Building on Professor Fishkin's post, my new article on Section Two of the Fourteenth Amendment was published today. Section Two gets far less attention than Section One, but Section Two is vital for two reasons. The first is that this is the source of the rule that all persons shall be counted for purposes of national representation. (Litigation is pending in the Southern District of New York on whether the Commerce Department's proposal to add a citizenship question to the next census is unlawful in part because that decision was made to discourage an accurate count of non-citizens).
The other reason Section Two is worth studying is that the system used in 2011 to reapportion representatives among the states was unconstitutional. Reapportionment is not as glamorous as gerrymandering. Nonetheless, the question of how representatives are allocated among the states matters and the constitutional violation is hiding in plain sight. As the Article explains, Section Two of the Fourteenth Amendment says that the states shall be penalized in their representation if certain conditions are met. The reapportionment statutes, however, bar the imposition of any such penalty. These statutes are therefore invalid. (There is more to the article than this syllogism, of course.)
Unless Congress corrects this defect by 2021, it is my hope that some states will challenge the next reapportionment on constitutional grounds using the theory laid out in the paper.
If taken seriously, the language of the second section is broad.
ReplyDelete"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."
That covers a lot of ground including the "denied" being followed up with "in any way abridged." If "words have consequences" etc., that is broad with only limited exceptions. Exceptions that were limited even more by later amendments [as GM has pointed out in his writings].
I think the argument here is that the reapportionment statutes no longer have to take Section 2 into account, because Section 2 was premised on states being legally entitled to deny the franchise to whoever they pleased, and could only constitutionally be penalized for choosing to do so, not prevented.
ReplyDeleteBut the 15th amendment took away from states the power to do so "on account of race, color, or previous condition of servitude", the 19th amendment "on account of sex", the 24th "by reason of failure to pay any poll tax or other tax", and the 26th amendment "on account of age". That's not totally comprehensive, but it likely covers every real world form of disenfranchisement that was contrary to Section 2.
Further, with the assumption that states are legally entitled to disenfranchise for any reason not explicitly prohibited having been largely abandoned, Section 2 is seen as an historical oddity having no modern relevance. Much like the 3/5ths clause no longer has any application after the 13th amendment.
I'm not, by the way, saying I find this reasoning entirely satisfactory.
OTOH, I'm not very happy with the reasoning that declares procedural rules like residence or ID requirements to be Section 2 "disenfranchisement", sees "disenfranchisement" in every hint of disparate impact.
ReplyDelete"Disenfranchisement" meant taking your right to vote away, not just requiring that you follow a facially reasonable procedure to use it.
I note even the Fifteenth Amendment says "denied or abridged" which (if "words have consequences") means something different from "in ANY WAY abridged."
ReplyDeleteBut, words alone isn't enough if we move to "premises" and assume text that doesn't say "so sec. 2 is overruled as applied to this" actually has that hidden implication. The poll tax amendment, btw, is only applicable to federal elections. I'm told that "historical oddities" are still the law and if you want to get rid of such things, there is a way to do that.
And, yes, I think there are other ways that voting rights "in any way" can be abridged than the ways covered in later amendments of some significance. The issue here is finally not "disenfranchisement" completely alone. It is "in any way abridged." The backers of the amendment was well aware there was a variety of ways to do that == a Talking Points Memo article cites both Northern and Southern experience == and phrased things advisedly.
Or, we can water down the text, which at times is deemed rather offensive when the wrong people do it.
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ReplyDeleteSo, I'm glad Brett doesn't find such reading "entirely" satisfactory.
ReplyDeleteBTW, I think an "appropriate" way to enforce later amendments could include applying the previous enumerated power of Congress to penalize states. Without clear enumeration, it would be a controversial means of enforcement, but it's clearly available so now it can be used by Congress to enforce later amendments as appropriate.
""Disenfranchisement" meant taking your right to vote away, not just requiring that you follow a facially reasonable procedure to use it."
ReplyDeleteThat's just ahistorical and unempirical as we know that in the past (during Jim Crow) 'facially reasonable procedures' were used with the intent and effect of disenfranchising certain voters and that currently the same intent has been found expressed. What's 'facially reasonable' for one person (an able bodied person, an educated person, etc.,) may not be so for another (a shut-in, an illiterate person, etc.,), the fact that some people lack imagination or empathy to see this doesn't change the fact.
