« Federal Judges Are Mirroring the Supreme Court on Financial Disclosures | Main | Mensches for Kamala Gets It Wrong [UPDATED with Jimmy Cagney] »

Monday, July 22, 2024

Constitutional Recognition

In my research for my next article, I came across the following proposition that deserves consideration:

"[T]he recognition of facts in the Constitution must not be held to be a sanction of what is so recognized."

The immediate reference points for this statement was slavery and the 3/5th Clause. Anti-slavery lawyers denied that the Constitution sanctioned slavery even though the text recognized slavery. But in the 1870s, advocates for women's suffrage argued for the same rule should apply to Section Two of the Fourteenth Amendment. The provision used the word "male" to refer to voters because all voters were male, but this was recognition rather than sanction.

I'm wondering what other provisions might be described as descriptive rather than normative. 14/2's mention of states disenfranchising felons is one possibility, but there may be many more.

Posted by Gerard Magliocca on July 22, 2024 at 12:52 PM | Permalink

Comments

The comments to this entry are closed.