Monday, August 14, 2017

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

This is the title of my new draft paper, which is available here.  Here is the Abstract:

This Article argues that the process used to reapportion representatives among the states after each census violates Section Two of the Fourteenth Amendment. Section Two states that the apportionment of representatives must be done based on population unless a state disenfranchises a sufficient number of people who are presumptively eligible voters. The reapportionment statutes say that apportionment must be done based only on population. By erasing Section Two’s penalty clause, these statutes are unconstitutional. There is time for Congress to correct this error before the next census. If not, then the courts should declare the next reapportionment null and void.


The text of Sec. Two:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

The reader can go to the article to see what "sufficient number" entails but there is a certain absolutist flavor here, putting aside exceptions explicitly made. As someone noted with immunity [indicting a sitting president], the Constitution has the ability to provide exceptions when desired. The provision here speaks of "or in any way abridged." So, e.g., if a photo id requirement "abridges" the right to vote, the provision seems to kick in. Again, not reading yet another article (appreciated the time was taken to write it), not saying this isn't addressed in the article itself.

The problem with this argument is the Fifteenth Amendment superseded the clause by flatly prohibiting the behavior that earlier was to result in an apportionment sanction.

Now, you can argue that this language is broader than the Fifteenth Amendment because it speaks of all disenfranchisement of males over 21, not just on the basis of race, but then you have two other ensuing constitutional amendments that barred discrimination in voting rights on the basis of sex or being age 18-21. Seems to me after that, there's nothing left of this provision.

This is incorrect. The original understanding of Section Two (as expressed by Congress's initial examination of the provision after ratification) is that any voting restriction deemed inappropriate (except one based on a prior criminal conviction) could be used to implement the penalty.

Any voting restriction that disadvantages a 21 year old or over male, you mean.

If your argument were accepted, it would write discrimination back into the law of voting rights. It's a cute academic argument that, like many cute academic arguments, should stay in academia.

It seems to me that one obvious application of this provision would be to preclude the argument that it's constitutional to abridge voting rights for partisan reasons. As the latest voting restrictions clearly target minority voters, a number of Rs have denied any racial animus, claiming that the restrictions may disproportionately impact Dems but not blacks per se. Under this provision, states which engage in such tactics should have their representation reduced.

I wouldn't expect the current Court to adopt such an argument because it's far too partisan. If the Dems are able to regain control of the government, they could presumably enforce the provision by statute. They could also enact a national voting rights act and turn redistricting over to a neutral commission.

No. The subsequent constitutional amendments modified Section Two by implication to include women and 18-21 year-olds, as the paper explains.

Professor, that's silly. The subsequent constitutional amendments don't reference Section Two. And they don't say anything about reducing apportionment counts.

I'm not going to spend a lot of time refuting something that's not going to happen. But you are trying to put a square peg into a round hole. Section Two was certainly effectively superseded by the Fifteenth Amendment's approach where instead of denying apportionment we now just define groups and grant them the franchise. We really can't turn back that clock and try to apply a provision of the Constitution that not only has been dormant for 150 years but also contains sexist and age-ist language.

I realize you have to find interesting subjects to publish papers on, but this won't become law and shouldn't. If you want a solution to the current problem, an interpretation of post-Civil War voting rights amendments as including a disparate impact test would be a better route to go.

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"If your argument were accepted, it would write discrimination back into the law of voting rights."

The two senator rule is discriminatory too but let's be clear that we are merely talking about the penalty regarding representation. The ban to discrimination by sex, e.g., is still there. The 14A just provides a somewhat underinclusive means of enforcing a range of voting abridgment.


Section Two cannot be read literally in the way that you are doing. There are many constitutional provisions that were modified implicitly by subsequent amendments. (To take an obvious example, the First Amendment says "Congress shall make no law," but the Fourteenth Amendment modified that to mean "Congress and the states." Under your approach, Congress still means Congress because the Fourteenth Amendment does not expressly refer to the First Amendment.)

