Reply
 
Thread Tools Display Modes
  #1  
Old 09-07-2018, 05:40 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
The Fourteenth Amendment: What about Section 2?

I was watching the exchange yesterday between Sen. Hirono and Judge Kavanaugh about a case from Hawaii which struck down a vote which was to be conducted by only native Hawaiians. Kavanaugh stated that both the 14th and 15th amendments applied, because the 15th explicitly prohibits racial classifications on voting and the 14th Amendment "according to precedent" disallowed all restrictions based upon race.

I have mentioned this before and it does seem to be Supreme Court precedent. But how has the Court possibly reached this result?

Quote:
Originally Posted by Amendment XIV
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.

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.
Section One is always talked about, especially with regard to equal protection and due process. However, Section Two explicitly says that Supreme Court precedent is absolutely wrong. A state may prohibit the vote based upon race, subject to the penalty involved. It may prohibit the vote to women or children with no penalty.

It was therefore needed to pass the 15th amendment to prohibit a state from denying the vote based upon race, the 19th amendment to prohibit a state from denying the vote based upon gender, and the 26th amendment to a prohibit a state from denying the vote to those aged eighteen and above.

Why then, is the 14th amendment cited for such a font of rights when it explicitly allows such a denial and such unequal treatment?
  #2  
Old 09-07-2018, 09:13 PM
Lord Feldon's Avatar
Lord Feldon Lord Feldon is offline
Guest
 
Join Date: Dec 2010
Location: Central Ohio
Posts: 5,933
Section 2 sets forth a mandatory penalty for a specific type of violation of Section 1. Penalties for other violations are up to Congress (section 5), but that particular violation is so bad that the penalty should be both severe and mandatory (didn't work).

Last edited by Lord Feldon; 09-07-2018 at 09:18 PM.
  #3  
Old 09-07-2018, 09:37 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 78,886
It's not saying states are allowed to do this. It clearly says it's illegal. Section 2 is just describing a penalty that is applied if the law is broken.
  #4  
Old 09-07-2018, 11:11 PM
DSYoungEsq DSYoungEsq is offline
Member
 
Join Date: Jul 1999
Location: Indian Land, S Carolina
Posts: 13,755
Seriously, Ultra Vires?

Section 2 is a historical curiousity, nothing more. It reflects the fact that, at the time the 14th Amendment was passed, northern states were not yet committed to the enfranchisement of "blacks". It wasn't until after they had been granted the vote in the District of Columbia that pressure to grant the franchise to all persons without regard to race became politically possible. Note that it was a lame-duck session of Congress that voted to adopt the 15th Amendment, and only after the Black Republicans were so successful in the 1868 election.

Once the main effects of section 2 were nullified by the 15th Amendment, the rest of the amendment certainly has proved to earn the value we place on it (though, of course, after the decisions in The Slaughterhouse Cases and Plessy v. Ferguson, one can question the value it had for quite some time...). Obviously, the section has nothing to do with the need to enfranchise women or 18 year olds by amendment. The section does not enfranchise anyone.
  #5  
Old 09-08-2018, 12:19 AM
Lord Feldon's Avatar
Lord Feldon Lord Feldon is offline
Guest
 
Join Date: Dec 2010
Location: Central Ohio
Posts: 5,933
FWIW I think there was probably a point at which the Supreme Court would have agreed that the 14th Amendment didn't ban states from basing entitlement to vote on race. Minor v. Happersett in 1875 was about the right of women to vote, but it mentioned the adoption of the 15th Amendment:

Quote:
The Fourteenth Amendment had already provided that no state should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race &c.? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Constitution to protect a part?

Last edited by Lord Feldon; 09-08-2018 at 12:21 AM.
  #6  
Old 09-08-2018, 01:36 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by DSYoungEsq View Post
Seriously, Ultra Vires?
Yes. I should probably have prefaced my comments that I abhor racial discrimination and support our modern jurisprudence, yet it seems to have little support. However, we should get to good ends for the right reasons or else future tyrants can get to their particular ends by taking shortcuts if we do so as well.


Quote:
Originally Posted by DSYoungEsq View Post
Section 2 is a historical curiousity, nothing more. It reflects the fact that, at the time the 14th Amendment was passed, northern states were not yet committed to the enfranchisement of "blacks". It wasn't until after they had been granted the vote in the District of Columbia that pressure to grant the franchise to all persons without regard to race became politically possible. Note that it was a lame-duck session of Congress that voted to adopt the 15th Amendment, and only after the Black Republicans were so successful in the 1868 election.

