'In Whom is the Right of Suffrage?': The Reconstruction Acts as Sources of Constitutional Meaning

Abstract

This Essay argues that the Reconstruction Acts, which readmitted Arkansas, North Carolina, South Carolina, Louisiana, Georgia, Alabama, Florida, Virginia, and Mississippi back into the union, are a source of constitutional meaning that bears on the right to vote under the Reconstruction Amendments and the requirement of republican government enshrined in the Guarantee Clause of Article IV, Section 4. Despite the fact that Congress enacted these statutes contemporaneously to the ratification of the Fourteenth and Fifteenth Amendments and, importantly, at a time when Congress aggressively enforced the Guarantee Clause, these Acts are overlooked in modern constitutional discourse because scholars have long viewed their terms as legally unenforceable.

As this Essay will show, this view is mistaken. The readmission of the former Confederate states was the first time that Congress clearly articulated the requirements of republicanism, free from the albatross of slavery and in light of the suffrage requirements of the new Amendments. The Reconstruction Acts imposed limitations on southern states with respect to the voting rights of their citizens as a condition of reentering the union. In doing so, these statutes shed light on the reach of Section 2 of the Fourteenth Amendment and, importantly, the universe of crimes for which one can be disenfranchised consistent with the republican guarantee. Section 2, in particular, allows Congress to reduce a state’s delegation in the House of Representatives by removing disfranchised voters from the basis of population used for apportionment, but permits states to disenfranchise individuals “for participation in rebellion or other crime.” Clarifying Section 2, the Reconstruction Acts specify that these states can disenfranchise their residents only for crimes "as are now [1868] felonies at common law" and not for the wide range of crimes that are currently used to disenfranchise individuals in all southern states.

Turning to the recent debate in Florida over the re-enfranchisement of individuals with felony convictions, this Essay concludes that, when states disenfranchise their citizens in violation of Section 2 and the Guarantee Clause, as informed by the Reconstruction Acts, these violations constitute an abridgment of the right to vote and render their governments unrepublican in form. The fact that people are impermissibly disenfranchised for crimes that were not felonies at common law makes the Florida statute requiring payment of all fines and fees a poll tax. Because Congress’ enforcement authority empowers it to prevent such abridgments, that body has substantial authority, pursuant to its authority under the Fourteenth and Twenty-Fourth Amendments, to remedy this disenfranchisement through either reduced representation or other appropriate penalties.