Annotating Section Two of the Fourteenth Amendment

Last week I participated in a workshop organized by the ABA to assist civics teachers who want to teach their students about the Fourteenth Amendment. As part of that program, the ABA gave each of us a pocket constitution.  You are all familiar with these. But the ABA version is annotated to some extent. At the end of Section Two of the Fourteenth Amendment, a note says “Section Two age requirements superseded by the 26th Amendment and ‘male’ restrictions superseded by the 19th Amendment.”

Now I think this is the correct reading, as I explain in my forthcoming paper about Section 2 and the reapportionment process. On the other hand, no case says this, which raises the question of why the annotators think that this is true and are telling people it is true. (This is the only annotation for the amendments in the ABA pocket constitution.)

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5 Responses

  1. Brett Bellmore says:

    I suppose the argument would be that they’re superseded because section 2 of the 14th amendment assumes states are legally entitled to limit voting on those basis, and simply sets out consequences for having done so. But, crucially, *doesn’t forbid doing it*. They can just go ahead and do it, at the cost of reduced representation for the state. Their choice.

    Where as the 19th and 26th amendments actually *prohibit* states from restricting voting on those basis. So, in theory, since they can’t do it, there’s nothing to penalize; The response to a state attempting to restrict voting by black men, or by men under 25, isn’t to reduce a state’s representation, but instead to compel the state to stop doing it.

  2. Joe says:

    One way to “compel the state to stop doing it” would be to reduce their delegation to Congress.

    During Reconstruction, legislators were not seated in part because their states were held to violate the Guarantee Clause. This was controversial & the section cited provided clear constitutional authority to do the same thing in a limited form. Limited classes of voters were exempted. The later amendments override the exemptions in two cases (women, 18-21).

    The implication of the exemptions to the penalty option has been that the states are assumed to be allowed to use those voter restrictions. This to me doesn’t necessarily follow — such and such might be a violation of equal protection in voting but not serious enough to warrant Congress to reduce state delegations — that is a very serious move. The Supreme Court said otherwise when a felony disenfranchisement challenge arose: the section was cited as a clear assumption that sort of thing was allowed generally. The annotation would make sense there.

    Anyway, the enforcement clause of the 19A and 26A read along with 14A, sec. 2 would seem to justify Congress using the penalty to enforce those two amendments.

    • Brett Bellmore says:

      “One way to “compel the state to stop doing it” would be to reduce their delegation to Congress.”

      In much the same way as the 3/5ths clause compelled the states to abandon slavery? No, my understanding of this, is that the states were regarded as having sovereign control over the extent of the franchise, and were just being given an incentive to extend it to blacks and younger men. They were perfectly free to disenfranchise blacks if they didn’t mind having their delegations reduced in size.

      They might have had trouble getting Northern states to ratify if the amendments had fully compromised state autonomy in this area.

      http://scholarship.law.cornell.edu/clr/vol46/iss1/5/

      “The report continues, pointing out that the reason the reduction formula was utilized was that the states would not consent to surrender their power over the franchise. Hence, the choice of dealing with the problem by indirection.”

      Interestingly, this paper agrees with Gerard that Section 2 hasn’t actually been superceded, as it’s plain language is more general than just race, and was understood to cover disenfranchisement based on property ownership or education as well.

      • Joe says:

        The quoted language, from your comment, referenced the 19A and 26A which has a firm ban on voting discrimination. I argued that one way to enforce that was usage of the penalty. The penalty, like various penalties, is not merely an “incentive” but a pressure tactic to change the policies.

        The 3/5 Compromise was not specifically in place to pressure states to end slavery. It was a recognition slaves were not equal to free persons in various respects, particularly economic output (the ratio originated as a means to allot tax burdens & applies to direct taxes too). So, not really.

        The argument is that the section was superceded as to men and those under 21, not generally, so not sure what the last part proves (w/o reading the paper). That is, before, states had the freedom to deny women the vote without being open to the penalty. Now, the 19A does open the states to the penalty. GM’s draft paper (linked in the past) cited legislative proposals in the 1920s etc. that assumed just that state of affairs.

  3. Joe says:

    I see in one version of a pocket Constitutions that a portion of the 12A (referencing the old date for inauguration) also has an annotation that it was repealed by the 20A.

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