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Saturday, September 19, 2020

Fourteenth Amendment Esoterica

I'm come across a curious law that I want to write about. In June 1868, Congress enacted a law to admit several of the ex-Confederate states to the Union upon certain conditions. One, of course, was that they ratify the Fourteenth Amendment. The Act then said this:

That the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, changed as, &c. except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State.

The states covered by this Act were North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida.

Why do I find this interesting? A few reasons. First, this is at odds with the Supreme Court's statement in Shelby County that the states are on equal footing with respect to voting rights. Some states in the South are treated differently in that they are still subject (at least formally) to the Act's requirement. Now you could say something like the following in response: Congress lacks the power to tell a state what to do in its organic law once the state is readmitted. Thus, the post-admission condition stated here is unconstitutional. Maybe, but that gets you into deep waters that I won't go into here.

Second, the Act gives a contemporaneous interpretation of Section Two of the Fourteenth Amendment. The Act refers to crimes as are now felonies. Suppose we said that states could only disenfranchise people convicted of felonies recognized in 1868. That (as others have observed) would be less sweeping than the way a state such as Florida imposes felon disenfranchisement now.

Anyway, this may just be a sideshow in my Section Three article, but I need to give this further thought.

Posted by Gerard Magliocca on September 19, 2020 at 09:04 PM | Permalink


Thanks Jack. I’ll read your article.

Posted by: Gerard | Sep 20, 2020 8:53:44 AM

This is a very interesting set of laws; I wrote about them in Gabriel J. Chin, The 'Voting Rights Act of 1867': The Constitutionality of Federal Regulation of Suffrage During Reconstruction, 82 North Carolina Law Review 1581 (2004) online here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=589301 I think there is a lot more to say.

Posted by: Jack Chin | Sep 19, 2020 10:37:20 PM

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