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12/19/2021

Travis Crum: The Lawfulness of the Fifteenth Amendment
Michael Ramsey

Travis Crum (Washington University in St. Louis--School of Law) has posted The Lawfulness of the Fifteenth Amendment (Notre Dame Law Review, Vol. 97, 2022) (68 pages) on SSRN.  Here is the abstract:

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to this debate. New York rescinded its ratification at a time that is difficult to ignore. The Indiana state legislature lacked a quorum when it approved the amendment. Georgia was expelled from the Union not once, but twice—the latter instance after Congress had re-admitted it in July 1868. Georgia was then required to ratify the Fifteenth Amendment as a fundamental condition for its second re-admission. Georgia’s situation differs substantially from the Southern States that were consistently excluded from the Union. Under any theory—whether it endorses a loyal-, reduced-, or full-denominator—at least one of these States’ ratifications is necessary for the Fifteenth Amendment’s validity.

Notwithstanding these issues, the Fifteenth Amendment’s legality is on solid ground. Indeed, the Fifteenth Amendment showcases Reconstruction’s success. The majority of Southern States were represented in the Congress that passed the Fifteenth Amendment and those States ratified it free of any fundamental conditions. Given the demographics and political realities of Reconstruction, the Fifteenth Amendment was the first constitutional provision whose ratification was clearly attributable to the votes of Black men. More broadly, the fight to ratify the Reconstruction Amendments demonstrates that democracies must sometimes take extraordinary steps to protect themselves from secessionist, racist, and anti-democratic forces.