ARTICLE CONTENTS
INTRODUCTION 1043 I. THE RIGHTTO VOTE BEFORE THE FIFTEENTH AMENDMENT 1052 A. The Original Constitution 1052 B. The Fourteenth Amendment 1054 C. Federal Legislation 1057 1. Enfranchisement Statutes 1058 2. Fundamental Conditions 1060 D. State Voting Qualifications 1063 1. Advances and Setbacks in the States 1063 2. The Text of the Right to Vote 1066 II. THE DRAFTING OF THE FIFTEENTH AMENDMENT 1072 A. Contextualizing the Fifteenth Amendment 1073 1. The Reconstruction Framers' Motives 1074 2. The Status of Other Disenfranchised Groups 1076 3. The Georgia Officeholding Controversy 1078 4. Statutory vs. Constitutional Change 1079 B. The Congressional Debate 1080 1. Competing Versions of the Fifteenth Amendment 1080 2. The House's First Move 1083 3. The Senate's First Move 1087 4. The House Doubles Down 1097 5. The Senate Narrows the Amendment 1100 6. The House Does an About-Face 1103 7. The Conference Committee and Final Passage 1105 III. THE RATIFICATION OF THE FIFTEENTH AMENDMENT 1107 A. The Nationwide Debate 1108 B. The Debate in the States 1111 1. New England 1112 2. The Mid-Atlantic 1113 3. The Border States 1114 4. The South 1115 5. The Midwest 1115 6. The West 1116 7. The Ratifying Public 1117 C. Congressional Action 1119 IV. THE ORIGINAL UNDERSTANDING OF THE FIFTEENTH AMENDMENT 1124 A. Voting Qualifications 1127 1. Racial Proxies and Circumvention 1129 2. The Voting Rights of Chinese Immigrants and Irish 1134 Americans 3. Post-Reconstruction Applications 1136 B. Officeholding Requirements 1138 C. Reconstructing Democracy 1142 CONCLUSION 1145 APPENDIX A 1146 APPENDIX B 1151
INTRODUCTION
Ratified in 1870, the Fifteenth Amendment re-founded the United States as a multiracial democracy. (1) In guaranteeing that "[t]he right of citizens... 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," (2) the Fifteenth Amendment enfranchised Black men in seventeen Northern and Border States. (3) Although Black men in the South had already obtained the right to vote via the First Reconstruction Act, (4) the Fifteenth Amendment gave Congress novel enforcement authority to protect voting rights if--and, indeed, when--the newly readmitted Southern States started to backslide and disenfranchise Black men. (5)
Notwithstanding these momentous changes, the Fifteenth Amendment's most familiar legacy may be its flagrant disregard by the Southern States during Jim Crow. (6) The standard narrative is that the Fifteenth Amendment's narrow protections allowed Southern States to effectively nullify it with facially neutral--but discriminatory--schemes like grandfather clauses, literacy tests, and poll taxes. (7) This view echoes the critiques of Radical Republicans who presciently warned that such nefarious devices would be used to disenfranchise virtually all Black men. (8)
In part because of this tragic history, the Fifteenth Amendment is a scholarly afterthought. (9) The legal scholarship that substantially excavates the Fifteenth Amendment's drafting and ratification--the historical event most salient for constitutional interpretation--can be summarized in a lengthy footnote. (10) Indeed, most legal scholarship on the Fifteenth Amendment focuses on its enforcement during Reconstruction and its subsequent erasure during Jim Crow. (11) For their part, historians have examined the Fifteenth Amendment's adoption, but their inquiries concentrate on questions of motivation and causation rather than the /Amendment's original understanding. (12) To fully underscore the dearth of scholarship: the last full-length book on the Fifteenth Amendment was published in 1965. (13) Suffice to say, our nation has dramatically changed since then--and in no small part, as this Article demonstrates, due to the foundation laid by the Fifteenth Amendment for the constitutionality of the Voting Rights Act of 1965 (VRA).
