"In Better Times": The Basis of Representation and the Forgotten History of the Fourteenth Amendment

Over the past several years, the U.S. Supreme Court has incorporated history into the analysis of unenumerated individual rights, like abortion, and enumerated ones, like the right to keep and bear arms. But it has not incorporated history into its approach to individual rights claims of racial discrimination under the Equal Protection Clause, a methodological gap the Court has left unexplained. Rather, it has held that the purpose of the Fourteenth Amendment is to prevent racial classifications, largely citing its own precedent, eschewing the Amendment’s history. This approach conflicts with section 2 of the Voting Rights Act, which requires states to create a majority-minority electoral district if a federal court finds that the original map impermissibly diluted the voting power of a racial minority group. This Note uses the example of voting rights to propose a methodological approach to identifying and applying the original public meaning of the Fourteenth Amendment. It explains the Court’s approach to history in different individual rights contexts and summarizes the Court’s approach to racial discrimination in the electoral process. It then surveys the history of the Fourteenth and Fifteenth Amendments, makes an argument for how to approach that history, and incorporates it into strict scrutiny analysis. It argues that the original public meaning of the Fourteenth Amendment supports Congress’s power to create a race-based remedy to address racial vote dilution. History should inform the Court’s determination of whether section 2 of the Voting Rights Act survives strict scrutiny by guiding the inquiry into whether Congress created a remedy that is sufficiently narrowly tailored and serves a compelling governmental interest. Properly incorporated, the history suggests that the statute should survive a strict scrutiny analysis.