Bush v. Gore

[jimrtex]

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.

Does the word "liberty" have a certain meaning in February 2006?  And if an amendment similar to the 14th Amendment was passed today, how would we determine what that meaning was?

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So you admit that, under the equal protection clause, disenfranchisement was permissible?[/quote]
"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.  It took 14 years before the 21st Amendment was added after the 18th.

And it is not clear at all that state action short of total disenfranchisement was permissable under the equal protection clause.  Under the present day interpretation of the 14th Amendment, it isn't.

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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.
[/quote]
This renders it meaningless, since all you require is that when a law is passed, it undergo the proper procedures for passage to become part 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.

[jimrtex]

"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."

And nowhere does the 4th section "suggest" that an Amendment proposed in June of 1866, would apply only to debts incurred in aid of the Confederacy during the Civil War.  Why was the amendment considered by the Reconstruction Committee?   

The plain fact was that the 2nd section was the most that could be got out of Congress and ratified by the states at that time.   And is soon as they could (7 months after ratifaction) they corrected their omission.

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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.[/quote]
May a state reapportion its legislature on the basis of the number of trees in each district?

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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.[/quote]
So the legislature which you were denied the right to vote for because your name started with "E" could pass a law that said your middle toe was to be chopped off, so long as the law went through all the proper committee stages?

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

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15, 19, 24, and 26?

May a state impose a poll tax in non-federal elections?

Under the modern interpretation of the 14th Amendment, 15 and 19 are redundant.  4 of 9 Supreme Court justices agreed that the 26th was not necessary.

And for the 26th, Congress only deemed it necessary after they could only get 4 votes on the Supreme Court for applying the equal protection clause.

[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.

[jimrtex]

Did Congress, as the guarantor of a republican form of government, have the authority to impose Negro suffrage as a condition for re-admission to the Union?

The primary sponsor of the 15th Amendment, Rep. Boutwell (R-MA), believed that Congress had the authority to legislatively provide for  suffrage under (a) Article I, Section 4 time, place, and manner; (b) Article IV, Section 4, guarantee of republican form of government; and (c) 14th Amendment, Section 5.  He also offered the constitutional amendment because it would also be binding on Congress.  This was in the same session during which ratification of the 14th Amendment occured.

The Supreme Court has ruled that (a) was applicable in the case of 18 year olds voting in federal elections; and that (c) was applicable in the case of poll taxes in non-federal elections (4 of 9 justices would have also applied this to 18 year olds voting in non-federal elections).

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Sections 2 and 5 provide two different methods of enforcement.  Section 2 does permit States to deny suffrage to certain specified classes of adult males.   There is no inconsistency.

Does Congress under Section 2 have the authority to require States to maintain registers of all adult male citizens and whether each has the right to vote, and if not for what reason, and to submit all election laws for review as to whether they disenfranchise or abridge?

Could Congress provide that loss of representation between rounded upward to the next whole number of representatives?  That is, if Wyoming disenfranchises 1 adult male, they would lose their one representative and 1/3 of their electoral votes?

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Those who wrote the amendment are dead, and in any case had a flawed understanding of the concept of liberty. 

[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."

[jimrtex]

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

This should have said "does not permit"[/quote]

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Reading the debate on the 15th Amendment, it is not clear that it was believed that Section 2 of the 14th Amendment applied to disenfranchisement on the basis of property or literacy qualifications, which certainly existed at the time.  This indicates that the 14th Amendment was directed at Negro suffrage.  It provides a particular penalty in the case of denial of the right to vote.

The 1st section provides protection of civil rights in general, and the 5th section provides that Congress has the power of enforcement by appropriate legislation.  But appropriate legislation does not include the power to reduce representation, except in the case of the denial of the right to vote.  There is no conflict with Section 2 providing additional sanctions in the case of the violation of the right to vote.

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No, because no such power is enumerated in Section 2.[/quote]
Section 5 provides that Congress has the power to enforce sections 1 through 4 through appropriate legislation.   Congress apportions representatives through legislation.  For Congress to impose Section 2 penalties, they must possess certain data about the effect of state legislation on the right to vote.  Can they require the states to provide that data?

You don't believe that Section 2 is self-enforcing or enforceable by the States upon themselves do you?

