14th Amendment: Sections 2 and 3

Last time in these pages I looked at Section 1 of the 14th Amendment. Today I continue.

The last phrase in Section 1 of the 14th Amendment declares that no state can "deny to any person within its jurisdiction the equal protection of the law." All races are equal under the law.

Section 2 begins: "Representatives shall be apportioned among the several States according to their respective numbers." By these words the committee eliminated the 3/5's rule.

Section 2 continues: "But when the right to vote at any election . . . is 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."

What do these words mean? The authors of Section 2 created a mathematical equation and said that if a state refuses to allow most men of age to vote, then that state will suffer a reduction of its representatives to Congress and also within the Electoral College.

Eric Foner, a Reconstruction historian at Columbia University, says that "Section 2 has never been enforced." No state has suffered a loss of representatives because of restrictive voting rules.

The states knew that without a federal bureaucracy-officials to count the numbers who were denied the right to vote-the Federal government would find Section 2 difficult to enforce.

Akhil Reed Amar, legal scholar at Yale University, points out that Section 2 does introduce into the Constitution the most important words, "the right to vote." Citizens have a right to vote.

Section 3 says: "No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, who . . . shall have engaged in insurrection or rebellion against the same."

The intent of Section 3, when drafted in 1866, was to push out of Congress ex-Confederates. Again, this Section proved difficult to enforce at first.

In recent days certain people have dusted off Section 3 and applied it to January 6, 2021.

Per the case "Donald J. Trump v. Norma Anderson" that appeared before the U.S. Supreme Court weeks ago, "A group of Colorado voters wanted Secretary of State Jena Griswold to exclude former President Trump from the Republican primary ballot in the State."

"The Colorado Supreme Court agreed with that contention."

On March 4, 2024, the U.S. Supreme Court reversed that decision, by pointing to Section 5, of the 14th Amendment, a single sentence that reads: "Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The justices reasoned that it is Congress's duty to determine who has participated in a rebellion, not the individual states. They wrote: "Congress's Section 5 power is critical when it comes to Section 3." "States have no power under the Constitution to enforce Section 3."

The justices dug into the history behind Section 3 and pointed out:

"Indeed, during a debate on enforcement legislation less than a year after the 14th Amendment's ratification, Senator Lyman Trumbull of Illinois noted that 'notwithstanding [Section 3] . . . hundreds of men [were] holding office' in violation of its terms."

The justices said: "The enforcement mechanism that Trumbull championed was later enacted as part of the Enforcement Act of 1870." Federal prosecutors then had the power to remove ex-Confederates from their respective offices within the Federal government.

Whereas Section 2 was never enforced, Section 3 was, but not until 1870.

Next time in these pages I will look at certain details within Sections 4 and 5.