The Twenty-Sixth Amendment enforcement power.

• Author: Fish, Eric S.

NOTE CONTENTS INTRODUCTION I. THE TEXT OF THE TWENTY-SIXTH AMENDMENT A. "[O]n account of age" B. "Congress shall have power to enforce" II. THE HISTORY OF THE TWENTY-SIXTH AMENDMENT A. Title III of the Voting Rights Act and the Constitutional Politics of the Enforcement Clause B. Oregon v. Mitchell and the Amendment Process C. Three Interpretive Arguments D. The State Ratification Debates E. External Evidence: The College Town Question and the Equal Rights Amendment III. SEVERAL APPLICATIONS OF A BROAD TWENTY-SIXTH AMENDMENT A. Overriding State ID Requirements B. Protecting the Voting Rights of Overseas Military Personnel C. Protecting the Voting Rights of College Students D. Protecting the Voting Rights of the Elderly IV. ADDRESSING TWO COUNTERARGUMENTS A. The City of Boerne Problem B. The Disparate Impact Paradox CONCLUSION Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2. The Congress shall have power to enforce this article by appropriate legislation. (1)

INTRODUCTION

The amendments that have been added to the Constitution since World War II are generally interpreted narrowly. (2) They achieved specific objectives--enfranchising residents of Washington, D.C., (3) establishing the terms of presidential succession, (4) restricting congressional pay raises (5)--but did not shift broad zones of power between government institutions or create far-reaching new rights. Indeed, the most significant developments in constitutional law in the last sixty years have occurred outside of the amendment process. Statutes like the Voting Rights Act of 1965 (VRA) (6) and Supreme Court decisions like Brown v. Board of Education (7) have redefined the balance of power in our system and the content of our civil and political rights without altering the Constitution's text.

The Twenty-Sixth Amendment is conventionally understood as part of this pattern: a narrowly tailored response to the rise of youth activism in the 1960s and especially to the Vietnam War. Americans as young as eighteen were fighting and dying for their country in Southeast Asia, so why, Americans asked, could they not help choose its leaders? Finding no good answer, we lowered the national voting age to eighteen. Nothing more, nothing less. Because this narrow reading has become conventional, the Twenty-Sixth Amendment has received scant attention. It has been applied in only one Supreme Court case (8) and a handful of state and lower federal court cases. (9) Constitutional law professors have treated it as one small chapter in the constitutional story of ever-expanding enfranchisement, (10) but not as an independently interesting subject. It has been virtually ignored in the scholarly literature. Professor Bruce Ackerman's position is typical: "All [the Twenty-Sixth Amendment] did was change the voting age from twenty-one to eighteen. Nobody looked upon it as something more." (11)

Yet, this narrow reading misses two important features of the Twenty-Sixth Amendment. First, it was not written as a mere age limit for disenfranchisement, akin to the constitutional age requirements for Congress and the presidency. (12) Rather, it was deliberately modeled after the Reconstruction Amendments. Like the Fifteenth Amendment, the Twenty-Sixth Amendment contains a first section establishing a sweeping prohibition against franchise discrimination, proclaiming that the right to vote "shall not be denied or abridged ... on account of age." Like all three Reconstruction Amendments, the Twenty-Sixth Amendment contains a second section granting Congress the power "to enforce this article by appropriate legislation." (13) This parallel construction strongly suggests that these amendments should be read in pari materia. (14) Second, the Twenty-Sixth Amendment was passed in the shadow of a debate between the President, leading members of Congress, the brightest lights of the legal academy, and the Supreme Court over the meaning of the phrase "Congress shall have power to enforce" in the Reconstruction Amendments. This debate concerned the statutory precursor to the Twenty-Sixth Amendment, Title III of the 1970 VRA renewal, (15) which lowered the voting age to eighteen in all state and federal elections. The Twenty-Sixth Amendment is thus properly understood as the outcome of a legal and political battle over the VRA, and it should be interpreted in light of the constitutional meanings that battle generated. (16)

This Note will use these features of the Twenty-Sixth Amendment to show that it should be read more broadly than the conventional narrative allows. It should be interpreted to protect voters of all ages from age discrimination, not merely the young. It should also be interpreted to permit Congress to enact legislation overriding state policies that abridge voting rights on the basis of age, even if such discrimination is not those policies' main purpose. The argument follows Philip Bobbitt's taxonomy of constitutional interpretation. (17) It proceeds in four Parts.

