The Twenty-Sixth Amendment Enforcement Power

Eric S. Fish

The conventional story of the Twenty-Sixth Amendment is that it lowered the voting age to eighteen for all state and federal elections – nothing more and nothing less. The measure was enacted in 1971, and is viewed largely as a product of the Vietnam War. Men as young as eighteen were fighting and dying in Southeast Asia, so why should they not be able to vote? Finding no good answer, Congress proposed and the states ratified the following text:

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.

Yet this conventional story is incomplete. The Amendment did not merely lower the voting age to eighteen – it also prohibited any age-based discrimination in voting rights and empowered Congress to police that prohibition through appropriate legislation. This becomes clear when we examine the Amendment’s text and history.

Looking just at the text, the Twenty-Sixth Amendment was not written as a simple limitation on the minimum age of enfranchisement, akin to the constitutional age limits for Congress or the Presidency. Instead it was modeled after the Fifteenth and Nineteenth Amendments, with a general prohibition on a type of voting discrimination (race-based, gender-based, and age-based) followed by a clause granting Congress enforcement power.

Reasoning intratextually, we can make two inferences about the Twenty-Sixth Amendment from this comparison. First, much like the Fifteenth and Nineteenth Amendments, it applies to both the group it was immediately enacted to help (those between eighteen and twenty-one) and any other group that might suffer age-based voting discrimination (young adults, the middle aged, the old). Second, much like all three of the Reconstruction Amendments, its Enforcement Clause empowers Congress to enact legislation that would preempt state laws in order to combat discrimination.

This second point about the Twenty-Sixth Amendment’s Enforcement Clause gains even more force when one looks at the history of the Amendment’s enactment. This is because the Twenty-Sixth Amendment was itself a product of the civil rights-era controversy over how far Congress’s Fourteenth and Fifteenth Amendment enforcement powers extended. Members of Congress had been proposing an amendment to lower the voting age every year since 1942, but those proposals nearly always died in committee. This dynamic finally changed in 1970, when Senator Ted Kennedy of Massachusetts proposed that Congress lower the voting age through a statute – the 1970 renewal of the Voting Rights Act. Kennedy based this proposal on a law review article written by Harvard Professor Archibald Cox. 1 In the article, Cox argued that the Supreme Court’s holding in Katzenbach v. Morgan – that Congress receives broad deference under the Fourteenth Amendment’s Enforcement Clause when it protects voting rights – would permit Congress to lower the voting age statutorily in both state and federal elections.

Kennedy’s proposal was attached to the Voting Rights Act renewal and successfully enacted, but it was not without controversy. Leading members of Congress and the legal academy argued that it was unconstitutional, and President Richard Nixon even voiced his constitutional objections in a signing statement, noting that he signed the Voting Rights Act renewal “[d]espite my misgivings about the constitutionality of this one provision.”2 All of these objectors acknowledged the correctness of the Morgan opinion, but they complained that lowering the voting age to eighteen took congressional power too far.

The statute soon went before the Supreme Court in Oregon v. Mitchell and, in a confusingly divided opinion, the Court upheld the eighteen-year-old vote provision as applied to federal elections but struck it down as applied to state elections. Four liberal Justices voted to uphold the provision in its entirety, four conservative Justices voted to strike it down in its entirety. Only the median vote of Justice Hugo Black supported the state/federal distinction, on the grounds that Congress generally has the power to regulate federal elections. On the Fourteenth Amendment question, Justice Black articulated the principle that the broad enforcement power established in Morgan only applied to the paradigm case of race discrimination, but not to other forms such as age discrimination. The Supreme Court in Mitchell also upheld several other provisions of the Voting Rights Act that combated racial discrimination, thus reaffirming the broad reach of the Fourteenth and Fifteenth Amendments per Morgan. Shortly after this opinion came down, Congress proposed and the states ratified the Twenty-Sixth Amendment. The rapid progress of the Amendment is usually attributed to the anticipated cost of maintaining dual voter registration systems for state and federal elections in the coming 1972 presidential contest.

To summarize, then, Congress took a broad view of the Fourteenth Amendment’s Enforcement Clause language when lowering the voting age statutorily. Justice Black’s plurality opinion confirmed this broad interpretation as applied to race, the Fourteenth Amendment’s paradigm category of discrimination, but not as applied to age. Congress then took the very same language, which had just been so prominently interpreted by all three branches of the federal government as granting Congress significant enforcement powers, and inserted it in a new constitutional amendment that dealt specifically with age discrimination. Given this history it is hard to dispute that the Twenty-Sixth Amendment gave Congress the power to override discriminatory state laws.

