Talk Elections

Congress has proposed 33 amendments of which 27 to date have been ratified. Two (The ERA and DC Voting Rights Amendment) have expired while the remaining four could technically still be ratified in the same manner the 27th was. Ignoring for the purposes the passed ratification deadlines of the last two, which of the six would you like to see ratified?

Text of the amendments (http://www.usconstitution.net/constamfail.html)

The first is pointless. The rest are bad.

None of the above.

I agree, but I would add that I wouldn't mind seeing a fixed number used for congressional representation, i.e. 1 seat per X amount of people with each state being guaranteed one seat.

I would not mind seeing DC have full House Repesentation.

I'd have voted for the representation amendment at the time, but its irrelevant today.  I voted for it on the poll anyhow.

Anti-Title Amendment is bad.

Slavery Amendment is bad.

Child labor amendment is irrelevant as I think its already part of the governments power.

The ERA is bad.

DC having 2 Senators?  STFU.

The first would have pretty much no effect since the current composition of congress in well over 200.

The second I really don't see anything potentially bad about it, but I wouldn't waste the time to pass it.

The most interesting one is the third (the slavery protection one). Since slavery has long been abolished, this amendment's only effect would be prohibiting amendments giving congress the power to interfere with other "domestic institutions" in states besides slavery. I believe that had this amendment been ratified, not only the 13th but the 18th and the unratified child labor one would have been unconstitutional. To prevent further disasterous experiments like prohibtions, I would actually be in favor of this one being passed. Of course, due to the pro-slavery stigma attached to it, this is never going to happen.

The fourth I'm very glad was not ratified, but it's interesting nonetheless because it shows that even as late as the 1920s congress knew it couldn't do outrageous things like regulating child labor without clear constitutional justification.

The fifth and sixth I'm glad were defeated, both being the ideas of crazy liberals.

Being the resident crazy Liberal i voted ERA and D.C. representation

NOTA

D.C. Representation

The ERA sucks though.

None of the Above

None of the Above

You're in favor of Child Labor? Shame on you. :P

The slavery ammendment, having now nothing to do with slavery, is great.

The amendment states:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

What are the "domestic institutions" of a state? The amendment strikes me as excessively vague, and might have become a pretext for judicial activism, just like the due process clause. Moreover, it restricts future constitutional amendments, thereby reducing constitutional flexibility.

None, all suck

DC Representation, they are not second-class citizens, it's a travesty they are treated as such.

Marriage certainly would fall under the domestic institution proviso, but I agree that clause is rather vague and subject to interpretation, and the zero admendment part gives me the willies since there would be no recourse other than revolution if a Supreme Court ever misinterpreted it.  The right of revoultion is a necessary and proper right, but we should never structure our laws such that it may someday become necessary.

There is nothing unconstitutional about giving persons living in the district electoral rights in Maryland, just as persons living on military bases can vote for the senators and representatives of the state where the base is located.

Not necessarily. The representatives and senators of each state must be elected "by the people thereof"; the term strongly suggests that only citizens of a particular state may participate in that state's congressional elections.

But even if this hurdle is cleared, the federal government still cannot give D.C. residents voting rights in Maryland; that decision will have to be made by the Maryland government alone.

The one good thing about the Child Labor Amendment is that it might make it clear just how haywire the Court's Commerce Clause jurisprudence has gone.

Actually, it could just be repealed by another amendment.

the first one (why not?), ERA, DC rights, and Child Labor are all good.

Actually, that was intended to effectively overturn the Supreme Court's ruling in Hammer v. Dagenhart, 247 U.S. 251 (1918).

Why are you "very glad" the child labor amendment was not ratified?

The federal government gives persons resident in other areas that the federal government has sole jurisdiction over the right to vote in the state from which the federal enclave was taken.  What is to keep Congress government from restoring the right of persons that live in the District the right to vote as Maryland citizens that they had before 1801?  If Congress makes the residents of the the District, Maryland citizens for purposes of voting for representatives, senators, and presidential electors?  Surely Maryland can not deny the right of Maryland citizens to participate in its elections.

