Bush v. Gore

[Emsworth]

Part I (7-2): The Supreme Court held that, by using arbitrarily different recount standards throughout the state, Florida denied "equal protection" to its voters, thereby violating the Fourteenth Amendment.

This part of the ruling is, strictly speaking, unsound. The equal protection clause is found in Section 1 of the Fourteenth Amendment. Section 2 of the same amendment reads as follows:

When 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.

This section specifically acknowledges that states are allowed to "den[y] ... or in any way abridge" a citizen's right to vote. It proceeds to provide a specific remedy for a denial of the right to vote: the state's representation in Congress is reduced based on the number of people who have been disenfranchised.

The Fourteenth Amendment must be interpreted as a whole unit. If Section 2 specifically allows states to deny or abridge a citizen's right to vote, then how can Section 1 forbid states from doing exactly the same thing? If we interpret the Fourteenth Amendment consistently, we reach the conclusion that the equal protection clause does not cover the right to vote. (This loophole was observed by Congress a few years later, leading to the Fifteenth Amendment.)

Since the 1960s, however, the Supreme Court has effectively ignored Section 2, and said that the equal protection clause does indeed apply to voting rights (Reynolds v. Sims and other cases). Neither Bush nor Gore challenged the validity of these prior cases; thus, it is understandable that the Supreme Court did not revisit them. If we apply precedent, then "Part I" of Bush v. Gore was correct. If we apply the actual text of the Constitution, however, then Part I was incorrect.

Part II (5-4): The Supreme Court held that, since there was not enough time before the counting deadline to devise a new recounting method that would meet equal protection requirements, the recount should be stopped.

The Florida Supreme Court had already decided that, under Florida law, December 12 was the deadline for completing the recount. As a practical matter, the federal Supreme Court was right: in all probability, it would have been impossible to devise a new method and complete the count before this deadline. However, this does not mean that they were right under the law. The job of a judge is not to gaze into the future and determine what is or is not possible in a particular timeframe, but simply to interpret the law.

[Emsworth]

You draw a conclusion that I cannot from the text. The fact that the fourteenth amendment recognizes the possibility that states may deny voting to some of its citizenry in no way directly implies that it is allowed.

Section 2 explicitly contemplates the denial of the right to vote, and provides a specific remedy for such a denial. The remedy entails nothing more than a reduction of the state's congressional representation. It does not entail forcing the state to allow certain persons to vote. But if the textual argument is deemed unsatisfactory, we can also consider the statements of those who framed the Fourteenth Amendment.

The Fourteenth Amendment was introduced in the House of Representatives by Thaddeus Stevens. Referring to Section 2, he argued:

"If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive."

Stevens clearly recognized the authority of a state to "exclude any of her adult male citizens from the elective franchise." According to him, states have an alternative: they may either choose universal suffrage, or they may lose congressional representation.

Even stronger evidence comes from the Senate debate. Senator Jacob Howard, who introduced the Fourteenth Amendment in the Senate, explained as follows:

"[T]he first section of the amendment [prohibits] a State ... from denying to him the equal protection of the laws of the State ... But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting ... The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right."

Another important point is this: why would the Fifteenth Amendment have been necessary, if its objective were already accomplished by the equal protection clause? 

[Emsworth]

The quote from Rep. Stevens is completely consistent with the intent that Congress make exclusion of voting rights akin to a crime. He is not recognizing the "authority" to enact such laws, he only recognizes that states may do so against the will of the country. Once the amendment exists, the action of a state in that manner is the essence of an unlawful act with penalties for noncompliance.

With all due respect, I would disagree. Here is a fuller quotation, which sheds more light on what Stevens meant:

"The second section I consider the most important in the article. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive ... This section allows the States to discriminate ... and receive proportionate credit in representation."

I would also repeat my point about the Fifteenth Amendment. Why would Congress have taken the trouble of passing the Fifteenth Amendment, if voting rights were already guaranteed by the equal protection clause? To quote from the Supreme Court's opinion in Minor v. Happersett:

"And still again, after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth...

If suffrage was [covered by the fourteenth amendment], why amend the Constitution to prevent its being denied on account of race, &c.? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Constitution to protect a part?"