For the record, while I think it's almost completely unnecessary I'd be fine with sating the paranoid fears of some by ID requirements for voting *if* they were accompanied with measures to make sure those IDs were the easiest things in the world to get (my idea would be to allow public libraries along with motor vehicle departments issue them as well as to have something like travelling 'book-mobiles' that traveled to different communities regularly issuing them).
ReplyDeleteThis comment has been removed by the author.
ReplyDelete"For the record, while I think it's almost completely unnecessary I'd be fine with sating the paranoid fears of some by ID requirements for voting *if* they were accompanied with measures to make sure those IDs were the easiest things in the world to get..."
ReplyDeleteWe're not entirely in disagreement here; I just think they can't be made so trivially easy to get that they no longer serve the purpose of ID: Confirming that you're who you claim to be.
It was a serious mistake for the 'voting rights' community to focus on obstructing voter ID requirements, instead of insisting that secure ID be made more available. The former is too easily portrayed, (And maybe accurately!) as a lack of concern with fraud. The latter approach would have been a lot more credible.
Secure ID that actually proves who you are should be available to everyone who actually IS an American citizen.
And, just as importantly, to nobody who isn't here legally.
Bart, section 2 does say "shall", I don't read it as being discretionary.
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ReplyDeleteBrett: Bart, section 2 does say "shall", I don't read it as being discretionary.
ReplyDeleteI never claimed otherwise. What is discretionary is Congress's exercise of Section 5 power to enact legislation enforcing Section 2.
Please enlighten a non-lawyer. If the Constitution says that something "shall" be the case, and says that Congress "may" enforce the "shall" but is not required to do so, does that open the door for the courts to enforce the "shall"? Does it open the door for the executive branch to enforce the "shall" without congressional authorization? If the answer to both questions is no, exactly what does the "shall" clause mean?
ReplyDeleteBob:
ReplyDeleteIf a state violated Section 2 by disenfranchising law-abiding male adult citizens and Congress did nothing, the courts can enforce the Constitution and enjoin the disenfranchisement.
Absent a law of Congress, POTUS has no power of which I am aware to enforce the Constitution against states.
Here's the 14th A's"
ReplyDelete"Section 2.
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."
SPAM is stating in effect that this provision cannot be enforced by federal courts unless Congress enacts legislation pursuant to Section 5 of the 14th A. That seems wrong textually. Keep in mind that federal courts may enforce Section 1 of the 14th A without Congress enacting legislation pursuant to Section 5 of the 14th A. Brown v. Bd. of Educ. (Unanimous, 1954). Congress' powers under each of the 13th, 14th and 15th As while important in implementing their provisions does not prohibit federal courts from enforcing their provisions.
Clearly all laws enacted since 1930 are unconstituional, he said hopefully.
ReplyDeleteIke, in his role of POTUS, had the authority to enforce the law of the land based upon SCOTUS' decision in Brown. (See the Constitution's Supremacy Clause, and Article II's "Take Care" clause.)
ReplyDelete"Granting a power is not a command to exercise it in the manner Professor Fishkin prefers."
ReplyDeleteFishkin is clearly talking about this part of section 2: "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." And saying that Congress should enforce this (with appropriate legislation) and if they do not then a state should bring suit, as you later conceded they could.
"It was a serious mistake for the 'voting rights' community to focus on obstructing voter ID requirements, instead of insisting that secure ID be made more available. The former is too easily portrayed, (And maybe accurately!) as a lack of concern with fraud."
ReplyDeleteI should think the onus would be on those advocating changes in the laws to make sure they don't put unnecessary barriers to those who are eligible to vote. Shouldn't they be blamed for not addressing the barriers they created, rather than others who oppose the barriers in the 'wrong way?'
BD: If a state violated Section 2 by disenfranchising law-abiding male adult citizens and Congress did nothing, the courts can enforce the Constitution and enjoin the disenfranchisement.
