Apportionment of Representatives

Responding to other scholars’ argument that the Fourteenth Amendment’s original meaning prohibits the government from enforcing laws that discriminate on the basis of sex. Disagreeing that the adoption of the Nineteenth Amendment impacts the original meaning of the Fourteenth Amendment. Arguing that other scholars are not doing originalism “at the right time”; they are not looking to the original public meaning of Section 2 as it was understood at the time of its enactment.

Arguing that the Fourteenth Amendment is a ban on caste and concluding that it meant to outlaw racial discrimination as well as sex discrimination. Arguing that the adoption of the Nineteenth Amendment in 1920 affects how we should read the equality guarantees of the Fourteenth Amendment. Summarizing the scholarship of those who argue that the Fourteenth Amendment did not forbid sex discrimination but rejecting those arguments as relying on isolated statements from the legislative history of the Amendment.

Arguing that the second sentence of Section 2 is puzzling because it was “comprehensively unenforced” after the Amendment’s passage. Arguing that Section 2 was repealed by the ratification of the Fifteenth Amendment in 1870. Contending that because Section 2 did not indirectly protect African-Americans’ right to vote, Congress had to act directly in passing the Fifteenth Amendment. Arguing that Section 2 remains important to contemporary voting rights law.