Besides, my point in the paper is that the current reapportionment statutes are unconstitutional. This does not mean that the Section Two penalty must or will be enforced. But the statutes cannot, as they do now, say that the penalty cannot be enforced.



Congress and the judiciary retain the power to enforce Section 2, if the necessity ever arose.

Congress does not have the power to delegate this decision to the Commerce bureaucracy, so the failure of the current statute to do so is irrelevant.


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"This does not mean that the Section Two penalty must or will be enforced."

The word "shall" suggests it should be though


I read over the article.

An early listing of categories of possible disenfranchisement went well beyond the ones explicitly covered by later amendments. As to understanding that "sex" was now included, e.g., the paper provides an example that suggests that is true. As to the 15A making it obsolete, again, the paper lists multiple examples of attempts to enforce it into the 1960s that shows that is at the very least rather debatable.

The paper argues, if the right case arises, the courts should enforce the provision & in the process hold current legislation unconstitutional. Likewise, it argues that Congress has not properly, though at very times was pushed, to do its job.

The 15A was officially ratified March 1870 and the article says the first application was the 1872 reapportionment. In a footnote, this is used to help argue that the "15A repealed" argument is incorrect.

Sometimes, perhaps always, it is necessary to consider the entire Constitution as previously and subsequently amended in interpreting an Amendment and its effect. Amendments to the Constitution are not in the style of amendments to contracts, wills and other legal documents. Imagine an effort to consolidate the Constitution by integrating all of the Amendments. That might be difficult, and contentious. (That's all I got this morning as I plan to go to the MA DMV.)

The Fourteenth-First Amendment analogy doesn't work. The Fourteenth Amendment extends due process to the states. The Courts eventually ruled that this concept of "due process" includes the right of free speech. They didn't change the language of the First Amendment or negate it.

In contrast, what Gerald's cutesy and silly argument is trying to do is this. The Fourteenth Amendment says there's a formula for taking representatives away from states that deny 21+ males the right to vote, but doesn't require that the states provide the franchise to them. The formula didn't result in the extension of the franchise to blacks, so the Fifteenth Amendment came along and extended the franchise to blacks. Later amendments extended it to women and 18 year olds.

He's arguing that those later enactments ALSO modified the reapportionment penalty in the same way the due process clause extended the principle of the First Amendment to the states. But that makes ZERO sense as an analogy. There's nothing implicit in there being a right to vote regardless of sex, or regardless of age over 18, which changes the reapportionment formula, in the sense that free speech was held to be "implicit in the concept of" due process in Gitlow. We can have the right to vote for women, or 19 year olds, with or without the reapportionment formula. The two have very little to do with each other. There's no actual basis for holding that by granting the right to vote to those populations, the reapportionment formula was changed other than the Professor's desire that it be true. Certainly nothing like the reasoning in the incorporation cases.

This is just a terrible idea. It's a law professor who doesn't like a result and is looking to repurpose something dormant in the Constitution and which we'd have to judicially modify without any basis for doing so in order to use. And it's kind of a demonstration of something that also is a flaw of the work of people like Randy Barnett on the other side-- when you start with a result you want to reach, rather than honestly looking at text and history and taking it where it honestly leads you, whether you like the result or not, you end up with this sort of law office history. Which is fine in a legal brief (which will then get rejected by a court), I guess, but is not fine as a piece of scholarship.

I rather not rely on his remarks on this thread. Read the article. When, e.g., the NAACP up to the 1960s (probably beyond) raises Section 2, it is not just something the professor ("starting with a result you want to reach" -- a gratuitous ad hominem attack) is writing about because it's you know interesting and stuff.

I would not use the 1A analogy myself. The professor cites a proposal to use Section Two after the 19A was passed that seems to back up his overall argument. Dilan doesn't directly address that. The professor also notes the 17A changed how senators are chosen and a strict reading of the 14A provision would suggest it doesn't cover that either. This seemed illogical to him.

