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is enforced and contains an actual right to vote, a provision encouraging but not requiring enfranchisement is obsolete and superseded.