At SCOTUSblog, Edward Foley: Callais, originalism, and stare decisis. From the introduction:
… Today, I want to accept [Justice] Barrett’s proposition that originalism is the correct way to interpret the Constitution and consider the implication of that proposition for one of the most important cases on the court’s docket this year: Louisiana v. Callais.
As a brief refresher (since I wrote about other aspects of the case previously and a detailed SCOTUSblog preview is available), Callais involves a constitutional challenge to a majority-Black congressional district that Louisiana created to avoid a violation of the Voting Rights Act. The Supreme Court ordered reargument of the case, to be held Wednesday, after failing to reach a decision last term. For the second round of briefs, the court specifically asked the parties to address “[w]hether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments.”
The constitutional challenge to Louisiana’s second majority-Black district is based on a line of cases that started with 1993’s Shaw v. Reno. In Shaw, North Carolina had drawn a district that, in the view of the Supreme Court majority, could not be “understood as anything other than an effort to separate voters into different districts on the basis of race” and accordingly violated the equal protection clause of the 14th Amendment unless it could survive strict scrutiny (which in a subsequent ruling the court said it couldn’t).
…
Whatever one thinks of the Shaw doctrine, intellectual honesty requires acknowledging that it has nothing to do with the original public meaning of the 14th Amendment. The amendment’s decree that no state “deny to any person within its jurisdiction the equal protection of the laws” was not understood at the time these words were enacted to constrain how states conduct their elections. We know this for two simple reasons. First, everyone at the time knew it was necessary to add the 15th Amendment to the Constitution two years later to prohibit states from denying or abridging the right to vote “on account of race”; thus, the prohibition against the denial of “equal protection of the laws” did not bar racial discrimination with respect to voting rights. Nor, indeed, did it bar sex discrimination with respect to voting rights; the 19th Amendment was necessary for that, even though women are obviously “persons” protected against the denial of “equal protection of the laws” by the Fourteenth Amendment.
Second, and even more fundamentally, the second section of the 14th Amendment itself confirms that the equal protection clause in the amendment’s first section does not constrain how states regulate elections. Section two of the amendment explicitly contemplates that states will deny or abridge “the right to vote” to a portion of their “male inhabitants … being twenty-one years of age, and citizens of the United States”; when they do for any reason other than “participation in rebellion, or other crime,” the consequence is that the state will lose congressional seats “in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” In other words, the 14th Amendment does not bar states from restricting voting rights based on race, but if a state does so, then the 14th Amendment requires a corresponding reduction of the state’s representation in the federal House of Representatives.
The essay then considers whether the Shaw rule can be defended under the original meaning of the Fifteenth Amendment, or, if not, it should nonetheless be applied by originalists as a matter of stare decisis.
UPDATE: At Volokh Conspiracy, Josh Blackman has thoughts on the oral argument: Boerne, RFRA, and the VRA.
Posted at 6:03 AM