Dennis Hopkins, Herman Parker, Jr., Walter Wayne Kuhn, Jr., et al. v. Michael Watson, Amicus Curiae Brief of Separation of Powers Clinic in Support of Defendant-Appellant

Abstract

The text, structure, and contemporaneous legislative evidence of Section 241, adopted at Mississippi’s 1890 Constitutional Convention, uniformly demonstrate that it is civil in nature, not punitive. The panel majority opinion, however, discarded that evidence for one reason: Congress’s 1870 Readmission Act stated that Mississippi was forever precluded from depriving adult citizens of the right to vote except “as a punishment for such crimes as are now felonies at common law," and the panel majority opinion reasoned that if Section 241 were not punitive, it would violate the Readmission Provision’s use of the word “punishment.”

It was an extreme form of avoidance: all contrary evidence of actual legislative intent was sacrificed to maintain Section 241’s compliance with the Readmission Provision, even though that ultimately led the panel majority opinion to conclude that Section 241 itself violated the Eighth Amendment.

A fundamental flaw with that approach is that the Readmission Provision itself is unconstitutional under longstanding Supreme Court caselaw prohibiting Congress from imposing conditions for statehood that extend beyond the date of a state’s admission to the Union.

Finally, even if the Court were inclined to give some weight to the Readmission Provision’s use of the word “punishment,” Mississippi should still prevail because “punishment” does not necessarily mean “punitive for Eighth Amendment purposes.” During the relevant era, Congress repeatedly used phrases like “punishment” and “punished” in contexts that undoubtedly would not trigger Eighth Amendment scrutiny, like assigning extra duties at work or removing federal employees with conflicts of interest. At the very least, that historical evidence, when combined with the doctrine of
constitutional avoidance, favors adopting Judge Jones’s interpretation of “as a punishment for” in the Readmission Provision as meaning “as a consequence of.” That would similarly allow the Court to pretermit further Eighth Amendment scrutiny.

Keywords: Voting Rights, Civil Rights, Eighth Amendment, Punishment, Criminal Law

JEL Classification: K14, K40, K1, H10, Z18,