Part I looks at the Twenty-Sixth Amendment's text and uses it to make two interpretive arguments. First, Section 1 of the Twenty-Sixth Amendment protects people of all ages, not exclusively the young. Second, much like the Enforcement Clauses of the Reconstruction Amendments, Section 2 grants Congress broad power to prohibit practices that intentionally discriminate on the basis of age, as well as practices that merely have the effect of disproportionately burdening the franchise of certain age groups.

Part II then looks to the enactment history of the Twenty-Sixth Amendment, which confirms and deepens the interpretation generated by the textual arguments. It first explores how Title III of the VRA made its way through Congress in 1970. Senator Edward Kennedy, the architect of Title III, repeatedly propounded the arguments of Professor Archibald Cox that the Supreme Court's holding in Katzenbach v. Morgan (18) allowed Congress to lower the voting age statutorily through the Fourteenth Amendment's Enforcement Clause. The debate over Title III in Congress thus became, in effect, a debate over the reach of the Supreme Court's civil rights jurisprudence. The story then moves to Justice Black's plurality opinion in Oregon v. Mitchell, (19) which held Title III unconstitutional as applied to the states while reaffirming Morgan and upholding a prohibition on literacy tests. Congress and the states responded to this opinion by passing the Twenty-Sixth Amendment, in which they included an enforcement clause granting Congress the power Justice Black had denied it.

Part II punctuates this analysis of the statute-opinion-amendment process with three interpretive arguments. First, the history shows that at the time the Twenty-Sixth Amendment was passed, the broad, Morgan-informed reading of "Congress shall have power to enforce" was predominant. Second, while Title III only protected young people who were "denied the right to vote," (20) the Twenty-Sixth Amendment prevents that right from being "denied or abridged." (21) The addition of "or abridged" to the Amendment signals Congress's intention that the Twenty-Sixth Amendment empower it to do more than just police states' voting ages. Third, the enactment of the Twenty-Sixth Amendment closely parallels the enactment of the Fourteenth Amendment: both were passed in the shadow of major debates over the constitutionality of controversial statutes, and both should be interpreted in light of the constitutional meanings generated in those prefatory debates. Part II then examines the ratification debates in state legislatures, showing that they are consistent with a broad reading of the Twenty-Sixth Amendment enforcement power. Finally, Part II closes by examining the controversy over student voting in college towns that emerged after the Twenty-Sixth Amendment's ratification, as well as Congress's debate over the Equal Rights Amendment (ERA), both of which provide historical confirmation for this broad reading of the Twenty-Sixth Amendment.

Part III explores four highly contested areas of election policy in which Congress can legislate under this broad reading of the Twenty-Sixth Amendment. First, Congress can override strict voter ID requirements on the grounds that they disproportionately disenfranchise certain age groups. Second, Congress can expand the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) (22) to make it applicable to state as well as federal elections on the grounds that denying soldiers the right to vote burdens younger voters. Third, Congress can enact legislation protecting the voting rights of college students from durational residency requirements and other tactics that are commonly used to disenfranchise them. Fourth, Congress can override state policies that interfere with the franchise rights of elderly citizens, such as those denying ballot access to the elderly disabled and those establishing confusing ballot designs that confound elderly voters. These four proposals are not meant to be exhaustive; they simply illustrate the extensive powers that Congress would wield under the Twenty-Sixth Amendment if it were properly interpreted.

Finally, Part IV considers two counterarguments to a broad reading of the Twenty-Sixth Amendment. The first argument is that the Supreme Court's opinion in City of Boerne v. Flores (23) and its successor cases limiting Congress's Fourteenth Amendment enforcement power are fatal to such a reading. Part IV shows that Boerne is perfectly compatible with most legislation that could be enacted under a revitalized Twenty-Sixth Amendment enforcement power. It further shows that the framework developed in Boerne does not apply to the Twenty-Sixth Amendment as a matter of original intent, and that the history of the Twenty-Sixth Amendment provides a...