With Election Day 2020 mere hours away, it is time to analyze the history of how the U.S. handles voting rights and the rule of law in rhetoric and practice. With Amy Coney Barrett’s successful appointment to SCOTUS, there has not been a time in the country’s history where decisions about voting rights and voter suppression have impacts on the same day they are made so close to a Presidential election. For example, SCOTUS recently struck down a Wisconsin court order allowing absentee ballots to be counted up to six days after Election Day. Also, SCOTUS recently denied an appeal by Pennsylvania Republicans to reverse a Pennsylvania Supreme Court decision permitting the counting of ballots up to three days after Election Day.
Voting rights are seemingly always up for debate when they should never be. The 14th Amendment states that clearly and yet it has been undermined time and time again.
The late Congressman Rep. John Lewis’ death earlier this year had the nation’s attention for ways to honor his legacy. Two options arose: rename the Edmund Pettus Bridge (EPB) and/or rename the Voting Rights Act after the late Congressman. While Lewis absolutely deserves a monument to his legacy, it is a hollow, performative gesture to affix Lewis’ name to either the Edmund Pettus Bridge or the Voting Rights Act. They both represent deep flaws and failures with how our country functions and how we view election and voter security. In a time of rampant disinformation and concerns about free and fair elections, voter suppression, and election interference from foreign actors, it is time to acknowledge and recognize hard truths.
The U.S. has a deeply flawed history with how the 14th Amendment is continually undermined. It represents the hypocrisy with how the U.S. encourages values such as the rule of law and election security on the global stage. We are quick to examine the flaws and faults of other nations with this, but are wilfully blind of the same issues Stateside. This compromises our national security and leaves us open to attack.
14th Amendment Section 2
The 14th is the Apex Amendment to the Constitution, the only one providing direct remedies for state actions infringing upon rights and outlining a host of protections. Ratified in 1868, it should have forever enshrined the rule of law. Section 2 reads as follows:
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 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 where national security comes into focus. The ratification of the 13th Amendment on December 6, 1865 ended slavery, removing bondage on millions of enslaved persons. The 14th Amendment was designed to ensure that formerly enslaved persons were protected from practices of discrimination, inequality, and racism i.e. everything the Confederacy represented. Section 2 states the consequences for denied any male (and women via the 19th Amendment) the right to vote: a reduction in representation proportional to the discrimination. Every single time there was a poll tax, literacy test, a grandfather clause, intimidation, and fraud present, Section 2 should have been activated and its consequences imposed. There is an early 1900s pamphlet entitled “What A Colored Man Should Do To Vote” that outlines examples of voting rights’ infringement. No other Amendment to the Constitution directly outlines consequences and it is no surprise that it was drafted in a way to protect the access and rights of formerly enslaved persons.
If Section 2 was followed as written, there is no need for the Voting Rights Act of 1965. So how does John Lewis fit into this? He may have been able to spend his life’s energy dedicated to a host of other causes, knowing that his voting rights were protected as intended. Also, he would know how the government would handle denials to the right to vote. Naming the VRA after him is hollow and performative, as Section 2 sits unactivated. There is not a single instance where representation has been reduced despite wholesale acknowledgement and proof that the right to vote has been “denied” or “abridged in any way” for nearly a century before the VRA of 1965 was passed.
14th Amendment Section 3
Section 3 reads as follows:
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, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
This text directly addresses situations where members of the Confederacy desired public office. The last sentence of Section 3 states an exception. From the text, we can determine that the Apex Amendment was meant to prevent any member of the Confederacy from holding any form of public office unless he petitioned Congress and received a 2/3rds approval vote. Section 3 explicitly lists a check and balance on former Confederate members from unilaterally holding public office.
Who was Edmund Pettus?
From 1861-1865, Pettus was a senior officer in the Confederate Army who commanded soldiers against the Union. He later served as a Senator from Alabama from 1897 to 1907. Confederate officers and soldiers are traitors under Article III Section 3’s definition of treason and should not have had any opportunity to serve in any official government capacity after the Civil War. Honoring his legacy, the EPB in Selma, AL has a deep and dark history that is not discussed: it is the most abhorrent monument to the Confederacy and an affront to U.S. national security.
Amnesty Act of 1872
Between 1868-1872, records from the Select Committee on Reconstruction (see 22.47) detail former members of the Confederacy making direct individual petitions to have restrictions removed with related documents supporting/opposing specific removals. Records include a letter from General Ulysses S. Grant supporting removal of restrictions on former Confederate General James Longstreet. It is impossible to know the drafters’ intent with the language of Section 3, but records show in practice that individual petitions were made and corresponding votes on individuals were conducted.
Four years later, a federal law changed this.
Passed by a majority of the 42nd Congress and signed by President Grant, the Amnesty Act of 1872 undid the text of 14th Amendment Section 3. It explicitly removed the office-holding disqualifications against former members of the Confederacy, allowing over 150,000 people who had waged insurrection and rebellion against the U.S. to hold public office. After 1872, Congress did not hold any votes to remove the 14th Amendment Section 3 restrictions.
