Just look at the handiwork of Republican state legislatures in 2021. As the January 6 committee investigated Trump after his defeat, states enacted a bevy of laws to disenfranchise voters. Between January 1 and December 7, at least 19 states passed 34 restrictive laws creating onerous obstacles to ballot access that disproportionately target Black voters and communities of color. This is all work that picks up where the white elite of the postbellum South left off.
It’s also why the backers of Section 2 understood that enforcement was key. The year after the Fourteenth Amendment was ratified, the Republicans resumed the fight to enforce section 2 by creating a select committee to prepare for the taking of the ninth U.S. census; this body would investigate laws in each state that disenfranchised citizens from voting. The head of the committee and superintendent of the census was Ohio Republican Congressman James A. Garfield. Garfield well understood that the stakes of the inquiry: The apportionment of congressional seats in 1870 would draw directly on the census’s findings. But the members of the committee faced a problem: they were surprised by the ramifications of the Fourteenth Amendment in the traditional scrum for representational power in Congress, since it not only secured the voting rights of the historically disenfranchised Black male electorate, but also revoked representation for the disenfranchisement of anyone who hadn’t participated in rebellion or other crimes.
Garfield called attention to these issues. “It was not discovered, until after the committee had been in session some time, that the fourteenth amendment required a readjustment of our schedule of population; and it is a curious fact—perhaps not new to every gentleman in this House, though it certainly was to me—that the provisions of the fourteenth amendment to the Constitution changes the representative basis of the national Legislature in a way that no one, so far as I remember, supposed it would when that amendment was before Congress,” Garfield said. “Everybody knew, of course, that there was a change, but none seemed to be aware how radical and sweeping that change was . . . The fourteenth amendment, so far as it related to suffrage, was generally understood as referring exclusively to the denial of the right to vote on account of race or color. But the language of the Constitution is much broader. It is in substance that wherever the right to vote is denied or abridged in any State, not merely on account of race or color, but for any other reason than rebellion or crime, in that State the basis of representation shall be reduced proportionately.” These issues have never been resolved in America’s politics of representation since Garfield raised them.