Unratified amendments

[Emsworth]

None of the Above

[Emsworth]

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.

[Emsworth]

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.

[Emsworth]

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?

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.

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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.

[Emsworth]

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

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.

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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.

[Emsworth]

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

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.

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The latter.

[Emsworth]

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."

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

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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.

[Emsworth]

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.

[Emsworth]

Congress has the authority to dictate that DC residents have the right to participate in Maryland elections as if they Maryland citizens...

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.

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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.

[Emsworth]

The right to vote for Representatives, Senators, and Presidential Electors is derivative of the US Constitution, and is properly enforced by Congress.

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.

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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."

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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.

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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.

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How convenient!

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

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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?

[Emsworth]

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).

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?

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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.

[Emsworth]

Article I, Section 4 and 14th Amendment.

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.

[Emsworth]

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.

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.

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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."

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.

[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.

[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.

[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.?

[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.

[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.