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?

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?

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).

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.

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.

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:

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.

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.

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.

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.

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.

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.

Now I’m curious how many states, then or now, would gladly accept fewer congressional delegates as the cost of disenfranchising their undesirables.

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.

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.

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.

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?

It makes Engblom v. Carey (1982) a mildly amusing anomaly.

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.

Sometimes a legal revolution is cheaper and easier and better than an actual one. Results-oriented thinking isn’t all bad.

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.

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.

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.