See Findings section of HR 190.

As the Supreme Court established in Hepburn v. Ellzey (1805), citizens of the District of Columbia are not citizens of any state. Thus, within the meaning of the Constitution, residents of DC are not citizens of Maryland.

Congress has the power to regulate national citizenship, not state citizenship. There is nothing in the Constitution authorizing Congress to declare DC residents citizens of Maryland, or of any other state.

Actually, it is fully entitled do so. The right to vote cannot be denied on the basis of race, sex, failure to pay a poll tax, or age (for those over 18). It can be denied on nearly any other basis whatsoever. If a state chooses, it may disfranchise a particular geographic area; thus, Maryland may disfranchise DC.

None of the above.

On what basis are US citizens living in federal enclaves or outside the United States granted the right to vote in federal elections?

The 14th Amendment doesn't apply?

The Fourteenth Amendment clearly was not understood to grant anyone suffrage.

Only the states may grant residents of federal enclaves the right to vote. The federal government has no authority to compel them to do so.

The Fourteenth Amendment does not cover voting. If this were not the case, then the Fifteenth Amendment would be redundant.

In fact, Section 2 of the Fourteenth Amendment explicitly recognizes that states may deny or abridge the right to vote.

The federal government has compelled the states to grant the right to vote in federal elections (both presidential and congressional) to persons who do not live in the state (recent movers or those who live overseas); to those who live in federal enclaves (which are under the exclusive jurisdiction of the federal government); and to those under 21 and over 18 (prior to passage of the 26th Amendment).

Has the federal government done this without having the authority to do so?

If Maryland were to deny the right to vote to those who live in Prince Georges County, would it be overturned on Equal Protection grounds; denial of suffrage on the basis of race; or would Maryland simply lose one representative and one electoral vote?

Was not then or is not now?

In the light of the 1960s one person one vote decision and everything that followed from it, I am quite certain that no court in the whole of the US would deem it constitutional for Maryland to disenfranchise PG's County, or Texas were to disenfranchise people living outside of Montgomery County.  On what basis they'd rule this is another question, one that I can't answer.

Yes, the federal government has done this without constitutional authority.

The only rules are that states may not deny suffrage on the basis of race, sex, failure to pay a poll tax, or age (if over 18). Absolutely everything else is up to the states.

The latter.

DC Representation, though I accidentally clicked the slavery one as well.

Is there any practical difference between the federal government doing something with constitutional authority, and the federal government doing something without constitutional authority that the Supreme Court has nonetheless upheld (under the pretense by the court that there was constitutional authority)?

I believe the modern interpretation to be incorrect. The plain text of the amendment would make that apparent.

When the District of Columbia was established (in 1790) the legislation stated: "Provided nevertheless That the operation of the laws of the state within such district shall not be affected by this acceptance, until the time fixed for the removal of the government thereto, and until Congress shall otherwise provide."

Note that while deciding on the Potomac as the permanent seat of government, this bill also provided that the temporary seat of government move from New York City to Philadelphia, so there would be a period in which the district would not be used as the seat of government.

But if Congress can permit state laws to continue to operate until when Congress itself provides an alternative; then it is not obligated to ever provide an alternative, nor make those laws permanent.  Further, it may selectively provide or not provide legislation in certain areas.  Therefore, Congress may provide that Maryland election law operate in the District for purposes of the election of Representatives, Senators, and Presidential Electors; and not for other matters.

That is correct. One part of the district continued to operate under Virginia law, and another under Maryland law.

Just because Congress provides that Maryland law shall operate in D.C., it does not follow that D.C. is a part of Maryland. Congress is equally entitled to provide that Arizona law or Florida law shall operate in D.C., but the district does not thereby become entitled to participate in the elections of those states.

And it was within Congress's jurisdiction to provide that Congress define criminal law for the district, but to operate under Maryland property law, wouldn't it?  Or Congress could specify all laws but election law as it applies to Congress and presidential electors, in which case for those purposes only, the district would operate under Maryland law.

Weren't residents of Georgetown (those who qualified) permitted to participate in the election of presidential electors in 1792, 1796, 1800, and 1804?  Note: Maryland is the only state that has had popular election of presidential electors in all US elections.

