TAKING (EQUAL VOTING) RIGHTS SERIOUSLY: THE FIFTEENTH AMENDMENT AS CONSTITUTIONAL FOUNDATION, AND THE NEED FOR JUDGES TO REMODEL THEIR APPROACH TO AGE DISCRIMINATION IN POLITICAL RIGHTS.

• Author: Amar, Vikram David
• Position: Constitutional Reconstruction: History and the Meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments

The Reconstruction Amendments are designated by many as a Second Founding. And that is not an inapt characterization; the Thirteenth, Fourteenth and Fifteenth Amendments together do mark a new and sharply different constitutional creation, a chance to correct course and redress grievous mistakes from America's original Constitution.

But as the root of the word "founding" (from the Latin "fundus"--meaning bottom on which other matter accumulates or is built (1) ) itself suggests, a second founding is also a second foundation; not so much the replacement of something old with something else, but the start or beginning (and not the end) of something new that is not yet fully constructed. As the introduction to Kurt Lash's helpful new compilation of primary legal source materials surrounding the Reconstruction observes, these postwar enactments didn't just amend the Constitution but reshaped it, (2) altering the contours of the footing on which future constitutional structures could and would be erected. When one lays a foundation, one may never be sure how many subsequent levels might be built, but the initial perimeter-beam layout bears the weight of later additions, and thus often substantially affects the shape, size, and material composition of these add-ons.

In this Essay, I explore the relationship between more recent constitutional stories (double entendre intended) and the Fifteenth Amendment's antidiscrimination groundwork. In particular, I look at the ways in which the Twenty-Sixth Amendment, whose text and winning ratification arguments tightly track those of the Fifteenth Amendment, has been underimplemented, if not completely ignored, in recent debates and cases that are crucial to the meaning of politicalrights equality under the Constitution. (3)

1. THE SCOPE AND MEANING OF THE FIFTEENTH AMENDMENT

   1. The Void the Fifteenth Amendment Was Designed to Fill

      In prior works I have begun analysis of the Fifteenth Amendment by asking why the measure was necessary, as a legal matter, at all. In other words, why was discrimination on the basis of race in voting not already proscribed by the Fourteenth Amendment? Some might say, as did the second Justice Harlan in Oregon v. Mitchell, that the enactment of the Fifteenth Amendment is itself "evidence that [those responsible for the Fourteenth Amendment] did not understand [it] to have accomplished such a result." (1) Evidence, yes, but perhaps not conclusive evidence, given that the constitutional edifice doubtless contains redundancy that serves to strengthen and reinforce stress points, as Chief Justice Marshall pointed out in the Court's seminal McCulloch v. Maryland' opinion. Indeed, many modern cases and commentators appear to suggest (or at least assume) that the Fourteenth Amendment does address voting discrimination, even though this reading of the Fourteenth Amendment ignores some basics of reconstruction legal history, and in the process might tend to marginalize (if not make irrelevant altogether) the Fifteenth Amendment.

      Within the Fourteenth Amendment, the two likeliest textual candidates to proscribe voting discrimination are the Privileges and Immunities and Equal Protection Clauses. But as a textual and historical matter, both clauses are hard sells. The Privileges and Immunities Clause does not prohibit race discrimination in the franchise because voting was not among the "privileges or immunities [of citizenship]" as that phrase was used in Article IV of the Constitution or elsewhere in legal discourse. (6)

      For example, a citizen of Massachusetts visiting South Carolina would be entitled to many "civil" privileges and immunities, such as the right to own property, but would not be entitled to vote in South Carolina elections or exercise any other "political" rights. Thus, a key distinction drawn by the drafters of the Civil Rights Act of 1866 and the closely related Fourteenth Amendment was that between civil and political rights; only the former were intended to be safeguarded. (7)

      Senator Stephen Douglas elaborated on this critical distinction between "civil" and "political" rights in an 1850 speech on the floor of Congress explaining that free blacks in Illinois were "protected in the enjoyment of all their civil rights," but were "not permitted to serve on juries, or in the militia, or to vote at elections, or to exercise any other political rights." (8) This distinction resurfaced frequently during the debate on the 1866 Act. For instance, in order to deflect fears that statutory language prohibiting discrimination in "civil rights and immunities" might apply to voting, Representative Martin Russell Thayer explained:

      [T]he words themselves are 'civil rights and immunities,' not political privileges; and nobody can successfully contend that a bill guarantying [sic] simply civil rights and immunities is a bill under which you could extend the right of suffrage, which is a political privilege and not a civil right. (9)

      Representative Wilson of Iowa made a similar observation. In discussing the proposed Act's "civil rights and immunities" language, Wilson promised colleagues that the legislation would not affect the quintessential political rights of voting and jury service:

      What do these terms [of the Act] mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government. Nor do they mean that all citizens shall sit on juries .... These are not civil rights or immunities. (10)

      Representative Lawrence, considering the same question, endorsed Wilson's interpretive sentiments, again characterizing voting and jury service, along with office-holding, as a grouping of political rights that were unaffected by the proposed legislation: the Act speaks only to civil privileges and "does not affect any political right, as that of suffrage, the right to sit on juries, hold office, &c." (11)

      This important distinction, drawn repeatedly during consideration of the Act, carried over to, and informed interpretation of, the Privileges and Immunities Clause of the Fourteenth Amendment, which was intended to preserve the political-civil line. As Professor Harrison has observed, however "close [the] connection between [the Fourteenth Amendment's] privileges and immunities [of citizenship language] and [the concept of] civil rightsf,] neither was thought to extend to political rights, such as voting or serving on juries." (12)

      The Equal Protection Clause was similarly understood at the time of its enactment not to apply to political rights and not to require race neutrality in voting. In language that addresses both the Equal Protection and Privileges and Immunities Clauses, Fourteenth Amendment coauthor Representative John Bingham reminded opponents that "[t]he [proposed] amendment [as a whole] does not give, as the second section shows, the power to Congress of regulating suffrage in the several States." (13) Even more explicitly, Senator Jacob Howard, when he introduced the Fourteenth Amendment in the Senate, reassured his fellow legislators that "the first section [which includes the Equal Protection Clause as well as the Privileges and Immunities and Due Process Clauses] of the proposed amendment does not give to either of these classes [blacks or whites] the right of voting." (14)

      And the broad phrasing of the Equal Protection Clause requires this historical understanding. The Equal Protection Clause (similar to the Due Process Clause but unlike the Privileges and Immunities Clause) applies to all persons, not just citizens, and was intended to afford some protection to noncitizens, including aliens. Yet if the drafters intended the Equal Protection Clause to apply to aliens, then freedom from voting discrimination could not have been considered a denial of equal protection, for the Constitution did not prohibit states from denying to aliens the right to vote and exercise other political participatory rights on the basis of their alienage.

      Seeing that the Fourteenth Amendment left a void in the protection of political rights--such as voting, jury service, and officeholding--makes the existence and scope of the Fifteenth Amendment is much easier to understand. One early version of what became the Fifteenth Amendment set out clearly the drafters' understanding that the Amendment would fill that void, by providing straightforwardly that "all provisions in the [Constitution or laws of any State whereby any distinction is made in political or civil rights or privileges on account of race ... or color shall be inoperative and void." (15) The draft went on to give "Congress . . . [the] power to make all laws necessary and proper to secure to all citizens of the United States in every State the same political rights and privileges." (16) Given this consistent and well-understood emphasis on a package of political rights, the Fifteenth Amendment, as I have explained in detail elsewhere, is properly understood to prohibit discrimination on the basis of race not just in voting at the ballot box, but also in the jury box. (17)

   2. The Primary Arguments for Black Suffrage

      The congressional debates surrounding the enfranchisement of black Americans after the Civil War illustrated, in ways that would foreshadow the Nineteenth and Twenty-Sixth Amendment debates, that voting rights involve both group interests and individual respect and thereby further instrumental as well as dignitary objectives. (18) Although the Supreme Court of the late twentieth and early twenty-first centuries often suggests that governments may not constitutionally suggest a commonality of interests...