In a similar vein, the Fifteenth Amendment is doctrinally underdeveloped. (14) The Supreme Court has repeatedly refused to answer core questions about the Fifteenth Amendment, such as whether it applies to racial vote dilution. (15) In some ways, this doctrinal agnosticism is unsurprising, as the Fifteenth Amendment's protections have been subsumed by the Equal Protection Clause and most cases are now litigated under the VRA. (16) However, the Court's reliance on the Equal Protection Clause to protect against racial discrimination in voting is deeply ahistorical. (17) After all, the Reconstruction Framers added the Fifteenth Amendment to the Constitution because Section One of the Fourteenth Amendment was originally understood to encompass civil--but not political--rights. (18)
This historical amnesia and doctrinal uncertainty surrounding the Fifteenth Amendment are particularly problematic for two related reasons. First, given the disrespect for precedent and the ascendance of originalism on the Supreme Court, constitutional law is facing revolutionary changes based on what a constitutional provision was originally understood to mean. (19) Originalist claims are contingent on the completeness of the historical record, and yet we know shockingly little about the Fifteenth Amendment's context and adoption.
Second, the Supreme Court's originalist impulses and its colorblind doctrine are in significant tension. Section 2 of the VRA is a "permanent, nationwide ban on racial discrimination in voting" (20) that mandates the consideration of race in the redistricting process and requires the creation of majority-minority districts in certain circumstances. (21) But in the Shaw line of cases, the Court held that the Equal Protection Clause subjects race-based redistricting to strict scrutiny. (22) Thus, the Court's colorblind vision of the Fourteenth Amendment is on a collision course with the VRA. (23) Bringing these two threads together: if one starts from an originalist perspective, the Fifteenth Amendment--not the Equal Protection Clause--is the firmest constitutional foundation for the VRA's constitutionality, and knowing more about the Fifteenth Amendment's original understanding will help bolster the VRA's constitutionality.
The Supreme Court's recent decision in Allen v. Milligan (24) has ameliorated but not fully resolved the constitutional concerns surrounding the VRA. In Milligan, plaintiffs brought a Section 2 challenge against Alabama's congressional redistricting plan, in which only one out of seven districts was majority Black notwithstanding a population that is twenty-seven percent Black. The three-judge district court enjoined the use of that map for the 2022 midterm election. (25) The Supreme Court stayed that decision--thereby signaling that it was likely to reverse--and put the case on its merits docket. (26) At the merits stage, Alabama argued, inter alia, that Section 2 should not apply to single-member redistricting plans due to constitutional-avoidance concerns. (27) In an illustrative example of how far afield contemporary doctrine has drifted from the original meaning of the Reconstruction Amendments, Alabama's argument--which was pitched at the purportedly originalist Justices--focused on the Shaw line of cases and asserted that the Equal Protection Clause prohibits race-based districting, (28) even though that Clause was originally understood to not even apply to voting rights. (29)
In a 5-4 decision, the Milligan Court rejected "Alabama's attempt to remake ... [section] 2 jurisprudence anew." (30) In so holding, the Court made clear that, under existing precedent, Section 2 did not raise constitutional-avoidance concerns. (31) But therein lies the rub: the Milligan Court's analysis was tied to existing precedent, which Alabama, for all its bluster, did not seek to overturn outright. (32) In addition, Justice Kavanaugh refused to join part of the Court's opinion discussing the role of race in redistricting. (33) More ominously, Kavanaugh authored a separate concurrence in which he suggested he may agree with Justice Thomas's claim that, "even if Congress in 1982 could constitutionally authorize race-based redistricting under [section] 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future" (34) A "Alabama did not raise that temporal argument," Kavanaugh declined to "consider it at this time." (35) Unsurprisingly, that "temporal argument" is already being raised in ongoing Section 2 litigation. (36)
An unabridged account of the Fifteenth Amendment's text, history, and purpose is necessary not only to complete the historical narrative but also to critique the Court's application of colorblind Fourteenth Amendment principles to what should be considered Fifteenth Amendment cases. This Article is part of a larger project that treats the Fifteenth Amendment as an independent constitutional provision. In previous work, I have examined why the Fifteenth Amendment was passed as a constitutional amendment rather than an ordinary statute and argued that the Reconstruction Era distinction between civil and political rights militates in favor of Congress having a broad and independent enforcement power under Section Two of the Fifteenth Amendment. (37) In addition, I have excavated the role of racially polarized voting in the Fifteenth Amendment's adoption and claimed that this historical context undercuts the Court's colorblind approach to voting-rights cases. (38) And finally, I have examined the procedural irregularities associated with the Fifteenth Amendment's adoption, situating it within the broader scholarly debate about the constitutional significance and lawfulness of Reconstruction. (39) This Article continues along the same path and focuses on the substantive debates surrounding the Fifteenth Amendment's drafting and ratification.
This Article's claims and contributions are primarily descriptive and historical...