A federal law superseded a constitutional amendment
Article I Section 7 details how legislation must pass through a majority of Congress and have a POTUS signature to become federal law. If POTUS vetoes, it can still become a law with 2/3rds of congressional approval. Constitutional amendments are the supreme law of the land and have higher thresholds. The Article V amendment process requires not only 2/3rds of Congressional approval, but there must also be 3/4ths of state legislature approval. This is why there are thousands of federal laws and only 27 Amendments. A constitutional amendment can only be undone by another amendment, as codified with the 18th and 21st Amendments with Prohibition. There is not another instance where a federal law has overruled any of the 27 Amendments.To institute a wholesale method for any former member of the Confederacy to run with anything short of another constitutional amendment made the Amnesty Act unconstitutional.
A note about the text of Section 3 and the Amnesty Act. A 2/3rds approval vote is required to remove the disability. The text does not state that the disability can be removed via federal law, just a 2/3rds congressional approval vote. Between 1868 and 1872, there are records of votes taking place to remove the disability on specific individuals who went on to serve in public office. After 1872, no votes were held. Former Confederacy members like Pettus unilaterally ran for and served in public office. One could argue that the 2/3rds requirement also meant that if a bill passed through 2/3rds of Congress, it could remove the disability for all. But the Amnesty Act did not pass with a 2/3rds congressional approval vote, rather a majority and signed by POTUS. This disqualified it from a potential loophole in Section 3. The 2/3rds requirement for a federal law only matters once it has passed a majority of Congress and then POTUS vetoes it. It mentions a special vote for each person, not a blanket over anyone who might want to run now or anyone in the future.
How can we say that we have rule of law when the supreme law of the land, the Apex Amendment, was so egregiously undermined? A century later we saw descendants of formerly enslaved persons including John Lewis march for civil rights, expressly protected by the Apex Amendment, over a bridge named after a traitor given legitimacy to run and hold public office. This represents the fervor to protect white supremacy, as Pettus and folks of his ilk worked tirelessly to ensure. The Confederacy lasted for a presidential term (1861-1865) and continues to receive more protection and lore than any President or other entity in this country.
The EPB has been revered over the years yet no one talks about why its presence contradicts the U.S. Constitution. You cannot kneel without disrespecting the flag while there are monuments all over this country that directly disrespect the Constitution. If the bridge is renamed after John Lewis without any acknowledgement of voting rights implications, it will be a hollow performative gesture.
National Security Nexus
In a recent piece, I discussed the importance of remembering the duality with national security: internal as well as external threats must be addressed. The VRA is still up for renewal and is sitting on Senator Mitch McConnell’s desk while the 14th Amendment Section 2 lies dormant. Pettus was guilty of treason and should never have unilaterally run for public office.
Then how/why did the Amnesty Act of 1872 allow Pettus to serve in Congress without any record of a 2/3rds vote to remove Apex Amendment restrictions? It was to appease former Confederate members, traitors under the Constitution, versus protecting the safety and security of formerly enslaved persons and at the expense of preserving the rule of law. The same individuals who fought to maintain slavery and white supremacy during the Civil War were given a direct avenue to seize control of state governments, implement policies to destroy Reconstruction, and restrict the civil rights of formerly enslaved persons in many ways but not limited to poll taxes, literacy tests, a grandfather clauses, and intimidation. The very things that 14th Amendment Section 2 was written to protect against.
We work to ensure that individuals labeled as terrorists do not have an opportunity to enter the battlefield again. There are individuals sitting at Guantanamo Bay right now for that exact reason. We want to prevent them from reengaging in terrorism. Additionally, our national security is greatly compromised when individuals are Stateside, leave to go fight for ISIS, and return. It is very easy for folks to understand why we would be concerned with prisoners at Guantanamo Bay reengaging in terrorism and individuals leaving the U.S. to fight for ISIS and then returning. Why is it difficult to grasp how former Confederate members worked to ensure their ideology persisted? Imagine how differently the country would look right now if the Amnesty Act were never passed and Pettus never became a Senator. My grandparents would have had a very different experience exercising their rights, primarily voting.
The State Department recently released the Report on the Commission of Unalienable Rights. It states the following in the Distinctive American Rights Tradition section: “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty.” Property rights, as in owning other human beings as property. That is slavery and 12 of the first 18 U.S. Presidents owned slaves. In Article I of the U.S. Constitution, you will find the 3/5ths clause, which states how enslaved persons were counted for congressional districts. But they could not vote for their representatives and those same representatives advocated directly against their interests, creating the illusion of representative government. Can someone explain 3/5ths of an unalienable right? Asking for my ancestors.
As you are reading this, the next John Lewis could be detained/kidnapped in Portland, OR by unidentified federal law enforcement officers for exercising his/her right to protest. It makes little sense to rename the bridge without addressing the conditions on how the bridge received its original name and reverence in the first place. A nation is not secure unless all of its citizens are. It is hypocritical for so many to mourn John Lewis when the monuments and everything he fought against continue to stand. The U.S. does not accept this sort of rhetoric from other countries. If we are going to continue exporting the rule of law, we must change this and continue to have uncomfortable reflections about our flawed history and take substantive actions to remove the remnants.
The 14th Amendment is the supreme law of the land and it should never be undermined.