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: whether intentionally drawing a Black-majority district to comply with the Voting Rights Act is itself unconstitutional under the 14th or 15th 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 15th Amendment in 1870. As this history shows, race-consciousness is baked into the text and history of the 15th Amendment.
When the Roberts court examines the Constitution’s text and history, it has privileged white male voices. 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 15th Amendment to fruition.
The participants in Colored Conventions, 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 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 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.