Unratified amendments

[jimrtex]

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

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.

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.

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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.

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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." [/quote]
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.

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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.

[Emsworth]

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

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"?

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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.

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That proves that the modern interpretation is incorrect.

[jimrtex]

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

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"?

Could you elaborate on this hypothetical interpretation?

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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. [/quote]
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?

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That proves that the modern interpretation is incorrect.
[/quote]
What do you mean by "is incorrect".  Do you thing that authority of Congress to grant letters of marque has any practical effect?

[Emsworth]

Does Congress have the authority to require that representatives be elected from districts...

Yes, it does have such authority.

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

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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.

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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.

[jimrtex]

Does Congress have the authority to require that representatives be elected from districts...

Yes, it does have such authority.

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

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

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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.[/quote]
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)?

[Emsworth]

The 15th Amendment rendered Section 2 of the 14th Amendment practically inapplicable.

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

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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.

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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.?

[jimrtex]

The 15th Amendment rendered Section 2 of the 14th Amendment practically inapplicable.

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

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.

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

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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.[/quote]
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.

[Emsworth]

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

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

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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.

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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.

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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?

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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.

[jimrtex]

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

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

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?

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

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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.[/quote]
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?

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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?[/quote]
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.

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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.
[/quote]
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?

[Emsworth]

Are these a denial or an abridgement of the right to vote?

Yes, of course.

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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.

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I have never denied that fact.

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

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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.

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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.