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Originalism and the Reconstruction Amendments

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Jamelle Bouie has an excellent column on the fact that conservative orignialists are almost entirely focused on the Constitution of 1787, although that Constitution was fundamentally changed by the Reconstruction Amendments:

But today, at least, I don’t want to challenge originalism as a method as much as I want to ask a question: When we search for the original meaning of the Constitution, which Constitution are we talking about?

Barrett’s Constitution is the Constitution of 1787, written in Philadelphia and made official the following year. That’s why her formulation for originalism rests on ratification, as she states at the outset of a paper she wrote called “Originalism and Stare Decisis.”

As Jamelle says, conservative originalists have little choice but to downplay the amendments that followed the Civil War, starting with the radical implications that would follow from an honest originalist interpretation of the 13th Amendment (which, critically, does not have a state action requirement.) I recommend reading the rest, which as usual has a level of erudition miles above the typical op-ed column.

Let’s apply this lesson specifically to Shelby County. It can’t really be called “originalism” — indeed, Roberts’s opinion barely even makes the pretense of being legal reasoning at all. But Roberts tries to get around the inconvenient problems that Section 2 of the 15th Amendment specifically authorizes the Voting Rights Act and nothing in the text restricts it by making a structuralist argument based on the 10th Amendment:

Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10. This “allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.” Bond v. United States, 564 U. S. ___, ___  (2011) (slip op., at 9). But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Ibid. (internal quotation marks omitted).

More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft501 U. S. 452, 461–462 (1991) (quoting Sugarman v. Dougall413 U. S. 634, 647 (1973); some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections. For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives. Art. I, §4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz.Inc.ante, at 4–6. But States have “broad powers to determine the conditions under which the right of suffrage may be exercised.” Carrington v. Rash380 U. S. 89, 91 (1965) (internal quotation marks omitted); see also Arizona, ante, at 13–15. And “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd v. Nebraska ex rel. Thayer143 U. S. 135, 161 (1892). Drawing lines for congressional districts is likewise “primarily the duty and responsibility of the State.” Perry v. Perez, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 3) (internal quotation marks omitted).

 Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States.

That “of course” in the second graf — conceding that even the Constitution of 1787 in fact gives the federal government considerable power to regulate elections — is quite the “apart from that Mrs. Lincoln” moment. But the larger issue here is that three amendments were passed after the Civil War because the Constitution of 1787 was inadequate to protect the equal citizenship of Black people! Its remedy for this was to give broad new powers to the federal government, including specifically the power to address racial discrimination in elections. Even assuming arguendo that Roberts’s claims about the 10th Amendment are accurate, they’re superseded by the 13th, 14th and 15th, and the specific authorization powers given to Congress by these amendments means that any legislation passed under their authority should be subject to only the most de minimis rational basis review, which Section 4 passes easily. (Roberts, embarrassingly, fails to even identify a standard of review at all, not least because providing guidance to Congress would be counter to his interests because he doesn’t want Congress to enforce the amendments at all.)

Roberts’s “equal sovereignty” argument has the same problem but worse: it’s not only an antebellum anachronism, it’s the theory of the losing side. And the larger problem, as Judge Posner described so memorably, is that Calhoun and Taney weren’t framers or ratifiers and there is in fact no principle of “equal state sovereignty” even in the Constitution of 1787:

It’s possible that the federal government would subject a state to unequal treatment so arbitrary and oppressive as to justify a ruling that Congress exceeded its constitutional authority. But Justice Ruth Bader Ginsburg’s very impressive opinion (in part because of its even tone), at a length (37 pages) that, remarkably, one would not like to see shortened—marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.

That evidence—the record before Congress—should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for “states’ rights.” One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states’ rights when it held three years ago in McDonald v. City of Chicago that the Second Amendment—a provision of the Constitution designed to secure state autonomy—specifically, the right of states to maintain their own little armies, the militias, against federal abolition—creates rights against states’ limiting gun ownership. It seems that the court’s regard is not for states’ rights in some abstract sense but for particular policies that a majority of justices strongly favors.

The majority opinion in Shelby acknowledges that racial discrimination in voting continues, but notes that the situation has improved since 1965 and that the procedures in the current Voting Rights Act do not make a clean fit with the current forms and pattern of discrimination. Ordinarily however a federal statute is not invalidated on the ground that it’s dated. I hardly think the Supreme Court justices believe (as did Alexander Bickel) that “desuetude” is a constitutional doctrine. And the criticisms of the statute in the majority opinion are rather tepid. That’s why the court’s invocation of “equal sovereignty” is an indispensable prop of the decision. But, as I said, there is no doctrine of equal sovereignty. The opinion rests on air.

The lesson here is that Barrett and her fellow Republicans aren’t “originalists” at all, unless you think William Archibald Dunning is the authoritative historian of the Civil War Amendments.

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