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Tuesday, June 14, 2022

A Section Three Puzzle

I first got interested in Section Three of the Fourteenth Amendment because of the intricate legal problems that the text presented. This was back in 2020, when I had no idea that any of this would be the subject of modern litigation. Here is one such problem for your consideration and amusement:

Let's start with two questionable premises. First, Section 3 is not self-executing. Second, only an Act of Congress can execute Section 3. (These two premises constitute the holding of the 1869 circuit opinion in Griffin's Case.)

The problem is that some states enforced Section 3 before Congress enacted general enforcement legislation in 1870. How can that be? The most straightforward answer is that the 1868 Act of Congress readmitting certain ex-Confederate states to the Union provided the necessary authority. This statute readmitted those states under several conditions; one of which was that they enforce Section 3 against state and local officials.

The Section 3 cases from Louisiana support this view. They held that the 1868 Act (which readmitted that state)  provided the necessary enforcement authority, without deciding whether Section 3 was also self-executing. The Section 3 cases from North Carolina cut the other way. Those state cases referred only to the state enforcement statute as the relevant authority, even though North Carolina was also readmitted by the 1868 Act.

Here is where the fun starts. Our two questionable premises and the state enforcement practice just cited only hang together if the 1868 readmission statute authorized state enforcement by some states. This means that--even now--some states can enforce Section Three under that theory and some cannot. But how can that be consistent with the Tenth Amendment as read by the Supreme Court in Shelby County? Holding that some states may enforce a federal constitutional guarantee while others may not is very odd, especially when the reason for that distinction in 1868 has long since become obsolete.

If you say, though, that the 1868 Act is invalid, that gets complicated. Can an Act that readmitted states be unconstitutional? If so, wouldn't that mean those states are no longer entitled to representation in Congress? Maybe there's an argument that the Section 3 enforcement portion of the 1868 Act is severable. But that seems wrong, as it was a condition for readmission. (How can a precondition be severable?)

I point that out in part because it is just one of the many ways to expose the flaws in the premises of Griffin's Case, which I discuss in my original law review article.

Posted by Gerard Magliocca on June 14, 2022 at 01:34 PM | Permalink


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