As Jonah mentioned, Ramesh argues in the New York Times today that many conservatives are inconsistent in claiming to support originalism while calling for the Supreme Court to strike down the Voting Rights Act. That is, there are no good originalist arguments to support the claim that the Voting Rights Act is unconstitutional under the 15th Amendment. I’m not sure this is right.

The first thing to remember is that the Constitution is one of enumerated powers. It is not the case that the federal government can pass whatever laws it wants, unless the Constitution disallows a certain law. It’s rather the other way around: If the Constitution does not authorize the federal government to take a certain type of action, the federal government has no power to do so. Congress’s enumerated powers are spelled out in Article I, which says explicitly that states shall choose their own federal representatives, and grants the federal government no broad regulatory power over this process. In keeping with principles of federalism, the framers believed that elections should be run by state and local authorities in a decentralized fashion.

The 15th Amendment was passed after the Civil War to address the pressing injustice of pernicious racism in the Reconstruction south. The Amendment gave the federal government a role in preventing states from denying African-Americans the right to vote.

The text of the 15th Amendment is:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The question with respect to the Voting Rights Act concerns how broad Congress’s enforcement powers are under Section 2. What is the scope of the “appropriate legislation” that Congress is authorized to pass under Section 2?

Section 5 of the Voting Rights Act requires that certain states and counties must jump through a series of onerous “pre-clearance” hoops and get certified by the Justice Department before they are allowed to make even minor changes in their electoral systems. This essentially prohibits states from running their own elections, even when there is no current evidence that anyone in those states is having his or her right to vote denied or abridged on the basis of race. In other words, Section 5 creates a presumption of racial discrimination that states must rebut before they can exercise one of their core constitutional functions — i.e., deciding for themselves how to select their own elected representatives for federal office.

In deciding whether this falls within the “appropriate legislation” referenced in Section 2, there are two approaches an originalist might take. He might look to historical examples of federal legislation that the framers of the 14th Amendment thought were appropriate to remedy the racial discrimination in voting that was rampant after the Civil War. If so, he would find nothing nearly as broad as the sweeping requirements of the Voting Rights Act, which was passed 100 years later.

Alternatively, an originalist might explore other historical evidence about the public meaning of Section 2 at the time of its passage. Did anybody think that it would authorize broad, centralized control of the country’s electoral system, even in places where not a single person can provide proof of his or her right to vote being denied or abridged on the basis of race? I think this is a hard argument to make. On a plain reading, the 15th Amendment seems to give Congress a negative power to prevent states from engaging in racial discrimination in voting. Congress has instead used the Amendment to impose a sweeping scheme of control that goes well beyond this underlying purpose. At the very least, this should give originalists some pause.

One thing that might be motivating Ramesh is his inclination toward judicial restraint as a principle of constitutional construction. That is, a principle concerning what should judges do when they confront a text whose original meaning is not entirely clear in its application today. Many conservatives believe that judges in this instance should defer to the electoral branches, which are more accountable to the people and better suited to policymaking. But this is not a preference for originalism. It is a preference for a relatively strong legislative power as against an assertive judiciary that would maintain strict constitutional limits on the affirmative powers of government.

— Anthony Dick is a student at Stanford Law School.