Once the main effects of section 2 were nullified by the 15th Amendment, the rest of the amendment certainly has proved to earn the value we place on it (though, of course, after the decisions in The Slaughterhouse Cases and Plessy v. Ferguson, one can question the value it had for quite some time...). Obviously, the section has nothing to do with the need to enfranchise women or 18 year olds by amendment. The section does not enfranchise anyone.
How can we take a provision of the Constitution and dismiss it as a "historical curiosity"? Can I do that with the First Amendment?

You are correct that Section 2 was superseded by subsequent amendments. I said that as well. However, it illustrates what the drafters of the amendment meant by phrases like "equal protection" and "due process."

If "equal protection" means what it does today, how could a state deny the right to vote to blacks? In reply to an earlier poster, there was a penalty prescribed, but it should not have been allowed AT ALL if our modern understanding of equal protection is correct.

Even conservatives have not addressed this. When questioned about why a same sex marriage ban was okay, but an anti-miscegenation ban was not, Scalia frequently replied that as a racial classification, the 14th Amendment prohibited it. But again, the 14th Amendment expressly allowed a denial of a right to vote based on race.

I think that we have to be faithful to these propositions of law. I would vote (as I am sure 3/4 of states would) for a clarification of Section 2 by way of amendment. I don't support sweeping it under the rug and pretending it is not there.
  #7  
Old 09-08-2018, 01:47 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by Little Nemo View Post
It's not saying states are allowed to do this. It clearly says it's illegal. Section 2 is just describing a penalty that is applied if the law is broken.
Just to clarify a bit. States were most certainly allowed to disallow voting based upon race so long as they accepted the reduced representation.

If I may anticipate your counterargument, you may say that this is similar to burglary in that my argument is saying that a person is free to commit burglary so long as he accepts serving 1 to 15 years in prison. If I am putting words into your mouth, I apologize.

However, the argument is not apt. A homeowner might shoot me in the progress of a burglary. If a police officer catches me, he may stop me. Under Section Two, a state can ban voting based upon race now and forever (until the 15th was passed). It was not like an illegal act that if discovered first, it could be stopped. This discrimination could be out there, front and center, and be practiced in the open, with the only penalty the reduced representation.

It further calls in question why the 14th amendment applies to gender at all. Again, I am all for equal rights for women, full stop. But the whole of the 14th amendment suggests that women can be denied the right to vote without penalty.

How can the same amendment which suggests complete disenfranchisement is okay be used to hold that single sex education is unconstitutional, that differing drinking ages for men and women are unconstitutional, or the whole body of cases about equality between men and women are based upon good law.

Again, I am not criticising the result, but the method.
  #8  
Old 09-09-2018, 11:58 AM
DavidwithanR DavidwithanR is offline
BANNED
 
Join Date: Feb 2018
Posts: 3,996
Your question comes about because your excessively literalistic method of interpretation is not valid. Your idea is your idea, but it is not actually how law is practiced or read. The truth is messier than you would prefer, and it's your fault for misinterpreting the truth, not the truth's fault for being as it is.
  #9  
Old 09-09-2018, 01:25 PM
JRDelirious JRDelirious is offline
Charter Member
 
Join Date: Aug 1999
Location: Displaced
Posts: 15,469
IANAL but ISTM this shows that below just a superficial scratch, everyone has to combine parts of textualism, originalism AND "Living Constitution", or else you'd never make any progress waiting forever for another amendment before lifting a finger, or, conversely, we'd be up to the 160th Amendment with another dozen pending out in the statehouses at any given time.

Quote:
Originally Posted by UltraVires View Post
Even conservatives have not addressed this. When questioned about why a same sex marriage ban was okay, but an anti-miscegenation ban was not, Scalia frequently replied that as a racial classification, the 14th Amendment prohibited it. But again, the 14th Amendment expressly allowed a denial of a right to vote based on race.
Quote:
Originally Posted by UltraVires View Post
It further calls in question why the 14th amendment applies to gender at all. Again, I am all for equal rights for women, full stop. But the whole of the 14th amendment suggests that women can be denied the right to vote without penalty.