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No, again because no such power is enumerated, and because Article I would be violated. [/quote]
What does give Congress the authority to apportion representation?  Since representatives can only be apportioned in whole numbers, Congress must provide a method for handling cases where the disenfranchisement proportion is equivalent to a fractional number of representatives.

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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.[/quote]
I should not have used "re-admission" since it is not inaccurate, and it permitted you to avoid the substance of my question.

Each House of Congress under Article I, Section 5 has the power to judge the election of its members; under Article I, Section 8 the power to suppress insurrections; and under Article IV, Section 4 the power to guarantee a republican form of government.  Did Congress have the authority to withold recognition of the State government in areas that had recently been under insurrection, and to not admit members to Congress from those States, until certain conditions including Negro suffrage were provided for.

While it is correct not to term this as "re-admission", it did withhold two important privileges associated with "admission" - representation in Congress; and self-government.

[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.

[jimrtex]

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.

Was it understood as such at the time?  Did the states that imposed property and literacy qualifications understand that this might lead to loss of representation.

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At the time the Constitution was ratified by the people of the respective states, few states denied suffrage to free Negroes.  While social norms of the time prevented Negroes serving in the ratifying conventions, they were able to participation in selection of delegates to the convention.  Clearly, if they were part of the body of people who had the right to vote in the ratification of the Constitution, then they were part of the body of the people who had the right to elect representatives to Congress (Article I, Section 2).  It is merely subterfuge for the states to deny suffrage on the basis of race in legislative elections in order to effect a denial of the right to vote in congressional elections.  Once a state had ratified the US Constitution it had eliminated its authority to regulate suffrage in a manner inconsistent with the Constitution.

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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.[/quote]
Congress has discretionary authority over the precise method of apportionment, and also how the census is conducted.  They have exercised this authority for over 200 years.  Is this all extra-constitutional pretense on their part?

Under Section 2, Congress has the authority and the duty to determine the number of adult males over the age of 21 in each state, and which among them have been denied the right to vote, or had it abridged, except for certain conditions.

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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.[/quote]
Congress has the power to enforce the provisions of Sections 1 through 4, by appropriate legislation.  Is Section 5 not in your copy of the Constitution?

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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.
[/quote]
The premise is that the United States is the guarantor of a republican form of government for each state, and that Congress is vested with the authority and obligation to execute that guarantee.

To execute a guarantee, one must define the conditions under which the guarantee had been breeched.  I doubt that it is accurate that no-one had argued between 1789 and 1865 that state governments that disenfranchised free Negroes (remember this was not a continuation of colonial practice, but rather a practice introduced in the 19th century) was contrary to republican principles.

Congress may merely have been negligent in executing the guarantee.  This does not mean that the guarantee was not breeched.

And of course, most Negroes were slaves, so there were relatively few denied the right to vote on the basis of their race.  If 1% of the people are denied the right to vote, it is harder to make a case that the form of government is not republican.  If a majority of the people, excluding insurrectionists and others who had participated in an attempted overthrow of the government, can not participate in the election of the government then a serious question of whether the government is republican exists.

When the 15th Amendment was passed, its immediate impact was mostly on Missouri, Kentucky, Maryland, and Delaware; with a lesser effect on Ohio, Pennsylvania, New York, and Connecticut.

[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?

[jimrtex]

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.

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?

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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.
[/quote]
... so long as the electors were representative of the whole body of the people, which under the understanding of the time might have excluded those who were judged incompetent to vote, such as women, non-adults, criminals, illiterates, and non-property owners.  But when the persons excluded from voting are representative of a large segment of the people, then it is questionable whether the state's government is republican.

And of course, Congress always has had the power to regulate the franchise for federal elections (as was demonstrated in the case of the 18-year old vote).

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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.[/quote]
You've sidetracked here from the main issue of how Congress may go about enforcing Section 2, into whether that enforcement could in certain cases reduce representation to zero.

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I see no such grant of authority in Section 2. [/quote]
"Section 5.  The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

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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.[/quote]
enforce.   "To compel observance of".

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How can a rule be self-executing?  Who executes it, and how?

By the 1870 census, Missouri was apportioned 13 representatives; Kentucky, 10; and Maryland,  6 representatives.  The colored population of Missouri was 6.9% of the total population, in Kentucky, 16.8%, and in Maryland, 22.4% of the population.  Assume that the proportions are the same for the adult male population.   If the 15th Amendment had not been ratified, and if Congress had not passed legislation requiring Negro suffrage, and those states had continued their practice of denying Negro suffrage, what would have happened, and why, and how?

