Friday, June 18, 2021

Kurt Lash on Reconstruction (2): Is the Fifteenth Amendment an Embarrassment?

Sandy Levinson

For the Symposium on Kurt Lash, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.). 

Having offered very general remarks about Kurt Lash’s valuable collection of materials on the gestation of the Reconstruction Amendments, let me now turn to the specific history of the Fifteenth Amendment that he has now made available to us.  Is it, in its own way, an embarrassment for the contemporary lawyer or constitutional theorist, especially if she professes to be an “originalist”?  I used to suggest to my students that at least some amendments to the Constitution were not really necessary in order to change legal reality, inasmuch as really talented lawyers could read whatever the amendments were thought to provide into the existing Constitution.  So I proposed that some of the amendments might be read as “guides for the dimwitted,” who were intellectually unable to engage in truly sophisticated (or some might say imaginative) constitutional interpretation or to the “malevolent,” who suffered from no deficiencies of intellect but instead were ideologically committed to the particular values underlying what they posited as the truly “correct” theory of the Constitution.  These values, of course, could be to maintaining as much as possible of the ante-bellum order as possible even taking into account, for example, that the formal institution of chattel slavery was now irretrievably forbidden.  

So I want to turn to truly illuminating speeches made by Massachusetts Rep. George Boutwell, the Chair of the House Judiciary Committee, and by some other members of the Congress, with regard first of all to the very need for the Fifteenth Amendment and then to its scope.  Perhaps my best-known essay is The Embarrassing Second Amendment, published thirty years ago at a time when there was relatively little academic interest in that Amendment.  Both liberals and conservatives had their own reasons to feel embarrassed by its presence, liberals, perhaps, because it protected guns at all, conservatives because, I believed, the origin of the amendment lay in protecting to at least some extent the practical possibility that American communities might revolt against what they considered to be an oppressive and tyrannical local or national governments.  The history of Reconstruction is especially interesting in this regard, inasmuch as many African-Americans agreed with Roger Taney's statement in Dred Scott that an attribute of citizenship was the right to bear arms and that such arms bearing was essential to protect themselves against the terrorism of the Ku Klux Klan and other devotees of white supremacy.  But I also want to suggest that there are some embarrassing aspects of the Fifteenth Amendment (as there are, for reasons already suggested, with the Thirteenth Amendment) that are very much worth discussion by those who profess to take “constitutional theory” seriously.

Boutwell sets out a major question in his (very) long addresses to the House of Representatives.  Why does one need the Fifteenth Amendment in the first place, with its special super-majority rules for adoption first in Congress and then in the states afterward?  Why isn’t ordinary legislation sufficient, passable by a simple majority of both the House and the Senate and then surely signed by President Ulysses S. Grant, a strong supporter of Black rights (and the Republican Party)?  Boutwell suggests that it could be based on a variety of already existing parts of the constitutional text, including the Elections and the Republican Form of Government clauses in the 1787 Constitution and the Thirteenth and Fourteenth Amendments thereafter.  In his analysis especially of the Republican Form of Government clause, he comes close to a classic classroom argument (at least in my class), that the Titles of Nobility Clause prohibits the creation by law of de facto aristocrats entitled to rule over the plebs.  He suggests, altogether plausibly, that this is just what happens when only some (white) citizens are entitled to vote while (all) Black citizens are excluded.  To be sure, he is met with vigorous opposition from other solons who argue that this is a grotesque way of understanding the existing document, including the two new amendments.  It is no doubt relevant, though, that at least one of his adversaries takes pains to note that he disaffirms the legitimacy of the Fourteenth Amendment, presumably because it was ratified at the point of a gun (and passed by a rump Congress from which representatives and senators from the defeated Southern entities—whether they were truly “states” was itself an exquisite question for constitutional theorists and practical politicians).  But Boutwell obviously has no patience with such attempts to delegitimate the work he and his Radical Republican colleagues had done.  

Ultimately, Boutwell seems to offer a completely pragmatic reason for proposing the new amendment, the fact that, unlike a mere statute, it would not be subject to easy repeal in the dreaded case that Democrats regained control of the national government.  “The amendment which we propose secures the people against any abridgment of their electoral power, either by the United States or by the States.  In that alone there is sufficient reason to justify the amendment.”  That is, the Amendment is basically a prophylactic against later repeal.  We might talk at times of "constitutionalized statutes," such as the Social Security Act, that are protected by deep political forces against the possibility of repeal, but recent American politics have revealed that certain matters long thought to be "settled" are now subject to attack by aroused by legislators and the social movements supporting them.  Twenty years ago, in the halcyon days of the Bush Administration, one might have thought that the Voting Rights Act of 1965 had been "constitutionalized."  Now, of course, the Republican majority of the Supreme Court seems intent on gutting the Act, and the Republican Party has traded places with the Democratic Party of 1868 in terms of its hostility to enlarging the electorate.  

