Travis Crum (Washington University in St. Louis--School of Law) has posted The Unabridged Fifteenth Amendment (133 Yale Law Journal, (2023 Forthcoming)) on SSRN. Here is the abstract:
In the legal histories of Reconstruction, the Fifteenth Amendment’s drafting and ratification is an afterthought compared to the Fourteenth Amendment. This oversight is perplexing given that the Fifteenth Amendment ushered in a brief period of multi-racial democracy and laid the constitutional foundation for the Voting Rights Act of 1965. This Article helps to complete the historical record and provides a thorough accounting of the Fifteenth Amendment’s text, history, and purpose.
This Article situates the Fifteenth Amendment within the broad array of constitutional provisions, federal statutes, fundamental conditions, and state laws that enfranchised—and disenfranchised—Black men during Reconstruction. This Article then performs a deep dive into the congressional debate, cataloguing every version of the Amendment that was voted on. It next turns to the ratification debate, an intense partisan affair that culminated in Congress compelling four Southern States’ ratification as part of their re-admission to the Union.
Rather than answer today’s doctrinal questions, this Article’s focus is on the issues debated by the ratifying generation. The Reconstruction Framers were united in their goal of enfranchising Black men nationwide, but they were deeply divided over how best to achieve that goal and whether other disenfranchised groups—such as women, Irish Americans, and Chinese immigrants—should be covered by the Amendment as well. In addition, the Reconstruction Framers debated whether and how the Amendment could be circumvented and whether officeholding should be explicitly protected.
This Article argues that the Fifteenth Amendment’s original understanding went beyond forbidding facially discriminatory voting qualifications; it also prohibited the use of racial proxies and, albeit less clearly, protected the right to hold office. But more fundamentally, the Fifteenth Amendment rejected the original Constitution’s theory of democracy, which delegated to States the authority to decide who deserved the franchise based on whether they had a sufficient stake in the community or their interests were virtually represented. In short, the Fifteenth Amendment is the first constitutional provision that embraced the idea that the right to vote is preservative of all other rights.
And from the article:
To sum up, my claim is not that the original intent or original expected application of the Fifteenth Amendment was to invalidate facially non- discriminatory schemes. Rather, my argument is that the Reconstruction Framers’ understanding of the group-based nature of the right to vote and the meaning of terms like “abridge” and “race” prohibit schemes that are facially neutral as to race but nonetheless employ racial proxies. As such, the original public meaning of the Fifteenth Amendment is broad enough to capture facially non-discriminatory schemes that are intended to discriminate using racial proxies. Thus, the original public meaning of the Fifteenth Amendment is more capacious than the Framers’ narrow goal of enfranchising Black men nationwide.
Highly recommended.
