OREGON V. MITCHELL, 400 U. S. 112 (1970)
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U.S. Supreme Court
Oregon v. Mitchell, 400 U.S. 112 (1970)
Oregon v. Mitchell
No. 43, Orig.
Argued October 19, 1970
Decided December 21, 1970
400 U.S. 112
ON BILL OF COMPLAINT
Syllabus
These original actions involve the constitutionality of three provisions of the Voting Rights Act Amendments of 1970 which (1) lower the minimum age of voters in both state and federal elections from 21 to 18, (2) bar the use of literacy tests (and similar voting eligibility requirements) for a five-year period in state and federal elections in any area where such tests are not already proscribed by the Voting Rights Act of 1965, and (3) forbid States from disqualifying voters in presidential and vice-presidential elections for failure to meet state residency requirements and provide uniform national rules for absentee voting in such elections.
Held: (1) The 18-year-old minimum-age requirement of the Voting Rights Act Amendments is valid for national elections. (2) That requirement is not valid for state and local elections. (3) The literacy test provision is valid. (4) The residency and absentee balloting provisions are valid. Pp. 400 U. S. 117-296.
Relief granted in part and denied in part.
MR. JUSTICE BLACK concluded that:
1. Congress has the authority to permit 18-year-old citizens to vote in national elections, under Art. I, § 4, Art. II, § 1, and the Necessary and Proper Clause, of the Constitution, since those provisions fully empower Congress to make or alter regulations in national elections, to supervise such elections, and to set the qualifications for voters therein. Pp. 400 U. S. 117, 400 U. S. 119-124.
2. But under Art I, § 2, the States have the power to set qualifications to vote in state and local elections, and the whole Constitution reserves that power to the States except as it has been curtailed by specific constitutional amendments. No amendment (including the Equal Protection Clause of the Fourteenth Amendment and the other Civil War Amendments) authorizes Congress' attempt to lower the voting age in state and local elections. Pp. 400 U. S. 118, 400 U. S. 124-131.
3. The literacy test ban is constitutional under the Enforcement Clauses of the Fourteenth and Fifteenth Amendments, in view of the evidence of racial discrimination that Congress found in various parts of the Nation: racial discrimination resulting from literacy tests, the educational inequality stemming from the "separate but equal" rule, and other racially discriminatory practices. Pp. 400 U. S. 118, 400 U. S. 131-134.
4. The provisions forbidding States from disqualifying voters in national elections for presidential and vice-presidential electors because they have not met state residency requirements and establishing absentee balloting rules are valid under Congress' broad powers to regulate federal elections and maintain a national government. 400 U. S. 118, 400 U. S. 134.
MR. JUSTICE DOUGLAS concluded that:
1. The authority of Congress to fix at 18 the minimum age for the civil right of voting in national elections derives from the Equal Protection Clause of the Fourteenth Amendment and the power to "enforce" granted by § 5 of that Amendment. Congress had an adequate basis for concluding that 18-year-olds are mature enough to vote and that to deprive them of the franchise would be a denial of equal protection. Pp. 400 U. S. 135-144.
3. The bar against a State's denying the right to vote in any federal, state, or local election because of a literacy test is sustainable as appropriate legislation to enforce the Equal Protection Clause, Congress having concluded that such tests have been used to discriminate against the voting rights of minority groups and that the tests are not necessary to ensure that voters be well informed. Pp. 400 U. S. 144-147.
4. The right to vote in national elections is a privilege and immunity of national citizenship and the congressional judgment to ban durational residency requirements in presidential and vice-presidential elections is a manifestly permissible means of enforcing that privilege and immunity under § 5 of the Fourteenth Amendment. Pp. 400 U. S. 147-150.
MR. JUSTICE HARLAN concluded that:
2. The Fourteenth Amendment was not intended to restrict the authority of the States to allocate their political power as they see
fit and neither that Amendment nor any other provision of the Constitution authorizes Congress to set voter qualifications in state or local elections. Pp. 400 U. S. 154-213.
3. The literacy requirement can be deemed an appropriate means of enforcing the Fifteenth Amendment since Congress could have determined that racial prejudice is prevalent throughout the Nation and that literacy tests unduly lend themselves to discriminatory application. Pp. 400 U. S. 216-217.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL concluded that:
1. Congress has the power to forbid the disenfranchisement in national elections of persons over the age of 18 because of their age, in order to enforce the Equal Protection Clause of the Fourteenth Amendment. There was ample evidence to support Congress' conclusion that the exclusion of citizens 18 to 21 years of age from the franchise is unnecessary to promote any legitimate interest the States may have in assuring intelligent and responsible voting. Pp. 400 U. S. 239-281.
3. The congressional determination that a nationwide ban on literacy tests was necessary to prevent racial discrimination in voting is amply supported by the legislative record, and the proscription of literacy tests is well within the power of Congress granted by § 2 of the Fifteenth Amendment. Pp. 400 U. S. 231-236.
4. There is adequate constitutional basis for the residency provisions of the Act in § 5 of the Fourteenth Amendment, as there is ample justification for the congressional findings that durational residence requirements abridge the right of free interstate migration and that such requirements are not reasonably related to any compelling state interests. Pp. 400 U. S. 236-239.
MR. JUSTICE STEWART, joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN, concluded that:
2. Congress has no power to confer the right to vote in state or local elections on citizens from the ages of 18 to 21, since under the Constitution only the States have the power to set voting qualifications. Pp. 400 U. S. 293-296.
3. The literacy test ban is constitutional under the Enforcement Clause of the Fifteenth Amendment. Pp. 400 U. S. 282-284.
4. The residency provisions of the Act are constitutional because Congress, while it does not have general authority to establish qualifications for voting in congressional or presidential elections,
does have the power under the Necessary and Proper Clause to protect the privileges of United States citizenship, including the freedom to travel and to change one's residence. Pp. 400 U. S. 285-292.
BLACK, J., delivered an opinion announcing the judgments of the Court and expressing his own view of the case. DOUGLAS, J., filed a separate opinion, post, p. 400 U. S. 135. HARLAN, J., filed an opinion concurring in part and dissenting in part, post, p. 400 U. S. 152. BRENNAN, WHITE, and MARSHALL, JJ., filed an opinion dissenting from the judgments in part and concurring in the judgments in part, post, p. 400 U. S. 229. STEWART, J., filed an opinion concurring in part and dissenting in part, in which BURGER., C.J., and BLACKMUN, J., joined, post, p. 400 U. S. 281.
MR. JUSTICE BLACK, announcing the judgments of the Court in an opinion expressing his own view of the cases.
In these suits, certain States resist compliance with the Voting Rights Act Amendments of 1970, Pub.L. 91-285, 84 Stat. 314, because they believe that the Act takes away from them powers reserved to the States by the Constitution to control their own elections. [Footnote 1] By its terms, the Act does three things. First: it lowers the minimum age of voters in both state and federal elections from 21 to 18. Second: based upon a finding by Congress that literacy tests have been used to discriminate against voters on account of their color, the Act enforces the Fourteenth and Fifteenth Amendments by barring the use of such tests in all elections, state and national, for a five-year period. Third: the Act forbids States from disqualifying voters in national elections for presidential and vice-presidential electors because they have not met state residency requirements.
