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02/04/2020

Travis Crum on Originalism and the Fifteenth Amendment
Michael Ramsey

At the Election Law Blog, Travis Crum (Chicago), guest-blogging: Originalism, Colorblindness, and the Fifteenth Amendment.  From the introduction:

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.

...

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.

And in conclusion:

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.

This is part of a 5-part series on reviving the Fifteenth Amendment:

The Fifteenth Amendment at 150

The Voting Rights Act of 1869

Originalism, Colorblindness, and the Fifteenth Amendment

Racially Polarized Voting and the Fifteenth Amendment

The Fifteenth Amendment and DNC v. Hobbs