ReplyDeleteShag: SPAM is stating in effect that this provision cannot be enforced by federal courts unless Congress enacts legislation pursuant to Section 5 of the 14th A.
Reread my statement above.
BD: Absent a law of Congress, POTUS has no power of which I am aware to enforce the Constitution against states.
Shag: Ike, in his role of POTUS, had the authority to enforce the law of the land based upon SCOTUS' decision in Brown. (See the Constitution's Supremacy Clause, and Article II's "Take Care" clause.)
The Enforcement Act authorized Eisenhower to reply troops to Little Rock to keep the peace and 28 USC 566 authorizes US Marshalls to enforce federal court orders.
Mr: W: Fishkin is clearly talking about this part of section 2...
ReplyDeleteOoops... Thanks for catching my typo.
In my lead post, I was actually quoting from Professor Magliocca's, not Fishkin's, article.
SPAM's "Ooops..." infects all of SPAM's comments on this thread prior to his 9:35 PM comment.
ReplyDeleteCORRECTED POST:
ReplyDeleteGerard: After more than a century of neglect, it is time to treat Section Two of the Fourteenth Amendment with the respect due to a constitutional provision. Congress must revise the reapportionment statutes to let the executive branch or an institution within the legislative branch consider Section Two. If Congress fails to act, then a state with standing to challenge the next round of reapportionment results should raise a Section Two claim, and the Supreme Court should respond by holding that the present allocation system is unconstitutional.
The 14A nowhere requires this. Rather, Section 5 states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Granting a power is not a command to exercise it in the manner Gerard prefers.
Of course, Congress is free to exercise its Section 5 power to enforce Section 2 any time it pleases. Section 5 nowhere requires Congress to dedicate a committee to this task. As a practical matter, such a committee would have nothing to do given no state is currently disenfranchising law-abiding male adult citizens.
Good luck to any state attempting to bring suit asking a court to force Congress to exercise its Section 5 power to enforce Section 2 in the manner Gerard prefers or to stop the government from performing its constitutional reapportionment duty, all without any evidence of prohibited disenfranchisement.
The 14th Amendment *does* require this: “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.” That is what Gerard is saying, that Congress must (should) enforce this provision via appropriate legislation and if they do not a state should bring suit to ensure the requirement is fulfilled.
ReplyDeletePerhaps individuals in a state may have standing to seek relief under Section 2 of the 14th A without the need of Congress per Section 5 of the 14th A, as Section 2's " ... or in any way abridged, ... " is quite broad. Section 2 is law applicable at both federal and state levels. While Section 5 permits Congress to legislate on Sections 1-4 of the 14th A, Congress cannot change their meanings or that they are not enforceable if Congress fails to legislate.
ReplyDeleteShag: While Section 5 permits Congress to legislate on Sections 1-4 of the 14th A, Congress cannot change their meanings...
ReplyDeleteBy necessity, statutes generally define the key terms of the law. Thus, Section 5 almost certainly grants Congress the power to define the key terms of Sections 1-4.
Regarding judiciability, I know of one old case from the 1940s entitled Saunders v. Wilkins in which a lower court held it a political question ala the Guarantee Clause.
ReplyDeleteThe issue there was the disefranchisement results of a poll tax, which the Supreme Court later deemed problematic on equal protection grounds anyways [again, the amendment only covering federal elections, it is not comprehensive]. The validity of this on the merits can be debated as can the strength of the precedent given later developments. Not reading the latest from the professor, I don't know his full argument, but the summary suggests it is not merely a freestanding claim but that a specific congressional statute is unconstitutional. There is also an argument of a congressional duty.
Reference was made to voter id, in particular, id to vote (as compared perhaps at registration) something traditionally not seen as necessary and is not so today given the evidence. The minuscule cases cited are overweighed both by the value of the regulation even to deal with them as well as the burdens on innocents in carrying forth a constitutional right. If gun rights was at issue, more concern would be shown by some.
But, Mr. W. provides a sort of compromise to deal to silence the deluded. This might pragmatically be a good idea if done the right way especially if it was part of a wider program to promote voting rights. The Baker/Carter commission, e.g., cited it in just this sort of way. As a wider whole and to be done carefully.
