In Part 1 of this post, I explained why commentators are correct that Section 2 of the Fourteenth Amendment, known as the Penalty Clause, requires that the federal government collect citizenship data. In this Part, I will explain why it is nonetheless unlikely that this administration, or any administration, will attempt to actually enforce the Penalty Clause.

Legal Issues with Enforcing the Penalty Clause

Since the case is so strong that the Penalty Clause requires the collection of citizenship data, why has the Trump Administration never used enforcement of the clause as a justification for collecting this data? Even after David Rivkin and Gilson Gray attracted greater attention to the clause with their piece published after the administration’s Supreme Court loss, Trump declined to cite Section 2 among the four other justifications that appear in his executive order to collect citizenship data from other agencies. By the day of Trump’s executive order, the Section 2 argument had become so prominent that commentators noted its absence from the order. What explains the reluctance to invoke the clause?

The likely reason is that collecting citizenship data for the purposes of enforcing the Penalty Clause could only be a reasonable justification if the administration actually intended to enforce the Penalty Clause. And doing so would be an arduous undertaking, largely because of the practical difficulties and legal uncertainties connected to obtaining data on disenfranchisement.

When the census attempted to ascertain this data in 1870, the resulting totals found for disenfranchised adult male citizens were implausibly small. For example, just 342 disenfranchised men were counted in the entire state of Mississippi, out of an adult male citizen population of 169,000. Secretary of the Interior Columbus Delano admitted that he put “little credit” in the numbers found and that the department’s agencies were “not deemed adequate to the determination of the numerous questions of difficulty and nicety which [were] involved” in finding the actual totals. The numbers found were so small that no state was penalized under the clause. Perhaps scared off by this failure, the government has not seriously attempted to enforce the Penalty Clause in any census since 1870.

But even if the Census Bureau today might have more capabilities (and more cooperative states to work with) than did the federal government of 1870, there would still be thorny problems of interpretation that would themselves likely lead to litigation. The Penalty Clause does not define exactly what it means to “den[y]” or “in any way abridge[]” the right to vote, nor when such denial or abridgment is “for participation in rebellion, or other crime.” Senator Jacob Howard suggested that an “abridgement” would occur when a citizen was barred from voting in one election but allowed to vote in others. But what about when voters are prevented only from voting for certain candidates? Two scholars have argued that term limits in state legislatures “abridge” who citizens may vote for, and therefore the penalty should be triggered for all citizens living in districts with term-limited incumbents. Mark R. Killenbeck & Steve Sheppard, Another Such Victory? Term Limits, Section 2 of the Fourteenth Amendment, and the Right to Representation, 45 Ala. L. Rev. 1121, 1209 (1994).

And while “other crime” on its own is a broad term, one law review comment has made the case that ‘rebellion, or other crime” was intended to be read as one clause, and that in this context “or other crime” was understood to mean only other crimes connected to secession. See Katherine Shaw, Comment: Invoking the Penalty: How Florida’s Felon Disenfranchisement Law Violates the Constitutional Requirement of Population Equality in Congressional Representation, and What To Do About It, 100 Nw. U. L. Rev. 1439, 1467 (2006). And even if disenfranchisement for conviction of a crime does not trigger the penalty, what about laws that disenfranchise only a subset of felons who have not yet paid their fees and fines in full? Is disenfranchisement in such cases “for” the underlying crime or “for” the failure to pay? And do countless other challenged election practices (such as voter registration and ID laws) rise to the level of “abridgment” for purposes of the penalty? Since the penalty has never been enforced, all of these questions remain unsettled.

Further, it is not even settled exactly what figures the government should ascertain. When the Fourteenth Amendment was enacted, it was the norm for states to limit suffrage to males 21 and over. Since then, the Nineteenth and Twenty-Sixth Amendments have extended suffrage to women and 18-year-olds. Today, the Penalty Clause’s limitation of the formula to only 21-year-old males is obviously anachronistic. But did the Nineteenth and Twenty-Sixth Amendments actually amend the Penalty Clause itself, such that now a faithful enforcement of the clause requires ascertaining the total number of citizens 18 and older of both sexes? This is David Rivkin’s argument, as clarified in a later interview. In response, Matthew J. Franck argues that the Penalty Clause’s formula is explicit and has not been altered just because the modern voting population is different than the voting population of 1866. If that is the case (and I believe Franck has the stronger textualist argument), then the Penalty Clause itself only justifies asking the citizenship question to males 21 or over. Thus, the Trump Administration could still run into legal challenge over the justification for posing the question to those who check “female” or give an age below 21 on their census forms.

Finally, any attempt to enforce the Penalty Clause could run into legal challenge on the grounds that the clause has been implicitly repealed and is no longer effective. Professor Gabriel Chin argues that “the Fifteenth Amendment repudiated Section 2’s theoretical and structural approach to African-American suffrage.” Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259, 262 (2004). Professor Chin further argues that the Penalty Clause “covers fewer people, fewer elections, and offers more limited remedies” than the Fifteenth Amendment, and thus “Section 2 and the Fifteenth Amendment cannot simultaneously regulate voting discrimination.” Id. at 263.

Cutting against this view, however, is the fact that the plain text of the Penalty Clause covers disenfranchisement for reasons other than race, including disenfranchisements that still exist today. Senator Howard noted that the drafters of the amendment had “adopt[ed] a general principle applicable to all the states alike” that applies “not to color or to race at all, but simply to the fact of the individual exclusion” from the franchise. As Howard explained, “No matter what may be the ground of exclusion, whether a want of education, a want of property, a want of color, or a want of anything else, it is sufficient that the person is excluded from the category of voters, and the state loses representation in proportion.” Today, more than half of the 50 states have some form of disenfranchisement for those ruled mentally incompetent,^[1] meaning that even today the Penalty Clause would still have some effect (though it is unclear whether the number of disenfranchised people in any state would be high enough to result in the loss of a representative). Nonetheless, litigation over the current status of the Penalty Clause, and whether it has been implicitly repealed, would be another likely consequence of any attempt to enforce it.

In sum, an attempt to enforce the Penalty Clause after 150 years of desuetude would very likely justify the collection of citizenship data. But there is serious doubt whether it would justify collecting this data for anyone not a male aged 21 or over. And enforcing the clause would require extensive legal examination of the franchise laws of all 50 states, necessarily inviting judgment calls that would be ripe for legal challenge (especially if they had the potential to alter a state’s congressional allotment). For all of these reasons, it is understandable that the Trump Administration continues to decline to cite the Fourteenth Amendment as it attempts to justify the collection of citizenship data by other means. In all likelihood, Section 2 will continue its life as the “forgotten clause” in what is otherwise one of the Constitution’s most consequential amendments.

Thomas Berry is an attorney in Arlington, Virginia. He has previously published a law review article on the history of Section 2 of the Fourteenth Amendment.

^[1] See Kay Schrivener, Lisa Ochs, & Todd Shields, Democratic Dilemmas: Notes on the ADA & Voting Rights of People with Cognitive and Emotional Impairments, 21 Berkeley J. Emp. & Lab. L. 437 (2000). Many state constitutions bar people ruled mentally incompetent from voting. See, e.g., N.J. Const. art. 2, § 1, ¶ 6 (“No person shall have the right of suffrage who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting.”).