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necessarily has to interpret the guarantees of section 1 to limit what the 'treason or other crime' clause permits. There are states which would criminalize membership in the American Communist Party or NAMBLA.
There is an inherent clash between Section 1 and Section 2. The Court can choose which one prevails in practice, maintaining the legal fiction of a right conferred to the states.
All the arguments you suppose to be easily the more correct are dealt with in Richardson v Ramirez.
RICHARDSON v. RAMIREZ, 418 U.S. 24 (1974)
Argued January 15, 1974.
Decided June 24, 1974.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
<....>
Since the Court nevertheless reaches the merits of the constitutionality of California's disenfranchisement of ex-felons, I find it necessary to register my dissent on the merits as well. The Court construes 2 of the Fourteenth Amendment as an express authorization for the States to disenfranchise former felons. Section 2 does except disenfranchisement for "participation in rebellion, or other crime" from the operation of its penalty provision. As the Court notes, however, there is little independent legislative history as to the crucial words "or other crime"; the proposed 2 went to a joint committee containing only the phrase "participation in rebellion" and emerged with "or other crime" inexplicably tacked on. 16 In its exhaustive review of the lengthy legislative history of the Fourteenth Amendment, the Court has come upon only one explanatory reference for the "other crimes" provision - a reference which is unilluminating at best. 17
The historical purpose for 2 itself is, however, relatively clear and in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance. 18 There were two alternatives available - either to limit southern representation, which was unacceptable on a long-term basis, 19 or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time. 20 Section 2 of the Fourteenth Amendment was the resultant compromise. It put Southern States to a choice - enfranchise Negro voters or lose congressional representation. 21
The political motivation behind 2 was a limited one. It had little to do with the purposes of the rest of the Fourteenth Amendment. As one noted commentator explained:
"`It became a part of the Fourteenth Amendment largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment.'" 22 "t seems quite impossible to conclude that there was a clear and deliberate understanding in the House that 2 was the sole source of national authority to protect voting rights, or that it expressly recognized the states' power to deny or abridge the right to vote." 23
It is clear that 2 was not intended and should not be construed to be a limitation on the other sections of the Fourteenth Amendment. Section 2 provides a special remedy - reduced representation - to cure a particular form of electoral abuse - the disenfranchisement of Negroes. There is no indication that the framers of the provisions intended that special penalty to be the exclusive remedy for all forms of electoral discrimination. This Court has repeatedly rejected that rationale. See Reynolds v. Sims, 377 U.S. 533 (1964); Carrington v. Rash, 380 U.S. 89 (1965).
Rather, a discrimination to which the penalty provision of 2 is inapplicable must still be judged against the Equal Protection Clause of 1 to determine whether judicial or congressional remedies should be invoked. That conclusion is compelled by this Court's holding in Oregon v. Mitchell, 400 U.S. 112 (1970). Although 2 excepts from its terms denial of the franchise not only to ex-felons but also to persons under 21 years of age, we held that the Congress, under 5, had the power to implement the Equal Protection Clause by lowering the voting age to 18 in federal elections. As MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, as well as myself, there observed, 2 was intended as no more "than a remedy supplementary, and in some conceivable circumstances indispensable, to other congressional and judicial remedies available under 1 and 5." 400 U.S., at 278 .
The Court's references to congressional enactments contemporaneous to the adoption of the Fourteenth Amendment, such as the Reconstruction Act and the readmission statutes, are inapposite. They do not explain the purpose for the adoption of 2 of the Fourteenth Amendment. They merely indicate that disenfranchisement for participation in crime was not uncommon in the States at the time of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement was excepted from the application of the special penalty provision of 2. But because Congress chose to exempt one form of electoral discrimination from the reduction-of-representation remedy provided by 2 does not necessarily imply congressional approval of this disenfranchisement. 24 By providing a special remedy for disenfranchisement of a particular class of voters in 2, Congress did not approve all election discriminations to which the 2 remedy was inapplicable, and such discriminations thus are not forever immunized from evolving standards of equal protection scrutiny. Cf. Shapiro v. Thompson, 394 U.S. 618, 638 -639 (1969). There is no basis for concluding that Congress intended by 2 to freeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights prevalent at the time of the adoption of the Amendment. In fact, one form of disenfranchisement - one-year durational residence requirements - specifically authorized by the Reconstruction Act, one of the contemporaneous enactments upon which the Court relies to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional by this Court in Dunn v. Blumstein, 405 U.S. 330 (1972).
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