The Unabridged Fifteenth Amendment
abstract. In the legal histories of Reconstruction, the Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the Voting Rights Act of 1965. This Article helps to complete the historical record, providing 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. It then dives into the congressional debate, cataloging every version of the Amendment that was voted on. Next, this Article turns to the ratification debate, an intense partisan affair that culminated in Congress compelling four Southern States’ ratification as part of their readmission to the Union.
Uncovering the Fifteenth Amendment’s past has important implications for today’s doctrinal questions. This Article, however, does not focus on answering those questions, but instead centers 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—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; the Fifteenth Amendment 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 to embrace the idea that the right to vote is preservative of all other rights.
author. Associate Professor of Law, Washington University in St. Louis. For helpful comments and conversations, I thank Akhil Amar, Jack Balkin, David Bernstein, Wilfred Codrington, Tom Colby, Adrienne Davis, Dan Epps, Chad Flanders, Heather Gerken, Mark Graber, Stephen Griffin, Rick Hasen, Elizabeth Katz, Sandy Levinson, Greg Magarian, Earl Maltz, Michael Olson, Arin Smith, and Franita Tolson, as well as participants at the 2023 Harvard/Stanford/Yale Junior Faculty Forum, the Loyola University Chicago Constitutional Law Colloquium, the WashU Workshop on Politics, Ethics, and Society, and faculty workshops at George Washington University Law School and Washington University in St. Louis. I also thank Dominique Alvarado-Holden, Macy Cecil, Caitlin Hawkins, and Julian Scott for excellent research assistance and Olu Oisaghie, Karina Shah, Dena Shata, and Jordan Thomas at the Yale Law Journal for their constructive suggestions.
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. Milligan24 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 . . . § 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 § 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.”34 As “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. Instead of concentrating on today’s doctrinal disputes,40 this Article answers questions that were pressing during Reconstruction. During the lame-duck Fortieth Congress, the Reconstruction Framers coalesced around the goal of enfranchising Black men nationwide. First and foremost, the Fifteenth Amendment was unambiguously intended to accomplish that goal. But the Reconstruction Framers were deeply divided over subsidiary questions: whether the Amendment could be circumvented with facially neutral voting qualifications that were intended to disproportionately impact Black men, whether it mandated the enfranchisement of Irish Americans and Chinese immigrants, and whether the right to hold office was protected. Even after the Amendment passed Congress, the ratifying public continued to debate the metes and bounds of the Amendment’s language.
In answering these questions, this Article delves deeper into the history than prior scholarship. For instance, this Article contextualizes the Fifteenth Amendment’s language within the broader constellation of state and federal laws that enfranchised—and disenfranchised—Black men during Reconstruction.41 I am aware of no other study of the Fifteenth Amendment that contrasts its text with the entire universe of state and federal suffrage laws. In addition, this Article provides a thorough timeline and draft language of every version of the Fifteenth Amendment voted on by the House or the Senate.42 This Article also uncovers debates indicating that the Reconstruction Framers understood that the right to vote was exercised not just individually but also collectively.43
As this Article demonstrates, the Fifteenth Amendment was originally understood to apply to all races and to prohibit discriminatory schemes that relied on racial proxies—that is, employing a close stand-in for race, such as ancestry, rather than facially discriminating on the basis of race. The Fifteenth Amendment similarly forbids the discriminatory application of facially neutral laws. As the Amendment contains the sole use of the word “race” in the Constitution, the debates over what qualifies as racial discrimination under the Fifteenth Amendment are instructive for the Fourteenth Amendment as well. Moreover, the Fifteenth Amendment’s historical context and purpose indicate that the right to hold federal office could not be contingent on a racial classification and, admittedly less clearly, that the right to hold state office was encompassed within the Amendment’s protections for the right to vote. This Article briefly concludes by arguing that the Radical Republican ideas animating the Fifteenth Amendment transformed our Constitution’s conception of democratic governance.
A few clarifications about what is outside this Article’s scope. This Article does not dwell on the primarily political—as opposed to legal—arguments made by Democrats against the Fifteenth Amendment, such as their racist attacks on Black Americans and their claim that Republicans had reneged on their 1868 party platform’s promise that “the question of suffrage in all the loyal States properly belongs to the people of those States.”44 Nor does this Article focus on the procedural obstacles that Democrats attempted to erect, such as a requirement that only state legislatures elected after the Fifteenth Amendment’s passage in Congress could ratify it.45 And as I have covered in detail elsewhere, this Article does not discuss the various irregularities concerning the Fifteenth Amendment’s adoption and whether Article V’s requirements of passage by two-thirds of Congress and ratification by three-fourths of the States were, in fact, satisfied.46 Finally, this Article only cursorily addresses the impact of the Fourteenth and Fifteenth Amendments on the women’s suffrage movement, as historians have amply covered this topic as a prelude to the Nineteenth Amendment.47
In providing an unabridged account of the Fifteenth
Amendment’s adoption, this Article proceeds as follows. Part I examines the
status of Black men’s right to vote prior to the Fifteenth Amendment. Part II
excavates the drafting of the Fifteenth Amendment in the Fortieth Congress.
Part III canvases the ratification debate in the States. Part IV answers the
Reconstruction Era debates over the Fifteenth Amendment’s scope and expounds on
its normative implications for constitutional
law.48