THE LAWFULNESS OF THE FIFTEENTH AMENDMENT.

• Author: Crum, Travis
• Position: Constitutional Reconstruction: History and the Meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments

INTRODUCTION 1545 I. THE IAWFULNESS OF THE THIRTEENTH AND FOURTEENTH AMENDMENTS 1550 A. The Irregular Adoption of the Thirteenth and Fourteenth Amendments 1551 1. The Thirteenth Amendment 1553 2. The Fourteenth Amendment 1556 B. The Great Debate 1563 1. Loyal- and Reduced-Denominator Theories 1563 2. Ackerman's Dualist Theory 1567 3. Amar's Guarantee Clause Theory 1568 4. Harrison's De Facto Government Theory 1569 II. THE IRREGULAR ADOPTION OF THE FIFTEENTH AMENDMENT 1571 A. Common Problems 1573 1. Rump Congress 1573 2. Fundamental Conditions and Coercion 1575 B. Unique Problems 1576 1. New York's Rescission 1577 2. Indiana's Rump Legislature 1578 3. Georgia's Expulsion and Second Readmission 1580 C. Fish's Proclamation 1589 III. PROBLEMATIZING THE LEADING THEORIES 1591 A. Loyal- and Reduced-Denominator Theories 1592 B. Ackerman 's Dualist Theory 1598 C. Amar's Guarantee Clause Theory 1599 D. Harrison's De Facto Government Theory 1600 IV. JUSTIFYING THE FIFTEENTH AMENDMENT 1600 A. Legal Justifications 1601 1. Rescission 1601 2. Recognizing Rump State Legislatures 1603 3. The Georgia Problem 1605 B. Normative Takeaways 1606 1. The Importance of Black Ballots 1606 2. Reconstructing Democracy 1607 CONCLUSION 1612 APPENDIX 1613 INTRODUCTION

The Fifteenth Amendment is the forgotten Reconstruction Amendment. Even though it prohibited racial discrimination in voting and enfranchised black men nationwide, (1) "the Fifteenth [Amendment] plays only a minor role in modern constitutional law." (2) The Fifteenth Amendment has receded from view because its constitutional protections have been usurped by the Fourteenth Amendment and because most voting rights litigation is brought under the Voting Rights Act (VRA). (3) As such, a host of doctrinal questions remain unanswered concerning the Fifteenth Amendment. (4) Although legal scholarship on the Fifteenth Amendment is by no means non-existent, it "has been relatively rare." (5)

Kurt Lash's new collection of primary sources cataloguing the adoption of the Reconstruction Amendments puts the Fifteenth Amendment on more equal footing. (6) This comprehensive collection should encourage scholarly research and judicial inquiry into our nation's constitutional commitment to ending racial discrimination in voting. As part of this symposium honoring Lash's magisterial and thorough collection, this Essay uses sources highlighted in his collection to contribute to a long-standing debate in constitutional theory concerning the lawfulness of the Reconstruction Amendments' adoptions.

This debate stems from various irregularities associated with these Amendments' drafting and ratification and whether these deficiencies violated Article V's requirements that amendments pass Congress by a two-thirds vote of both houses and be ratified by three-fourths of the States. The Congresses that passed the Reconstruction Amendments excluded the Southern States. Moreover, the Southern States' ratifications were arguably coerced by these exclusions and by the imposition of fundamental conditions on their readmission to the Union. Congress also played fast-and-loose with how it counted States for purposes of Article V's denominator: the rump Thirty-Ninth Congress counted the Southern States for purposes of ratifying the Thirteenth Amendment while excluding those States from representation when it passed the Fourteenth Amendment. Finally, two Northern States rescinded their ratifications prior to the Fourteenth Amendment's addition to the Constitution. (7)

This Essay engages with the historical and scholarly theories developed to justify these irregularities. These theories can be divided into so-called loyal-denominator, reduced-denominator, and full-denominator theories--that is, they differ in how they treat the Southern States for purposes of Article V.

During Reconstruction, several Radical Republicans claimed that the Southern States should not be counted for Article V's "denominator" and therefore only the ratifications of loyal States mattered. (8) The Radicals' theory was never clearly endorsed by the Reconstruction Congress for purposes of Article V. (9) In modern times, Akhil Amar (10) and Christopher Green" have endorsed the Radicals' approach. Because the scholarly discussion has focused on the Thirteenth and Fourteenth Amendments, these theories have not grappled with how to count readmitted Southern States for purposes of the Fifteenth Amendment's ratification. (12) Accordingly, I clarify this debate by differentiating between a loyal-denominator theory, which looks only at those States that stayed in the Union, and a reduced-denominator theory, which incorporates readmitted States.

