Quick—Do You Remember the Text of Section 2 of the Fourteenth Amendment?

"Ginsburg Forgets 14th Amendment, Audience Has To Give Her Constitution," says a Daily Wire headline -- but the story doesn't mention this was section 2,

|The Volokh Conspiracy |

The Daily Wire reports:

Supreme Court Justice Ruth Bader Ginsburg forgot the contents of the 14th Amendment while speaking to the National Woman's Party in late August and needed an audience member to give her a copy of the Constitution so she could remember what it said.

The incident happened on August 26, 2018, when Ginsburg was asked to talk about the Equal Rights Amendment ….

Now if Justice Ginsburg had forgotten what most people (or at least most lawyers and judges) think of when they think of the Fourteenth Amendment—that it aims to secure equal protection and due process—that might be noteworthy. But it turns out that what she wanted was the text of section 2 of the Fourteenth Amendment, though the body of the article doesn't mention that; you need to watch the embedded video to recognize that. (From the video, it's clear that she knew the substance of the section, but wanted the precise language, as lawyers often do.)

Quick, do you remember the text of section 2, and in particular the portion that Justice Ginsburg had in mind? If you don't, do you think that says much about you?

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  1. Section 2, IIRC, only gets brought up as an originalist rebuttal to certain interpretations of Section 1.

    So, for example, if someone claims a right of felons to vote under Section 1, the Supreme Court may decide to mention that Section 2 contemplates criminal disenfranchisement, so it would be incongruous if Section 1 forbids what Section 2 makes allowance for.

    And as the Justice notes, Section 2 (if enforced) reduces a state’s political power if it disenfranchises law-abiding adult males, but not if it disenfranchises females, which could be read to mean that the 14th Amendment is OK with sex discrimination, which under this interpretation would bleed over into interpreting equal protection in Section 1.

    I would have to assume the Justice is familiar with this argument because obviously she rejects it, wishing to give “equal protection” a thoroughgoing sex-equality interpretation. But she would have run across this argument in the briefs and arguments of her adversaries throughout her career fighting against “sex discrimination.”

    1. Bottom line, I would have to presume she’s familiar with Section 2, because she’d have to be in order to answer her opponents in the struggle over the meaning of equal protection in the sex context.

      1. And of course she was familiar enough to bring it up as an argument. She just didn’t remember the precise text — unsurprising, given that it comes up pretty rarely (much more rarely than section 1 of the Fourteenth Amendment).

        1. I’m willing to give her some slack on this, apparently she’d intended to bring a copy to refer to, and forgotten it.

          I would expect her to know the substance of it by heart, though, if not the exact language.

          1. But she did know the substance, which is why she brought it up.

  2. It’s a requirement of my job to know. It is for her’s.

    1. So it’s also her job to have memorized the entire US Code, as well as all US Supreme court precedents?

      1. Not just the entire US Code, as you suggest, but the entire contents of the Library Of Congress!

        1. Remember. Ignorance of the law is no excuse.

  3. I wouldn’t be able to give precise answers in the field I supposedly specialize in to random trivia questions about minutiae depending on how pedantically the question was phrased without checking a reference. I suspect its like most with other people.

    The difference is that the text of the Constitution is much smaller than my reference, I’m not seen as the highest authority in my field, I don’t lecture people quite as often with an air of superiority on the subject, and I haven’t condoned being turned into some pop culture superheroic deity on social media.

    1. Oh and the lives of millions to billions of people don’t directly hang on my understanding or lack of understanding and appreciation of the text in question AFAIK

      1. “Oh and the lives of millions to billions…”

        ?

        “…don’t directly hang on my understanding or lack of understanding and appreciation of the text in question…”

        But she understood the text.

  4. It’s congressional apportionment, revoking the 3/5 clause. I don’t blame her at all for not knowing the exact language.

  5. I don’t think the video of the exchange reflects badly on Ginsburg at all.

  6. It raises interesting issues, but not the gotcha issues which the Daily Wire thinks it found – sad state of political discourse, etc.

  7. This was disappointing coverage from the Daily Wire, which is an outlet I tend to regard favorably. My expectation is that as time goes on and the staff continues to learn and grow professionally, they will leave this sort of reporting behind for good.

