Amendment, this is a difficult question. By the time the Fifteenth Amendment was sent to the states for ratification, Congress had already passed legislation enfranchising Blacks in the District of Columbia, the federal territories, and the Reconstructed South. Blacks, however, remained disenfranchised in several Northern and Border States. The Reconstruction Framers--all of whom were Republicans-- backed nationwide black suffrage as both morally imperative and politically expedient given the expected support of newly enfranchised black voters. If the Court's current doctrine accurately reflects the Reconstruction Framers' understanding of the Fourteenth Amendment, the Fortieth Congress would have been well within its newly established enforcement authority to enact a nationwide black suffrage statute.

One potential answer is that the Fifteenth Amendment is an entrenchment device. Given the Fourteenth Amendment's lack of explicit language protecting the right to vote, and the possibility that a nationwide suffrage statute could be repealed by a future Congress or struck down by a hostile Supreme Court, a suffrage amendment makes perfect sense. An amendment would also prevent the readmitted Southern States from disenfranchising Blacks at the first opportunity.

But this narrative only explains why there is a Fifteenth Amendment. A suffrage statute would have needed only two-thirds of both houses of Congress to overcome the inevitable veto by President Andrew Johnson, and would not have needed to overcome Article V's additional requirement of ratification by three-fourths of the states. Thus, the Reconstruction Congress could have first passed legislation enfranchising Blacks in the Border States and the North and then relied on this newly empowered and loyal voter base to help ratify the Fifteenth Amendment. Moreover, the statute-amendment two-step had already proven successful during Reconstruction: the Civil Rights Act of 1866 is rightly viewed as the statutory predecessor of the Fourteenth Amendment. Given these political realities, why did Congress not follow the path already taken by the passage of the Civil Rights Act of 1866 and the subsequent ratification of the Fourteenth Amendment?

This inquiry is not merely hypothetical. The first substantive discussions about nationwide black suffrage in the lame-duck Fortieth Congress explicitly addressed whether Congress could and should enact a statute regulating voting rights in the states. In fact, the Radical Republicans' initial proposal included both a suffrage statute and an amendment. Congress, however, ultimately rejected the statutory option and chose to pass a constitutional amendment via Article V.

An examination of the motives and actions of the Reconstruction Framers reveals two explanations for that choice: one constitutional, one political. Turning first to the Constitution, moderate Republicans believed that Congress lacked authority to impose voting qualifications on the states under the Fourteenth Amendment. Put simply, the Fortieth Congress did not believe it had the power to enforce civil rights by expanding the right to vote. This logic may seem alien today, but the Fortieth Congress's actions comport with Reconstruction-era views of citizenship and the hierarchy of rights. Under prevailing Republican ideology, civil and political rights were conceptualized as distinct spheres and the Fourteenth Amendment guaranteed civil rights but not political rights. Given this understanding of the Fourteenth Amendment, it is unsurprising that, prior to the Fifteenth Amendment, Congress limited suffrage legislation to areas of federal control and never imposed suffrage requirements on the states.

On the political front, Republicans were constrained by their prior positions. During the Fourteenth Amendment ratification debates, “[m]oderate Republicans feared they could not sell the equal-suffrage idea in the North, where white bigotry remained a stubborn fact of life.” The Republicans' campaign to ratify the Fourteenth Amendment thus contained a crucial promise: the Amendment would not mandate voting rights for Blacks. Despite this pledge, Radical Republicans--most prominently Representative George Boutwell and Senator Charles Sumner--later advocated for a suffrage statute. The moderate wing of the party, however, concluded that an amendment was the only politically viable option and scuttled the Radicals' attempt to pass a suffrage statute.

Unfortunately, this history has been virtually forgotten. Partly because of this constitutional amnesia, the Fifteenth Amendment is missing from current doctrine. One could read the U.S. Reports and conclude that the Fifteenth Amendment was superfluous; the Fourteenth Amendment provides the same--indeed, even greater and more defined--protections against racial discrimination in voting than the Fifteenth Amendment.

