I see. I was familiar with that clause, but remembered it primarily as a
penalty for States' restricting the franchise (especially when read in
conjunction with the Fifteenth), rather than as a license for them to do so:
Amendment XIV, Section 2: "[...] [W]hen the right to vote at any
election [...] 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."
All the many times I've previously read these words, I must have mentally
translated "except for [...] crime" as equivalent to "unless undergoing
imprisonment for a crime", in line with the usual practice in most
democracies (and yes, I know them's fighting words to many Americans! (-;).
But Rehnquist would have been quite correct that, on its face, the text
does not require current imprisonment. Since the very next section of the
Fourteenth imposes a presumptive lifetime disqualification from office in
the case of rebellion, it would be hard to argue that "other crime[s]"
could not similarly carry a lifetime disqualification from voting. I assume
the congressional debates at the time show this meaning was intended.
I suppose "male inhabitants being twenty-one years of age" would now be
read as "all inhabitants over eighteen years of age" in light of the
Nineteenth and Twenty-Sixth Amendments ...?
List members might be interested to know that Australia's Constitution,
when adopted in 1900, contained a clause with similar intent but much
balder language:
Section 25: "For the purposes of the last section [ie, allocation
of House of Reps seats], if by the law of any State all persons of any race
are disqualified from voting at elections for the more numerous House of
the Parliament of the State, then, in reckoning the number of the people of
the State or of the Commonwealth, persons of that race resident in that
State shall not be counted."
This was probably a reasonably progressive provision for the 1890s --
certainly better than letting States count disenfranchised minority races
as 60% of a white person when seats were apportioned. However, over time
it's become embarrassing and there have been calls for its removal. This,
incidentally, illustrates one of the often-cited reasons why Australia is
the last English-speaking democracy in the world without a Bill or Charter
of Rights. If you entrench rules in your constitution to limit and regular
particular unpleasant practices (race-based franchises, the death penalty,
etc) it makes it much harder to argue, decades later, that these practices
are impliedly unconstitutional, and/or so unjust that they should be
repealed by statute.
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Subject: RE: A Growing Gap in American Democracy
Date: Mon, 29 July 2002 16:06:49 -0700
From: "Vasan Kesavan" <Kesavan@franciscopartners.com>
To: "Tom Round" <T.Round@mailbox.gu.edu.au>, "Rick Hasen"
<rick.hasen@lls.edu>
Cc: <election-law@majordomo.lls.edu>
The relevant text of the Constitution is not Section 2 of the Fourteenth
Amendment, not Section 1 of the Fourteenth Amendment or even the
Thirteenth Amendment.
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
From: "Richard Winger" <ban@igc.org>
To: "Tom Round" <T.Round@mailbox.gu.edu.au>
Subject: Re: A Growing Gap in American Democracy
Date: Sun, 28 Jul 2002 18:36:17 -0700
Organization: Ballot Access News
The problem is sec. 2 of the 14th amendment. Or so Rehnquist wrote in
Richardson v Ramirez, in 1974.
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
--------------------------------------------------------------------------
Dr Tom Round
BA (Hons), LL.B (UQ), PhD (GU, Sept 2002)
Research Fellow, Key Centre for Ethics,
Law, Justice and Governance (KCELJAG)
& Subject Convenor, 7021KEL ("Ethical and
Legal Regulation of Organisations")
Room 1.10, Macrossan Building, Nathan Campus
Griffith University, Queensland [Australia] 4111
Ph: (061 or 07) 3875 3817
Mobile: 0438 167 304
Fax: (061 or 07) 3875 6634
E-mail:
T.Round@mailbox.gu.edu.au
Web:
http://www.gu.edu.au/centre/kceljag/
--------------------------------------------------------------------------