Tomorrow, the Supreme Court will hold a rare re-argument in Louisiana v. Callais on whether Section 2 of the VRA is unconstitutional as applied to redistricting. I’ve filed an amicus brief arguing that Shaw should be overturned—a point that my co-contributor Ned Foley recently agreed with on SCOTUSBlog. I will not rehash my amicus brief’s arguments against Shaw, which I have also made in my scholarship.

Here, I want to address the thorny question of the necessity of sunset provisions in statutes enacted pursuant to Congress’s Reconstruction Amendment enforcement authority. This claim popped up in Justice Kavanaugh’s concurrence and Justice Thomas’s dissent in Milligan. Similar versions appeared in SFFA and Shelby County. In my view, sunset provisions are not required under the original understanding of Congress’s Fifteenth Amendment enforcement authority.

One major reason that sunset clauses became the touchstone in this area of law is that Sections 4 and 5 of the VRA were time limited. The first preclearance regime was meant to last for five years. That wasn’t enough time to overcome nearly a century of disenfranchisement, so Congress reauthorized the preclearance regime in 1970, 1975, 1982, and 2006. It made perfect sense for the Court, in upholding the first four iterations of the preclearance regime, to note its temporary character. And when Justice Kennedy—who was not an originalist—announced Boerne’s congruence and proportionality test, he pointed to the VRA’s sunset provisions as evidence of a statute’s constitutionality.

Against this doctrinal backdrop, Pam Karlan explained back in the 1990s how Section 2 has a built-in expiration date. I agree with Karlan, but I would go farther. Put bluntly, the Court has confused a voluntary feature that Congress included in its most aggressive Fifteenth Amendment enforcement legislation with a requirement that must appear in all such statutes.

For an originalist Court pushing this temporal-limit theory, there is a deep irony. The Reconstruction Framers had two central motivations in ratifying the Fifteenth Amendment. The first was to enfranchise Black men in Northern and Border States. The second—and more relevant here—was to preserve congressional power over the Southern States after they were re-admitted to the Union. Congress had imposed fundamental conditions on the Southern States, but the enforceability and legality of those conditions was fiercely contested even in theRepublican Party. And prior to the Fifteenth Amendment, Congress lacked authority to regulate voting rights in the States. Thus, the Fifteenth Amendment was entrenched in the Constitution to create and maintain congressional power against States in perpetuity. Tellingly, the Reconstruction Congress’s Fifteenth Amendment enforcement legislation did not contain expiration dates. The Reconstruction Framers did not envision any temporal limit to their authority.

Indeed, to the extent there is post-ratification evidence in support of sunset provisions, it comes for the Redemption-era Court, not the Reconstruction Congress. In The Civil Rights Cases, the Court invalidated the Civil Rights Act of 1875’s ban on racial discrimination in public accommodations. When discussing Congress’s ThirteenthAmendment enforcement authority less than two decades after emancipation, the Court notoriously opined: “When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.”

To be clear, I am not making a genealogical claim that sunset provisions are problematic simply because they were endorsed by the Redemption-era Court, though the parallels between the dismantling of the First Reconstruction and the potential demise of the Second Reconstruction are difficult to ignore. More fundamentally, my claims are historical and institutional. Historically, sunset provisions are products of the doctrine—not the Constitution’s original public meaning. Institutionally, it is Congress—not the Court—that is tasked with enforcing the Fifteenth Amendment’s protections.

In this originalist age, it is imperative that we accurately reconstruct the past. If the past is going to rule us, we need to know what the past requires and what it permits. Requiring Congress to include a sunset provision when enforcing the Fifteenth Amendment is deeply ahistorical and indefensible on originalist grounds.