Perhaps, then, Boutwell presents a good enough reason to support the Amendment instead of settling for legally possible legislation.  But the central point is that that is a completely different argument from one that says that the Amendment is legally necessary in order to provide protection against abridgment, at least so long as Republicans remain in power.  We might distinguish between those amendments that are truly legally necessary—my own chief candidate would be the 20th Amendment, which eliminates the truly insane waiting period (over a year) between the election of a new Congress and its first session and moves up the inauguration of presidents from March 4 to January 20.  As someone who bitterly opposes waiting even until January 20, I readily concede that there is no available argument that Congress could simply pass sensible legislation providing that new presidents could be inaugurated on, say, December 15.  Even if we kept the egregious electoral college, we could still speed up considerably the process of counting the electoral votes and then having Congress endorse them.  But, alas, the Twentieth Amendment stands in the way.  Was the situation remotely similar in 1869 with regard to guaranteeing Blacks (male and female) the right to vote?  That is surely an interesting question for constitutional theorists, including originalists, to mull over.  Why are Tiffany, Spooner, and Douglass, included in the compilation?  One explanation is that  Lash believes that law students, fellow academics, and judges, including committed originalists, should take them seriously and treat them as fully  seriously as plausible interpretations of the Constitution even if, obviously, they did not prevail against more conventional lawyers like Daniel Webster or Abraham Lincoln.  So what about Boutwell?  Is his day to come at last, to demonstrate, ironically or not, that the Fifteenth Amendment was legally unnecessary?  Are those who rejected Boutwell’s reasoning either dimwitted or malevolent even as he emerges as a dependable guide to constitutional interpretation?   .   

But there is an important second problem that may generate its own embarrassment.  Many members of Congress proposed a version of the Fifteenth Amendment quite different from the one that was proposed and ratified.  Consider, for example, the proposal of Missouri Senator John Henderson, who proposed that the new amendment read that “No State shall deny or abridge the right of its citizen to vote and hold office on account of race” (emphasis added).  Quite obviously, that didn’t survive, but that was true only after vigorous debate.  No one can plausibly argue that the right to hold office (as well as to vote) was overlooked, nor is it easy to argue that only the dimwitted or malevolent would fail to realize that there was in fact no need to include it because “the right to vote” as a patch of text is far more capacious than the naive reader might read as its limited semantic meaning.  After all, it is clear beyond argument that even today we do not necessarily treat the right to vote as synonymous with the right to hold office.  Eighteen-year-olds can now vote, but they are barred from running for any national office and, in some states, for running for local offices as well.  The Constitution itself includes a number of “second-class citizenship” clauses limiting the rights of presumptive voters to run for and hold public office.  Naturalized citizens, for example, who are surely entitled to vote immediately upon taking the oath of citizenship, are prevented from running for the House or Senate for seven and nine years, respectively.  And, most notoriously, no naturalized citizens can aspire to become President of the United States.  Not only did almost everyone at the time distinguish, however imperfectly, perhaps, among “civil,” “political,” and “social” rights; they also could distinguish within the category of, say, “political rights” between being allowed to vote and to hold office.

What this illustrates is the brute fact that all of the three “Reconstruction Amendments” were very much subject to a political process that worked in favor of the status quo and against what might be termed maximally audacious meanings that would require political and social transformation.  If one believed, for example, that “Reconstruction” meant not only (or at all) returning to the United States as it existed prior to 1860 or 1865, but also embracing a quite radical notion of “regime change,” then one must ask if there was sufficient political will genuinely to affect the latter. This requires, among other things, deciding what was thought at the time, or even today, to be the meaning of Lincoln's call for "malice toward none and charity toward all."  Is it truly conceivable that there would be no "losers" in the decisionmaking process who would justifiably view the winners as "malicious" or "uncharitable"? 

In his recent book on “the second founding,” Eric Foner both praises the Amendments—thus his title—and nevertheless laments the fact that in all cases they ended up significantly weaker than was desired by some of their original proponents.  This was certainly true for the Fifteenth Amendment.  For enough of the Reconstruction Congress, even tilted as it might have been in favor of reformist Republicans, protecting the right of Blacks to hold office was a bridge too far to cross.  Again, one might say that this is of merely historical significance.  No competent lawyer today would dare argue in favor of upholding an attempt by a state to deny Blacks (or any other group) the right to hold office, though, of course, many presumptively competent lawyers appear willing to defend systematic voter suppression in my home state of Texas and elsewhere across the country.   How, in fact, do self-styled "originalists" sort themselves out with regard to attempts to prevent the "regime change" that is feared as the result of  truly empowered minority voters? And, incidentally, might the difficulty (and perhaps impossibility) of passing even the John Lewis Act undoing the terrible decision in Shelby County  also illustrate the problems, even in the 21st century, of relying on the political system created in 1787—and decidedly not truly “reconstructed” thereafter, such as the United States Senate or the sheer difficulty of amending the Constitution through Article V

The materials that Lash has helpfully organized provide a very solid basis not only for several classes, but even, most certainly, a semester-length seminar, worth of intense discussion about the nature of constitutional law and constitutional theory even if, as I’ve already insisted, they are almost totally irrelevant to lawyers and judges doing their quotidian work in the 21st century.  One hopes that would provide Lash with genuine pedagogical satisfaction, just as I hope he accepts the sincerity of my gratitude for his monumental labors even as I express some reservations about some of the difficult editorial decisions he felt forced to make and curiosity about the moral he draws, as an originalist, from at least one way of reading the materials he presents.

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