[Emsworth]

Where Emsworth is in error, is his belief that inclusion of the 2nd section means that equal protection and due process do not apply to voting rights.

I would again have to respectfully disagree. I have already pointed out that the beliefs expressed by Representative Stevens and Senator Howard (the men who introduced the amendment in their respective houses) tally with mine. But, I will add some more evidence, if what I have posted so far is not convincing enough:

"The second section excludes the conclusion that, by the first section, suffrage is ... [no longer] exclusively under the control of the States." (Rep. John Bingham)

"Now, conceding to each State the right to regulate the right of suffrage, they ought not to have a representation for male citizens not less than twenty-one years of age, whether white or black, who are deprived of the exercise of suffrage. This amendment will settle the complication in regard to suffrage and representation, leaving each State to regulate that for itself, so that it will be for it to decide whether or not it shall have a representation for all its male citizens not less than twenty-one years of age." (Rep. George Miller)

"If you deny to any portion of the loyal citizens of your State the right to vote for Representatives, you shall not assume to represent them, and, as you have done for so long a time, misrepresent and oppress them. This is a step in the right direction, and although I should prefer to see incorporated into the Constitution a guarantee of universal suffrage, as we cannot get the required two-thirds for that, I cordially support this proposition as the next best." (Rep. John Farnsworth)

"But I will again venture the opinion that it [the second section] means as if it read thus: no State shall be allowed a representation on a colored population unless the right of voting is given to the negroes -- presenting to the States the alternative of loss of representation or the enfranchisement of the negroes, and their political equality." (Sen. Thomas Hendricks)

"I should be much better satisfied if the right of suffrage had been given at once to [negroes] ... Believing that this amendment probably goes as far in favor of suffrage to the negro as is practicable to accomplish now, and hoping it may in the end accomplish all I desire in this respect, I shall vote for its adoption, although I should be glad to go further." (Sen. Luke Poland)

"[The second section] concedes to the States ... not only the right, but the exclusive right, to regulate the franchise ... It says that each of the southern States, and, of course, each other State in the Union, has a right to regulate for itself the franchise, and that consequently, as far as the Government of the United States is concerned, if the black man is not permitted the right to the franchise, it will be a wrong (if a wrong) which the Government of the United States will be impotent to redress." (Sen. Reverdy Johnson)

In short, as these self-explanatory statements make clear, states (under the Fourteenth Amendment) have an alternative between less congressional representation and universal suffrage. They are not in any way, shape, or form forced to offer universal suffrage by the equal protection clause.

I would further note that the due process clause most certainly does not guarantee voting rights to anybody. Firstly, the clause provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law." The right to vote is not life, it is not liberty, and it is not property. Accordingly, it is difficult to argue that voting rights are covered by this clause.

But even if the right to vote were covered by the term "life, liberty, or property," it would not follow that denying someone the right to vote is unconstitutional. The due process clause does not prohibit the deprivation of life, liberty, of property. On the contrary: it allows the state to deprive someone of these rights, as long as "due process of law" is provided. Thus, states can deprive anyone of the right to vote, as long as they ensure due process of law (i.e., as long as the denial is pursuant to the law of the land).

[Emsworth]

Date JFK was awarded Hawaii's electors: January 2nd, 1961

It should be noted that, under federal law, the safe-harbor date is not a mandatory date. A state can, if it so pleases, name electors after this date.

The laws of Florida, as interpreted by the Supreme Court of Florida, require that the electors be named before the safe-harbor date. The laws of Hawaii do not. Therefore, what Hawaii may or may not have done in 1961 is irrelevant.

[Emsworth]

So how does this justifying over-ruling the Supreme Court of Florida, and forcing them to stop the recount 3 days before the non-binding deadline?

Obviously, it does not. The injunction is clearly indefensible.

[Emsworth]

I agree that the states are faced with an alternative between representation and suffrage. Many of the quates you cite clearly show me that the intent is to compel the states to grant suffrage. This is very much like the federal regulation of the drinking age through transportation funding.  Congress clearly saw that as enacting a national drinking age, though they left the states a "choice". In both cases Congress saw the wayward states as wrong.