How can the same amendment which suggests complete disenfranchisement is okay be used to hold that single sex education is unconstitutional, that differing drinking ages for men and women are unconstitutional, or the whole body of cases about equality between men and women are based upon good law.
Some opponents of the ERA in the 1970s argued that it was unnecessary and moot because under any resonable modern reading the 14th Amendment Equal Protection clause was Good Enough anyway and that what the ERA would do would be prevent "reasonable" or "justified" differential treatment. Meanwhile arguments from ultracon groups such as the Eagle Forum even to our day include things like it would mean girls getting drafted into combat; no separate restrooms; the abolition of alimony, of maternity benefits (which are themselves not a national mandate in the USA), etc. which is somewhat funny in that they aren't exactly the biggest fans of the nondiscrimination measures that are already in place.
  #10  
Old 09-09-2018, 01:37 PM
Bryan Ekers's Avatar
Bryan Ekers Bryan Ekers is online now
Guest
 
Join Date: Nov 2000
Location: Montreal, QC
Posts: 57,983
Now I'm curious how many states, then or now, would gladly accept fewer congressional delegates as the cost of disenfranchising their undesirables.
__________________
Don't worry about the end of Inception. We have top men working on it right now. Top. Men.
  #11  
Old 09-09-2018, 02:17 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 78,886
Quote:
Originally Posted by UltraVires View Post
Just to clarify a bit. States were most certainly allowed to disallow voting based upon race so long as they accepted the reduced representation.

If I may anticipate your counterargument, you may say that this is similar to burglary in that my argument is saying that a person is free to commit burglary so long as he accepts serving 1 to 15 years in prison. If I am putting words into your mouth, I apologize.
No need to apologize because that's exactly the point I'm going to make.

Congress realized it wouldn't be enough to simply make disenfranchisement illegal. They had to make sure the states would be unwilling to simply go ahead and break the law. So in addition to making it illegal, they attached the severest penalty you can apply to a political crime; the loss of political power.

But while a law and a mandatory punishment were enacted - and put into the Constitution so they couldn't be easily repealed - there was no practical way to ensure that the willingness to enforce the law would exist in the future. And unfortunately that's what happened. The federal government just began to ignore it when states broke the law.
  #12  
Old 09-10-2018, 02:33 AM
Lord Feldon's Avatar
Lord Feldon Lord Feldon is offline
Guest
 
Join Date: Dec 2010
Location: Central Ohio
Posts: 5,933
Quote:
Originally Posted by Bryan Ekers View Post
Now I'm curious how many states, then or now, would gladly accept fewer congressional delegates as the cost of disenfranchising their undesirables.
Gladly? None. What they wanted, and what they gladly accepted when they got it, was to count their black populations but not let them vote. The repeal of the three fifths compromise meant they were supposed to get zero fifths, but they took five fifths instead. No Congress ever had the backbone to enforce it, and by the time it was really necessary, the House was already full of unconstitutional representatives who (had it ever been attempted) would have voted to perpetuate their own illegal seats.

There was an attempt to litigate it in the courts, but the Supreme Court ruled that it was a political question. It was overtaken by events, but it would have been an interesting case to take back to them in the 60s, when they were recognizing a much more expansive view of democratic rights.

Last edited by Lord Feldon; 09-10-2018 at 02:38 AM.
  #13  
Old 09-10-2018, 09:45 AM
ElvisL1ves ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: The land of the mouse
Posts: 47,778
As another consequence, that led to Southern (white, conservative in many ways beyond race) members of Congress having the longest tenures, due to lack of any organized opposition both willing and able to vote them out. With committee chairs predominantly coming from that demographic, for generations progressive legislation had a far more difficult time passing than its popular demand would have dictated in a true democracy.
  #14  
Old 09-11-2018, 03:34 AM
nelliebly nelliebly is offline
Guest
 
Join Date: Jul 2017
Location: Washington
Posts: 894
Quote:
Originally Posted by UltraVires View Post
How can we take a provision of the Constitution and dismiss it as a "historical curiosity"? Can I do that with the First Amendment?
You can take a provision of the Constitution and dismiss it as an historical curiosity when it is, in fact, an historical curiosity--that is, when it hasn't been cited in court cases for a very long time. This is why the First Amendment doesn't qualify, though surely you recognize that. The Third Amendment does, though. It's been quite awhile since troops were quartered in private homes.

