The following is the first in a series of guest posts by Travis Crum on the 150th anniversary of the 15th amendment:
The Fifteenth Amendment at 150
Travis Crum
On February 3, 2020, the Fifteenth Amendment celebrates its 150th anniversary. In the run-up to this sesquicentennial, I’ll be posting this week about the Fifteenth Amendment’s history and contemporary place in our constitutional system.
The final act in the trilogy of Reconstruction Amendments, the Fifteenth Amendment prohibits the “deni[al] or abridge[ment]” of the “right … to vote” “on account of race, color, or previous condition of servitude” and empowers Congress to “enforce” its provisions by “appropriate legislation.” The Fifteenth Amendment was a tectonic shift in political power and race relations. In less than a decade, the United States transformed itself from a slaveholding nation to a multi-racial democracy.
For much of its 150-year history, however, the Fifteenth Amendment was a parchment promise. Throughout the Jim Crow South, racist officials employed literacy tests, grandfather clauses, and poll taxes to disenfranchise black voters. Violence and intimidation also deterred blacks from going to the polls. It would take the sacrifices of the civil rights movement and the protections of the Voting Rights Act of 1965 to make the promise of the Fifteenth Amendment a reality in the modern era.
Perhaps because of this tragic history, the conventional narrative of Reconstruction treats the Fifteenth Amendment as an afterthought. Compared to the attention given to the other Reconstruction Amendments, the Fifteenth Amendment has been largely overlooked.
This historical omission is further compounded by the central role of the Fourteenth Amendment and the VRA in current doctrine. Unlike during Reconstruction, the Fourteenth Amendment is now interpreted to prohibit racial discrimination in voting. Indeed, the Court has construed the Equal Protection Clause to prohibit racial vote dilution—a technical term for what most people call gerrymandering—while repeatedly declining to decide whether the Fifteenth Amendment also prohibits such redistricting plans. And Section 2 of the VRA’s discriminatory-effects standard is broader than either the Fourteenth or Fifteenth Amendment standards and normally easier to prove in litigation than a constitutional claim. The Fifteenth Amendment is thus largely redundant.
So why should we care about the Fifteenth Amendment? Because there is substantial risk in relying on the Fourteenth Amendment as the primary guarantor of minority voting rights. While the Fourteenth Amendment’s scope was expanded in the early-to-mid twentieth century to prohibit racial discrimination in voting, its protections have contracted in recent decades. In particular, the Court has applied its colorblind vision of the Equal Protection Clause to the voting rights realm. Is so doing, the Court has called into question the constitutionality of race-based redistricting and Section 2’s discriminatory effects standard.
By contrast, the Court has neglected the Fifteenth Amendment. In addition to not deciding whether the Fifteenth Amendment proscribes vote dilution, the Court has left open whether the Fifteenth Amendment requires a showing of discriminatory intent. And with regards to enforcement authority, the Court has never applied Boerne’s congruence-and-proportionality standard to the Fifteenth Amendment—or any case involving race or voting—and the most on-point precedent remains Katzenbach’s deferential rationality standard. Congress, therefore, has a freer hand under the Fifteenth Amendment to pass enforcement legislation, like the VRA.
In my subsequent posts this week, I’ll elaborate on how there is ample space to rethink voting rights protections under a Fifteenth Amendment framework.