Originalism is a legal interpretation which privileges the “original intent” of an author of piece of legislation at the time of its writing. While lawmakers have always considered the intent behind a piece of legislation, as a legal doctrine modern originalism emerged in the 1950s and 1960s in response to the civil rights movement. It coalesced around the reaction to Brown v. Board in 1954, was written into the Southern Manifesto (a legal defense of state’s rights which helped form the modern Republican party), and was test-driven in the debates surrounding the Civil Rights Act of 1957. This modern form of originalism claimed that the meaning of a given piece of legislation was soley the product of “the intent of those who framed and ratified it.” The effect was to reverse the established legal tradition of reliance on precedent in interpretation and argue that only original intent mattered in settling contests of legal interpretation. While originating in the mid-20th Century, originalism spread as a legal doctrine across the Reagan presidency. Given that modern originalism emerged as part of the southern state’s reaction to desegregation, a legal argument and decision that was based on a broad reading of the 14th Amendment, most writing on the topic has focused on either that amendment, or the original framers of constitution. But an analysis of the debates and context surrounding the passage of the 15th Amendment reveals an inherent silliness in the doctrine of originalism. The 15th Amendment was debated in 1869 and ratified a year later. The third and final ‘Reconstruction Amendment’ it expanded on the 14th Amendment’s promise of citizenship by making suffrage the purview of the Federal government, rather than leaving suffrage qualifications to the states. Its wording, that voting rights would not be abridged by “race, color, or previous condition of servitude,” was intended to guarantee that the emancipated Black people of the southern states would have the right to vote. But if originalists are sincere in their belief that original intent must guide modern interpretation, then the context surrounding its passage must be both relevant and considered. While we now remember the 15th Amendment for its blind spots: literacy tests, poll taxes, and other means of disfranchisement used to roll back Reconstruction during Jim Crow. However, these blind spots were features not bugs, though not in the ways we might assume. The preservation of these blind spots extended far beyond a desire to keep the vote from the small populations of Black northerners. In 1869 Congress had to decide between two visions of suffrage rights: a “positive” affirmation of universal male suffrage which would brook no quarter and a narrower “negative” affirmation which would prevent discrimination based on race but leave other qualifications up to the states. For all but the most radical Republicans, the positive affirmation was cause for concern. While bringing the Freedmen into the body politic, it would also re-enfranchise ex-Confederate soldiers and politicians, threatening the political gains of Reconstruction. But the strongest dissent came not from the southern considerations but from the Northeast, Midwest, and Western states. In California, politicians wanted to exclude Chinese voters and feared that even the narrow framing of the Amendment would open the door to Chinese suffrage. Arguments from the North followed a similar track, where state-level property qualifications and literacy tests were used to bar immigrants from the franchise. New Hampshire required $134 of real estate to qualify for voting rights, Pennsylvania (whose people elected Radical Republican leader Thaddeus Stevens) required payment of state taxes, and both Massachusetts and Connecticut used literacy tests. These were pointed attacks on immigrants, but in particular the Irish. From the early 19th century and to the Civil War, over two million Irish immigrants had settled in the United States. As both ethnic and religious minorities, they consolidated their political power through an early form of machine politics (uniting and trading votes for social and political opportunities) in contests against the Republican party’s predecessor, the Whigs, in the 1840s. By the time Reconstruction had commenced, they had extended this influence to many of the North’s urban centers, providing political support for the Democratic party. Due to their mobilization of ethnic political solidarity and working-class status, Republicans associated these voters with corruption and crime, using these charges as cover to withhold suffrage from those who would vote against them. The original intent of the 15thAmendment then, was less about how to provide the vote to Black southerners and more about how to extend this suffrage while maintaining inequality areas where immigrant voters could challenge the Republican party, most prominently the Irish. This analysis of the context surrounding the original intent of the 15th Amendment leaves originalists with two options. If originalists hold that “the intent of those who framed and ratified it,” as they claim, then they must immediately set out to disfranchise Irish Americans prior to the 2026 midterm elections. This position would force them to admit that disfranchisement has always been a key Republican political strategy (which it has been) and openly proclaim their desire to withhold voting rights from all immigrant populations in the United States. Any action short of this plan would reveal a failure of commitment to their stated position. Choosing to pursue any other course is a tacet acknowledgement that originalism is a bogus theory of legal interpretation.