Similarly, while the Seventh Amendment is still relevant, "the value in controversy shall exceed twenty dollars" is something of an historical curiosity, since $20 is no longer considered a significant sum. Suing someone over something valued at $20 won't get you a trial by jury. In fact, your filing fees would be greater than the amount at stake.

But surely as an attorney, you knew all this. Why, I have to wonder, ask in the first place?
  #15  
Old 09-11-2018, 06:39 AM
Bryan Ekers's Avatar
Bryan Ekers Bryan Ekers is online now
Guest
 
Join Date: Nov 2000
Location: Montreal, QC
Posts: 57,983
Quote:
Originally Posted by nelliebly View Post
The Third Amendment does, though. It's been quite awhile since troops were quartered in private homes.
It makes Engblom v. Carey (1982) a mildly amusing anomaly.
__________________
Don't worry about the end of Inception. We have top men working on it right now. Top. Men.
  #16  
Old 09-12-2018, 02:16 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by nelliebly View Post
You can take a provision of the Constitution and dismiss it as an historical curiosity when it is, in fact, an historical curiosity--that is, when it hasn't been cited in court cases for a very long time. This is why the First Amendment doesn't qualify, though surely you recognize that. The Third Amendment does, though. It's been quite awhile since troops were quartered in private homes.

Similarly, while the Seventh Amendment is still relevant, "the value in controversy shall exceed twenty dollars" is something of an historical curiosity, since $20 is no longer considered a significant sum. Suing someone over something valued at $20 won't get you a trial by jury. In fact, your filing fees would be greater than the amount at stake.

But surely as an attorney, you knew all this. Why, I have to wonder, ask in the first place?
But Section 2 of the 14th Amendment is not a historical curiosity or at least nobody has shown that it is. It casts light on how the terms in Section 1 are to be construment. Again, nobody has addressed this except to say that the Supreme Court has held otherwise (which I agree, but without any support) and that progress would have taken longer. I also agree, but the law should be followed even if it produces a bad result; when the law produces a bad result, we can change it. If we cannot change it, then a majority thinks it is not a bad result.

I wish we could address the substance instead of some of the veiled implications that I am a racist or sexist.
  #17  
Old 09-12-2018, 02:41 AM
Lord Feldon's Avatar
Lord Feldon Lord Feldon is offline
Guest
 
Join Date: Dec 2010
Location: Central Ohio
Posts: 5,933
Quote:
Originally Posted by UltraVires View Post
I also agree, but the law should be followed even if it produces a bad result; when the law produces a bad result, we can change it. If we cannot change it, then a majority thinks it is not a bad result.
Sometimes a legal revolution is cheaper and easier and better than an actual one. Results-oriented thinking isn't all bad.

Last edited by Lord Feldon; 09-12-2018 at 02:44 AM.
  #18  
Old 09-12-2018, 02:49 AM
Lord Feldon's Avatar
Lord Feldon Lord Feldon is offline
Guest
 
Join Date: Dec 2010
Location: Central Ohio
Posts: 5,933
I guess section 3 should be read in this light too:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. "

A former or current officeholder may engage in insurrection or rebellion against the United States, or give aid and comfort to its enemies, subject to the penalty involved (disqualification from federal office).

Last edited by Lord Feldon; 09-12-2018 at 02:49 AM.
  #19  
Old 09-12-2018, 04:11 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by Lord Feldon View Post
I guess section 3 should be read in this light too:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. "

A former or current officeholder may engage in insurrection or rebellion against the United States, or give aid and comfort to its enemies, subject to the penalty involved (disqualification from federal office).
Unsupported argument:

1) Verb tenses are important. Sec. 3 denies federal office to those who previously swore an oath and who "shall have" engaged in rebellion. It is retrospective, and the text and history do not support an abolish of treason laws which all English society had held for 900 years. This would be an absurd construction.

2) Not so with Section 2. Congressman debating the article conceded that they could not get enough states to approve universal suffrage for men. States openly outlawed voting based upon race without any declaratory judgment actions in federal court. Congress recognized this limitation by passing the 15th amendment only three years later.

3) Congress would not assume a power that it did not hold. Although Congress had the power to punish treason, it did not have the power to prescribe universal male suffrage. The 14th amendment only granted such powers to Congress it stated. So while, it did not say that in addition to disqualifying those who committed treason from holding office, it could also sentence them to death. There was no need; that was preexisting. If the amendment was creating a new right of voting, it would have specified that directly. And, again, the fact that Congressman expressly conceded that it did not, shows that it did not.