It's best to try to read later amendments so they fit into the overall Constitution. So, e.g., possible wide understandings of the state discretion over liquor suggested by the text aside, the 21A was not read to allow certain types of discrimination of commerce or limits on free speech. To me, the word "appropriate" in the voting amendments provide a way to combine everything together. Section Two provides a penalty with exceptions sensible given the voting norms of the era. Once discrimination by sex is no longer allowed, it would be "appropriate" to enforce the later amendment by using the penalty set up in that section.

Anyway, I still don't understand how this is a "terrible" idea. There is a constitutional power in place to protect voting rights. Why is it horrible to use it? Or, tweak statutes in place so it is not violated?

At worse, though the article explains this isn't necessary by textual analysis and precedent necessarily, the penalty would not apply to discrimination by sex or age (over 18). It would be somewhat underinclusive though that is not really the likely sort of discrimination we are worrying about these days much in practice.

Plus, for that limited group not covered by the penalty, Congress still has the power to enforce the right to vote without discrimination. They just cannot use this mechanism.

Is Dilan suggesting a comparison with Sandy's article on the 2nd A?

Since comments no longer are allowed there, I'll just note the Somerset Case was decided 1772, per the last comment on the previous thread.

Joe, thanks for noting the date on Somerset. Since it preceded the Revolution it was part of the common law of the American Colonies. Years after this decision, Lord Mansfield expressed his concern that it had been misconstrued. Back in 1772 there was an extensive anti-slavery effort in England led, I believe, by counsel for the slave in Somerset. While slavery was not significant in England at the time, it was in its American and Caribbean colonies with trading in various commodities. If Somerset had been decided in the 1790s as guessed in my other comment, it probably would not have become part of the common law in America. My apologies for not getting the correct date but I'm getting used to a recently updated computer and am adapting to changes that upset a mental Luddite such as myself. There are several good histories on the Somerset Case by legal historians on its impact in America, with some good lawyering and judging in the slave states as well as here in MA.

Trump today questioned whether monuments of Washington, Jefferson and other slave owning Founders should be torn down. Slavery was determined to be legal under the 1787 Constitution, having been in place in the Colonies for many decades. All (I think) Founders died before the Civil War. Lee and other Confederate "heroes" rebelled and lost the battle over slavery.

Lord Mansfield also raised his nephew's biracial daughter, which was largely fictionalized in the movie "Belle." I read a biography of the actual woman, for which we sadly know little about, so it was largely background, including about Mansfield.

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I am not a fan of resurrecting long dead constitutional provisions. I think they lack the development of the common law and caselaw which is essential to constraining the discretion of judges. Without that, it's anything goes and pure ideology.


On the other thread, Sommerset's case is actually a really important factor in why the South joined the revolution. Without that case, there was probably not going to be a revolution at all, and certainly not one led by Thomas Jefferson and George Washington. The thing that brought the South in was precisely the threat that Sommerset would get expanded to the colonies.

I really don't think most American whites have come to any grips with how much the founding of this country was tied to slavery. They make a bunch of "well the rest of it was good" arguments that are racist in their own right, because they devalue millions of black lives. But they also make a bunch of rationalizations about how you had a bunch of people who really concerned about liberty and popular sovereignty, and just had this stumbling block that there were still some slaveholders and they had to be accommodated. But it wasn't that at all. Slavery was at the very center of the thing. It was one of the reasons for the revolt and one of the non-negotiable conditions of all the constitutional deliberations. It was to be built into the country at the same time that other countries, including Britain, were getting rid of it.

The denial of this history-- which, by the way, black historians have been pointing out for decades-- is, indeed, one of the great examples of widespread institutional American racism. And it's not surprising that a populace that does this would tolerate statues of Jeff Davis and Robert E. Lee in their plazas for decades.

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