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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?
[/quote]
No more than denial of the right to vote for children.  In the case of women, their husband or father would vote on their behalf.

In 2006, denial of the right to vote to women would indeed mean that a state did not have 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.

[jimrtex]

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)

Earlier in the (1st session, 39th Congress), a constitutional amendment was debated that contained the essence of the 2nd section of the 14th Amendment: if suffrage was denied on the basis of race or color, all persons of that race or color would not be counted in the basis of representation.  Unlike the eventual 2nd section of the 14th Amendment, it did not recognize that traitors and criminals could be denied suffrage.

At that time Bingham said:

"I beg my friend from California, [Mr. Higby,] and my honorable colleague, [Mr. Shellabarger,] to consider that a grant of power by implication cannot be raised by a law which only imposes a penalty, and nothing but a penalty, and nothing but a penalty, for the non-performance of a duty or the violation of a right.  Within the last hundred years, in no country where the common law obtains, I venture to say, has any implication of a grant of power ever been held to be raised by such a law, and especially an implied power, to do an act expressly prohibited by the same law.  The guarantee of your Constitution, that the people shall elect their Representatives in the several States, cannot be set aside in your Constitution as a penalty for disregarding if the provision that the majority of a State that denies the equal rights of the minority shall suffer a loss of politicial power.

"I have endeavored to show that the words of the Constitution, the people of "the States shall choose their Representatives," is an express guarantee that a majority of the free male citizens of the United States in every State of this Union, being of full age, shall have the political power subject to the equal right of suffrage in the minority of free male citizens of full age.  There is a further guarantee in the Constitution, of a republican form of government to every State, which I take to mean that the majority of the free male citizens in every State shall have the politiical power.  I submit to my friend that this proviso is nothing but a penalty for a violation on the part of the political right of franchise guarantied by the Constitution the their free male fellow-citizens of full age."

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Article I, Section II imposes an affirmative obligation on the States.  It is not a grant to arbitrarily disenfranchise citizens.  It is at best a recognition that the franchise might be limited in the upper house of a bicameral legislature, just as it was for the federal senate.

[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?

[jimrtex]

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

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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.

The Constitution explicitly states that States are not allowed to impose a poll tax in federal elections.  It is silent in the case of state elections.

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 USSC has ruled that this exercise of authority was legitimate.

Similarly, Congress legislatively required that citizens older that 18 have the right to vote in federal elections (time, place, manner of Article I, Section IV), not withstanding contrary language in the laws of almost all States at the time.  This too was upheld by the USSC.  The 26th Amendment was later passed to grant 18 YO suffrage for all elections.

[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?

[jimrtex]

What Bingham may or may not have said

There is an implication in your construction that I have fabricated what Bingham said in the House debate.  Please see pg 321 of  the _Congressional Globe_, 1st Session 38th Congress.

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1866 was 79 years after the Constitution was drafted.   I doubt that any of the Framers were alive at that time.  The last survivor of the 1st Congress was Paine Wingate (Sen-NH) who was also the last survivor of the Congressional Congress.  He died in 1838, two months short of his 99th birthday.

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.  Transportation to and from Washington was not that simple and radio and TV were not invented, and were not a distraction.

What Bingham was referring to when he said, "I have endeavored to show ..." is that the Constitutional Convention had deliberately substituted "the People" for "free persons" because they had not wanted to enshrine the concept of two classes of persons throughout  the Constitution.

Or one can refer to the _Federalist_, numbers 39 and 52.   In describing a republican government, James Madison wrote, "it is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it: otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honourable title of republic."

The bedrock on which the Constitution institutes a republican form of government is that the House of Representatives is chosen by the "People of the several States."

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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.[/quote]
Prior to the establishment of the Constitution, there were no representatives.  By entering into the Constitutional Union, the States entered into an obligation to elect representatives "chosen ... by the People of the several states".  Further, they were now obligated to not change the franchise for the more numerous legislative body in a manner that would prevent the election of representatives by the People.   Entering into the Union, they forfeited their capacity to (re)establish an oligarchy.