For instance, contra to many current state id requirements, they proposed it "easily available and issued free of charge" [ANY abridgement]. This would include an affirmative effort to provide them to all voters who need them. Also, they suggest an extended (such as two election cycles) grace period. But, they leave open some sort of signature method (used in NY for in person voting) for absentee voting. This underlines the lack of need here.
They suggest use of the "Real ID," which some non-liberals are worried about. I'm wary of the whole thing myself but it is a fair proposal.
https://www.eac.gov/assets/1/6/Exhibit%20M.PDF
Of course, "fair" might not be constitutional (if limits on the fundamental right to vote are invalid) and not seeing any likelihood for the whole plan to be passed.
ReplyDeleteBut, even as a matter to encourage id (which is useful -- NYC, e.g., has a special photo ID card widely available, including providing free museum visits and the like), a truly comprehensive and honest plan to promote voting rights is possible.
OTOH, id requirements repeatedly have been crafted unfairly and their general need is questionable. So, I'm wary of the whole thing. The professor's overall goal here, to focus specifically on that, makes more sense to me.
SPAM 10:08 AM states:
ReplyDelete"By necessity, statutes generally define the key terms of the law. Thus, Section 5 almost certainly grants Congress the power to define the key terms of Sections 1-4."
This would clash with textualism and originalism. Consider the key terms in Section 1 of the 14th A. Has Congress defined such key terms?
Here's Section 5 of the 14th A:
"Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
The power to enforce does not include the power to define the provisions of the 14th A.
Shag:
ReplyDeleteThe Constitution nowhere forbids the Congress or POTUS from interpreting the document. Indeed, the elected branches could not do their jobs properly if they failed to do so. Such is the case with Section 5, 14A.
And the Constitution nowhere forbids SPAM, me or anyone else from interpreting the Constitution. Of course there is no specific provision in the Constitution on how the Constitution is to be interpreted/construed. SCOTUS under Article III is not specifically provided with a means for the interpretation/construction of the Constitution in cases that come before it under the Constitution. We have the benefit of C.J. Marshall's opinion/decision in Marbury v. Madison (1803) setting forth the role of SCOTUS in this regard. There is no specific provision in the Constitution for Judicial Supremacy on constitutional interpretation/construction over Congress and Potus. (The Consitution's Supremacy Clause does not apply horizontally at the federal level.) POTUS takes a special oath under the Constitution. Likewise, members of Congress take oaths concerning the Constitution. In fact, SPAM and I as attorneys took oaths concerning obligations with the Constitution. While POTUS and Congress in performing their duties set forth in the Constitution should do so in compliance with the Constitution, sometimes they are challenged under Article III of the Constitution, via judiacl Review and sometimes such challenges are successful. (By the way, the term Judicial Review is not spelled out in the Constitution.) While as noted earlier there is no provision in the Constitution for Judicial Supremacy over POTUS and Congress. So is there defacto Judicial Supremacy?
ReplyDeleteThe point I have raised is that the function of Congress with powers such as in Section 5 of the 14th A, is not to define key terms used in Sections 1-4, but to legislate in aid of those provisions' purposes. There have been a lot of Congresses since the ratification of the 14th A in 1868. Imagine how different Congresses might have defined in legislation key terms used in Section 1 of the 14th A. Sure, Congress should understand what the Constitution means. We still don't know what much of the 14th A has meant since its ratification a hundred years ago.
Shag: in 1868. Imagine how different Congresses might have defined in legislation key terms used in Section 1 of the 14th A.
ReplyDeleteCongress could not have done any worse defining Section 1 than the Supremes did in 1873 and 1896.
If Congress understands what the 14A means, it might want to share that insight with the executive tasked with enforcing Section 5 laws.
Here's Section 1 of the 14th A:
ReplyDelete"Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Imagine Congress pursuant to Section 5 passing legislation defining:
1. Birthright citizenship
2. Privileges or immunities
3. Due process of law
4. Equal protection of the laws
Of course to be enacted into law, POTUS would have to sign on or Congress would have to override a POTUS veto. Would such definitions be binding on SCOTUS?