In the words of Representative Farnsworth, proponents of black suffrage could not "get the required two-thirds" in 1866. Section 2 was adopted as a compromise: the states would be allowed to deny the vote to African-Americans, but would lose representation as a result. Obviously, the intention of Section 2 was to indirectly compel a grant of voting rights. But just as states are allowed to choose between less transportation funding and a higher drinking age, they were also allowed to choose between less representation and more suffrage. There is nothing in the law that prevents a state from opting for less transportation funding, just as there is nothing in the Constitution that prevents a state from opting for less representation.

The equal protection clause, therefore, cannot be interpreted as requiring states to give African-Americans (or anyone else) the right to vote.

The state can not act in a capricious or arbitrary manner with respect to voting.

Why not?

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The Constitution explicitly mentions that states are not allowed to deny the right to vote for certain specific reasons (e.g., race, sex, or failure to pay a poll tax). But states are allowed to deny the right for any other reason whatsoever.

Furthermore, under Article II, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." There is nothing in Article II that requires states to use popular voting to choose electors. If the state of Florida wishes to use a "capricious or arbitrary" system to choose its electors, it can most certainly do so.

[Emsworth]

The assertion that the equal protection clause pertains to voting rights is, in my opinion, completely invalid. I feel, with all due respect, that I have conclusively demonstrated that clause, as originally understood, did not cover voting rights.

I repeat my earlier, still-unanswered question: why did Congress pass the Fifteenth Amendment, if the equal protection clause already forbade discrimination with respect to voting rights?

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Either the equal protection clause allows discrimination, or it prohibits discrimination. The clause does not provide, "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws unless there is a 'reasonable reason' to do so."

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It is most certainly entitled to do so, if it is willing to forfeit a portion of its congressional representation.

[Emsworth]

But this hypotheticcal assumes a concious choice on the part of the state. The compromise you cite for the form of section two was to provide a penalty for the wrong choice. There is a fundamental difference in a state choosing to exclude those citizens whose last names begin with an E, and an unintentional exclusion of that group, say for example by a computer glitch printing the voting lists.

The Fourteenth Amendment makes no distinction between intentional and accidental denial of the right to vote. As long as the right is denied, or in any way abridged, the state stands to lose representation. Whether a state does so willingly or inadvertently is not relevant.

[Emsworth]

What did it cover (as originally understood)?  What liberties are protected by the 14th Amendment?

Everything, except the right to vote.

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The compelling state interest standard isn't mentioned in the amendment either. But in any event, what exactly is a "compelling state interest"?

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Of course, although if its overall population were to increase, then it would suffer a loss of representation.

[Emsworth]

Because a distinction is not articulated does not mean that it doesn't exist. The judiciary does have a role to play in identifying exactly this type of distinction from the facts.

The judiciary is not entitled to make up distinctions that do not exist in the Constitution. Which part of the law of the land gives them such authority?

[Emsworth]

[quote author=muon2 The US Constitution is an intentionally spare document as opposed to the detailed civil constitutions found in many other countries. Under the traditions of our judicial system there is room for common law interpretation. Your view would seem to imply that the Constitution and amendments be treated as a civil law document where common law principles such as stare decisis do not apply.
[/quote]
Even in common-law countries, the judiciary does not have the power to make law. Its role still consists of interpreting already-existing law, whether that law is statutory (Acts of Parliament) or customary (common law). In common-law countries as well as civil-law countries, if the law does not contain an exception, the judiciary is not permitted to make one up. Certainly, the judiciary is allowed to deviate from the literal meaning of the words, but it can only do so in accordance with strict rules of construction and interpretation, not at the whim of a few judges. If any particular rule of construction or interpretation justifies refusing to read Section 2 of Amendment 14 literally, then fine, but so far no such justification has been provided.

Moreover, while stare decisis plays an extremely important role in interpreting customary law, and a somewhat important role in interpreting statutes, its role in interpreting the Constitution is not necessarily very significant. The Supreme Court has itself acknowledged this fact. Stare decisis, to quote Justice Brandeis, "has only a limited application in the field of constitutional law." In Seminole Tribe of Florida v. Florida, the Court noted, "Our willingness to reconsider our earlier decisions has been particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible."

[Emsworth]

Haven't the standards of what constitutes liberty evolved since the mid 19th century?

