June 12, 2012 – Essay #82 – Amendment XXVI, Section Two – Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Amendment XXVI:

Section 1:  The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2:  The Congress shall have the power to enforce this article by appropriate legislation.

18-Year Olds Right to Vote

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

Perhaps one of the few instances where the issue of congressional power was litigated prior to passage of the amendment, section 2 of the 26th amendment has this distinction.  Many Americans today do not realize that the debate over the minimum age to vote in the U.S. began during World War II and the issue continued to grow even as the War wound down.  President Dwight Eisenhower was the first U.S. president to officially endorse lowering the voting age to 18.  For most of its history, the U.S. had adopted 21 as the minimum age.

President Eisenhower, like a growing number of American policymakers, recognized a clear disparity between 18 year olds being old enough to fight for their country in war and yet they were not considered responsible enough to cast a vote in electing the representatives that could decide the policy.  This sensible argument was powerful enough to persuade Georgia and Kentucky to lower the minimum voting age during World War II.

Unfortunately the process of state-by-state reform didn’t appear to be moving fast enough for its advocates.  By the time of the Vietnam War, it had become increasingly clear that Congress had to take some action in this area.  Between the budget pressures, anti-war efforts, and the need to rely on the draft, Washington policymakers determined that they should act affirmatively to lower the voting age.

Taking the lead nearly 20 years after serving as Vice-President to President Eisenhower, President Nixon agreed to sign a law that amended the Voting Rights Act to lower the voting age to 18 for all Federal, State, and local elections.  There was a problem with this solution:  it didn’t meet Supreme Court muster.

The act signed into law in 1970 was challenged in the federal courts.  In Oregon v. Mitchell the Supreme Court declared that the Congress didn’t have the authority to set a minimum age requirement for voting in state and local elections.

President Nixon would then call upon Congress to adopt a Constitutional amendment to remedy the matter. It passed Congress in March 1971 and would set a record – 4 short months – as the fastest ratification of any of the amendments to the Constitution.  By July, President Nixon would certify that the amendment had indeed been ratified.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

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3 Responses to “June 12, 2012 – Essay #82 – Amendment XXVI, Section Two – Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator”

  1. Ralph T. Howarth, Jr. says:

    A mere four months to ratify an amendment. Now why is it that other unconstitutional measures cannot be resolved by use of an amendment? Why cannot the amendment process be used more often like the case in point of voting age here? Could it be that the proponents of unconstitutional measures know very well that they cannot get such measure passed the states? And suffer a resounding defeat that undeniably demonstrates a measure as unconstitutional by default of not passing an amemdnent? Yet, some would still be so bold as to go ahead and pass statuatory legislation on the matter even after having failed as an amendment. Case in point is the failed child labor law amendment of the 1920’s, yet the federal government feels inclined to go ahead and regulate labor when before time the states rejected a limitied scope of labor regulation of minor children.

  2. Ralph T. Howarth, Jr. says:

    Another curiosity here is how the Court in Harper v. Virginia Board of Elections in 1966 struck down a Virginia poll tax for state and local elections despite Amendment 24ths specific language that such a regulation on voting rights petained only to federal elections. The court attributed the poll tax as a violation of the 14th Amendment.

    It seems that the 1920s Docrtine of Incorporation of the 14th Amendment to apply federal-in-scope amendments, or just be a wild-card amendment to itself, does not always adopt a new issue area until modern jurisprudence wakes up and realizes the 14th Amendment can be incorporated further in amazing new ways. On the issue of voting age with the Amendment 26 the Court somehow failed to invoke the 14th Amendment like what happened in the poll tax issue of Amendment 24 when the unconstitutional Voting Rights Act of 1970 struck down in Oregon v. Mitchell here. Article I was upheld in that case of voting age; but Article I was trumped by Amendment 14 concerning voting poll taxes.

  3. Ralph T. Howarth, Jr. says:

    In light of Voter ID legislation pressing through Congress these days, as well as Voter Registration renewal laws in the wind, in makes one wonder where the Court will side Article 1 or Amendment 14?

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