Unveiling the Significance of Section Three’s “Legislative History”: Part I

of the apportionment clause of Section Two.) Section Three reversed some of Section Two by saying that states did not have to enfranchise former Confederates. Stevens’s complete comment is both about the context of enforcing a very different law and, specifically, about legislative enforcement of that very different law. It is not about the then emerging law that we ultimately got. Professor Lash relied heavily on Stevens’s comment to suggest that Section Three was not self-enforcing, in order to argue that the section’s words must have a different, broader understanding than we describe. Like any good historian or textualist might, we are ever-attuned to the possibility of being wrong. So we were primed to take this quotation and the suggestion that it contained very seriously. It would have been a serious problem for our whole account if Stevens had been talking about the version of Section Three that we now have. (Although again, as we’ve noted before, as at least five senators agreed, that version of Section Three did have immediate effect when it became law.) But that’s just not the case.