This thread is in reply to the factual questions thread “American Civil War/ Reconstruction amendments,” expanding to political implications of later amendments and laws.
The original Factual Question:
Similarly to the story with the reconstruction amendments, later amendment ratifications were not seriously questioned despite many of the state legislatures being illegitimate due to 15th amendment violations (Blacks stopped from voting).
Many on-the-books laws are arguably illegitimate due to 14th amendment section 2 violations. Congress, or the courts, should have reduced the number of House of Representatives members allowed states in violation of the 15th amendment, as many states were for almost a century.* All that time, House roll calls were invalid on close votes. AFAIK no one ever seriously raises those questions regarding what happened before the 1960’s civil rights era.
This gets to a probable reason why the legitimacy of the reconstruction ratifications wasn’t seriously questioned. There wasn’t a big need due to historical lax enforcement of said amendments. This continues today with Fourteenth Amendment Article 3, which by original intent would have stopped Donald Trump from becoming president, being ignored.
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* Am I saying that the penalty for violating the fifteenth amendment is in the fourteenth amendment? Yes. Read them. The reason they are out of logical order is a long story.
I think you are conflating two separate issues. The practice of blocking eligible people from voting or registering to vote is certainly a violation of rights (as explicitly defined in the Voting Rights Act of 1965 but which was established under general Constitutional principles). However, that doesn’t negate the legitimacy of an otherwise regular election process, i.e. counting the votes that were legally cast. That Black voters (and women, and Native Americans, et cetera) is a shameful disregard for what should be democratic norms of allowing all non-felon citizens of age of majority to participate in the electoral franchise but it doesn’t illegitimize elections where those rights were not protected.
Although we are in violent agreement that what Donald Trump did on January 6, 2021 was in point of fact inciting an insurrection even if some people want to claim otherwise, he was never convicted in either a court of law or by the Senate during an impeachment trial, which made the attempt in several states to remove him from the ballot a pointless and futile effort because there was no legal basis to do so.
The situation with women is different because the 19th amendment (women allowed to vote) has no penalty attached. Disallowing voting due to race has a 14th amendment article 2 constitutional penalty – reduction in the number of members that state has in the House of Representatives. It’s not a question of the legitimacy of individual elections, but that southern states had too many House elections.
Of course it is too late, to enforce the constitution, after lots of laws are passed by narrow margins due to there being more House members than the constitution allows.
I recently read David Donald’s two volume Pulitzer Prize winning biography of Charles Sumner, who was a U.S. Senate member between 1851 and 1874. Sumner insisted that passing the reconstruction amendments as laws would be more effective than passing them as amendments. This seemed absurd to others – surely the Constitution has more authority than a mere law. In retrospect, they should have done both. No one imagined that provisions saying a constitutional amendment could be later addressed by a law could weaken the amendment.
Congress could today pass a law providing a criminal penalty for violating the constitution. Or could that only be applied to the few parts of the Constitution which say they can be enforced by law? My answer: Pam Bondi would decline to enforce that law. If public opinion greatly dislikes a constitutional provision, or a law, excuses will always be found to ignore it.
The 19th amendment does have one of those extra articles saying it can be enforced by law. I suppose there are now criminal penalties for individuals violating it, such as by stopping a particular woman from voting. But a whole state can ignore it that’s what public opinion, and the legislature dictates, and you have the kind of Supreme Court we have today. .
The 14th amendment contains an actual penalty for someone who has sworn to uphold the constitution then trying to bring it down – disqualification from office. That still wasn’t good enough. Sumner was correct that putting this in the Constitution would not matter. But making a law against insurrection didn’t work either.