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http://ssrn.com/abstract=1649365
 
 

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The Twenty-Sixth Amendment Enforcement Power


Eric S. Fish


Yale University - Law School

April 23, 2011

Yale Law Journal, Vol. 121, p. 1000, 2011

Abstract:     
The Twenty-Sixth Amendment lowered the national voting age to eighteen. Judges and scholars cite it for that proposition, and nothing more. This Paper argues, contra the conventional wisdom, that the Twenty-Sixth Amendment enacted two further changes in American constitutional law. First, it banned age-based franchise discrimination directed against any person above the age of eighteen. Such discrimination might be directed against people of any age category - the old, the young, or the middle aged. Second, it granted Congress authority to enact remedial legislation to correct age-based franchise discrimination. This authority carries with it a broad congressional power to define instances of prohibited age-based discrimination, and to override state laws while enforcing the ban on such discrimination.

The argument in this Paper relies on both the text of the Twenty-Sixth Amendment and the history of its passage. The Paper focuses on how the Amendment’s enacting coalition interpreted and responded to the Supreme Court’s judgments in Oregon v. Mitchell and Katzenbach v. Morgan, and the enacting coalition’s decision to model Section Two of the Twenty-Sixth Amendment after the enforcement power clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments. The Paper considers and refutes several counterarguments, and closes by suggesting that Congress may have authority under the Twenty-Sixth Amendment to enact remedial legislation preempting state law in several areas: voter ID requirements, state laws affecting the voting rights of college students and overseas soldiers, and state laws disenfranchising voters who suffer from age-related mental disabilities.

Number of Pages in PDF File: 68

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Date posted: July 28, 2010 ; Last revised: February 29, 2012

Suggested Citation

Fish, Eric S., The Twenty-Sixth Amendment Enforcement Power (April 23, 2011). Yale Law Journal, Vol. 121, p. 1000, 2011. Available at SSRN: http://ssrn.com/abstract=1649365

Contact Information

Eric S. Fish (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
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