For the reasons set out in 400 U. S. I believe Congress can fix the age of voters in national elections, such as congressional, senatorial, vice-presidential
and presidential elections, but cannot set the voting age in state and local elections. For reasons expressed in separate opinions, my Brothers DOUGLAS, BRENNAN, WHITE, and MARSHALL join me in concluding that Congress can enfranchise 18-year-old citizens in national elections, but dissent from the judgment that Congress cannot extend the franchise to 18-year-old citizens in state and local elections. For reasons expressed in separate opinions, my Brothers THE CHIEF JUSTICE, HARLAN, STEWART, and BLACKMUN join me in concluding that Congress cannot interfere with the age for voters set by the States for state and local elections. They, however, dissent from the judgment that Congress can control voter qualifications in federal elections. In summary, it is the judgment of the Court that the 18-year-old vote provisions of the Voting Rights Act Amendments of 1970 are constitutional and enforceable insofar as they pertain to federal elections, and unconstitutional and unenforceable insofar as they pertain to state and local elections.
For the reasons set out in 400 U. S. I believe that Congress, in the exercise of its power to enforce the Fourteenth and Fifteenth Amendments, can prohibit the use of literacy tests or other devices used to discriminate against voters on account of their race in both state and federal elections. For reasons expressed in separate opinions, all of my Brethren join me in this judgment. Therefore the literacy-test provisions of the Act are upheld.
For the reasons set out in 400 U. S. I believe Congress can set residency requirements and provide for absentee balloting in elections for presidential and vice-presidential electors. For reasons expressed in separate opinions, my Brothers THE CHIEF JUSTICE, DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN concur in this judgment. My Brother
HARLAN, for the reasons stated in his separate opinion, considers that the residency provisions of the statute are unconstitutional. Therefore the residency and absentee balloting provisions of the Act are upheld.
Let judgments be entered accordingly.
I
The Framers of our Constitution provided in Art. I, § 2, that members of the House of Representatives should be elected by the people and that the voters for Representatives should have "the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." Senators were originally to be elected by the state legislatures, but, under the Seventeenth Amendment, Senators are also elected by the people, and voters for Senators have the same qualifications as voters for Representatives. In the very beginning, the responsibility of the States for setting the qualifications of voters in congressional elections was made subject to the power of Congress to make or alter such regulations if it deemed it advisable to do so. [Footnote 2] This was done in Art. I, § 4, of the Constitution, which provides:
"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
(Emphasis supplied.) Moreover, the power of Congress to make election regulations in national elections is augmented by the Necessary and Proper Clause. See McCulloch v. Maryland, 4 Wheat. 316 (1819). In United States v. Classic, 313 U. S. 299 (1941), where the Court upheld congressional power to regulate party primaries, Mr. Justice Stone, speaking
for the Court, construed the interrelation of these clauses of the Constitution, stating:
"While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states . . . , this statement is true only in the sense that the states are authorized by the Constitution to legislate on the subject as provided by § 2 of Art. I, to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under § 4 and its more general power under Article I, § 8, clause 18 of the Constitution 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.'"
313 U.S. at 313 U. S. 315. See also Ex parte Siebold, 100 U. S. 371 (1880); Ex parte Yarbrough, 110 U. S. 651 (1884); Swafford v. Templeton, 185 U. S. 487 (1902); Wiley v. Sinkler, 179 U. S. 58 (1900)
The breadth of power granted to Congress to make or alter election regulations in national elections, including the qualifications of voters, is demonstrated by the fact that the Framers of the Constitution and the state legislatures which ratified it intended to grant to Congress the power to lay out or alter the boundaries of the congressional districts. In the ratifying conventions, speakers
"argued that the power given Congress in Art. I, § 4, was meant to be used to vindicate the people's right to equality of representation in the House,"
Wesberry v. Sanders, 376 U. S. 1, 376 U. S. 16 (1964), and that Congress would "most probably . . . lay the state off into districts.'" And in Colegrove v. Green, 328 U. S. 549 (1946), no Justice of this Court doubted Congress' power to rearrange the congressional districts according to population; the fight in that case revolved about the judicial power to compel redistricting.
Surely no voter qualification was more important to the Framers than the geographical qualification embodied in the concept of congressional districts. The Framers expected Congress to use this power to eradicate "rotten boroughs," [Footnote 3] and Congress has, in fact, used its power to prevent States from electing all Congressmen at large. [Footnote 4] There can be no doubt that the power to alter congressional district lines is vastly more significant in its effect than the power to permit 18-year-old citizens to go to the polls and vote in all federal elections.
Any doubt about the powers of Congress to regulate congressional elections, including the age and other qualifications of the voters, should be dispelled by the opinion of this Court in Smiley v. Holm, 285 U. S. 355 (1932). There, Chief Justice Hughes, writing for a unanimous Court, discussed the scope of congressional power under § 4 at some length. He said:
"The subject matter is the 'times, places and manner of holding elections for Senators and Representatives.' It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. . . ."
"This view is confirmed by the second clause of Article I, section 4, which provides that 'the Congress
may at any time by law make or alter such regulations,' with the single exception stated. The phrase 'such regulations' plainly refers to regulations of the same general character that the legislature of the State is authorized to prescribe with respect to congressional elections. In exercising this power, the Congress may supplement these state regulations or may substitute its own. . . . It 'has a general supervisory power over the whole subject.'"
Id. at 285 U. S. 366-367.
In short, the Constitution allotted to the States the power to make laws regarding national elections, but provided that, if Congress became dissatisfied with the state laws, Congress could alter them. [Footnote 5] A newly created national government could hardly have been expected to survive without the ultimate power to rule itself and to fill its offices under its own laws. The Voting Rights Act Amendments of 1970, now before this Court,
evidence dissatisfaction of Congress with the voting age set by many of the States for national elections. I would hold, as have a long line of decisions in this Court, that Congress has ultimate supervisory power over congressional elections. [Footnote 6] Similarly, it is the prerogative of Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications for voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections. [Footnote 7]
On the other hand, the Constitution was also intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments, except insofar as the Constitution itself commands otherwise. My Brother HARLAN has persuasively demonstrated that the Framers of the Constitution intended the States to keep for themselves,
as provided in the Tenth Amendment, [Footnote 8] the power to regulate elections. My major disagreement with my Brother HARLAN is that, while I agree as to the States' power to regulate the elections of their own officials, I believe, contrary to his view, that Congress has the final authority over federal elections. No function is more essential to the separate and independent existence of the States and their governments than the power to determine, within the limits of the Constitution, the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices. Pope v. Williams, 193 U. S. 621 (194); Minor v. Happersett, 21 Wall. 162 (1875). Moreover, Art. I, § 2, [Footnote 9] is a clear indication that the Framers intended the States to determine the qualifications of their own voters for state offices, because those qualifications were adopted for federal offices unless Congress directs otherwise under Art. I, § 4. It is a plain fact of history that the Framers never imagined that the national Congress would set the qualifications for voters in every election from President to local constable or village alderman. It is obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections, except to the limited extent that the people, through constitutional amendments, have specifically narrowed the powers of the States. Amendments Fourteen, Fifteen, Nineteen, and Twenty-four, each of which has assumed that the States had general supervisory power
over state elections, are examples of express limitations on the power of the States to govern themselves. And the Equal Protection Clause of the Fourteenth Amendment was never intended to destroy the States' power to govern themselves, making the Nineteenth and Twenty-fourth Amendments superfluous. My Brother BRENNAN's opinion, if carried to its logical conclusion, would, under the guise of insuring equal protection, blot out all state power, leaving the 50 States as little more than impotent figureheads. In interpreting what the Fourteenth Amendment means, the Equal Protection Clause should not be stretched to nullify the States' powers over elections which they had before the Constitution was adopted and which they have retained throughout our history.