But there is risk in relying solely on the Fourteenth Amendment as the guarantor of minority voting rights. While the Fourteenth Amendment's scope was expanded to encompass voting rights during the twentieth century, its protections have been weakened in recent decades. The Court's penchant for a colorblind Fourteenth Amendment, for example, has drawn into question the constitutionality of majority-minority districts. Moreover, in City of Boerne v. Flores, the Court substantially curbed Congress's Fourteenth Amendment enforcement authority. These doctrinal shifts have contributed to the invalidation of the VRA's coverage formula and could spell trouble for the constitutionality of Sections 2 and 3(c) of the VRA.

As the Court established a colorblindness regime in antidiscrimination law and cut back on Congress's Fourteenth Amendment enforcement authority, it neglected the Fifteenth Amendment. That neglect, in some ways, is benign, as it has left undefined an area of doctrine upon which courts can now expand. Reinvigorating the constitutional legacy and protections of the Fifteenth Amendment could thus provide a powerful response to the Court's recent Fourteenth Amendment jurisprudence and help preserve the VRA.

By showing that the Fifteenth Amendment is not superfluous, this Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. Indeed, the Reconstruction-era distinction between civil and political rights continues to have relevance today, particularly for Congress's enforcement authority. As a first step in this new conversation, this Article claims that Congress's Fifteenth Amendment enforcement authority is distinct from--and broader under current doctrine than--its Fourteenth Amendment authority. The Article V debate further provides a persuasive reason for overturning Boerne's congruence and proportionality test or, at a minimum, cabining it to the Fourteenth Amendment. This doctrinal change would give Congress far more leeway in passing voting rights legislation.

This Article makes several contributions to the field. First, it provides an unprecedented account of the Article V debate over the Fifteenth Amendment, which, unlike the Civil Rights Act of 1866 and the Fourteenth Amendment, has received scant attention in the literature. Second, as one of the first opportunities for Congress to interpret the Fourteenth Amendment after its ratification, the Article V debate provides valuable insights into the Reconstruction-era understanding of the Fourteenth and Fifteenth Amendments. Third, and relatedly, the Article V debate shows that the substantive scopes and enforcement authorities of the Reconstruction Amendments can be analytically distinguished: the Fourteenth Amendment safeguards civil rights and the Fifteenth Amendment preserves political rights. Finally, this Article argues that Congress's Fifteenth Amendment enforcement authority should be governed by the deferential standard articulated in McCulloch v. Maryland and South Carolina v. Katzenbach. If the Court were to follow the original understanding of Congress's Fifteenth Amendment enforcement authority, the VRA would be on far firmer constitutional ground.

This Article proceeds as follows.

Part I provides an overview of current doctrine on the Fourteenth and Fifteenth Amendments' substantive scopes as well as their enforcement authorities.

Part II canvasses the Reconstruction-era understanding of the Fourteenth Amendment's application to voting rights.

Part III examines the expansion of black suffrage from 1865 to 1869 and then analyzes the Article V debate in the lame-duck Fortieth Congress.

Part IV discusses the historical, normative, and doctrinal significance of the Article V debate and shows how these insights help insulate the VRA from constitutional challenge.

[. . .]

The Supreme Court has declared that “[t]he Fifteenth Amendment has independent meaning and force.” But on the Fifteenth Amendment's sesquicentennial, the Court's doctrine belies that grand statement. By examining why the Fortieth Congress passed the Fifteenth Amendment instead of a Voting Rights Act of 1869, this Article has taken the first step toward reconceptualizing the Fifteenth Amendment as a truly independent constitutional provision. The Article V debate problematizes the Court's current doctrine in numerous ways, perhaps most significantly in the realm of enforcement authority. The doctrinal upshot of the Article V debate is that Katzenbach's rationality standard should apply to nationwide statutes--such as Sections 2 and 3(c) of the VRA--that are enacted pursuant to Congress's Fifteenth Amendment enforcement authority.

Travis Crum is a Bigelow Fellow and Lecturer in Law, University of Chicago Law School; Associate Professor of Law, Washington University in St. Louis (effective July 1, 2020).

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