I never claimed that by providing that residents of D.C. should participate in the election of Maryland's representatives, senators, and presidential electors, that the district is (or would) become part of Maryland.  It is not a necessary condition that D.C. be part of Maryland in order for Maryland law (or portions of it) to operate within the district.

Perhaps you have a different understanding of "operation of the laws" than I do.  How does election law "operate"?   The election laws of Texas provide procedure by which persons and areas that they operate in can vote or run for office.

If it were to provide that Arizona election law as it pertains to federal elections operated in the district, it most certainly would mean that persons living in the district could participate in the election of Arizona Representatives, Senators, and presidential electors.

If the election law of Maryland operates in D.C., then citizens vote and the ballots are counted in accordance with Maryland law. It does not mean that the person who wins this election is entitled to a seat and vote in the House of Representatives or the Senate. Someone becomes entitled to a seat not merely by virtue of state law, but by virtue of a constitutional provision.

Yes, Congress could provide that Maryland's or Arizona's or Afghanistan's election law shall apply in D.C. It may not provide that the person who wins the D.C. election may sit in Congress. In other words, applying another entity's election law in D.C. is purposeless.

You are interpreting "operation of election laws" too narrowly, as if all they did was define was the size of the ballot box, and the font size on ballots, and wheter a check mark is as valid as an "X".   Instead, the election laws of Maryland (with respect to federal elections) provides an entire process by which Representatives, Senators, and Presidential Electors are chosen.  Congress has the authority to dictate that DC residents have the right to participate in Maryland elections as if they Maryland citizens (both the right to run in the elections, to be counted when determining Congressional districts, and to vote in federal elections).

If Maryland were to then exclude participation by DC residents, the Congress could reject the results of the election, refusing to seat those persons that Maryland claimed to have elected.

Congress has no such authority.

Article I of 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." In order to be qualified to vote in Maryland's congressional elections, a D.C. resident would have to be qualified to vote in Maryland's legislative elections as well.

But who has the authority to determine the qualifications for voters in a state's legislative elections? According to the Tenth Amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Does any clause in the Constitution delegate the power to determine the qualifications for voters in state legislative elections? The answer is an emphatic no. Clearly, each state--not Congress--may regulate the qualifications of the voters in its own legislative elections.

Furthermore, Section 2 of the Fourteenth Amendment explicitly acknowledges that the right to vote may be "denied ... or in any way abridged" by a state. Maryland is entitled to deny anyone the right to vote for any reason whatsoever, except only race, previous condition of servitude, sex, failure to pay a poll tax, or age (if over 18). The Legislature of Maryland may deny the right to vote to the citizens of Baltimore, and it may deny the right to vote to the citizens of the District of Columbia.

Such a law would violate Section 2 of the Fourteenth Amendment, which provides, "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."

The District of Columbia is not a part of Maryland, or of any other state. The Constitution makes it clear that the federal district must be formed "by Cession of particular States." According to the Fourteenth Amendment, however, the census must only count the number of persons "in each state." Someone who is resident in the District of Columbia is not "in" the state of Maryland; therefore, he may not be counted towards its population.

On the contrary, the Constitution does not grant Congress the right to determine who may or may not vote. The power is left fully and absolutely within the hands of the states, with only a few minor exceptions.

Such decisions are obviously contrary to the clause of the Constitution that provides, "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

This, too, is a usurpation of power.

But in any event, what Congress may or may not have done is irrelevant. Congress has often passed unconstitutional laws, and the courts have often acquiesced. Note, for example, the expansion of federal authority under the commerce clause. So, what Congress may or may not have done now or historically has no bearing. Only the text of the Constitution matters, and nowhere does the text allow Congress to vary the qualifications set by the states.

If "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature," then the franchise must extend to the same people in both cases.

How convenient!

Reynolds v. Sims was one of the most egregious misinterpretations of the Constitution in the history of the United States.

The position that the District of Columbia is a part of any state has been definitively rejected by the Supreme Court. Furthermore, the Framers clearly understood that D.C. was not a part of any state.