Of course, the original design of the Founding Fathers was altered by the Civil War Amendments and various other amendments to the Constitution. The Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments have expressly authorized Congress to "enforce" the limited prohibitions of those amendments by "appropriate legislation." The Solicitor General contends in these cases that Congress can set the age qualifications for voters in state elections under its power to enforce the Equal Protection Clause of the Fourteenth Amendment.
Above all else, the framers of the Civil War Amendments intended to deny to the States the power to discriminate against persons on account of their race. Loving v. Virginia, 388 U. S. 1 (1967); Gomillion v. Lightfoot, 364 U. S. 339 (1960); Brown v. Board of Education, 347 U. S. 483 (1954); 83 U. S. 71-72 (1873). While this Court has recognized that the Equal Protection Clause of the Fourteenth Amendment in some instances protects against discriminations
other than those on account of race, [Footnote 10] see Reynolds v. Sims, 377 U. S. 533 (1964); Hadley v. Junior College District, 397 U. S. 50 (1970); see also Kotch v. Board of River Port Pilots,@ 330 U. S. 552 (1947), and cases cited therein, it cannot be successfully argued that the Fourteenth Amendment was intended to strip the States of their power, carefully preserved in the original Constitution, to govern themselves. The Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection. Nor was the Enforcement Clause of the Fourteenth Amendment intended to permit Congress to prohibit every discrimination between groups of people. On the other hand, the Civil War Amendments were unquestionably designed to condemn and forbid every distinction, however trifling, on account of race.
To fulfill their goal of ending racial discrimination and to prevent direct or indirect state legislative encroachment on the rights guaranteed by the amendments, the Framers gave Congress power to enforce each of the Civil War Amendments. These enforcement powers are broad. In Jones v. Alfred H. Mayer Co., 392 U. S. 409, 392 U. S. 439 (1968), the Court held that § 2 of the Thirteenth
Amendment "clothed Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.'" In construing § 5 of the Fourteenth Amendment, the Court has stated:
"It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged."
Ex parte Virginia, 100 U. S. 339, 100 U. S. 345 (1880). (Emphasis added in part.) And in South Carolina v. Katzenbach, 383 U. S. 301 (1966) (BLACK, J., dissenting on other grounds), the Court upheld the literacy test ban of the Voting Rights Act of 1965, 79 Stat. 437, under Congress' Fifteenth Amendment enforcement power.
As broad as the congressional enforcement power is, it is not unlimited. Specifically, there are at least three limitations upon Congress' power to enforce the guarantees of the Civil War Amendments. First, Congress may not by legislation repeal other provisions of the Constitution. Second, the power granted to Congress was not intended to strip the States of their power to govern themselves or to convert our national government of enumerated powers into a central government of unrestrained authority over every inch of the whole Nation. Third, Congress may only "enforce" the provisions of the amendments, and may do so only by "appropriate legislation." Congress has no power under the enforcement sections to undercut the amendments' guarantees of personal equality and freedom from discrimination, see Katzenbach v. Morgan, 384 U. S. 641, 384 U. S. 651 n.
10 (1966), or to undermine those protections of the Bill of Rights which we have held the Fourteenth Amendment made applicable to the States. [Footnote 11]
Of course, we have upheld congressional legislation under the Enforcement Clauses in some cases where Congress has interfered with state regulation of the local electoral process. In Katzenbach v. Morgan, supra, the Court upheld a statute which outlawed New York's requirement of literacy in English as a prerequisite to voting as this requirement was applied to Puerto Ricans with certain educational qualifications. The New York statute overridden by Congress applied to all elections. And in South Carolina v. Katzenbach, supra, (BLACK, J., dissenting on other grounds), the Court upheld the literacy test ban of the Voting Rights Act of 1965. That Act proscribed the use of the literacy test in all elections in certain areas. But division of power between state and national governments, like every provision of the Constitution, was expressly qualified by the Civil War Amendments' ban on racial discrimination. Where Congress attempts to remedy racial discrimination under its enforcement powers, its authority is enhanced by the avowed intention of the framers of the Thirteenth, Fourteenth, and Fifteenth Amendments. Cf. Harper v. Virginia Board of Elections, 383 U. S. 663, 383 U. S. 670 (1966) (BLACK, J., dissenting).
In enacting the 18-year-old vote provisions of the Act now before the Court, Congress made no legislative findings that the 21-year-old vote requirement was used by the States to disenfranchise voters on account of race. I seriously doubt that such a finding, if made, could be supported by substantial evidence. Since Congress has attempted to invade an area preserved to the States by the Constitution without a foundation for enforcing the Civil War Amendments' ban on racial discrimination, I would hold that Congress has exceeded its powers in attempting to lower the voting age in state and local elections. On the other hand, where Congress legislates in a domain not exclusively reserved by the Constitution to the States, its enforcement power need not be tied so closely to the goal of eliminating discrimination on account of race.
To invalidate part of the Voting Rights Act Amendments of 1970, however, does not mean that the entire Act must fall, or that the constitutional part of the 18-year-old vote provision cannot be given effect. In passing the Voting Rights Act Amendments of 1970, Congress recognized that the limits of its power under the Enforcement Clauses were largely undetermined, and therefore included a broad severability provision:
"If any provision of this Act or the application of any provision thereof to any person or circumstance is judicially determined to be invalid, the remainder of this Act or the application of such provision to other persons or circumstances shall not be affected by such determination."
84 Stat. 318. In this case, it is the judgment of the Court that Title III, lowering the voting age to 18, is invalid as applied to voters in state and local elections. It is also the judgment of the Court that Title III is valid with respect to national elections. We would fail to follow the
express will of Congress in interpreting its own statute if we refused to sever these two distinct aspects of Title III. Moreover, it is a longstanding canon of statutory construction that legislative enactments are to be enforced to the extent that they are not inconsistent with the Constitution, particularly where the valid portion of the statute does not depend upon the invalid part. See, e.g., Watson v. Buck, 313 U. S. 387 (1941); Marsh v. Buck, 313 U. S. 406 (1941). Here, of course, the enforcement of the 18-year-old vote in national elections is in no way dependent upon its enforcement in state and local elections.
