Fourteenth Amendment To The United States Constitution - Apportionment of Representatives

Apportionment of Representatives

Section 2 altered the way how much representation each state receives in the House of Representatives is determined. It counts all residents for apportionment, overriding Article I, Section 2, Clause 3 of the Constitution, which counted only three-fifths of each state's slave population.

Section 2 also reduces a state's apportionment if it wrongfully denies any adult male's right to vote, while explicitly permitting felony disenfranchisement. However, this provision was never enforced while the southern states continued to use various pretexts to prevent many blacks from voting right up until the passage of Voting Rights Act in 1965. Because it protects the right to vote only of adult males, not adult females, this clause is the only provision of the US Constitution to discriminate explicitly on the basis of sex.

Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment, but the Supreme Court has acknowledged the provisions of Section 2 in recent times. For example, in Richardson v. Ramirez, 418 U.S. 24 (1974) the Court cited Section 2 as justification for the states disenfranchising felons. In his dissent, Justice Marshall explained the history of the Section 2 in relation to the Post-Civil War Reconstruction era:

The historical purpose for section 2 itself is, however, relatively clear and, in my view, dispositive of this case. The Radical Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance. There were two alternatives available—either to limit southern representation, which was unacceptable long-term, or to ensure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time. Section 2 of the Fourteenth Amendment was the resultant compromise. It put Southern States to a choice—enfranchise Negro voters or lose congressional representation. Section 2 provides a special remedy—reduced representation—to cure a particular form of electoral abuse—the disenfranchisement of Negroes.