Case Western Reserve Law Review Volume 16 Issue 4 Article 10 1965 The Apportionment Section of the Fourteenth Amendment: A Neglected for Defense of the Voting Rights of Southern Negroes Eugene Sidney Bayer Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Eugene Sidney Bayer, The Apportionment Section of the Fourteenth Amendment: A Neglected for Defense of the Voting Rights of Southern Negroes, 16 W. Rsrv. L. Rev. 965 (1965) Available at: https://scholarlycommons.law.case.edu/caselrev/vol16/iss4/10 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 1965] The Apportionment Section of the Fourteenth Amendment: A Neglected Weapon for Defense of the Voting Rights of Southern Negroes FOR ALMOST A HUNDRED YEARS, the promise held out in the fourteenth and fifteenth amendments of equal protection of the laws for all Americans and the prohibition against depriving Negroes of their constitutional rights on account of race were hon- ored in the breach. Today, the nation is in the throes of a crisis brought about because the Negro population has taken to the streets to demand that the promises of the Constitution be carried out. In answer to this demand, the President of the United States has de- livered a message to Congress asking for immediate passage of remedial legislation which will guarantee all Americans the right to vote, regardless of race, creed, or color. The resulting legislation will undoubtedly be tested in the courts, and no matter how ex- peditiously the challenge is handled, months will pass before the validity of the act is determined. Yet, there already have been many statutes and constitutional provisions directed toward this problem, often to little avail. Hence, one may well question whether this newest legislation, even if it be held valid, will adequately solve the problems which arise from deep-rooted Southern customs and which, for the most part, have negated the right of the Negro to vote. I. ORIGIN AND SCOPE OF THE PROBLEM A. The Provisions of Section Two In 1868, the fourteenth amendment became the law of the land. In addition to the injunction in section 1 of that amendment that no state shall deprive inhabitants of the state of any of the privileges or immunities of United States citizenship or the equal protection of its laws, section 2 of the amendment provides a method for its en- forcement. In very exact terms, this section sets out an apportion- ment procedure by which those states that deny the right to vote to any of their male inhabitants will suffer a reduction of representa- tion in Congress. Four years after the fourteenth amendment be- came law, Congress enacted legislation which restated the second section of the fourteenth amendment.' No further effort has been 1. Should any State deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendment to the Constitution, article 14, section 2, except for partici- WESTERN RESERVE LAW REVIEW [VoL 16:965 made by Congress to effectuate either this part of the amendment or to apply its provisions in the apportionment legislation which was 2 based on that amendment. The failure of Congress to implement this statute simply fol- lowed the general moratorium on Negro rights which dates from the Compromise of 1876, the year when federal troops were with- drawn from the Southern states, marking the end of the Reconstruc- tion period. But the national consensus which allowed the Civil War amendments to remain ineffective as to the voting rights of Negroes in Southern states has been replaced by a new national at- titude, one which seeks to guarantee that the civil and political rights of Negroes in the Southern states will not be violated.3 The unprecedented majority accorded to President Johnson in the 1964 election and the failure of a "white backlash" to develop may be interpreted as substantial popular approval of a continuing social, judicial, and legislative recognition that Negroes in the United States are guaranteed full political equality by the Constitution. In response to this approval, the present administration has taken several steps toward a more effective implementation of govern- ment power to protect these rights. Most pertinent here is the pending legislation that will attempt to guarantee Negroes in the South the right to register and vote in spite of any failure of state officials to cooperate. However, one may still question whether this is not merely another addition to the existing body of statutes4 pation in the rebellion or other crime, the number of Representatives apportioned to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State. 17 Stat. 29 (1892), as amended, 2 U.S.C. § 6 (1964). 2. The paucity of comment in the official U.S. Constitution, Annotated, 1938 edition is little more than the statement that Congress has never exercised the power conferred upon it by this section: "Congress has never exercised the power conferred upon it by this section of reducing the representation of a State in the House of Representatives, but there can be no question of its power or its right to do so. Of its duty to do so, it alone is the judge. The amendment places the responsibility of enforcing its pro- visions upon that body." 'The right to vote intended to be protected refers to the right to vote as established by the laws and Constitution of the State." U.S. CONST. ANNOT. 1008 (1938), citing McPherson v. Blacker, 146 U.S. 1 (1892). 3. "Among the more wholesome aspects of the balloting on Election Day was the failure of the effort to obtain Northern votes for the Goldwater-Miller ticket by pandering to anti-civil rights sentiment. [Mjost Americans outside the deep South . wanted a President whose commitment to civil rights was moral as well as legal and who could be counted on to seek national unity in making real the principle of equality." N.Y. Times, Nov. 6, 1964, p. 36. 4. 28 U.S.C. § 1343 (1958); 16 Star. 140 (1870), 42 U.S.C. § 1971 (1958), as amended, 78 Star. 241, 42 U.S.C. §§ 1971 (1964). 1965] Fourteenth Amendment and constitutional provisions5 which were also expected to achieve the same result - equal rights for Negroes. Indeed, if the frustra- tion of Negro rights, which for a hundred years belied the promises of the thirteenth, fourteenth, and fifteenth amendments is only now on the threshold of termination, one might legitimately question whether achievement of the goals and provisions of this new legis- lation will not again be postponed. Although the coming period in the development of this nation's forward march to the achievement of its democratic goals may well continue to involve the bayonets of the national guard and demon- strations of Negro citizens, this Note will focus on another factor often ignored in the Negro's struggle for equality - section 2 of the fourteenth amendment: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole num- ber 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, Representa- tives 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 representa- tion therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citi- zens twenty-one years of age in such State.6 The authors of this provision envisaged that it would serve as a most important weapon in guaranteeing that the Negroes of this nation would have the same right to vote as the whites. Although it has rarely been invoked to accomplish this purpose, its potential and promise have in no way been diminished.7 It is a part of the Constitution and has been given force by an implementing statute enacted by Congress in 1872. Indeed, the legislative history and announced purpose of the amendment demonstrate that section 2 5. U.S. CONST. amends. XIII, XIV, XV, XXIV. 6. U.S. CONST. amend. XIV, § 2. 7. After Baker v. Carr was decided, one author said: "The Court's handling of the 'political question' issue thus has significant implications in other areas. ... It may even open up such questions as federal court enforcement of section 2 of the fourteenth amendment, providing for reduction in the congressional representation of states which deny their citizens the right to vote." Emerson, Malapportionment and Judicakl Power, 72 YALE LU. 64, 67 (1962). See also COOLEY, CoNsTrruTIoNAL LAW 274 (2d ed. 1891) where, in discussing section 2, the author says: "Important questions, however, may still arise under it. The provision is general; it is not limited to freed- men, but it applies wherever the right to vote is denied to male citizens of the proper age, or is abridged for other cause than for participation in crime." Id.