Georgetown Center for the Constitution

Arguing that historicist theories of constitutional change are superior to originalism in interpreting the Reconstruction Amendments. Describing the “optimistic” trend in originalist scholarship contending that constitutional issues can be addressed in light of originalist approaches to the Reconstruction Amendments. Discussing the debates over the Fifteenth Amendment and noting that its scope was debated at length. Also analyzing why the Second Reconstruction was necessary to cure the flaws in the Fifteenth Amendment.

Examining the Article V debate in the 40th Congress to decipher the original public understandings of the Fourteenth and Fifteenth Amendments. Arguing that the debate reveals a distinction between civil and political rights. Noting that the Radical Republicans’ initial proposal for nationwide black suffrage requested both a statute and an amendment. Arguing that the Fifteenth Amendment significantly expanded Congress’s authority to regulate voting rights in the states.

Arguing that reconstruction history supports only limited criminal disenfranchisement for serious crimes and that the Fifteenth Amendment did not impliedly repeal the Fourteenth Amendment’s endorsement of criminal disenfranchisement entirely.

Arguing that the second sentence of Section 2 is puzzling because it was “comprehensively unenforced” after the Amendment’s passage. Arguing that Section 2 was repealed by the ratification of the Fifteenth Amendment in 1870. Contending that, because Section 2 did not indirectly protect African-Americans’ right to vote, Congress had to act directly in passing the Fifteenth Amendment. Arguing that Section 2 remains important to contemporary voting rights law.

Arguing that the original intent of the reconstruction amendments has not been used by the Court and that strict scrutiny has been misapplied. Tracing the history of the reconstruction amendments, including the Fifteenth Amendment, and early judicial interpretations. Arguing that the Court refused to address the Fifteenth Amendment in cases dealing with voting rights but that it should have. Comparing and contrasting the Fifteenth Amendment and Section 2 of the Fourteenth Amendment and their corresponding treatments during early congressional debates.

Arguing that the best interpretation of the Fifteenth Amendment reads it as encompassing political rights extending beyond the right to vote, such as the right to hold office, the right to serve in a legislature, to be voted for, to serve on a jury, and to serve in the military. Arguing that all of these positions involve “the people” voting. Looking to early drafts of the Fifteenth Amendment in the House and Senate, which initially included the right to hold office. Also discussing the underlying context of Georgia’s readmission to the Union.

Relying on the Fifteenth Amendment to argue that the failure to fulfill the promise of fair and effective representation is rooted in refusal to fully embrace the Fifteenth Amendment. Tracing the development of the Amendment and underlying historical context of limiting voting rights for freed blacks before discussing the way forward for the Fifteenth Amendment.

Assessing whether Congress had the power to bar literacy tests in the southern states under the Fifteenth Amendment. Examining the original intent of the framers on this question. Looking to the original versions of the Amendment and subsequent debates to conclude that Congress’s enforcement power under the Amendment is quite limited.

Tracing the legislative history of the Fifteenth Amendment to argue that the Framers contemplated continuing the use of literacy tests. Also arguing that the Framers did not think that legislation ending such tests was a legitimate exercise of Congress’s power. Quoting from the Congressional record and other primary sources at length.