Quote:
Originally Posted by Lord Feldon
Sometimes a legal revolution is cheaper and easier and better than an actual one. Results-oriented thinking isn't all bad.
Any revolution destroys the rule of law. We have a legislature for results oriented thinking. When the judiciary does it, we do not have a democracy, but a rule from nine lawyers.

If an absolute monarch does something positive, that does not make monarchy a positive form of government. Rule by judicial fiat is an anathema to our concept of rule by the people.

Last edited by UltraVires; 09-12-2018 at 04:12 AM.
  #20  
Old 09-12-2018, 04:37 AM
Lord Feldon's Avatar
Lord Feldon Lord Feldon is offline
Guest
 
Join Date: Dec 2010
Location: Central Ohio
Posts: 5,933
Quote:
Originally Posted by UltraVires View Post
Any revolution destroys the rule of law. We have a legislature for results oriented thinking. When the judiciary does it, we do not have a democracy, but a rule from nine lawyers.
The USA is only a democracy because of some of those rulings.

Large swathes of the USA were ruled by straight-up dictatorships within living memory. Legislatures were selected by rotten boroughs in the same time. Even if your reading is 100% correct (which I doubt), the USA is an emerging democracy, and sometimes the early phases of the transition to democracy are...messy.

Last edited by Lord Feldon; 09-12-2018 at 04:42 AM.
  #21  
Old 09-12-2018, 09:18 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by Lord Feldon View Post
The USA is only a democracy because of some of those rulings.

Large swathes of the USA were ruled by straight-up dictatorships within living memory. Legislatures were selected by rotten boroughs in the same time. Even if your reading is 100% correct (which I doubt), the USA is an emerging democracy, and sometimes the early phases of the transition to democracy are...messy.
I don't dispute that it reaches the "right" result. If anything, this is a slam on my own judicial philosophy. A "living constitutionalist" could look at this and say that we have "evolved."

For a Justice like Scalia to support Loving and anti-Affirmative Action programs on 14th Amendment grounds seems to be against the text of the Constitution which directly permits discrimination based upon race and gender.
  #22  
Old 09-12-2018, 05:33 PM
DavidwithanR DavidwithanR is offline
BANNED
 
Join Date: Feb 2018
Posts: 3,996
Quote:
Originally Posted by UltraVires View Post
I wish we could address the substance instead of some of the veiled implications that I am a racist or sexist.
The substance is that your approach and attitude are incorrect, and your reason for asking is not a valid one. You're (figuratively) bringing a frivolous case. Nothing about racism or sexism required.
  #23  
Old 09-12-2018, 06:29 PM
Tom Tildrum Tom Tildrum is offline
Charter Member
 
Join Date: Apr 2002
Location: Falls Church, Va.
Posts: 13,942
Quote:
Originally Posted by nelliebly View Post
Similarly, while the Seventh Amendment is still relevant, "the value in controversy shall exceed twenty dollars" is something of an historical curiosity, since $20 is no longer considered a significant sum. Suing someone over something valued at $20 won't get you a trial by jury. In fact, your filing fees would be greater than the amount at stake.
Just to clarify this point, the Seventh Amendment means what it says: as long as federal jurisdiction otherwise exists, any suit at law for damages in federal court can be tried to a jury, as long as the amount in controversy is over the now-minimal $20 threshold. Certainly, the parties can waive a jury and accept trial before a judge if they wish.

This is one of the reasons the Bill of Rights has not been completely incorporated against the states. Incorporating the Seventh Amendment could potentially impose an expensive obligation on state courts' civil-case systems.
  #24  
Old 09-12-2018, 07:56 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 78,886
Quote:
Originally Posted by UltraVires View Post
Any revolution destroys the rule of law. We have a legislature for results oriented thinking. When the judiciary does it, we do not have a democracy, but a rule from nine lawyers.

If an absolute monarch does something positive, that does not make monarchy a positive form of government. Rule by judicial fiat is an anathema to our concept of rule by the people.
Nonsense. The judiciary do not rule by fiat or decree or anything else. They have no power to enact a single law.