The Constitution authorizes only one method of changing its meaning: the amendment process. Whether the standards of what constitutes liberty have evolved is irrelevant to the original meaning of the Constitution.

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Could you provide evidence for that statement? Which statements indicate that Congress was attempting to preserve the three-fifths rule (which was actually abolished, as there were no more "other persons" left.)

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The Constitution does not require state governments or the federal government to be capable of claiming legitimacy.

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Firstly, I do not see how voting is connected with securing one's life. Are you contending that, because children are denied the right to vote, their life is insecure?

Secondly, it must be remembered that the due process clause applies not only to citizens but also to aliens. The state cannot deprive an alien of life, just as it cannot deprive a citizen of life, without due process of law. Under your argument, aliens have the right to vote, because if it were denied, they would be unable to secure their lives.

Finally, and most importantly, there is no constitutional right to secure one's life, liberty, or property. A person only has the right to not have the state deprive him of life, liberty, or property, without due process of law. Voting has no relation to this requirement.

[Emsworth]

The Constitution has always been subject to interpretation by Congress and the Supreme Court.  The 14th Amendment does not define "liberty".

But the word "liberty," as well as the terms "due process" and "equal protection," had certain meanings when the Fourteenth Amendment was ratified. The courts should adhere to the same meaning today. Otherwise, they would be substituting their own views for those of the country, which ratified the amendment.

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So you admit that, under the equal protection clause, disenfranchisement was permissible?

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The concept of "legitimacy" is an arbitrary and irrelevant one.

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No, but as long as the denial is pursuant to "due process of law," the due process clause has not been violated.

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All the due process clause says is that individuals cannot be deprived of certain rights, except in accordance with the law of the land.

[Emsworth]

"was" being the essential word here.  Within 7 months of ratification of an amendment that recognized that disenfranchisement might occur, and provided a penalty if it did; Congress proposed a new amendment that would outlaw disenfranchisement of the class of persons that the 14th Amendment had recognized might happen.

Nowhere does the Fourteenth Amendment suggest that only race-based disenfranchisement is subject to a penalty under section 2. All disenfranchisement for any reason except participation in a crime was subject to the "penalty."

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Of course it is. Section 2 suggests that the right vote may be "denied ...  or in any way abridged," indicating that action short of disenfranchisement is also contemplated by this clause.

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The due process clause is not meaningless. It provides that an individual can only be deprived of life, liberty, or property in accordance with the law. In other words, neither the executive nor the judiciary can take away anyone's life, liberty, or property without authorization from the legislature.

I have shown several statements by the Framers of the Fourteenth Amendment that clearly indicate that the equal protection clause does not extend to voting rights. I will repeat the words of Representative John Bingham, the author of the Amendment: "The second section excludes the conclusion that, by the first section, suffrage is ... [no longer] exclusively under the control of the States."

The very idea that the equal protection clause protects everyone's voting rights is contradicted by the fact that Congress deemed it necessary to pass not one, but four different amendments preventing discrimination between voters. If the equal protection clause extends to voting rights, then no fewer than four constitutional amendments are redundant.

[Emsworth]

I can show you any number of Supreme Court decisions that says that it does.  You can at best show me a dissenting opinion.

Prior to the 1950s, someone could show me any number of Supreme Court decisions that allowed racial segregation. I could at best show him the first Justice Harlan's dissenting opinion. But does that mean that I would have been wrong?

But , since you emphasize the value precedent, let us in any event look at the pre-Warren Court decisions on this subject. First, there is Minor v. Happersett (1874), in which the Supreme Court considered the question of whether Section 1 of the Fourteenth Amendment affected voting rights. The Court unanimously concluded that it did not. Chief Justice Morrison Waite wrote:

"... by the very terms of the amendment we have been considering (the fourteenth), '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 the rebellion, or other crimes, 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.' Why this, if it was not in the power of the legislature to deny the right of suffrage to some male inhabitants?"

We find that Chief Justice Waite makes precisely the same argument that I have been making all along. Section 2 of the Fourteenth Amendment is based on the premise that states are allowed to deny the right of suffrage. But the Fourteenth Amendment was a single unit, passed and ratified as a whole, not as discrete clauses. The provisions of the amendment must be understood in light of each other; they must be interpreted so that they are consistent. If one part of the amendment is based on the premise that states are allowed to deny voting rights, then another part of the same amendment cannot be interpreted to prevent states from denying voting rights. And this argument was endorsed not only by Chief Justice Waite, but also by the whole Supreme Court.

