Crum: Originalism, Colorblindness, and the Fifteenth Amendment

The following is the third in a series of guest posts by Travis Crum on the 150th anniversary of the 15th amendment:

Any project to revive a constitutional provision must confront originalism’s hold on today’s Court. Originalist arguments play a central role in nearly every constitutional case. And today, Justice Thomas is the Court’s most prominent originalist and a leading voice in election law cases.

Thomas is also the Court’s most prolific norm entrepreneur, authoring numerous separate opinions questioning longstanding doctrines on originalist grounds. To take a few examples: Thomas has rejected the legitimacy of the administrative state, challenged the actual-malice standard in defamation cases, and called Gideon into doubt. In the field of election law, Thomas recently questioned the one-person, one-vote principle because the “Constitution does not prescribe any one basis for apportionment within States.”

But Thomas has been inconsistent in how he approaches election law cases. Thomas is an ardent defender of Shaw’s cause of action against racial gerrymandering. As he once commented, there can be no “exempting intentional race-based redistricting from our well-established Fourteenth Amendment standard” of applying strict scrutiny to race-based governmental decision-making.

Shaw is an awkward doctrine for a staunch originalist. Shaw is premised on the Equal Protection Clause, even though the Fourteenth Amendment was originally understood to exclude protections for voting rights. After all, that’s why we have a Fifteenth Amendment. So on the one hand, Thomas believes that the Fourteenth Amendment cannot be invoked to govern malapportionment claims because it is silent on such questions and judges are ill-equipped to make such an inherently political choice. But on the other hand, Thomas has mechanically applied his colorblind vision of the Fourteenth Amendment to what should be considered Fifteenth Amendment cases under his originalist framework.

Thomas has also taken a glaringly un-originalist tact in cases involving Congress’s Reconstruction Amendment enforcement authority. Boerne’s congruence-and-proportionality test has been roundly criticized on originalist grounds for ignoring the Reconstruction Congress’s clear desire to adopt McCulloch’s rationality standard. Unlike Justice Scalia, who ultimately renounced Boerne, Thomas continues to rely onit. Indeed, Thomas invoked Boerne in his separate opinion in Northwest Austin, arguing that Section 5’s preclearance provision should be invalidated.

For a Justice who claims to strive for consistency and rejects the principle of stare decisis, Thomas’s continued adherence to Shaw and Boerne appears to be—pardon the pun—gerrymandered. Indeed, a supposed virtue of originalism is its ability to constrain judges and keep their decisions tied to the original understanding of a constitutional provision. Yet in stark contrast to his usual willingness to question precedent, Thomas has stayed mum and applied colorblind principles to voting rights cases for his nearly thirty years on the Court.

By taking the Fifteenth Amendment seriously as an independent constitutional provision, the inconsistent application of originalism becomes apparent and the colorblind constitution is revealed to be a normative preference masquerading as a historical norm. As my post yesterday demonstrated, the Reconstruction Framers distinguished between civil and political rights, but originalists on the Court have not offered any historical explanation for why a doctrine developed to govern civil rights should apply to political rights. And as my post tomorrow will argue, the colorblind approach misreads the history of the Fifteenth Amendment’s passage and ratification.

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