Reflections on the intersection of economics, history, politics, psychology and science

How to Cleverly Gut the 15th Amendment

Like most of the amendments to the Constitution, number 15 is surprisingly short:

Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2: The Congress shall have the power to enforce this article by appropriate legislation.

The people who drafted the 15th Amendment were well aware of an issue we touched on in Podcast 19, Toad to the White House: the Constitution did not originally specify many, if any, rules governing who was eligible to vote. Instead, the authority to do that was left vested with the individual states.

Having just fought a bloody civil war that revolved, in part, around how some states had refused to recognize people of color as even being people, let alone having the right to that most basic political power, the right to vote, the drafters wanted to ensure regulating the right to vote was permanently transferred to the federal sphere.

In doing this they did not take the approach your favorite amphibians proposed. They chose not to define voting rights in the Constitution itself via amendment, and simply limited the change to making Congress responsible for defining and updating voting rights regulations, and to having the Executive branch enforce those laws and the Judicial branch oversee their interpretation.

I don’t know if they considered our approach. They may well have concluded there was more flexibility inherent in keeping Constitutional changes relatively abstract. That would certainly be in keeping with the overall approach taken by the Founders. Laws can be modified far more easily to match changing conditions than the Constitution can be.

But their approach opened the door to gutting the 15th Amendment. It makes voting rights subject not only to legislative modification, as intended, but also to legislative unwillingness to create laws, lackadaisical enforcement by the Executive branch and clever re-interpretation by the Supreme Court. All of that has happened over the course of history since the 15th Amendment was ratified:

  • Congress did not do much about crafting effective voting rights legislation until the 1965 Voting Rights Act was passed. This enabled the old Confederacy to perfect the Jim Crow laws which effectively nullified the political power of people of color1.
  • The Executive branch followed suit and did little to enforce what laws did exist. I believe it also, at least under Republican administrations in recent times, encouraged re-interpretation of what laws, like the Voting Rights Act, did exist.
  • The Supreme Court has been merrily gutting the Voting Rights Act ever since conservatives gained power on it. Just recently a case was argued before them which will likely end up with elimination of all or most of all of the provisions of the Voting Rights Act.

That last bit, re-interpretation, is particularly interesting since the current conservative majority on the Court claims to be follow the doctrine of originalism, and one would think the 15th Amendment is pretty clear that means everyone is supposed to have the right to vote.

But if you think that, you don’t know lawyers. At least, you don’t know smart and clever ones.

The basic approach the Court is using to gut the Voting Rights Act is based on how the Act is written. Laws must pass some degree of “reasonableness” to be considered constitutional. Consequently, the Act contains language which can be interpreted — if you squint at it hard enough — as saying the remedies it provides can’t be imposed if curtailment of voting rights is relatively minor, in the process of being addressed, or done without the intent of curtailing the ability of people to vote.

All of that — and particularly the last element — is in the eye of the beholder. And the current conservative majority on the Supreme Court appears ready, willing and able to squint as hard as they have to so as to free states to do as they see fit regarding voting rights.

Which would basically take us back to where we were before the Voting Rights Act was passed.

Besides being morally reprehensible — however “smart” the legal analysis appears to be — this is also a “wonderful” example of just how philosophically empty the doctrine of originalism is, something we addressed in podcast 16, Frogs and Prayers. Because it’s hard to square gutting the Voting Rights Act with the clear intent of the 15h Amendment. But precisely because originalism is such a bogus constitutional analytical framework, it can be warped into whatever shape is necessary to accomplish a desired outcome. In this case, exempting states from federal control over voting rights.

All is not lost, however. The right kind of Congress — frankly, one which had far fewer radical conservative nutjobs in it — could easily pass a revised Voting Rights Act, specifically written to make it much, much harder for a Supreme Court dominated by clever originalists to undermine. If that was passed under a reasonable President it could become law2.

But for now, that looks like something that won’t be possible for quite some time.

Unless you, the voters, demand it of your representatives. After all, you’re only asking for protection against abridging the voting rights of anyone. Including you.

  1. Other states outside the old slaveholding territories may have well done similar things, too. 

  2. Sadly, there is another angle of attack built into the 15th Amendment which clever originalists could use to constrain federal voting rights legislation. Note that the Amendment specifically limits denying or abridging voting rights “…on account of race, color, or previous condition of servitude”. It doesn’t say “gender”, or “property ownership” or “income level” or “criminal record” or “religious belief” or a host of other things. The drafters would’ve been better off if they had left off that last clause, or clearly indicated the citations they were including were merely examples (i.e., that famous legal formalism “including but not limited to” that appears in just about every contract that has ever been executed).