In the same opinion, Waite continues:

"[A]fter the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth, as follows: 'The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.' ... If suffrage was [already protected by the Fourteenth Amendment], why amend the Constitution to prevent its being denied on account of race, &c.? Nothing is more evident than that the greater must include the less, and if all were already protected why go through with the form of amending the Constitution to protect a part?"

And here, Waite makes another argument that I have subscribed to. If the equal protection clause already prohibited discrimination with respect to voting, the Fifteenth Amendment would have been entirely unnecessary. (One cannot seriously claim that the equal protection clause prohibited malapportionment, but allowed discrimination against African-American voters.) We reach the conclusion, then, that the equal protection clause did not prohibit discrimination of any sort when it comes to voting rights, and that the Fifteenth Amendment was necessary.

Minor v. Happersett was decided just six years after the Fourteenth Amendment was ratified. It reflects the original understanding of that amendment. More importantly, not a single Justice dissented from its holding. But if Minor is not convincing, there is still more evidence. I will not go through all of it, but see Justice Frankfurter's opinion in Baker v. Carr and Justice Harlan's opinion in Reynolds v. Sims

In any event, what the Supreme Court may or may not have said is not very important. One would imagine that those who wrote the amendment understand its meaning better than judges who lived a hundred years after ratification.

[Emsworth]

Section 2 does permit States to deny suffrage to certain specified classes of adult males.

No, Section 2 allows states to deny suffrage to anyone whatsoever, if they are willing to have their representation reduced. There is, in reality, nothing to indicate that Section 2 imposes a punishment for an unconstitutional action. It merely gives a state an incentive to adopt universal suffrage, but ultimately leaves the decision in the hands of the states themselves.

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No, because no such power is enumerated in Section 2.

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No, again because no such power is enumerated, and because Article I would be violated.

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Secession was illegal and unconstitutional. There was no need to "re-admit" any state, because no state left the union in the first place. Hence, the imposition of "re-admission" conditions is unconstitutional.

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Whether the Framers of the Fourteenth Amendment had or did not have a "flawed understanding" of liberty is a matter of opinion. It is, more importantly, utterly irrelevant to that Amendment's meaning.

I could just as easily claim, "Those who decided Reynolds v. Sims are dead, and in any case had a flawed understanding of the concept of federalism."

[Emsworth]

This indicates that the 14th Amendment was directed at Negro suffrage.

I certainly agree that Section 2 of the Fourteenth Amendment was meant to allow states to deny suffrage to blacks. But the scope of the section is broad enough, that states may deny suffrage to anyone else as well.

Do you believe that, prior to the passage of the Fifteenth Amendment, it was unconstitutional for a state to use racial qualifications for voters?

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Congress has no discretion when apportioning representatives. The command of the Constitution is that "Representatives shall be apportioned among the several States according to their respective numbers." Congress has no choice; it must apportion according to state populations.

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Congress does not have the power to impose or not impose these "penalties." Again, the Constitution is quite clear: "basis of representation therein shall be reduced..." There is no imposition by any body.

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The Fourteenth Amendment states that, when a state denies the right to vote to a group of people, "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 key words are, "the basis of representation therein shall be reduced." The Constitution does not say that the state's representation shall be reduced, but that the basis of representation shall be reduced.

Thus, it is not a state's representation in Congress that is being reduced. Rather, it is the state's population that is being treated as if it were reduced.

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The premise of this question is that, in order for a government to be "republican," it is necessary that blacks be entitled to vote. But this premise is inaccurate. For over seventy years, no-one argued that a state government was not republican, if it did not give blacks the right to vote.

[Emsworth]

Did the states that imposed property and literacy qualifications understand that this might lead to loss of representation.

I don't know what the states may or may not have understood. But the text of Section 2 is perfectly clear.

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The Constitution does not state that the whole body of the people is entitled to vote in House elections. Rather, "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." Obviously, states were allowed to set whatever qualifications they pleased under the original Constitution.

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Of course, but the rule still is that apportionment must be based on population, with each state entitled to at least one representative.  

