Taking Section Two of the Fourteenth Amendment Seriously

Building on Professor Fishkin's post, my new article on Section Two of the Fourteenth Amendment was published today. Section Two gets far less attention than Section One, but Section Two is vital for two reasons. The first is that this is the source of the rule that all persons shall be counted for purposes of national representation. (Litigation is pending in the Southern District of New York on whether the Commerce Department's proposal to add a citizenship question to the next census is unlawful in part because that decision was made to discourage an accurate count of non-citizens).

The other reason Section Two is worth studying is that the system used in 2011 to reapportion representatives among the states was unconstitutional. Reapportionment is not as glamorous as gerrymandering. Nonetheless, the question of how representatives are allocated among the states matters and the constitutional violation is hiding in plain sight. As the Article explains, Section Two of the Fourteenth Amendment says that the states shall be penalized in their representation if certain conditions are met. The reapportionment statutes, however, bar the imposition of any such penalty. These statutes are therefore invalid. (There is more to the article than this syllogism, of course.)

Unless Congress corrects this defect by 2021, it is my hope that some states will challenge the next reapportionment on constitutional grounds using the theory laid out in the paper.