  8. I didn’t recall which part was which, but I knew the content of it, and I’m not a lawyer. Not a judge. Not SCOTUS. This shouldn’t have been a problem for her

    Having justices over, say, 75 is a stupid idea.

    1. And i’d probably make the limit 70

    2. It’s already too hard to get a veteran lawyer on SCOTUS, the nomination process being what it’s become.
      There are plenty of people who have served past age 70 and been superb.
      If you want more churn, perhaps a age + seniority limit of 100-110 would be better.

      1. The decline in mental function in most people after the mid-60s is scary. And sure, it doesn’t happen to everyone, but there’s no pruning function here. Best to just play it safe.

        1. By 85 everyone has a sharp decline in mental function.

  9. I’m guessing one thing it says about me is that I’m not as knowledgeable as you as to the wording of section 2 of the 14th amendment.

  10. It’s just a bum rap. Thanks for writing this, Prof. V.

    The ghost of Justice Scalia is frowning, indeed, scowling with scorn for those who’ve spread it.

    I’ve got a thousand and one disagreements with or criticisms of Madame Justice G, but her general intellectual capacity or continuing vigor are nowhere on that list.

  11. I’m a computer programmer, I have to look up syntax of commonly used functions all the time. Same thing.

    But just to be sure I’m willing to wear a wire to record RGB and canvas the other supreme court justices to invoke the 25th amendment and remove her.

    Wait you say the 25th amendment doesn’t apply to supreme court justices? Well to living constitutionalists, that’s only a 5-4 decision away.

    1. Maybe 5-4. Maybe 6-5. Maybe 7-6. We won’t know which for a few years. We know the ways in which the American electorate is improving, however, and the predictable consequences of that progress.

  12. Ginsburg and Scalia seem to have gotten along fine, while each thought the other’s jurisprudence was a horror show.

    Whether you call it collegiality, loving one’s enemies, or “sharing common interests” (if different conclusions), their relationship didn’t turn them into squishes, pulling punches and subjecting the country to a least-common-denominator, watered-down “consensus” jurisprudence.

    So the Daily Wire can relax – they don’t need dubious “gotcha” stories to signal their disagreement with Justice Ginsburg.

    1. Of course, Ginsburg’s and Scalia’s friendship was based on mutual understanding and respect, which is different from worrying about getting praised in the “right” circles, which may have affected the late Justice Kennedy, bless his heart.

      1. Oops, he’s still alive. Hi!

  13. Ginsburg’s point was that the ERA is still needed, since Section 2 demonstrates that the 14th Amendment did not contemplate complete equality of the sexes. In 1979 she wrote:

    By contrast, the framers of the fourteenth amendment did not contemplate sex equality. Boldly dynamic interpretation, departing radically from the original understanding, is required to tie to the fourteenth amendment’s equal protection clause a command that government treat men and women as individuals equal in rights, responsibilities, and opportunities.

    She went on to say that it is much more difficult to reach such a dynamic interpretation in the case of sex, as compared to race:

    It is one thing to find dynamism supporting Brown v. Board of Education, the landmark 1954 school desegregation decision, in an amendment centrally addressed in the framers’ minds to race discrimination. It is more difficult to elaborate bold doctrine regarding sex discrimination when even a starting point is impossible to anchor to the constitutional fathers’ design.

    But I thought that the living constitution approach was unconcerned with original understanding. So what difference does it make what Sec. 2 says?

    1. It’s hard to contemplate equality of the sexes when the sexes are not equal.

      1. It’s hard to contemplate equality of the sexes when the sexes are not equal.

        Not equal in how laws can restrict them or not equal in average height?

      2. It’s hard to contemplate the equality of any two different sets of people since the act of putting them in sets makes them not the same. The defining difference between black and white people is skin color. The defining difference between Bobs and Johns is their name. Presumably you aren’t suggesting different laws for all people?

    2. It might be that she recognizes the need to persuade originalists since they occupy the court with her, and since she’s been unable to do that, a constitutional amendment would resolve the argument.