How do you reconcile your position with the 23rd Amendment, which gives D.C. its own electors, separate from Maryland?

The starting point to this discussion was whether any of the unratified amendments should be ratified (One such amendment would permit DC to elect Representatives and Senators). 

Given that Congress may (consistent with the contemporary interpretation of the US Constitution) provide for the participation of DC residents in the election of Representatives and Senators from Maryland, it (modern constitutional interpretation) is clearly relevant to whether or not the Constitution is amended.

You agree then that Earl Warren should be added to Mount Rushmore?

It was James Madison himself who offered the amendment that Maryland and Virginia law continue to operate in the district.  There can be no reasonable interpretation that this would exclude election law as it pertained to the election of Representatives and Presidential Electors.

Why would places like Philadelphia and Baltimore have been proposed as the location for the capital district if it was understood that the people within would be denied the right to vote for Representatives?

The 23rd Amendment does not require Congress to direct a method for appointment of electors, and the proposed legislation would simply eliminate that method (popular election) which Congress has heretefore provided, and voluntarily not appoint any electors for the district.

The majority of electors under the 12th Amendment is of those electors appointed.  If no electors were appointed from DC, then a majority would be 268/535 (assuming that all 50 states appoint their electors).

That is correct. However, we soon digressed towards a completely different issue: can the Congress, acting consistently with the Constitution, require Maryland to allow D.C. residents to exercise the franchise?

What James Madison might or might not have thought is entirely irrelevant. All that matters is the actual text of the Constitution, which makes it clear that states are allowed to "den[y] ... or in any way abridge" any citizen's right to vote.

So far, with all due respect, you have not cited a single clause in the entire Constitution which grants Congress--rather than the states--the authority to regulate suffrage.

This was hardly a digression since having district residents voting with Maryland for Representatives, Senators, and Presidential Electors was what obviated the need for the proposed constitutional amendment in the first place.

You had claimed that the founding fathers had understood that district residents would be denied federal voting rights.  If this was irrelevant, why did you bring it up.

It is a historical fact that within the lifetime of the founding fathers, residents of the District of Columbia did participate in the selection of Maryland's Representatives and Presidential Electors.  It was a discretionary act by Congress to remove that right, and it would be a discretionary act by Congress to restore that right.

Article I, Section 4 and 14th Amendment.  While DC is not a state, its residents are United States citizens and entitled to vote for Congress and Presidential Electors.  Congress has authority to enforce the 14th Amendment.  Congress has authority to regulate the manner of electing Representatives and Senators.

Congress has in the past exercised its sole jurisdiction over the District of Columbia by permitting voters of the district to participate in Maryland's election of Representatives and Presidential Electors.  Further, it has exercised its like authority over military reservations (and other federal areas) by requiring that residents of those areas be permitted to vote in federal (and other) elections of the encompassing state.

The power to provide that inhabitants of Fort Dix vote in New Jersey federal elections is identical to that which would provide that inhabitants of the district vote in Maryland federal elections.

Article I, Section 4 only allows Congress to regulate the "manner of holding Elections for Senators and Representatives." This does not give Congress the power of determining the "Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

I would argue that the argument is even more straightforward with respect to the Fourteenth Amendment. Your argument would render Section 2 of that Amendment--which clearly and unequivocally recognizes that every state is entitled to "den[y] ... or in any way abridge" the right to vote--to a mere nullity.

Who may vote in the election of senators and representatives is quintessential to the manner in which elections are held.  This was the basis for the USSC upholding the 18 year old in Oregon v Mitchell

Given the modern constitutional interpretation that the right to vote is a fundamental civil right, and therefore subject to equal protection under Section 1, Section 2 is indeed a nullity.

Justice Harlan argued your position in Reynolds v Sims, in a 1 to 8 dissent.

The Constitution makes it quite clear that the qualifications for voters in congressional elections shall be the same as the qualifications for voters in state legislative elections. Mitchell simply ignored Art. I, Sec. 2, Cl. 1 and Amdt. XVII, Cl. 1, and said that there could be different qualifications for the two.

