Sunday, February 24, 2013

A thought for Sunday: the intent of the Framers of the Fifteenth Amendment

- by New Deal democrat

It looks like the five alleged "strict constructionists" of the Supreme Court want to gut the Voting Rights Act of 1965. If they do so, it will be in direct derogation of the intent of the Framers of that Amendment.

The Framers of the Fifteenth Amendment were not the slaveholders who formed so much of the Constitutional Convention of 1789. Rather they were the Radical Republican Reconstructionists of the post-Civil War Congress.

The Congressional debates on the 15th Amendment are not online, but once upon a time long, long ago I read the entirety -- and I mean every single word -- of the Congressional debates that led to the 14th Amendment that gave us Due Process and Equal Protection of the law. I can tell you two things about those "framers": (1) they were as left wing as you could get in terms of civil rights in the US, and would have been very much at home in the 1960's Congress which gave rise to the Voting Rights Act; and (2) mindful of Dred Scott decision, they did not trust the Supreme Court with their handiwork, but engraved into the Amendments themselves their own legal authority to act.

In the case of the 14th Amendment, the Congressional proponents had two separate arguments: there were those who believed that Negro slaves were in fact the equal of whites, and therefore deserved full equality; and there were those who believed that the Negro slaves were not equal to whites, but it so damaged the moral fabric of civilization to treat them unequally that they nevertheless must be given equal rights.

Those Radical Republican Reconstructionists did something else that was entirely new: they granted to Congress itself the right to legislate in support of the goals of the Amendments. This is an explicit grant of jurisdiction to the US Congress. While the Supreme Court might have the right to determine what the Amendments require, Congress did not intend to allow the Court to refuse authority to go further. If legislation served the purposes of the Amendment, Congress gave itself the authority to so act, even if the action was not required by the Amendment. In the wake of Dred Scott, the distrust of the moral authority of the Supreme Court is manifest.

And then the Congress refused to re-admit the former Confederate States back into the Union until they ratified these Amendments.

It is a shame that the Congressional debates that gave rise to the Fifteenth Amendment are not online, because if they were, there is no doubt that that Congress would stand foursquare behind the 1960s Congress that passed the Voting Rights Act.

Now the reactionaries on the Supreme Court appear ready to spit in the face of both the Reconstructionist Congress and the Civil Rights Act Congress. If they do so, let it be clear that they may have the raw power to mandate their prejudices, but in no way can they honestly claim to be upholding the intent of the Framers of that Constitutional Amendment.