II
In Title I of the Voting Rights Act Amendments of 1970, Congress extended the provisions of the Voting Rights Act of 1965 which ban the use of literacy tests in certain States upon the finding of certain conditions by the United States Attorney General. The Court upheld the provisions of the 1965 Act over my partial dissent in South Carolina v. Katzenbach, supra, and Gaston County v. United States, 395 U. S. 285 (1969). The constitutionality of Title I is not raised by any of the parties to these suits. [Footnote 12]
In Title II of the Amendments, Congress prohibited until August 6, 1975, the use of any test or device resembling a literacy test in any national, state, or local election
in any area of the United States where such test is not already proscribed by the Voting Rights Act of 1965. The State of Arizona maintains that Title II cannot be enforced to the extent that it is inconsistent with Arizona's literacy test requirement, Ariz.Rev.Stat.Ann. §§ 16-101.A.4, 16-101.A.5 (1956). I would hold that the literacy test ban of the 1970 Amendments is constitutional under the Enforcement Clause of the Fifteenth Amendment, and that it supersedes Arizona's conflicting statutes under the Supremacy Clause of the Federal Constitution. In enacting the literacy test ban of Title II, Congress had before it a long history of the discriminatory use of literacy tests to disfranchise voters on account of their race. Congress could have found that, as late as the summer of 1968, the percentage registration of nonwhite voters in seven Southern States was substantially below the percentage registration of white voters. [Footnote 13] Moreover, Congress had before it striking evidence to show that the provisions of the 1965 Act had had, in the span of four years, a remarkable impact on minority group voter registration. [Footnote 14] Congress also had evidence to show that voter registration in areas with large Spanish-American populations was consistently below the state and national averages. In Arizona, for example, only two counties out of eight with Spanish surname populations in excess of 15% showed a voter registration equal to the state-wide average. [Footnote 15] Arizona also has a serious problem of deficient voter registration among Indians. Congressional
concern over the use of a literacy test to disfranchise Puerto Ricans in New York State is already a matter of record in this Court. Katzenbach v. Morgan, supra. And as to the Nation as a whole, Congress had before it statistics which demonstrate that voter registration and voter participation are consistently greater in States without literacy tests. [Footnote 16]
Congress also had before it this country's history of discriminatory educational opportunities in both the North and the South. The children who were denied an equivalent education by the "separate but equal" rule of Plessy v. Ferguson, 163 U. S. 537 (1896), overruled in Brown v. Board of Education, 347 U. S. 483 (1954), are now old enough to vote. There is substantial, if not overwhelming, evidence from which Congress could have concluded that it is a denial of equal protection to condition the political participation of children educated in a dual school system upon their educational achievement. Moreover, the history of this legislation suggests that concern with educational inequality was perhaps uppermost in the minds of the congressmen who sponsored the Act. The hearings are filled with references to educational inequality. Faced with this and other evidence that literacy tests reduce voter participation in a discriminatory manner not only in the South but throughout the Nation, Congress was supported by substantial evidence in concluding that a nationwide ban on literacy tests was appropriate to enforce the Civil War amendments.
Finally, there is yet another reason for upholding the literacy test provisions of this Act. In imposing a nationwide ban on literacy tests, Congress has recognized a national problem for what it is -- a serious national dilemma that touches every corner of our land.
In this legislation, Congress has recognized that discrimination on account of color and racial origin is not confined to the South, but exists in various parts of the country. Congress has decided that the way to solve the problems of racial discrimination is to deal with nationwide discrimination with nationwide legislation. Compare South Carolina v. Katzenbach, supra, and Gaston County v. United States, supra.
III
In Title II of the Voting Rights Act Amendments Congress also provided that, in presidential and vice-presidential elections, no voter could be denied his right to cast a ballot because he had not lived in the jurisdiction long enough to meet its residency requirements. Furthermore, Congress provided uniform national rules for absentee voting in presidential and vice-presidential elections. In enacting these regulations, Congress was attempting to insure a fully effective voice to all citizens in national elections. What I said in 400 U. S. Acting under its broad authority to create and maintain a national government, Congress unquestionably has power under the Constitution to regulate federal elections. The Framers of our Constitution were vitally concerned with setting up a national government that could survive. Essential to the survival and to the growth of our national government is its power to fill its elective offices and to insure that the officials who fill those offices are as responsive as possible to the will of the people whom they represent.
IV
Our judgments today give the Federal Government the power the Framers conferred upon it, that is, the final control of the elections of its own officers. Our judgments also save for the States the power to control state and
local elections which the Constitution originally reserved to them and which no subsequent amendment has taken from them. [Footnote 17] The generalities of the Equal Protection Clause of the Fourteenth Amendment were not designed or adopted to render the States impotent to set voter qualifications in elections for their own local officials and agents in the absence of some specific constitutional limitations.
* Together with No. 44, Orig., Texas v. Mitchell, Attorney General, No. 46, Orig., United States v. Arizona, and No. 47, Orig., United States v. Idaho, also on bills of complaint.
* [NOTE: A numbered category that is used for MR. JUSTICE BLACK's opinion is not repeated below where the opinion being headnoted does not concur or concur in the result with respect to the point involved in that category.]
In Nos. 43, Orig., and 44, Orig., Oregon and Texas, respectively, invoke the original jurisdiction of this Court to sue the United States Attorney General seeking an injunction against the enforcement of Title III (18-year-old vote) of the Act. In No. 46, Orig., the United States invokes our original jurisdiction seeking to enjoin Arizona from enforcing its laws to the extent that they conflict with the Act, and directing the officials of Arizona to comply with the provisions of Title II (nationwide literacy test ban), § 201, 84 Stat. 315, and Title III (18-year-old vote), §§ 301, 302, 84 Stat. 318, of the Act. In No. 47, Orig., the United States invokes our original jurisdiction seeking to enjoin Idaho from enforcing its laws to the extent that they conflict with Title II (abolition of residency requirements in presidential and vice-presidential elections), § 202, 84 Stat. 316, and Title III (18-year-old vote) of the Act. No question has been raised concerning the standing of the parties or the jurisdiction of this Court.
Article I, § 4, was a compromise between those delegates to the Constitutional Convention who wanted the States to have final authority over the election of all state and federal officers and those who wanted Congress to make laws governing national elections, 2 J. Story, Commentaries on the Constitution of the United States 280-292 (1st ed. 1833). The contemporary interpretation of this compromise reveals that those who favored national authority over national elections prevailed. Six States included in their resolutions of ratification the recommendation that a constitutional amendment be adopted to curtail the power of the Federal Government to regulate national elections. Such an amendment was never adopted.
A majority of the delegates to the Massachusetts ratifying convention must have assumed that Art. I, § 4, gave very broad powers to Congress. Otherwise, that convention would not have recommended an amendment providing:
"That Congress do not exercise the powers vested in them by the 4th section of the 1st article, but in cases where a state shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress, agreeably to the Constitution."
2 J. Elliot's Debates on the Federal Constitution 177 (1876). The speech of Mr. Cabot, one delegate to the Massachusetts convention, who argued that Art. I, § 4, was "to be as highly prized as any in the Constitution," expressed a view of the breadth of that section which must have been shared by most of his colleagues:
"[I]f the state legislatures are suffered to regulate conclusively the elections of the democratic branch, they may . . . finally annihilate that control of the general government, which the people ought always to have. . . ."