To assert that Congress may determine who may or may not vote in federal elections is to assert that Congress may determine who may or may not vote in state legislative elections.

If any constitutional provision is relegated to a nullity, then the theory of interpretation that produces such a result must be incorrect. As Chief Justice Marshall said in Marbury v. Madison, "It cannot be presumed that any clause in the constitution is intended to be without effect."

If the right to vote is indeed a "fundamental civil right," then the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments would all be unnecessary.

The Equal Rights Amendment, probably the DC Representation Amendment, not sure about the others.

The Constitution is subject to interpretation by Congress, the President, and the Supreme Court.  It holds no absolute and fundamental truths.

Congress determined that 18 year olds should be permitted to vote in both federal and state elections and passed legislation to that effect.  This was challenged by several states in Oregon v Mitchell.  Justice Black, in a 5-4 majority opinion ruled that Art. I, Sec. 4, Cl. 1 did give Congress authority to grant 18 year olds the right to vote, not withstanding what the other sections said.

But Justice Black went on in his decision to rule that Congress did not have the authority to legislatively extend the franchise in state elections.

That is to say, Justice Black asserted that Congress may determine who may vote in federal elections, and in the very same decision asserted that Congress may not determine who may vote in state elections.

It should be noted that 4 members of the majority were willing to extend the franchise to 18YO in state elections, but they did so on the basis of the Equal Protection clause of the 14th Amendment.

It may not have been the intent of the authors of the 14th Amendment that the Section 2 have no practical effect, but coupled with the modern interpretation of the Constitution, it is of no more practical effect than an authority for Congress to grant letters of marque.

At the time the 15th Amendment was passed, the right to vote would not have been understood to be a fundamental civil right.  The denial of female suffrage was upheld under a 14th Amendment challenge.  The 24th Amendment was probably not necessary since Congress has subsequently outlawed the poll tax in state elections (the 24th Amendment only applies to federal elections).  Congress was cautious due to the fact that poll taxes had previously been upheld by the Supreme Court.

The 26th Amendment was ratified after Oregon v Mitchell upheld the right to vote in federal elections, but not state elections.  Given the Supreme Court ruling, ratification was necessary to extend the right to vote to 18 YO in state elections.  Ratification received impetus because state officials did not want the complexity of administering elections with dual voting rolls as happened in 1970.

So if Congress, the President, and the Supreme Court agreed that establishing the Episcopal Church is permissible, you would have no problem with their "interpretation"?

I fail to see how this "interpretation" can be reconciled with those parts of the Constitution which provide that voters in congressional elections shall have the qualifications requisite for voters in state legislative elections.

That proves that the modern interpretation is incorrect.

Could you elaborate on this hypothetical interpretation?

Does Congress have the authority to require that representatives be elected from districts, and if so, that a qualification for voting be residence in the district which you vote?

What do you mean by "is incorrect".  Do you thing that authority of Congress to grant letters of marque has any practical effect?

Yes, it does have such authority.

No, it does not. Qualifications can only be set by the state legislature.

Any "interpretation" that reduces a clause in the Constitution to not only a practical nullity, but also a theoretical nullity, is incorrect. It cannot be presumed, as John Marshall said, that any provision of the Constitution was intended to have no effect. The view that the equal protection clause makes Section 2 not only practically inapplicable, but also theoretically inapplicable; that section is reduced to absolutely nothing.

In the sense you suggest, no. But the clause still has a theoretical application, whereas Section 2 does not, under the Supreme Court's modern case law.

Doesn't that render meaningless the authority of Congress to mandate that representatives be elected from districts?

The 15th Amendment rendered Section 2 of the 14th Amendment practically inapplicable.  Any theoretical application is more remote than Congress granting letters of marque.

If the people grading a test (ie Congress and the Supreme Court) say that the correct answer is (a); how can the correct answer be (b)?

Absolutely not. States were, after the Fifteenth Amendment, still permitted to deny the vote to women, pursuan to Section 2 of the Fourteenth Amendment.

