The Supreme Court Is Being Tested on History Once Again

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In the two decades John Roberts has served as chief justice, the Supreme Court he presides over has repeatedly decimated the Voting Rights Act^[2], striking a series of savage blows to the law long hailed as the crown jewel of the Civil Rights Movement^[3]. This term, in Louisiana v. Callais, the Voting Rights Act is in the crosshairs once again, as the court’s conservative supermajority might strike down the act’s last standing pillar.

Callais, which will be re-argued on Oct. 15, began as a narrow case about whether Louisiana had created a racial gerrymander when it drew a new congressional map to remedy a Voting Rights Act violation in the state’s 2022 congressional districts. But in June, the justices ordered the case reheard, and last month, asked the parties to address a much bigger question^[4]: whether intentionally drawing a Black-majority district to comply with the Voting Rights Act is itself unconstitutional under the 14^th or 15^th Amendment. That the court would even ask the question has left many worried that it may be about to gut Section 2 of the VRA—a nationwide prohibition on laws that result in a denial of equal political opportunity—based on an ahistorical, colorblind reading of the Constitution.

The attack on the Voting Rights Act in Callais is deeply inconsistent with the Constitution’s text and history. To understand why requires engaging with the Black struggle for voting rights that culminated with the passage and ratification of the 15^th Amendment in 1870. As this history shows, race-consciousness is baked into the text and history of the 15^th Amendment.

When the Roberts court examines the Constitution’s text and history, it has privileged white male voices^[5]. But if it wants to be faithful to constitutional text and history in Callais, it will have to broaden the lens. Black Americans were the central movers in the campaign to make the United States a multiracial democracy. Through their activism, they made the fight over voting rights central to the promise of freedom. In a very real sense, they were Constitution-makers who helped bring the 15^th Amendment to fruition.

The participants in Colored Conventions^[6], which met frequently during and immediately after the Civil War, struggled tirelessly for the right to vote, insisting that equal voting rights were fundamental to freedom. America’s most fundamental constitutional values, they urged, demanded a multiracial democracy. The National Convention of Colored Men^[7] that met in Syracuse, New York, in the fall of 1864 called the right to vote the “keystone to the arch of human liberty” and insisted that “personal liberty” and “all other rights” effectively “become mere privileges, held at the option of others, where we are excepted from the general political liberty.” The Virginia Convention of Colored People^[8] that met in Alexandria in the summer of 1865 demanded the ballot as the only true “safeguard for our protection.” To Black Americans, neither freedom nor equal citizenship could be a reality without the right to participate in our democracy on equal terms.

White Northern Republicans initially resisted the demands for equal suffrage. That is why the 14^th Amendment did not end race-based voting laws. The 14^th Amendment imposed a penalty of reduced congressional representation on states that disenfranchised Black citizens, but it did not confer the right to vote on anyone. As the debates made clear, the 14^th Amendment^[9] “leaves the right to regulate the elective franchise still with the States, and does not meddle with that right.”

In the wake of passage of the 14^th Amendment, acting on the frustration that Black people had been granted what Frederick Douglass called an “emasculated citizenship^[10],” Black Americans continued to push the nation for the right to vote. By 1869, white Republicans in Congress demanded an end to racial discrimination in voting, adopting wholesale arguments that the Colored Conventions had long been making.

The leading arguments in support of Black voting rights were race-conscious at their core. One of the leading arguments Black Americans made was that they needed the right to vote for their protection. They confronted a political system sharply divided along racial lines, and they viewed the right to vote as critical to their ability to protect themselves from racist laws and entrenched racial prejudice. In the former Confederacy, Black Americans freed from bondage had seen white-dominated state legislatures enact Black Codes that sought to reestablish enslavement without the name and strip Black Americans of the freedom they had fought to win. What hope of freedom was there unless Black Americans were accepted as full members of the body politic? White Republicans, in the late 1860s, at long last agreed that the right to vote was critical to protecting Black people in their freedom. During the debates over the 15^th Amendment, the amendment’s framers insisted^[12] that “suffrage is the only sure guarantee which the negro can have … in the enjoyment of his civil rights. Without it his freedom will be imperfect, if not in peril of total overthrow.”

In this way, race-consciousness is baked into the text and history of the 15^th Amendment. Race mattered in politics, and that was why the right to vote was essential. The 15^th Amendment’s core idea was that Black citizens had a right to fully participate in selecting their political leaders, not that race was irrelevant. In fact, both Black activists and congressional champions of Reconstruction understood that race still mattered, and that made it critical to give Congress broad powers to squelch efforts to suppress or cancel out Black votes.

Indeed, colorblindness arguments were often invoked to oppose the 15^th Amendment and prevent congressional efforts to enforce it. To opponents of Reconstruction, efforts to guarantee equal voting rights to Black Americans were an unwarranted form of discrimination against white Americans, arguments that are eerily similar to those being made today in Callais.

For example, Tennessee opposed ratification of the 15^th Amendment on the ground that it “single[d] out the colored races as its especial wards and favorites.” After ratification, when Congress moved to pass the first legislation enforcing the 15^th Amendment in order to “neutralize the deep-rooted prejudice of the white race there against the negro^[17]” and “secure his dearest privileges” at the polls, opponents of Reconstruction attacked that legislation as a form of “class legislation against the great white race to which we all belong^[18].” In their view, providing safeguards to ensure that Black citizens could exercise their right to vote “discriminate[d] in favor of the black and against the white^[19].” These specious arguments fell flat and Congress exercised its 15^th Amendment authority to stamp out efforts to prevent or intimidate Black citizens from voting.

Callais should be an open-and-shut case. The Constitution’s text and history empower Congress to take race into account in order to secure the multiracial democracy our Constitution guarantees. The question now, more than 150 years after Black people fought to make America a multiracial democracy, is whether the Supreme Court still respects this fundamental aspect of our constitutional order.

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