Id. at 26.
And Cabot was supported by Mr. Parsons, who added:
"They might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these power in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election."
Id. at 27.
See Wesberry v. Sanders, 376 U. S. 1, 376 U. S. 14-16 (1964).
See, e.g., Act of Aug. 8, 1911, 37 Stat. 13.
My Brother STEWART has cited the debates of the Constitutional Convention to show that Ellsworth, Mason, Madison, and Franklin successfully opposed granting Congress the power to regulate federal elections, including the qualifications of voters, in the original Constitution. I read the history of our Constitution differently. Mr. Madison, for example, explained Art. I, § 4, to the Virginia ratifying convention as follows:
"[I]t was thought that the regulation of time, place, and manner, of electing the representatives should be uniform throughout the continent. Some States might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. . . . Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government."
3 J. Elliot's Debates on the Federal Constitution 367 (1876). And Mr. Mason, who was supposedly successful in opposing a broad grant of power to Congress to regulate federal elections, still found it necessary to support an unsuccessful Virginia proposal to curb the power of Congress under Art. I, § 4. Id. at 403.
See, e.g., Ex parte Siebold, 100 U. S. 371 (1880); Ex parte Yarbrough, 110 U. S. 651 (1884); United States v. Mosley, 238 U. S. 383 (1915); United States v. Classic, 313 U. S. 299 (1941).
With reference to the selection of the President and Vice President, Art. II, § 1, provides:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. . . ."
But this Court, in Burroughs v. United States, 290 U. S. 534 (1934), upheld the power of Congress to regulate certain aspects of elections for presidential and vice-presidential electors, specifically rejecting a construction of Art. II, § 1, that would have curtailed the power of Congress to regulate such elections. Finally, and most important, inherent in the very concept of a supreme national government with national officers is a residual power in Congress to insure that those officers represent their national constituency as responsively as possible. This power arises from the nature of our constitutional system of government and from the Necessary and Proper Clause.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
U.S.Const., Amdt. X.
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
My Brother BRENNAN relies upon Carrington v. Rash, 380 U. S. 89 (1965); Cipriano v. City of Houma, 395 U. S. 701 (1969); and Evans v. Cornman, 398 U. S. 419 (1970). These typical equal protection cases, in which I joined, are not relevant or material to our decision in the cases before us. The establishment of voter age qualifications is a matter of legislative judgment which cannot be properly decided under the Equal Protection Clause. The crucial question here is not who is denied equal protection, but, rather, which political body, state or federal, is empowered to fix the minimum age of voters. The Framers intended the States to make the voting age decision in all elections with the provision that Congress could override state judgments concerning the qualifications of voters in federal elections.
See: the First Amendment, e.g., Gitlow v. New York, 268 U. S. 652 (1925); Cantwell v. Connecticut, 310 U. S. 296 (1940); Edwards v. South Carolina, 372 U. S. 229 (1963); the Fourth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961); the Fifth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897); Malloy v. Hogan, 378 U. S. 1 (1964); Benton v. Maryland, 395 U. S. 784 (1969); the Sixth Amendment, Gideon v. Wainwright, 372 U. S. 335 (1963); Pointer v. Texas, 380 U. S. 400 (1965); Klopfer v. North Carolina, 386 U. S. 213 (1967); Duncan v. Louisiana, 391 U. S. 145 (1968); and the Eighth Amendment, Robinson v. California, 370 U. S. 660 (1962).
Yuma County, Arizona, is presently subject to the literacy test ban of the Voting Rights Act of 1965 pursuant to a determination of the Attorney General under § 4(a) of the 1965 Act. I do not understand Arizona to contest the application of the 1965 Act or its extension to that county. Arizona "does not question" Congress' authority to enforce the Fourteenth and Fifteenth Amendments "when Congress possesses a special legislative competence'"; and cites South Carolina v. Katzenbach, 383 U. S. 301 (1966), and Katzenbach v. Morgan, 384 U. S. 641 (1966), with approval. Answer and Brief for Arizona, No. 46, Orig., O.T. 1970.
Hearings on H.R. 4249, H.R. 5538, and Similar Proposals before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., Ser. 3, p. 14 (1969).
Id. at 93.
Hearings on S. 818, S. 2456, S. 2507, and Title IV of S. 2029 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 406 (1969-1970).
Id. at 401.
That these views are not novel is demonstrated by Mr. Justice Story in his Commentaries on the Constitution of the United States, vol. 2, pp. 284-285 (1st ed. 1833):
"There is, too, in the nature of such a provision [Art. I, § 4], something incongruous, if not absurd. What would be said of a clause introduced into the national constitution to regulate the state elections of the members of the state legislatures? It would be deemed a most unwarrantable transfer of power, indicating a premeditated design to destroy the state governments. It would be deemed so flagrant a violation of principle, as to require no comment. It would be said, and justly, that the state governments ought to possess the power of self-existence and self-organization, independent of the pleasure of the national government. Why does not the same reasoning apply to the national government? What reason is there to suppose, that the state governments will be more true to the Union, than the national government will be to the state governments?"
(Emphasis added.) (Footnote omitted.)
MR. JUSTICE DOUGLAS.
I dissent from the judgments of the Court insofar as they declare § 302 of the Voting Rights Act, 84 Stat. 318, unconstitutional as applied to state elections and concur in the judgments as they affect federal elections, but for different reasons. I rely on the Equal Protection Clause and on the Privileges and Immunities Clause of the Fourteenth Amendment.
I
The grant of the franchise to 18-year-olds by Congress is, in my view, valid across the board.
I suppose that, in 1920, when the Nineteenth Amendment was ratified giving women the right to vote, it was assumed by most constitutional experts that there was no relief by way of the Equal Protection Clause of the Fourteenth Amendment. In Minor v. Happersett, 21 Wall. 162, the Court held in the 1874 Term that a State could constitutionally restrict the franchise to men. While the Fourteenth Amendment was relied upon, the thrust of the opinion was directed at the Privileges and Immunities Clause with a subsidiary reference to the Due Process Clause. It was much later, indeed not until the 1961 Term -- nearly a century after the Fourteenth Amendment was adopted -- that discrimination against voters on grounds other than race was struck down.