Under your argument, Section 2 would have no theoretical application whatsoever--not merely a remote theoretical application, but no application whatsoeve. Section 2 can only be meaningful if states are allowed to "den[y] ... or in any way abridge" an individual's right to vote.

You are essentially making an argumentum ad verecundiam: Congress and the Supreme Court say so, so it must be so. But neither body is infallible. Do you accept that the Congress may ban individuals from growing medical marijuana, merely because of Raich v. Gonzales? Do you agree that it is constitutional to intern people based on race, merely because of Korematsu v. U.S.?

This is meaningless as far as Section 2 goes.  Prior to the 15th Amendment, a state could enfranchise women and persons aged between 18 and 21, except those who were black, and suffer no apportionment penalty.

Once the 15th Amendment was passed, there was no meaningful class of people that could be discriminated against to trigger/not trigger Section 2.

Since under the modern interpretation of the equal protection clause it is impossible and impractical to discriminate against a meaningful class of persons, there is indeed no application of Section 2.

You are grasping at straws if you think Section 2 was designed to allow Maryland to abridge the right of people in Baltimore to vote.

For practical purposes, it doesn't matter whether Congress or the Supreme Court are fallible, but whether their interpretation of the Constitution is generally accepted.  What is the alternative?

BTW, you didn't answer my question about whether requiring a voter to live in the congressional district where they voted was adding a qualification.

The state could "discriminate" on the basis of property ownership, or payment of poll taxes, or any of a number of other criteria. 

My whole argument is that the modern interpretation of the equal protection clause is incorrect. The equal protection clause, as Justice Harlan argues in his Reynolds v. Sims dissent, was not originally understood as extending to voting rights. The evidence of the original meaning provided in this dissent is overwhelming, and is clearly supported by the text.

At the very least, the equal protection clause was not designed to prevent Maryland from abridging the right of the people in Baltimore to vote.

Then that is an argumentum ad populum. During the early 1900s, it was generally accepted that the due process clause protected economic liberty: does that mean that this conclusion is correct?

Congress can certainly regulate the manner in which representatives are elected. It may require that the state be divided into districts or constitutencies, each electing a single member. It may require that the state use first past the post, or approval voting, or any other such method. It may require that each voter can only cast one vote.

But it cannot determine who will or will not be qualified to vote. The extent of suffrage is, under the Constitution, supposed to be wholly and completely in the hands of the state. States may use any qualifications whatsoever, except race, previous condition of servitude, sex, payment of a poll tax, or age (if over 18), and perhaps religion as well.

Are these a denial or an abridgement of the right to vote?  And if so, did they ever amount to such a significant share of males over the age of 21 that they could trigger a change in apportionment?

Your interpretation of the equal protection clause conflicts with that of the modern (Supreme Court) interpretation.

But it has come to be understood as preventing such an abridgment.

Is denying the vote to the people in Baltimore consistent with a republican form of government?

It is irrelevant whether it is "correct", and it is impossible to determine whether it is correct or not, since it is a matter of opinion not subject to scientific testing.

Can Congress require that voters cast their ballot in the district that they reside?  Is that a qualification on their federal vote?

Imagine that a state has a qualification that a voter must reside in their county for one year before voting for a state representative in the legislature.  Can they deny someone who moves between counties within a congressional district even though Congress has directed that federal representatives be elected by the people of each congressional district.  That is, can the state frustrate Congress's manner of electing federal representatives?

Yes, of course.

Prior to the Civil War, it certainly would have: several states had property qualifications. I am not sure about what would have happened after the Civil War. In any event, we are talking about theoretical applications, not what actually did or did not happen.

I have never denied that fact.

Certainly, just as denying votes to women or poor people or African Americans was considered consistent with a republican form of government.

That is a difficult question to answer. It would seem to me that Congress can require that voters vote only in their own districts. However, which persons shall or shall not be voters is still up to the states. Congress can only determine how people shall vote, not who shall be able to vote.

In certain cases, the state can effectively frustrate the intentions of Congress by restricting suffrage. And the Constitution provides an approrpiate penalty: loss of representation, pursuant to Section 2 of the Fourteenth Amendment.