Their only power is to interpret the laws that are enacted by the legislature. You may not like or agree with their interpretations. But that doesn't mean they're making things up out of nothing.
  #25  
Old 09-13-2018, 02:01 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by DavidwithanR View Post
The substance is that your approach and attitude are incorrect, and your reason for asking is not a valid one. You're (figuratively) bringing a frivolous case. Nothing about racism or sexism required.
You keep making that bald declaration in different ways. Again, please address the substance of my argument.
  #26  
Old 09-13-2018, 03:41 AM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 78,886
Quote:
Originally Posted by UltraVires View Post
Again, please address the substance of my argument.
A number of people have addressed the substance of your argument by telling you that it's wrong. The fact that it's possible for you to break a law doesn't mean that you're allowed to break a law.
  #27  
Old 09-13-2018, 06:58 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by Little Nemo View Post
A number of people have addressed the substance of your argument by telling you that it's wrong. The fact that it's possible for you to break a law doesn't mean that you're allowed to break a law.
Then nobody has addressed the question because until the 15th amendment was ratified, it was perfectly legal for a state to deny the right to vote to male persons based upon race and many did so. The 14th Amendment failed to provide that protection.

No state was "breaking the law" by denying the right to vote to blacks or else the 15th Amendment would not have been necessary, just two short years later.
  #28  
Old 09-13-2018, 07:11 AM
Lord Feldon's Avatar
Lord Feldon Lord Feldon is offline
Guest
 
Join Date: Dec 2010
Location: Central Ohio
Posts: 5,933
Proving strict necessity is not a part of amending the Constitution, so the fact that it happened does not mean it was necessary. There were plenty of people who believed that the 24th Amendment was unnecessary, but nevertheless supported its ratification. (And indeed, the Supreme Court did take their side and strike down the remaining poll taxes just two years later.)

Last edited by Lord Feldon; 09-13-2018 at 07:14 AM.
  #29  
Old 09-14-2018, 05:54 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by Lord Feldon View Post
Proving strict necessity is not a part of amending the Constitution, so the fact that it happened does not mean it was necessary. There were plenty of people who believed that the 24th Amendment was unnecessary, but nevertheless supported its ratification. (And indeed, the Supreme Court did take their side and strike down the remaining poll taxes just two years later.)
Cite that this is in any way analogous? Again, we had Congressman, even those supporting universal male suffrage, lamenting on the floor that this was all they could hope to get out of the 14th Amendment. Dangit, we just cannot get these states to sign on if it means blacks vote, but we can get this limitation of representation provision. The rights of women to vote were not discussed and assumed to be proper, even after enactment of the 14th Amendment.

Two years later nobody said, "Well, we think this is just a bunch of surplusage, but, hey, nothing else to do, so let's just pass the 15th Amendment to make sure."

Given that, clearly the drafters had something else in mind for equal protection and due process. You have to admit that if we were not talking about something to modern sensibilities that seems so basic and decent, my argument would be bulletproof and yours would be silly.
  #30  
Old 09-18-2018, 11:43 AM
kaylasdad99 kaylasdad99 is offline
Charter Member
 
Join Date: Sep 1999
Location: Anaheim, CA
Posts: 30,130
Quote:
Originally Posted by UltraVires View Post
But Section 2 of the 14th Amendment is not a historical curiosity or at least nobody has shown that it is. It casts light on how the terms in Section 1 are to be construment. Again, nobody has addressed this except to say that the Supreme Court has held otherwise (which I agree, but without any support) and that progress would have taken longer. I also agree, but the law should be followed even if it produces a bad result; when the law produces a bad result, we can change it. If we cannot change it, then a majority thinks it is not a bad result.

I wish we could address the substance instead of some of the veiled implications that I am a racist or sexist.
Is "construment" a typo, or a word that you law-talking guys tend to be familiar with?

If the former, please provide the word you intended that we read.

If the latter, please do a better job of elucidating wtf you're talking about in that sentence.

TIA.

Last edited by kaylasdad99; 09-18-2018 at 11:44 AM.
  #31  
Old 09-18-2018, 03:13 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 14,007
Quote:
Originally Posted by kaylasdad99 View Post
Is "construment" a typo, or a word that you law-talking guys tend to be familiar with?

If the former, please provide the word you intended that we read.

If the latter, please do a better job of elucidating wtf you're talking about in that sentence.

TIA.
Sorry "construed."
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:35 PM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2018, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright 2018 STM Reader, LLC.

 
Copyright © 2017