Several pieces of ancillary historical evidence confirm the view that Congress can enact legislation to enforce the Twenty-Sixth Amendment. First, the provision of the Voting Rights Act that lowered the voting age to eighteen only prevented the right to vote from being “denied” on the basis of age, while the Twenty-Sixth Amendment prevented it from being “denied or abridged.” This suggests that Congress anticipated that, unlike the statute, the Amendment would achieve more than merely enfranchising eighteen year olds. Second, the Twenty-Sixth Amendment was framed and debated at the same time as the Equal Rights Amendment, which had an identical enforcement clause. Indeed, prior to the proposal of the Twenty-Sixth Amendment there was a discussion in Congress over the framing of the Equal Rights Amendment’s Enforcement Clause, in which several Congressmen went on record discussing the breadth of the power that the enforcement clause language provides post-Morgan. Third, shortly after the enactment of the Twenty-Sixth Amendment, Senator Alan Cranston of California proposed a bill in Congress that would have granted college students the right to register to vote wherever they wanted. The bill was never enacted into law, but it cited the Twenty-Sixth Amendment as one source of constitutional authority. These three pieces of evidence all strongly suggest that Congress understood the Twenty-Sixth Amendment’s Enforcement Clause as granting it power similar to that available under the Reconstruction Amendments.

Once we have established that the Twenty-Sixth Amendment empowers Congress to enact remedial legislation, the next important question is what kinds of legislation it can enact. This turns in part on the standard of review that the federal courts will grant to Congress for such legislation. A constitutional originalist would look to the fact that the Amendment’s framers clearly had the deferential Katzenbach v. Morgan standard in mind when it was enacted, and the originalist would see that as evidence that the same standard should apply to contemporary Twenty-Sixth Amendment legislation. However since that time, the Supreme Court’s 1997 opinion in City of Boerne v. Flores has established a less deferential “congruence and proportionality” standard of review. The Supreme Court has permitted remedial legislation under Boerne as well (for example, the Family and Medical Leave Act in Nevada Department of Human Resources v. Hibbs), but it has required significant congressional fact-finding to establish evidence of discrimination. While the Morgan standard is plainly easier to meet, Twenty-Sixth Amendment legislation should pass muster even under the Boerne standard so long as Congress does its homework.

Finally, a revived Twenty-Sixth Amendment could be used to enact a wide variety of laws that would protect voting rights from age-based discrimination. Several examples follow. First, Congress could require that states change their absentee ballot procedures to better protect the voting rights of overseas soldiers in state elections. Congress already imposes this requirement in federal elections through the Uniformed and Overseas Citizens Absentee Voting Act, but no such requirement exists for state elections. Second, Congress could preempt a number of state laws that discriminate against the old or the young, for example strict ID requirements that disproportionately burden the voting rights of those without drivers’ licenses. Third, Congress could preempt state residency laws that discriminate against college students from out of state and prevent them from voting. Fourth, Congress could prohibit states from disenfranchising those who are suffering from age-related dementia, or perhaps even require states to provide transportation to the polls or other means of voting for those who are too elderly to transport themselves. This is by no means an exhaustive list.

The Twenty-Sixth Amendment is conventionally understood to do nothing more than lower the voting age. But the conventional wisdom is wrong. Properly interpreted, the Twenty-Sixth Amendment establishes a broad constitutional prohibition against age discrimination in voting rights and grants Congress extensive powers to ensure state compliance with that prohibition. These powers allow Congress to take bold action to protect the rights of soldiers, students, senior citizens, and any other group whose members suffer franchise discrimination on account of their age.

Acknowledgments:

Copyright © 2012 The Yale Law Journal Company, Inc.

Eric Fish is a Yale Law School Public Interest Fellow.

This Legal Workshop article is based on Eric S. Fish, Note, The Twenty-Sixth Amendment Enforcement Power, 121 YALE L.J. 1168 (2012), available at http://yalelawjournal.org/images/pdfs/1057.pdf.

  1. Archibald Cox, The Supreme Court, 1965 Term—Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv. L. Rev. 91 (1966)
  2. Pres. Richard Nixon, Statement on Signing the Voting Rights Act Amendments of 1970 (June 22, 1970), in Published Papers of the Presidents of the United States: Richard Nixon 512 (U.S. Gov’t Printing Office ed., 1971).

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