  14. By the way, doesn’t it seem that Ginsburg has been looking more frail recently? She appears much more bent over, as if by Osteoporosis. She was 85 in March.

  15. Forgetful or not, she’ll be going pretty soon. Then, the SHIT will really hit the fan when The Donald chooses a conservative woman to replace her. I can hardly wait to see the rancor the Dems employ to stop the nominee from being confirmed by the Senate.

  16. People over 80 have memory and other cognitive issues. Without exception, though the degree differs of course.

    She is 85. She is well into her decline.

    1. Trivia, she was born the week after FDR was sworn in for his first term.

      FDR was another elderly person who clung to power far too long.

    2. Heck, I’m coming up on 60, and I’m not as sharp as I was at 20. (“Decline” is, of course, relative to where you started from…) They don’t call them “senior” moments for nothing. At 85, though, it’s more like senior days.

      1. To be fair, she has some young, sharp clerks to do a lot of her work, she simply has to supervise them to make sure they don’t accidentally reach the wrong conclusion.

    3. Here’s a paper that purports to list all the Supreme Court justices who continued to sit after they were senile, decrepit or infirm, and how long they did so. The winners are William Cushing (14 years) and Henry Baldwin (12 years). (These were before Congress established the retirement for Supreme Court justices at full salary in the Judiciary Act of 1869.)

      See also Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, which said:

      Likewise, the failure of the Supreme Court press corps to cover two painful but undeniably important stories from within the last twenty years-then-Justice Rehnquist’s publicly visible struggle with deleterious overmedication, and Justice Marshall’s equally visible difficulties in demonstrating his even minimally adequate grasp of cases that were being argued before him powerfully disproves the contention that today’s omniscient media coverage will protect the public interest even if a justice’s colleagues and relatives fail to act in the Court’s and country’s best interest.

      How anxious will the MSM be to point out a failing Justice Ginsburg knowing that she would be replaced by a Trump appointee?

      1. More anxious if she shows apparent signs of senility, mental faculty failures, etc.

  17. Using my archived database of Levy’s “Encyclopedia of the American Constitution” perfect memory:

    Section 2. Representatives shall be apportioned among the several
    States according to their respective numbers, counting the whole
    number of persons in each State, excluding Indians not taxed. But
    when the right to vote at any election for the choice of electors
    for President and Vice President of the United States,
    Representatives in Congress, the Executive and Judicial officers
    of a State, or the members of the Legislature thereof, is denied
    to any of the male inhabitants of such State, being twenty-one
    years of age, and citizens of the United States, or in any way
    abridged, except for participation in rebellion, or other crime,
    the basis of representation therein shall be reduced in the
    proportion which the number of such male citizens shall bear to
    the whole number of male citizens twenty-one years of age in such
    State.

    My opinion. The Federal Constitution left voting rights to the jurisdiction of the States. I suspect the Feds felt they could dictate to the States (who set the rules on whether women could vote or not) about counting male voters but could not dictate about counting female voters to States who did not allow women to vote.Today, I would interpret references to sex in 14A as subject to the right of women to vote in States as modified by 19A.

    1. Today, I would interpret references to sex in 14A as subject to the right of women to vote in States as modified by 19A.

      But would you say that the effect of the 19A was to render it unconstitutional to discriminate by sex in areas outside of voting?

  18. XIVth Amendment Section 2 is one of the more incoherent sections of the Constitution.

    It tries to prevent the disfranchisement of blacks by threatening to “reduce the basis of representation” of states which do that. But there is no mechanism prescribed for actually carrying out this threat.

    Suppose that the XVth Amendment had not been enacted, so that only the XIVth Amendment applies. In the apportionment after the 1880 Census, Alabama is allotted eight Representatives. Alabama elects eight Representatives in 1882. In 1883, Alabama passes a law denying the franchise to blacks, who comprise 35% of Alabama’s population. Under Section 2, Alabama should lose 2.8 Representatives.

    So what happens? Does Alabama lose three seats, or two? Does the reduction happen immediately, i.e. do three Representatives have to leave now? If so, which three? Or does the reduction happen at election to the next Congress? Who tells Alabama?

    1. So what happens?

      Section 5.
      The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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