The first case in which this Court struck down a statute under the Equal Protection Clause of the Fourteenth Amendment was Strauder v. West Virginia, 100 U. S. 303, decided in the 1879 Term. [Footnote 2/1] In the 1961 Term, we squarely held that the manner of apportionment of members of a state legislature raised a justiciable question under the Equal Protection Clause, Baker v. Carr, 369 U. S. 186. That case was followed by numerous others, e.g.: that one person could not be given twice or 10 times the voting power of another person in a state-wide election merely because he lived in a rural area or
in the smallest rural county; [Footnote 2/2] that the principle of equality applied to both Houses of a bicameral legislature; [Footnote 2/3] that political parties receive protection under the Equal Protection Clause just as voters do. [Footnote 2/4]
The reapportionment cases, however, are not quite in point here, though they are the target of my Brother HARLAN's dissent. His painstaking review of the history of the Equal Protection Clause leads him to conclude that "political" rights are not protected, though "civil" rights are protected. The problem of what questions are "political" has been a recurring issue in this Court from the beginning, and we recently reviewed them all in Baker v. Carr, supra, and in Powell v. McCormack, 395 U. S. 486. Baker v. Carr was a reapportionment case, and Powell v. McCormack involved the exclusion from the House of Representatives of a Congressman. The issue of "political" question versus "justiciable" question was argued pro and con in those cases, and my Brother HARLAN stated in Baker v. Carr, 369 U.S. at 369 U. S. 330 et seq., and on related occasions (Gray v. Sanders, 372 U. S. 368, 372 U. S. 382; Wesberry v. Sanders, 376 U. S. 1, 376 U. S. 20; @ 377 U. S. 589) his views on the constitutional dimensions of the "political" question in the setting of the reapportionment problem.
Those cases involved the question whether legislatures must be so structured as to reflect with approximate equality the voice of every voter. The ultimate question was whether, absent a proper apportionment by the legislature, a federal court could itself make an apportionment. That kind of problem raised issues irrelevant here. Reapportionment, as our experience shows, presented a tangle of partisan politics in which geography, economics, urban life, rural constituencies, and numerous other nonlegal factors play varying roles. The competency of courts to deal with them was challenged. Yet we held the issues were justiciable. None of those so-called "political" questions are involved here.
This case, so far as equal protection is concerned, is no whit different from a controversy over a state law that disqualifies women from certain types of employment, Goesaert v. Cleary, 335 U. S. 464, or that imposes a heavier punishment on one class of offender than on another whose crime is not intrinsically different. Skinner v. Oklahoma, 316 U. S. 535. The right to vote is, of course, different in one respect from the other rights in the economic, social, or political field which, as indicated in the 400 U. S. 665, stated:
"This new constitutional right was mainly designed for citizens of African descent. The principle, however, that the protection of the exercise of this right is within the power of Congress, is as necessary to the right of other citizens to vote as to the colored citizen, and to the right to vote in general as to the right to be protected against discrimination."
It was in that tradition that we said in Reynolds v. Sims, supra, at 377 U. S. 555,
"The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government."
This "right to choose, secured by the Constitution," United States v. Classic, 313 U. S. 299, 313 U. S. 315, is a civil right of the highest order. Voting concerns "political" matters; but the right is not "political" in the constitutional sense. Interference with it has given rise to a long and consistent line of decisions by the Court; and the claim has always been upheld as justiciable. [Footnote 2/5] Whatever distinction may have been made, following the Civil War, between "civil" and "political" rights, has passed into history. In Harper v. Virginia Board of Elections, 383 U. S. 663, 383 U. S. 669, we stated: "Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change." That statement is in harmony with my view of the Fourteenth Amendment, as expressed by my Brother BRENNAN:
"We must therefore conclude that its framers understood their Amendment to be a broadly worded injunction capable of being interpreted
by future generations in accordance with the vision and needs of those generations."
Post at 400 U. S. 278. Hence, the history of the Fourteenth Amendment tendered by my Brother HARLAN is irrelevant to the present problem.
Since the right is civil and not "political," it is protected by the Equal Protection Clause of the Fourteenth Amendment which in turn, by § 5 of that Amendment, can be "enforced" by Congress.
In Carrington v. Rash, 380 U. S. 89, we held that Texas could not bar a person, otherwise qualified, from voting merely because he was a member of the armed services. Occupation, we held, when used to bar a person from voting, was that invidious discrimination which the Equal Protection Clause condemns. In Evans v. Cornman, 398 U. S. 419, we held that a State could not deny the vote to residents of a federal enclave when it treated them as residents for many other purposes. In Harper v. Virginia Board of Elections, 383 U.S. at 383 U. S. 666, we held a State could not in harmony with the Equal Protection Clause keep a person from voting in state elections because of "the affluence of the voter or payment of any fee." In Kramer v. Union School District, 395 U. S. 621, we held that a person could not be barred from voting in school board elections merely because he was a bachelor. So far as the Equal Protection Clause was concerned, we said that the line between those qualified to vote and those not qualified turns on whether those excluded have "a distinct and direct interest in the school meeting decisions." Id. at 395 U. S. 632. In Cipriano v. City of Houma, 395 U. S. 701, we held that a state law which gave only "property taxpayers" the right to vote on the issuance of revenue bonds of a municipal utility system violated equal protection as "the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike." Id. at 395 U. S. 705. And only on June 23, 1970, we held in Phoenix v. Kolodziejski, 399 U. S. 204, that
it violates equal protection to restrict those who may vote on general obligation bonds to real property taxpayers. We looked to see if there was any "compelling state interest" in the voting restrictions. We held that "nonproperty owners" are not "substantially less interested in the issuance of these securities than are property owners," id. at 399 U. S. 212, and that, presumptively,
"when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise. [Footnote 2/6]"
Id. at 399 U. S. 209. And as recently as November 9, 1970, we summarily affirmed a district court decision (310 F.Supp. 1172) on the basis of Kolodzejski. Parish School Board of St. Charles v. Stewart, post, p. 884, where Louisiana gave a vote on municipal bond issues only to "property taxpayers."
The powers granted Congress by § 5 of the Fourteenth Amendment to "enforce" the Equal Protection Clause are "the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18." Katzenbach v. Morgan, 384 U. S. 641, 384 U. S. 650. As we stated in that case,
"Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment."
Id. at 384 U. S. 651.
Congress might well conclude that a reduction in the voting age from 21 to 18 was needed in the interest of equal protection. The Act itself brands the denial of
the franchise to 18-year-olds as "a particularly unfair treatment of such citizens in view of the national defense responsibilities imposed" on them. §.301(a)(1), Voting Rights Act, 84 Stat. 318. The fact that only males are drafted while the vote extends to females as well is not relevant, for the female component of these families or prospective families is also caught up in war, and hit hard by it. Congress might well believe that men and women alike should share the fateful decision.
It is said, why draw the line at 18? Why not 17? Congress can draw lines, and I see no reason why it cannot conclude that 18-year-olds have that degree of maturity which entitles them to the franchise. They are
"generally considered by American law to be mature enough to contract, to marry, to drive an automobile, to own a gun, and to be responsible for criminal behavior as an adult. [Footnote 2/7]"
Moreover, we are advised that, under state laws, mandatory school attendance does not, as a matter of practice, extend beyond the age of 18. On any of these items, the States, of course, have leeway to raise or lower the age requirements. But voting is "a fundamental matter in a free and democratic society," Reynolds v. Sims, 377 U. S. 533, 377 U. S. 561-562. Where
"fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined."
