Section Two of the Fourteenth Amendment and the Census

My research into the reapportionment process is still ongoing, and I’ve been working through the following problem:  Is the Commerce Department’s failure to undertake a Section Two review as part of its reapportionment duty unlawful or is it the result of an unconstitutional statute?

One way of thinking about the issue is that Congress delegated its Section Two authority to the Commerce Department in the relevant statutes, but the Department has refused to exercise that power and perform its designated function. Here is the most straightforward argument on that score–2 U.S.C. Section 6 provides:

Should any State deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendment to the Constitution, article 14, section 2, except for participation in the rebellion or other crime, the number of Representatives apportioned to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State

This statute was enacted by Congress in 1872 and closely follows the language of Section Two. Since the Commerce Department has never tried to apply this provision or examined whether it should be applied, perhaps the answer is that the Department is just not following the statute.

But this analysis is not so straightforward. There is a strong case that 2 U.S.C. Section 6 is unconstitutional because of its use of the word “male.” Though this is what Section Two says, a statute that says makes an explicit distinction based on sex must satisfy heightened scrutiny under the Equal Protection Clause. 2 U.S.C. Section 6 cannot meet the standard, especially given that the choice of the word male in the Fourteenth Amendment rested in large part on the fact that no state allowed women to vote. Thus, the Commerce Department is probably right in declining to enforce this law or collect “male-only data” out of concern that they would be acting unconstitutionally.

What about the other statutes that govern reapportionment? More on that next week.

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10 Responses

  1. Joe says:

    The sex discrimination issue would have bite in time especially after the 19th Amendment but doesn’t explain non-enforcement since 1872.

  2. Brett Bellmore says:

    “Though this is what Section Two says, a statute that says makes an explicit distinction based on sex must satisfy heightened scrutiny under the Equal Protection Clause. ”

    I think this is a losing argument at the Supreme court, because declaring a law that echos unrepealed constitutional language “unconstitutional” comes so perilously close to claiming that the Constitution itself is unconstitutional. And while there are doubtless lower court judges who’d be OK with doing that, there’s probably not a majority on the Court that’s ready to go there.

    Nor, given the outcome of the recent election, is there likely to be one, any time soon.

  3. Gerard Magliocca says:

    Well, there are parts of the Constitution that are unconstitutional in that they were repealed by subsequent amendments. I’m not sure why this is different.

    • Brett Bellmore says:

      Because it isn’t one of those parts, I should think, in as much as no subsequent amendment actually contradicts it.

      • Gerard Magliocca says:

        The 19th and the 26th amendments arguably do.

        • Brett Bellmore says:

          Section 2 specifies a penalty should a state disenfranchise males of at least 21 years age.

          The 19th amendment prohibits denying the vote on the basis of sex. No contradiction there.

          The 26th amendment states that nobody 18 and older may be denied the vote on the basis of age. Again, no contradiction.

          Now, in conjunction there are some aspects of the situation which might be a bit odd, in that section 2’s penalty does not come into play if you disenfranchise a woman or a 20 year old, and the penalty is calculated on the basis of male citizens at least 21 years old.

          But this doesn’t constitute a *contradiction*.

          • Joe says:

            “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 sex.”

            The penalty provision could deny someone the right to vote for a representative, since a state can be deprived of one or more because they violated the right to vote in certain respects. The penalty provision only applies when male voters are denied though, not female votes. So “on account of sex,” citizens can be denied the right to vote.

            One way to address the problem is to deprive a state of representation in the House for violations of the 19th Amendment too. I’m not sure if the provision the professor is talking about at this moment can be applied that way or it would have to be changed. Also, especially given stricter interpretation under Shelby v. Holder, is this an “appropriate” legislative action? The 14A specifically added this punishment over and above the general fifth section that spells out enforcement.

            A penalty that only applies when male voters are being denied the right to vote very well might violate the 19A. Amendments are put int place to change things, so they can violate previous provisions.

            • Brett Bellmore says:

              In practice, I don’t think anybody would be denied the right to vote by the application of the penalty, in as much as it just reduces the effective population of the state for purposes of apportionment.

              Certainly later amendments *can* violate previous provisions. But not by tangential implication, it has to be expressly on point. What you and Gerard are pointing out might be better termed “incongruity”.

              My point is that “contradiction” and “incongruity” are rather different concepts. Section two doesn’t play well with later amendments, but it is not *contradicted* by any of them. “Contradiction” is a rather stringent test. There is no contradiction here.

              • Joe says:

                It’s at least arguably (GM’s word) true that a state having five members of the House of Representatives instead of seven will “abridge” or “deny” the right to vote of “citizens” in some respect. And, the base here is selectively done by sex.

                I gather many “citizens” of South Carolina might think so at least, the collective phrasing as compared to “a” citizen helping the argument. “The right of the citizens” before is voting for seven; the penalty will give “the citizens” five. Their vote is being abridged.

                A later provision can clash with an earlier one in various respects. The earlier provision expressly limited itself to males; the clear implication was that unlike race or some other things (like religion), classification by sex was somehow legitimate.

                I’m not saying there is necessarily a “contradiction” but there is an argument that is is “expressly” on point. The 14A allows a penalty that reduces the right to vote for members of Congress on account of sex (abridgment of male voters). The 19A bans this.

                How “expressly” the two has to conflict is a matter of interpretation at any rate. The fact there is disagreement is far from surprising, even beyond the people debating it here.

                • Brett Bellmore says:

                  “The 14A allows a penalty that reduces the right to vote for members of Congress on account of sex ”

                  No, it does not. It simply does not. Invoke the 14th amendment penalty, and not one single solitary person gets their vote taken away.

                  Instead, what happens is that the state gets reapportioned to have fewer representatives, just as though it had lost the relevant amount of population. But everybody who could previously vote still gets to vote.

                  You don’t violate the 19th amendment when a state loses a representative to reapportionment.

                  Amendments say what they say, do what they do. They don’t carry with them vast shadowy penumbras (That only some people can see!) that can over-rule explicit text by implication. Explicit text stays in force until explicitly repealed.