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Opinion | The Supreme Court Is the Final Word on Nothing

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A Congress that needed to may, in idea, use the Guarantee Clause to defend the primary rights of residents towards overbearing and tyrannical state governments. It’s been finished earlier than. After the Civil War, Radical Republicans in Congress discovered their constitutional power to reconstruct the South mainly in the Guarantee Clause, which they used to guard the rights of Black Americans from revanchist state governments.

Since Reconstruction, nonetheless, no Congress has needed to make use of the Guarantee Clause to guard the rights and liberties of Americans. It’s a vestigial a part of our constitutional historical past, atrophied from disuse.

The identical goes for sections 2 and three of the 14th Amendment. Section 2 states that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” It then specifies that if the proper to vote for federal workplace is “denied” or “in any way abridged, except for participation in rebellion” to “any of the male inhabitants” of such a state, then “the basis of representation therein shall be reduced” in proportion to the denial in query.

Section 3 additionally offers with illustration. It states that

No particular person shall be a Senator or Representative in Congress, or elector of President and Vice President, or maintain any workplace, civil or army, underneath the United States, or underneath any State, who, having beforehand taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an government or judicial officer of any State, to help the Constitution of the United States, shall have engaged in rebellion or riot towards the identical, or given assist and luxury to the enemies thereof.

The objective of part 2 was to invalidate the Three-Fifths clause of the Constitution and to forestall state governments from disenfranchising Black voters. And the objective of part 3 was to forestall former Confederate leaders from holding state and federal workplace. But whereas the 14th Amendment offers Congress the energy to implement its provisions by “appropriate legislation,” Congress has by no means exercised its skill to disclaim illustration to states that violate the proper of residents to vote, nor has it used its skill to disqualify these lawmakers who’ve engaged in acts of riot or rebellion. In the wake of Jan. 6, Representatives Cori Bush and Alexandria Ocasio-Cortez called on Congress to research and expel members who aided the assault, however their calls for went nowhere.

It’s right here you could see why I feel it’s essential to speak about these seemingly idle provisions. As current occasions have made clear, highly effective reactionaries are waging a profitable struggle towards American democracy utilizing the counter-majoritarian establishments of the American political system, cloaking their views in a distorted model of our Constitution, the place self-government means minority rule and the bugaboos of right-wing tradition warriors are in some way “deeply rooted” in our “history and traditions.”

But the Republic will not be defenseless. The Constitution offers our elected officers the energy to restrain a lawless Supreme Court, shield residents from the “sinister legislation” of the states, punish these states for depriving their residents of the proper to vote and expel insurrectionists from Congress.

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