Guest Essayist: Timothy Sandefur, Author and a principal attorney at the Pacific Legal Foundation

Amendment XIV, Section 2:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The end of the Civil War brought radical changes to the United States Constitution.  Leaders of the victorious Republican party hoped now to make the principles for which they waged such a punishing war into a permanent part of the Constitution.   The Fourteenth Amendment renounced the “states’ rights” theories that so prevalent before the war, by declaring first that all Americans are citizens of the United States first and foremost, and only secondarily of the states where they reside.   States had formerly, enjoyed authority to determine both state and federal citizenship; now the nation would determine both.   Second, the Amendment prohibited states from depriving Americans of their “privileges or immunities”—i.e., of the rights that belong to all Americans—or of equal protection of the law, or of life, liberty or property without due process of law.  These new guarantees ensured that the theory of “paramount national citizenship,” for decades the backbone of the Republican anti-slavery crusade, would be enshrined forever in the nation’s highest law.

But the Amendment was not concerned only with these crucial abstract principles.  It was also a matter of practical politics.  The second section of the Amendment—pointing toward the future Fifteenth Amendment—punished any state that deprived people of the right to vote.  Southern states, after all, could be expected to take steps to bar their former slaves—now citizens—from exercising their new rights as citizenship.  Rather than banning such interference outright, as the Fifteenth Amendment would do, this provision declares that if a state deprives “any of the male inhabitants” who are 21 or older from voting in a federal or state election, that state will lose seats in the House of Representatives.

This provision that overrode the Constitution’s infamous “three-fifths” clause, whereby Congress was apportioned on the basis of the white populace along with “three-fifths” of the slaves, and it marked the first steps toward a democracy in which all races could participate.  Of course, there was also a steely political reality behind Congress’s choice of language: if southern states were restored to the union, and apportioned Congressmen on the direct basis of population, the Republicans might soon find themselves outvoted in Congress, destroying their unique opportunity for constitutional reform.  Thus the Amendment permitted states to deprive people of the right to vote on account of their having “participat[ed] in rebellion, or other crime.”

The inclusion of the world “male” was also a calculated political move, and it also sparked a clash among the Amendment’s friends.  Never before had the U.S. Constitution conditioned the right to vote on sex, and in fact, at the time the Constitution was originally ratified, some states allowed women to vote.  But no state allowed women to vote in 1868, and had the Amendment been written in language that included female suffrage, the proposal would have faced far more opposition within the Northern political coalition.  But adding a provision that explicitly allowed states to disenfranchise women put the nation’s imprimatur on discrimination, and offended many of the same female activists who had helped lead the Abolitionist movement.  Some of them—including Elizabeth Cady Stanton and Susan B. Anthony—now opposed any guarantee of voting rights that was not gender-neutral.  The former slave Frederick Douglass was more pragmatic.  He believed strongly in women’s suffrage, but that was a goal for another day.  “Woman has a thousand ways to attach herself to the governing power of the land and already exerts an honorable influence on the course of legislation.”  But “the Negro is mobbed, beaten, shot, stabbed, hanged, burnt, and is the target of all that is malignant in the North and all that is murderous in the south.”

Although section 2 was largely rendered obsolete by the Fifteenth and Nineteenth Amendments—which barred states from discriminating on the basis of race or sex when it comes to the right to vote—it has still played an important role in shaping the power of states to deprive certain groups of voting rights.  In a 1974 case, the Supreme Court ruled that states may disenfranchise felons, pointing out that the Fourteenth Amendment explicitly allowed this.  And in 1970, Justice John Marshall Harlan, whose grandfather had been the lone dissenter in Plessy v. Ferguson, relied partly on the language of section 2 to conclude that the Fourteenth Amendment did not allow Congress to interfere with a state’s power to determine voter qualifications.

That the Amendment’s language regarding the right to vote was so quickly superseded by the Fifteenth Amendment should come as no surprise.  The Fourteenth Amendment was just one step in a long-overdue effort to make the Declaration of Independence’s promise of equal liberty a reality for all.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).

Tuesday, May 1, 2012

Essay # 52

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  1. […] conversation, discussing some of the lesser-known provisions of the Fourteenth Amendment. You can read my first contribution here. Other participants include W.B. Allen, Allison Hayward, and John Lott. Related […]

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