Bringing back Section 2 of the 26th Amendment

July 20th, 2011

(Which one is that, you’re asking?) The 26th Amendment. You know, that Amendment ratified to prevent disenfranchisement of those over the age of 18? (I recently held a reading of all 27 amendments at my 27 Birthday party–27 years, 27 amendments, coincidence,, I think not–so it was fresh in my mind). I’m all in favor of looking more closely at underexplored amendments.

Eric Fish has a new piece in the YLJ about the 26th Amendment’s Enforcement Power:

The Twenty-Sixth Amendment lowered the national voting age to eighteen. Judges and scholars cite it for that proposition, and nothing more. This Paper argues, contra the conventional wisdom, that the Twenty-Sixth Amendment enacted two further changes in American constitutional law. First, it banned age-based franchise discrimination directed against any person above the age of eighteen. Such discrimination might be directed against people of any age category – the old, the young, or the middle aged. Second, it granted Congress authority to enact remedial legislation to correct age-based franchise discrimination. This authority carries with it a broad congressional power to define instances of prohibited age-based discrimination, and to override state laws while enforcing the ban on such discrimination.

The argument in this Paper relies on both the text of the Twenty-Sixth Amendment and the history of its passage. The Paper focuses on how the Amendment’s enacting coalition interpreted and responded to the Supreme Court’s judgments in Oregon v. Mitchell and Katzenbach v. Morgan, and the enacting coalition’s decision to model Section Two of the Twenty-Sixth Amendment after the enforcement power clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments. The Paper considers and refutes several counterarguments, and closes by suggesting that Congress may have authority under the Twenty-Sixth Amendment to enact remedial legislation preempting state law in several areas: voter ID requirements, state laws affecting the voting rights of college students and overseas soldiers, and state laws disenfranchising voters who suffer from age-related mental disabilities.