Harper v. Virginia Board of Elections, 383 U. S. 663, 383 U. S. 670. There, we were speaking of state restrictions on those rights. Here, we are dealing with the right of Congress to "enforce" the principles of equality enshrined in the Fourteenth Amendment. The right to "enforce" granted by § 5 of that Amendment is, as noted, parallel with the Necessary and Proper Clause, whose reach Chief Justice Marshall described in @ 17 U. S. 421:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
Equality of voting by all who are deemed mature enough to vote is certainly consistent "with the letter and spirit of the constitution." Much is made of the fact that Art. I, § 4, of the Constitution [Footnote 2/8] gave Congress only the power to regulate the "Manner of holding Elections," not the power to fix qualifications for voting in elections. But the Civil War Amendments -- the Thirteenth, Fourteenth, and Fifteenth -- made vast inroads on the power of the States. Equal protection became a standard for state action and Congress was given authority to "enforce" it. See Katzenbach v. Morgan, 384 U. S. 641, 384 U. S. 647. The manner of enforcement involves discretion; but that discretion is largely entrusted to the Congress, not to the courts. If racial discrimination were the only concern of the Equal Protection Clause, then across-the-board voting regulations set by the States would be of no concern to Congress. But it is much too late in history to make that claim, as the cases listed in the Appendix to this opinion show. Moreover, election inequalities created by state laws and based on factors other than race may violate the Equal Protection Clause, as we have held over and over again. The reach of § 5 to "enforce" equal protection by eliminating election inequalities would seem quite broad. Certainly there is
not a word of limitation in § 5 which would restrict its applicability to matters of race alone. And if, as stated in McCulloch v. Maryland, the measure of the power of Congress is whether the remedy is consistent "with the letter and spirit of the constitution," we should have no difficulty here. We said in Gray v. Sanders, 372 U. S. 368, 372 U. S. 381:
"The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing -- one person, one vote."
It is a reasoned judgment that those who have such a large "stake" in modern elections as 18-year-olds, whether, in times of war or peace, should have political equality. As was made plain in the dissent in Colegrove v. Green, 328 U. S. 549, 328 U. S. 566 (whose reasoning was approved in Gray v. Sanders, 372 U. S. 368, 372 U. S. 379), the Equal Protection Clause does service to protect the right to vote in federal as well as in state elections.
I would sustain the choice which Congress has made.
II
I likewise find the objections that Arizona and Idaho make to the literacy and residence requirements of the 1970 Act to be insubstantial.
Literacy. We held in Lassiter v. Northampton Election Board, 360 U. S. 45, that a State could apply a literacy test in selecting qualified voters provided the test is not "discriminatory" and does not contravene "any restriction that Congress, acting pursuant to its constitutional powers, has imposed." Id. at 360 U. S. 51. The question in these cases is whether Congress has the power under § 5 of the Fourteenth Amendment to bar literacy tests in all federal, state, or local elections.
Section 201 bars a State from denying the right to vote in any federal, state, or local election because of "any
test or device" which is defined, inter alia, to include literacy. [Footnote 2/9] We traveled most of the distance needed to sustain this Act in Katzenbach v. Morgan, 384 U. S. 641, where we upheld the constitutionality of an earlier Act which prohibited the application of English literacy tests to persons educated in Puerto Rico. The power of Congress in § 5 to "enforce" the Equal Protection Clause was sufficiently broad, we held, to enable it to abolish voting requirements which might pass muster under the Equal Protection Clause, absent an Act of Congress. Id. at 384 U. S. 648-651.
The question, we said, was whether the Act of Congress was "appropriate legislation to enforce the Equal Protection Clause":
"It was well within congressional authority to say that this need of the Puerto Rican minority for the vote warranted federal intrusion upon any state interests served by the English literacy requirement. It was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations -- the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed
the sixth grade in a Puerto Rican school. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did."
Id. at 384 U. S. 653.
We also held that the Act might be sustained as an attack on the English language test as a device to discriminate. Id. at 384 U. S. 654. And we went on to say that Congress might have concluded that,
"as a means of furthering the intelligent exercise of the franchise, an ability to read or understand Spanish is as effective as ability to read English for those to whom Spanish language newspapers and Spanish language radio and television programs are available to inform them of election issues and governmental affairs."
Id. at 384 U. S. 655.
We took a further step toward sustaining the present type of law in Gaston County v. United States, 395 U. S. 285. That decision involved a provision of the Voting Rights Act of 1965 which suspended the use of any "test or device," including literacy, as a prerequisite to registration in a State which was found by the Attorney General and the Director of the Census to have used it in any election on November 1, 1964, and in which less than 50% of the residents of voting age were registered or had voted. [Footnote 2/10] Gaston County, North Carolina, was so classified, and its literacy test was thereupon suspended. In a suit to remove the ban, we sustained it. We noted that Congress had concluded that
"the County deprived its black residents of equal educational opportunities, which in turn deprived them of an equal chance to pass the literacy test."
Id. at 395 U. S. 291. Congress, it was argued, should have employed a formula based on educational disparities between the races or one based on
literacy rates. Id. at 395 U. S. 292. But the choice of appropriate remedies is for Congress, and the range of available ones is wide. It was not a defect in the formula that some literate Negroes would be turned out by Negro schools.
"It is only reasonable to infer that, among black children compelled to endure a segregated and inferior education, fewer will achieve any given degree of literacy than will their better-educated white contemporaries. And on the Government's showing, it was certainly proper to infer that Gaston County's inferior Negro schools provided many of its Negro residents with a subliterate education, and gave many others little inducement to enter or remain in school."
Id. at 395 U. S. 295-296.
By like reasoning, Congress in the present legislation need not make findings as to the incidence of literacy. It can rely on the fact that most States do not have literacy tests; that the tests have been used at times as a discriminatory weapon against some minorities, not only Negroes, but Americans of Mexican ancestry, and American Indians; that radio and television have made it possible for a person to be well informed even though he may not be able to read and write. We know from the legislative history that these and other desiderata influenced Congress in the choice it made in the present legislation; and we certainly cannot say that the means used were inappropriate.
Residence. The residency requirements of § 202 relate only to elections for President and Vice President. Section 202 abolishes durational residency [Footnote 2/11] and provides
for absentee voting provided that registration may be required 30 days prior to the election. The effect of § 202 is to reduce all state durational residency requirements to 30 days.
In presidential elections no parochial interests of the State, county, or city are involved. Congress found that a durational residency requirement "in some instances has the impermissible purpose or effect of denying citizens the right to vote." § 202(a)(4). It found in § 202(a)(3) that a durational residency requirement denies citizen their privileges and immunities. [Footnote 2/12]
The Seventeenth Amendment states that Senators shall be "elected by the people." Article I, § 2, provides
that the House shall be chosen "by the People of the several States." The right to vote for national officers is a privilege and immunity of national citizenship. Ex parte Yarbrough, 110 U. S. 651; In re Quarles, 158 U. S. 532, 158 U. S. 534; Twining v. New Jersey, 211 U. S. 78, 211 U. S. 97; Burroughs v. United States, 290 U. S. 534; United States v. Classic, 313 U. S. 299, 313 U. S. 315. [Footnote 2/13]
The Fourteenth Amendment provides that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Durational residency laws of the States had such effect, says Congress. The "choice of means" to protect such a privilege presents "a question primarily addressed to the judgment of Congress." Burroughs v. United States, supra, at 290 U. S. 547. The relevance of the means which Congress adopts to the condition sought to be remedied, the degree of their necessity, and the extent of their efficacy are all matters for Congress. Id. at 290 U. S. 548.
