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Friday, July 12, 2013

The Voting Bonus During Jim Crow, Part I: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth

Over at Concurring Opinions, Gerard Magliocca has a very interesting post on the 3/5ths Clause, which, he points out, gave slave states increased representation in Congress and the Electoral College above what they would have had enslaved persons, who after all, could not vote, not been counted at all.    He observes that after abolition following the Civil War, the former Confederate states would be rewarded with an increase in federal power, because there would no longer be any people who counted only 3/5ths for purposes of apportionment.  The initial constitutional response was Section 2 of the Fourteenth Amendment, which reduced the representation in Congress of any state disenfranchising African American men.  In the long lawless decades of suppression of Africam American suffrage, no disenfranchising state lost a seat.  One problem was that the entire federal government was shaped, directly or indirectly, by the illegality. 

Ten years ago, I wrote a paper proposing that the mystery of the desuetude of Section 2 of the Fourteenth Amendment was explained by its repeal by the Fifteenth Amendment

The basic argument is simple.   In, say, majority-African American South Carolina, in, say, 1872, if the conservative minority refused to let African Americans vote, a U.S. District Court or the U.S. Congress choosing to scrupulously apply the Constitution could not apply Section 2 in lieu of actual enfranchisement, that is, they could not legitimately apply Section 2 and ignore the 15th Amendment.  Nor would it make sense, on a permanent basis, to apply both, to allow African Americans to vote, but to reduce South Carolina's representation.  First, once African Americans were voting, the textual and policy rationale for reduced representation would no longer exist.  Second, once African Americans were voting, to reduce the number of house seats might well result in taking away a seat from an African American.   In short, in a regime where the Constitution is enforced and contains an actual right to vote, a provision encouraging but not requiring enfranchisement is obsolete and superseded. 

Posted by Jack Chin on July 12, 2013 at 04:45 AM | Permalink

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The legislative history of the Fourteenth and Fifteenth Amendments is pretty clear that the Framers of those Amendments did not wish to create an affirmative right to vote. Despite Congress's failure to use the penalty of section 2 since its enactment, there is no reason to think that it necessarily follows that provision is repealed by section 1 of the Fifteenth Amendment. There is also no reason to think that the penalty has to operate in the manner that you have identified, given that Congress has never used it. In reality, section 2 is the only provision in the Fourteenth Amendment that mentions voting rights; a more natural reading is that Congress, through its power to enforce all of the provisions of the Fourteenth Amendment pursuant to its authority under section 5, can impose penalties other than reduced representation in further the substantive mandates of section 2. Unlike the Fifteenth Amendment, section 2 is not limited to abridgments of the right to vote based on race, which is a powerful source of authority to address facially neutral abridgments of the right to vote that the Fifteenth Amendment might not reach. I will send you my draft on this (also discussing your Georgetown piece) in the next week or so. Hope all is well, Jack!

Posted by: Franita Tolson | Jul 12, 2013 10:37:30 AM

Section 2 reads "any of the male inhabitants" while the Fifteenth Amendment refers to "race, color, or previous condition of servitude."

Let's say a state limits voting to the able-bodied. A disabled man has no remedy under the Fifteenth Amendment, but Section 2 would allow reduced representation.

Posted by: anon | Jul 12, 2013 7:22:29 PM

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