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 Rehearing En Banc

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 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 majority 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 to conclude that Section 241 itself violated the Eighth Amendment.

There are numerous flaws with that approach, as the Petition for Rehearing En Banc explains. But from a separation of powers perspective, perhaps the most critical problem 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.

There was no reason to give overweening preference to construing Section 241 to comply with a federal statute that itself is unconstitutional. To determine whether Section 241 is punitive, therefore, the Court should do what it normally would: look to contemporaneous evidence of what the Convention actually intended Section 241 to do, as best demonstrated by its text and structure. On that score, even the majority opinion seems to acknowledge the evidence is uniformly in favor of Section 241 being a civil regulation, not punishment. Section 241 thus never should have triggered Eighth Amendment analysis in the first place.

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

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