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The Twenty-Sixth Amendment Enforcement Power

68 Pages Posted: 28 Jul 2010 Last revised: 29 Feb 2012

Eric S. Fish

Yale University, Law School, Students

Date Written: April 23, 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.

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: https://ssrn.com/abstract=1649365

Eric S. Fish (Contact Author)

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

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