Taking Department 2 Of The Fourteenth Amendment Seriously

Building on Professor Fishkin's post, my novel article on Section Two of the Fourteenth Amendment was published today. Section Two gets far less attending than Section One, exactly Section Two is vital for ii reasons. The start is that this is the beginning of the dominion that all persons shall endure counted for purposes of national representation. (Litigation is pending inward the Southern District of New York on whether the Commerce Department's proposal to add together a citizenship enquiry to the adjacent census is unlawful inward role because that conclusion was made to discourage an accurate count of non-citizens).

The other argue Section Two is worth studying is that the organization used inward 2011 to reapportion representatives amid the states was unconstitutional. Reapportionment is non every bit glamorous every bit gerrymandering. Nonetheless, the enquiry of how representatives are allocated amid the states matters too the constitutional violation is hiding inward evidently sight. As the Article explains, Section Two of the Fourteenth Amendment says that the states shall endure penalized inward their representation if sure as shooting weather condition are met. The reapportionment statutes, however, bar the imposition of whatever such penalty. These statutes are thence invalid. (There is to a greater extent than to the article than this syllogism, of course.)

Unless Congress corrects this defect yesteryear 2021, it is my promise that unopen to states volition challenge the adjacent reapportionment on constitutional grounds using the theory seat out inward the paper.