The Validity of Section Two of the Fourteenth Amendment

The other day I posted a hypothesis that the current apportionment of the House of Representatives does not comply with Section Two of the Fourteenth Amendment. Before explaining that further, I must address the threshold question of whether Section 2 is still part of the Constitution. This is a live issue partly because Professor Gabriel Chin (now at Davis) wrote an excellent article in 2004 arguing that the Fifteenth Amendment implicitly repealed Section Two of the Fourteenth. I do not find this claim persuasive though.

Here is why you might think that the Fifteenth Amendment repealed Section Two of the Fourteenth Amendment. Section Two allows states to deny African-American men the right to vote–the result is just that the state loses representatives.  But The Fifteenth Amendment says that the states may not discriminate on the basis of race for voting. Since these are inconsistent ideas, perhaps the best reading is that the Fifteenth Amendment superseded Section Two. Professor Chin’s article explains that some people also made this argument shortly after the Fifteenth Amendment was ratified.

Nevertheless, there are significant problems with this interpretation. One is that the Fifteenth Amendment talks only about race whereas Section Two is not so limited. Granted, the object of Section Two was primarily to encourage voting access by African-American men, but the omission of the word race makes the two texts somewhat different. A second, and more powerful objection to my mind, is that one year after the Fifteenth Amendment was ratified Congress and the Census Bureau spent a considerable amount of time thinking about whether and how Section Two should be applied. Not a word was uttered then that the Fifteenth Amendment had repealed Section Two (nor was anything said about that when the Fifteenth Amendment was debated).  This seems like pretty strong evidence that no repeal occurred.

This is not a complete response to Professor Chin’s arguments, which I guess I would have to save for an article, but the upshot is that I think Section Two is still the law. But what does this mean for how we conduct the census and apportionment?  That’s my next post.

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3 Responses

  1. Brett Bellmore says:

    My argument would be, simply, that a law that says you suffer penalty X if you do Y, is not obviously repealed by a law saying you may not do Y. People do things all the time they’re not legally allowed to do. In combination, they just say that you can’t discriminate against black men voting, and if you deny people the right to vote for any but a specific list of reasons, you suffer this penalty.

    They work together, they don’t contradict.

  2. Joe says:

    I basically agree with the text and find the implicit repeal argument confused though did not read the article.

    The basic point to me is that the 14A penalty covers more ground than the 15A. It seems passing strange that a provision that strengthens voting rights by putting in place a stronger barrier to discrimination in effect weakened voting rights for other people. An illegitimate poll tax, let’s say requiring you to pay $1000 to vote, very well might be an infringement pursuant to the earlier provision, one that is not merely by race, color or condition of servitude.

    Plus, as noted by the first comment, the two provisions can work together. Both amendments have enforcement mechanisms, but as seen by Shelby v. Holder [not granting its correctness], not every enforcement is deemed “appropriate.” The earlier penalty is a major burden on states and having a textual backing to it adds further legitimacy to its appropriateness, including to further the ends of the 15A.

  3. FT says:

    There are two articles (and a forthcoming book) about Section 2 of the Fourteenth Amendment that discuss Chin’s repeal argument, but more importantly, shed light on the scope of Section 2: “What is Abridgment? A Critique of Two Section Twos,” 67 Alabama Law Review 433 (2016) and “The Constitutional Structure of Voting Rights Enforcement,” 89 Washington Law Review 379 (2014).