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I see no such grant of authority in Section 2.

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The power to enforce a provision is the power to provide a remedy for its violation. Congress may provide a remedy if Sections 1-4 are violated.

But a state does not violate Sections 1-4 by denying the right to vote to someone. The provisions of Section 2 are not "punishments" for violations; rather, they are merely a part of the rule relating to how state populations are counted. The rule is self-executing, and does not depend on congressional imposition.

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Women were denied the right to vote in every single state. Does that mean that no state had a republican government?

[Emsworth]

If the ratifying states did not understand whether or not such a denial could lead to loss of representation, how can it be said to be perfectly clear?

Section 2 of the Fourteenth Amendment says, "when 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." This is perfectly straightforward: if any male inhabitant over the age of 21 is denied the right to vote, for any reason whatsoever except commission of a crime, then the census population of the state must be reduced.

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Such a ruling plainly ignores Article I, Section 2, Clause 1: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." This clause makes it perfectly plain that voters in congressional elections must have the same qualifications as voters in legislative elections.

Thus, if the federal government is entitled to regulate the franchise in federal elections, then it must also be entitled to regulate the franchise in state legislative elections.

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As the Supreme Court held in the Civil Rights Cases":

"[T]he last section of the amendment invests congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited state law and state acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon congress, and this is the whole of it. It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment."

Thus, the power to enforce amounts to a power to provide relief or redress where a violation has occurred.

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The legal term "self-executing" means executable by the judiciary.

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The answer is quite obvious. The population of these states would be treated as if it were reduced by an appropriate proportion.

If you want to make an argument based on the republican government clause, we can proceed to that issue separately. But for now, the question is, does the equal protection clause have any effect on voting rights?

The text of Section 2, the history of the amendment, the views of the Framers, the early precedents, and the fact that the Fifteenth Amendment was necessary, all unanimously suggest that the answer is no.

[Emsworth]

What Bingham may or may not have said about the original Constitution is irrelevant. He was neither a Framer, nor a person arive at the time of the framing. Thus, his views on the clause guaranteeing each state a republican form of government do not reflect the original understanding of the articles proposed in 1787.

His views, like the views of his fellow congressmen, are relevant to the interpretation of the Fourteenth Amendment. On this point, however, there is no ambiguity. Whatever he may have believed about the original Constitution, no-one seemed to believe that the Fourteenth Amendment imposes any obligations with respect to suffrage.

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Article I does not grant states the power to disenfranchise citizens arbitrarily. It does not grant states any power. The power to regulate who may or may not vote in state legislative elections already existed before the Constitution, and does not depend upon any affirmative grant.

In order to show that the power to regulate suffrage is limited by the Constitution, it is necessary to point to some specific prohibition. Which theory are you currently arguing--the equal protection theory, or the republican government theory?

[Emsworth]

The Constitution provides, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature" (Article I, Section 2, Clause 1). The plain meaning of this provision is extremely clear. In order to qualify to vote in a federal House election, one must qualify to vote in the state legislative election. I can think of no other meaning that can be associated with these words.

If you would care to explain some other meaning for this clause, I am certainly prepared to listen.

Nonetheless, Congress has legislatively outlawed the poll tax in State elections using their power to enforce the 14th Amendment (equal protection) by appropriate legislation.

The power to enforce a provision should not be confused with the power to interpret it. The latter power is solely in the hands of the judiciary, and has not been committed to Congress. Congress may provide remedies against unconstitutional state actions, but it has no authority to determine whether which actions are unconstitutional in the first place.

Either a state poll tax violates the equal protection clause, or it does not. Congress has no authority to decide one way or the other by passing a law. The constitutionality of the state tax is in no way dependent upon the opinion of the legislative branch.

The fact that the Supreme Court upheld the law is quite irrelevant. We are discussing whether the Supreme Court decided rightly or wrongly. Clearly, the fact that the Supreme Court issued an opinion does not, in and of itself, prove that such an opinion was correct. To assert otherwise, indeed, would be to use an argumentum ad verecundiam.

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The provisions of Article I, Section 4, Clause 1 must be interpreted in conformity with the provisions of Section 2, Clause 1.

