Apportionment of Representatives
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.
In his speech of April 11, 1865, President Abraham Lincoln described the Southern states that had rebelled in the Civil War as being “out of their proper practical relation with the Union.” In setting the terms for the reintegration of those states with the Union, the Reconstruction Congress had to deal with several issues in addition to that of the status of the freedmen: representation in Congress, the political status of high-ranking rebels, and the debts of the United States and Confederate States.
The abolition of slavery increased the political power of the former slave states in the House of Representatives. Under the Three-fifths Clause of the original Constitution (Article I, Section 2, Clause 3), five slaves had counted as three persons; now they would be counted as five persons, though none of the Southern states would have permitted them to vote. Section 2 was a major concern in the South. Paper after paper carried charts showing its impact on Southern representation in Congress. The framers of the Fourteenth Amendment intended Section 2 to encourage the Southern states to enfranchise blacks, without directly compelling them to do so—for few Northern states allowed blacks to vote. Democrats condemned any congressional interference in the traditionally state-controlled matter of voting, and radical Republicans objected to the implicit approval of racial qualifications for voting. Section 2 was, therefore, a compromise position acceptable to the moderate Republicans who held the balance of power in Congress. A state like South Carolina or Mississippi, with a 50 percent black population, would lose half of its seats in the House if Section 2 were invoked. A state like New Hampshire or Michigan, with almost no blacks, would not lose any seats.
Although Section 2 allowed the disenfranchisement of persons who had engaged in the rebellion, none was denied the vote on those grounds. Neither did Congress reduce the representation of any Southern state that restricted the franchise on the basis of race.
The Fifteenth Amendment made Section 2 superfluous concerning “race, color or previous condition of servitude,” and Congress never seriously attempted to apply it when Southern states began to disfranchise blacks—largely because such disfranchisement was cast in racially neutral terms. As it turned out, the inability or unwillingness to enforce either Section 2 of the Fourteenth Amendment or the provisions of the Fifteenth Amendment was the Achilles’ heel of emancipation in the Reconstruction period and the years that followed because without federal enforcement, blacks were unable to protect themselves through the political process. In one federal case, a putative candidate for Congress from Virginia sued under Section 2 of the Fourteenth Amendment to compel the state to adopt an at-large electoral system, because the state, by the poll tax, was not entitled to the nine seats that Congress had apportioned to it after the 1940 census. The Court dismissed the suit as a “political question.” Saunders v. Wilkins (1945).
Despite being written in a particular historical context, Section 2 is still in operation and would apply in future cases of rebellion. By referring to “rebellion, or other crime,” it recognizes and makes an exception for purposes of apportionment for states’ traditional disfranchisement based on non-race-based criminal conduct. The Supreme Court has inferred from Section 2 that states may disenfranchise convicted felons subsequent to their prison sentences. Richardson v. Ramirez (1974).
In Reynolds v. Sims (1964), Justice John M. Harlan decried the Court’s continuing disregard of Section 2. In dissenting from the Court’s adoption of the one person, one vote rule, he stated,
I am unable to understand the Court’s utter disregard of the second section which expressly recognizes the States’ power to deny “or in any way” abridge the right of their inhabitants to vote for “the members of the [state] legislature,” and its express provision of a remedy for such denial or abridgment.
Justice Harlan was pointing out that there are sufficient political checks available to Congress to correct malapportionment at the state level without the need of judicial intervention.
Nonetheless, the failure of Congress to impose remedies for the South’s disenfranchisement of black voters resulted in a larger number of representatives and hence electoral votes than otherwise would have been the case, giving Democratic presidential candidates some advantage.
James E. Bond, No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment (1997)
Horace E. Flack, The Adoption of the Fourteenth Amendment (1908)
Joseph B. James, The Framing of the Fourteenth Amendment (1956)
Virginia Commission on Constitutional Government, The Reconstruction Amendments' Debates: the Legislative History and Contemporary Debates in Congress on the Thirteenth, Fourteenth, and Fifteenth Amendments (Alfred Avians ed., 1967)
Saunders v. Wilkins, 152 F.2d 235 (4th Cir. 1945)
Reynolds v. Sims, 377 U.S. 533 (1964)
Richardson v. Ramirez, 418 U.S. 24 (1974)