Here is a question for you.  The more numerous body of the British legislature is selected by one person (or Her predecessors), or some members who were selected by members of the body itself (just prior to their removal from office).   If Great Britain and Northern Ireland were among the United States, would it be proper for one person to elect all Representatives?

And a second one.  If the constitution of a State provided that only white persons may vote, how would a black person be denied the right to vote?  If they do not have such a right, how can it be denied?

[jimrtex]

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.

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). "

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.

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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.[/quote]
Congress did determine that poll taxes in State elections did violate the equal protection clause, and did legislate a remedy.  The judiciary did uphold the authority of Congress to do so.

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Congress must determine whether certain State actions violate the 14th Amendment.  Otherwise, it would be impossible to legislate appropriately in order to enforce its provisions.  The judiciary may review that legislation (which in the case of the poll tax in state elections, the did, and determined that the legislation was not inappropriate).

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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?
[/quote]
A State could not substitute another body for its state legislature.  It could not for example provided for popular election or gubernatorial appointment (except in the limited case of vacancies). 

Likewise, a State may not regulate the franchise for the larger body of the state legislature in a manner that prevents the People from choosing their representatives in Congress.

[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.

[jimrtex]

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.

Why do you insist on this construction "may have said"?   When you were using quotes from Reynolds you didn't say so-and-so "may have said".

There is no one alive who has an original understanding of the Constitution.  At best they have a personal understanding that they may transmit through speech or their writings.  You seem to be suggesting that an original understanding is non-existent, having expired with the last Framer.

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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. [/quote]
Good duck.  Suppose the upper house of the New Jersey legislature was appointed by the Governor, or perhaps by town mayors.  And suppose that it had more members than the lower house, which was chosen by all persons over 15 on election day, including those who had flown into Newark on election day.  Would it be proper for the town mayors to choose the the US Representatives from New Jersey?  Would New Jersey have a republican form of government?

And why would the House of Lords be unconstitutional?  At the time of the Constitution, Maryland had an appointed upper house, and no State elected their governor.   Did you read number 39 of the Federalist?

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The Fifteenth Amendment quite clearly precludes a state from extending the right to vote to one race, but not another.[/quote]
I was referring to the time that the 14th Amendment was being considered (which was prior to the 15th Amendment).

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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.[/quote]
James Madison was not a Framer of the Constitution?  Does he have his face on Mount Rushmore for being President during the War of 1812?   

I grant you that there were some South Carolinians who had semi-feudal views.  And of course there were those who argued at the time of the 15th Amendment that the Framers had meant whites or even Anglo-Saxons when referring to the People.

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That does not demonstrate that the judiciary's decision was correct in the first place.[/quote]
It demonstrates that the equal protection clause does apply to the right to vote.

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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.[/quote]
Congress did pass legislation outlawing the poll tax in State elections.   AFAIK, the judiciary had never prior to that determined that the use of a poll tax in State elections violated the equal protection clause.  The judiciary then reviewed the legislation and determined that Congress's interpretation and enforcement was proper.

Are you disagreeing about what did happen, or what should have happened within your model of the Constitution?

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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.[/quote]
It would at minimum, include "the People" who participated in the ratification of the Constitution.   The Framers were republicans.  Oligarchism didn't set in until the 19th century.

[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."

[jimrtex]

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.

And these were not available in 1866?

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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. [/quote]
If not the mayors, who?

At the time of the Constitution, Maryland had an appointed upper house.  Madison did not think that was an impediment to having a republican form of government, because the other house was chosen by the great body of the people.   It was also believed that federal government was formed on a republican base because the members of the House of Representatives would be chosen by the People of the several States.  It was hoped that by making the franchise the same as it was for the larger body of the legislature, that representatives would be chosen by the People.

But the fact that representatives were chosen using the same electorate as used for the larger body of the legislature was not sufficient for compliance with Article 1, Section 2.

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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. [/quote]
I think there are two members of the House of Lords who are members by virtue of hereditary seats.  All other members were appointed, or were elected.

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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.[/quote]
Nowhere, with the exception of South Carolina, were the large share of free persons excluded from the ratification process.  Nowhere, with the exception of South Carolina, were free persons excluded on the basis of race from ratifying the Constitution.

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Did Gerry sign the Constitution?   James Madison did express a concern in some letters, but in his advocacy for the Constitution (in the Federalist he supported a House of Representatives chosen by the "Great Body of the People".

[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.