The Constitution is quite explicit that the qualifications necessary to vote in a state legislative election are necessary to vote in a congressional election. "[T]he Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." The words are "shall have," not "shall have subject to the will of Congress." This provision would be a mere surplusage--form without substance--if the power to regulate voter qualifications were somehow vested in the Congress by a different clause.

Note, furthermore, that Article I, Section 4, Clause 1 applies to both House and Senate elections: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." Suppose that the "Manner of holding Elections" encompassed voter qualifications. This would mean that Congress could vary the qualifications for House voters, as well as the qualifications for Senate voters--state legislators. Will anyone pretend, however, that Congress has the power to determine who may or may not be elected to a state legislature?

[Emsworth]

Nonetheless mid-19th century representatives were quite familiar with the debate that had gone on at the Constitutional Convention (Farrands Records had been published in 1819) and would have been available in the Library of Congress.

That may certainly be true. However, again, what anyone may have said reflects only his personal understanding, not the original understanding of the Constitution.

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The House of Lords would be an unconstitutional body in the United States, so your question is not exactly applicable here.

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The Fifteenth Amendment quite clearly precludes a state from extending the right to vote to one race, but not another.

Further the Constitution provides that the United States shall guarantee a republican form of government to the States.  Quintessential to a republican form of the government is that the legislature (at least on house) be chosen by the great body of the public and not some self-selecting oligarchy.

That is merely your personal view. The Framers had a very different view of what constituted a republic--many of them believed that suffrage should extend only to property owners, or some other narrow class in society. The idea that the "great body of the public" should have the right to vote was not one that the Framers entertained.

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So what? That does not demonstrate that the judiciary's decision was correct in the first place.

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On the contrary. Congress is perfectly free to pass laws consistent with the judiciary's interpretation of the Constitution. If the courts have determined that the equal protection clause forbids discrimination with respect to voting rights, then Congress is entitled to enforce that interpretation. But it may not take the function of interpretation upon itself.

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Of course, no-one is contesting this claim. But what exactly is "the People"? Does it include every single adult who does not have a criminal record? No doubt, this was not the meaning attached to the phrase by the Framers.

The original issue that started this entire discussion was Florida's decision to count votes from different counties differently in a presidential election. Surely, one cannot claim that the state of Florida's government suddenly lost its republican status because it treated different counties differently. Nor can it be argued that Congress has some sort of supervisory power over the Florida elections--although Congress has the power to regulate the time, place, and manner of congressional elections, it may only regulate the time of presidential elections.

[Emsworth]

You seem to be suggesting that an original understanding is non-existent, having expired with the last Framer.

The understanding of the Framers is not lost to us. Many Framers have written down their views on various parts of the Constitution.

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Certainly, New Jersey would have a republican form of government. Whether it would be appropriate for the town mayors to choose the U.S. Representatives is a debatable point. A reasonable argument could be made on either side.

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Well, if you merely mean a completely appointed House, then it would be perfectly constitutional. I thought that you were referring to a House of Lords, with hereditary seats, and so forth.

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We are discussing whether the judicial decision was correct or incorrect. How can it be reasonably argued that the decision is evidence of its own validity?

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"The People" who adopted the Constitution did not constitute a single, cohesive body. The extent of the body varied greatly from one state to another.

The Framers were republicans, but not in the modern sense--they were Aristotelian republicans, who greatly distrusted the "mob." This view was not restricted, as you suggest, to the oligarchs of South Carolina. Roger Sherman of Connecticut felt that the populace "should have as little to do as may be about the Government" because " [t]hey want information and are constantly liable to be misled." Elbridge Gerry of Massachusetts called them "dupes of pretended patriots" who are "daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute." James Madison worried that the "rights of property and the public liberty" would not be secure in the hands of the "great majority."

[Emsworth]

And these were not available in 1866?

They were, but so what? Why should we rely on the interpretations of the people who lived in 1866, or at any other time, when the original documents themselves are still available? To say that one particular interpretation was the original understanding, because someone who lived in 1866 says so, is to resort to an appeal to authority.

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Actually, I would imagine that a large share of free persons was excluded in every state--in general, women could not vote.

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How does that matter? The original understanding is not the understanding of the Framers alone, but the understanding of the nation that adopted the Constitution. The Framers were merely the drafters.