Turning to full-denominator theories, modern scholars have defended the Reconstruction Congress's actions. (13) Drawing on his dualist theory of constitutional change, Bruce Ackerman contends that the Thirteenth and Fourteenth Amendments violated Article V's requirements. But for Ackerman, this is a feature, not a bug: Ackerman argues that Congress's questionable compliance with Article V is evidence of higher lawmaking, akin to what occurred during the New Deal. (14) For his part, Akhil Amar has also articulated a full-denominator theory that justifies Congress's exclusion of the South and its use of fundamental conditions by pointing to Article IV's Guarantee Clause. (15) Finally, John Harrison draws on international law principles to argue that de facto governments can make decisions that bind their successors." (16) Notwithstanding these scholars' lengthy discussions of this topic, their arguments virtually ignore the Fifteenth Amendment. (17)

Although the Reconstruction Amendments shared some irregularities, (18) the Fifteenth presents unique problems. Consider New York, which purported to rescind its ratification. (19) Although this problem emerged during the Fourteenth Amendment's ratification, (20) it was either tardy or mooted, depending on your theory. (21) Next up is Indiana, where the state legislature lacked a quorum when it ratified the Fifteenth Amendment. (22) And then there's Georgia. After being readmitted to the Union in 1868, Georgia excluded black officeholders from its state legislature, admitted ex-rebels to the state legislature, and refused to ratify the Fifteenth Amendment. Congress, in turn, expelled Georgia and required the ratification of the Fifteenth Amendment as a new fundamental condition for its second readmission. (23) Given all of these uncertainties, Secretary of State Hamilton Fish delayed proclaiming the Fifteenth Amendment's ratification for several weeks, waiting until March 30, 1870, to do so. (24) These irregularities were raised--and rejected--during Reconstruction. (25)

Under any theory--whether loyal, reduced, or full denominator--at least one of these questions must be resolved: namely, whether rescissions are valid; whether a Northern rump state legislature's ratification is acceptable; and whether a Reconstructed Southern State can be kicked out of the Union and required to ratify an amendment for its second readmission. The addition of the Fifteenth Amendment to this debate poses the most serious problem for the loyal-denominator theory because both Indiana's and New York's ratifications are necessary. Overall, the Fifteenth Amendment's ratification is far trickier than the literature has assumed.

Turning to the contemporary academic theories, the Fifteenth Amendment significantly undermines Ackerman's dualist interpretation of Reconstruction, as his constitutional moment ends before Congress even passes the Fifteenth Amendment. By contrast, Amar's Guarantee Clause approach and Harrison's de facto government account are relatively unscathed by the Fifteenth Amendment.

Notwithstanding these irregularides, the Fifteenth Amendment is on solid constitutional ground. Because rescissions are invalid and because Congress unequivocally counted Indiana's ratification, the Fifteenth Amendment satisfied Article V's three-fourths requirement. To be clear, no one seriously claims that the Reconstruction Amendments should be stricken from the Constitution. (26) Rather, this debate is a foil for broader interpretive conversations about the nature of constitutional change and popular sovereignty. On this front, the Fifteenth Amendment represents a crowning achievement: not only did it enfranchise black men nationwide, but it was also the first constitutional provision whose adoption is clearly attributable to black men under the reduced- and full-denominator theories. Furthermore, the adoption of the Reconstruction Amendments demonstrates that democracies must sometimes make hard decisions to protect themselves from secessionist, racist, and antidemocratic forces. The Reconstruction Framcrs' actions foreshadow modern theories for safeguarding democracy, such as militant democracy, political process theory, and constitutional hardball.

This Essay is organized as follows. Part I begins by discussing the history of the Thirteenth and Fourteenth Amendments' ratification processes and then outlines the theories of the Reconstruction Framers, Ackerman, Amar, and Harrison as they relate to those amendments. Part II excavates the unique problems associated with the Fifteenth Amendment's adoption. Part III discusses how the Fifteenth Amendment's irregular ratification complicates the leading theories. Part IV defends the Fifteenth Amendment's validity, both legally and normatively.

1. THE LAWFULNESS OF THE THIRTEENTH AND FOURTEENTH AMENDMENTS

   Civil wars are messy affairs--and the constitutional changes that frequently follow them are as well. Rather than adopt an entirely new constitution, (27) the United States kept its founding document but radically altered it with three constitutional amendments. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment endorsed birthright citizenship, constitutionalized the Civil Rights Act of 1866, created an...