By the Bybee (expletives deleted, despite Gina), by virtue of Section 1 based upon SCOTUS decisions several of the Bill of Rights As have been incorporated. Does this mean that as to those incorporated As Congress, per Section 5 of the 14th A may legislate with definitions of key terms, particularly in the 1st and 2nd As?
Shag: Of course to be enacted into law, POTUS would have to sign on or Congress would have to override a POTUS veto. Would such definitions be binding on SCOTUS?
ReplyDeletePersuasive, but not binding.
So long as the definition is reasonable, SCOTUS would be reluctant to cross both elected branches.
It was a serious mistake for the 'voting rights' community to focus on obstructing voter ID requirements, instead of insisting that secure ID be made more available. The former is too easily portrayed, (And maybe accurately!) as a lack of concern with fraud. The latter approach would have been a lot more credible.
ReplyDeleteIt can be portrayed to you and others who are gullible enough to believe vote fraud hustlers like Kobach and von Spakovsky. But the fact is, as has been amply demonstrated - not to your satisfaction, I realize - that fraud is a virtually non-existent problem, so tightening the ID requirements has the main effect of disenfranchising some legitimate voters.
The current system has vanishingly few false positives. To increase the false negatives for the ostensible purpose of reducing the false positives further is ridiculous.
SPAM responds at 4:51 PM:
ReplyDelete"So long as the definition is reasonable, SCOTUS would be reluctant to cross both elected branches."
Might "reasonableness" be assessed based upon SCOTUS decisions defining such key terms, or perhaps historical evidence, or even supportive law review articles, legal blog posts and their comment threads, or all of the above? Might SCOTUS consider legislative history regarding those definitions?
Query: Has Congress ever passed legislation defining these or other key terms in the Constitution?
What does a true textualist or originalists think of SPAM's idea of Congress defining key terms in the Constitution?
Shag:
ReplyDeleteJust ask Brett directly. He and I are the only ones here who apply the law as written.
Where is it written that Congress has the power to define key terms in the Constitution?
ReplyDeleteBy definition, Congress interprets its contitutional mandate every time it enacts a law.
Deleteشركة مكافحة الصراصير بالرياض
ReplyDeleteشركة مكافحة النمل الابيض بالرياض
شركة مكافحة الفئران بالرياض
شركة مكافحة الحمام بالرياض
شركة رش مبيدات بالرياض
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Bart at 8:22 shows an incredible lack of self awareness as in this very debate he and Brett are the ones arguing demonstrably *not* to interpret the Constitutional text *as written* (which explicitly says all *persons,* with *only* Indians not taxed excluded shall be counted).
ReplyDeleteWhere is that definition written in the Constitution that empowers Congress to define the meaning of key terms in the Constitution?
ReplyDeleteShag:
ReplyDeleteThis is getting absurd.
How precisely is Congress expected to enforce Sections 1-4 of the 14A without being able to define what these sections require?
Think about it.
Mr. W:
ReplyDeleteOur discussion concerning "persons" was an exploration of what that term means as used in the Constitution, which is the first step in applying the law as written.
"Our discussion concerning "persons" was an exploration of what that term means as used in the Constitution, which is the first step in applying the law as written."
ReplyDeleteThat's postmodernist applesauce. The word 'person' wasn't a term of art, it meant to the average person in 1789 what it means today (it's meant that since the Middle English adoption of it from the French persone) which is an individual human being. The text, as written, commands a count of all persons excluding Indians non-taxed, period. A person who can torture that plainly written text to get something other than the normal definition of persons cannot complain about, say, interpreting the interstate commerce clause to allow regulation of intrastate commerce.
What's absurd is SPAM's claim that Congress has the power to define key terms of the Constitution. SCOTUS comes up with split decisions on its interpretation of the Constitution, sometimes 5-4. Consider the much higher membership of the Senate and even more so the House which rarely decide unanimously. And then there's the role of the POTUS regarding bills passed by Congress. And then laws enacted by Congress/POTUS may be challenged under Article III as not being in compliance with the Constitution.
ReplyDeletePerhaps SPAM should think about textualism and various versions of originalism on the meaning of the Constitution.
Perhaps SPAM can point to bills where Congress has provided definitions of key terms in the Constitution.