The judgment which Congress has made respecting the ban of durational residency in presidential elections is plainly a permissible one in its efforts under § 5 to "enforce" the Fourteenth Amendment.
|400 U.S. 112app|
APPENDIX TO OPINION OF DOUGLAS, J.
Cases which have struck down state statutes under the Equal Protection Clause other than statutes which discriminate on the basis of race.
STATUTES WHICH DISCRIMINATED
AGAINST CERTAIN BUSINESSES
Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150; Atchison, T. & S. F. R. Co. v. Vosburg, 238 U. S. 56 (railroad must pay attorney fees if it loses suit, but other businesses need not). Kentucky Finance Corp. v. Paramount Auto Exchange, 262 U. S. 544; Power Co. v. Saunders, 274 U. S. 490 (burdens placed upon out-of-state corporations in litigation).
STATUTES WHICH FAVORED CERTAIN BUSINESSES
Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (exemption from state antitrust law for agricultural goods); Smith v. Cahoon, 283 U. S. 553 (act exempting certain motor vehicles from insurance requirements); Mayflower
Farms v. Ten Eyck, 297 U. S. 266 (act allowing certain milk dealers to sell at lower than the regulated price); Hartford Co. v. Harrison, 301 U. S. 459 (statute permitting mutual, but not stock, insurance companies to act through salaried representatives), and Morey v. Dowd, 354 U. S. 457 (American Express exempted from licensing requirements applied to "currency exchanges").
TAXING STATUTES STRUCK DOWN
Concordia Ins. Co. v. Illinois, 292 U. S. 535; Iowa-Des Moines Bank v. Bennett, 284 U. S. 239; Cumberland Coal Co. v. Board, 284 U. S. 23; Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389; Louisville Gas Co. v. Coleman, 277 U. S. 32; Hanover Fire Ins. Co. v. Harding, 272 U. S. 494; Schlesinger v. Wisconsin, 270 U. S. 230; Sioux City Bridge v. Dakota County, 260 U. S. 441; F. S. Royster Guano Co. v. Virginia, 253 U. S. 412; and Southern R. Co. v. Greene, 216 U. S. 400.
TREATMENT OF CONVICTED CRIMINALS
Rinaldi v. Yeager, 384 U. S. 305 (statute requiring unsuccessful criminal appellants who were in jail to pay cost of trial transcript); Baxstrom v. Herold, 383 U. S. 107 (statute denying convict a sanity hearing before a jury prior to civil commitment); and Skinner v. Oklahoma, 316 U. S. 535 (sterilization of some convicts).
I
NDIGENTSDouglas v. California, 372 U. S. 353 (Rule of Criminal Procedure which did not provide counsel for appeal to indigents); and Shapiro v. Thompson, 394 U. S. 618 (denial of welfare benefits based on residency requirement).
LEGITIMACY
Glona v. American Guarantee Co., 391 U. S. 73 (mother denied right to sue for wrongful death of illegitimate
child); and Levy v. Louisiana, 391 U. S. 68 (illegitimate children denied recovery for wrongful death of mother).
ALIENS
Truax v. Raich, 239 U. S. 33 (statute limiting the number of aliens that could be employed to 20%); and Takahshi v. Fish & Game Commission, 334 U. S. 410 (denial of fishing rights to aliens ineligible for citizenship).
Strauder was tried for murder. He had sought removal to federal courts on the ground that,
"by virtue of the laws of the State of West Virginia, no colored man was eligible to be a member of the grand jury or to serve on a petit jury in the State."
Id. at 100 U. S. 304. He was convicted of murder, and the West Virginia Supreme Court affirmed. This Court held the West Virginia statute limiting jury duty to whites only unconstitutional:
"We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. . . . [The aim of the Fourteenth Amendment] was against discrimination because of race or color."
100 U.S. at 100 U. S. 310.
Gray v. Sanders, 372 U. S. 368; Davis v. Mann, 377 U. S. 678; Swann v. Adams, 385 U. S. 440; Kilgarlin v. Hill, 386 U. S. 120; Avery v. Midland County, 390 U. S. 474; Moore v. Ogilvie, 394 U. S. 814; Hadley v. Junior College District, 397 U. S. 50.
Reynolds v. Sims, 377 U. S. 533; WMCA v. Lomenzo, 377 U. S. 633; Roman v. Sincock, 377 U. S. 695.
Williams v. Rhodes, 393 U. S. 23. We also held in federal elections that the command of Art. I, § 2, of the Constitution that representatives be chosen "by the People of the several States" means that, "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's," Wesberry v. Sanders, 376 U. S. 1, 376 U. S. 7-8, and that that meant "vote-diluting discrimination" could not be accomplished "through the device of districts containing widely varied numbers of inhabitants." Id. at 376 U. S. 8; Lucas v. Colorado General Assembly, 377 U. S. 713; Kirkpatrick v. Preisler, 394 U. S. 526; Wells v. Rockefeller, 394 U. S. 542.
Ex parte Siebold, 100 U. S. 371; Ex parte Yarbrough, 110 U. S. 651; Guinn v. United States, 238 U. S. 347; United States v. Mosley, 238 U. S. 383; Lane v. Wilson, 307 U. S. 268; United States v. Classic, 313 U. S. 299; United States v. Saylor, 322 U. S. 385.
We noted that general obligation bonds may be satisfied not from real property taxes, but from revenues from other local taxes paid by nonowners of property as well as those who own realty. Moreover, we noted that property taxes paid initially by property owners are often passed on to tenants or customers. 399 U.S. at 399 U. S. 209-211.
Engdahl, Constitutionality of the Voting Age Statute, 39 Geo.Wash.L.Rev. 1, 36 (1970).
Article I, § 4, provides:
"[1] The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
"[2] The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day."
Section 201(b) defines "test or device" as
"any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class."
84 Stat. 315.
The constitutionality of that procedure has been sustained in South Carolina v. Katzenbach, 383 U. S. 301.
This Court upheld durational residency requirements as applied in presidential and vice-presidential elections absent an Act of Congress. See Drueding v. Devlin, 234 F.Supp. 721 (Md.1964), aff'd, 380 U. S. 125. Subsequently we vacated as moot a case presenting the same question. Hall v. Beals, 396 U. S. 45. The district courts have been faced with the issue of durational residency requirements as they would be applied to congressional elections. Two have concluded the requirement is constitutional. Howe v. Brown, 319 F.Supp. 862 (ND Ohio 1970); Cocanower v. Marston, 318 F.Supp. 402 (Ariz.1970). Additionally, one other court has refused a preliminary injunction in a case presenting the issue. Piliavin v. Hoel, 320 F.Supp. 66 (WD Wis.1970). Some district courts, however, believe that Drueding cannot stand (absent an Act of Congress) after Carrington v. Rash, 380 U. S. 89; Kramer v. Union School District, 395 U. S. 621; Cipriano v. City of Houma, 395 U. S. 701, and Phoenix v. Kolodziejski, 399 U. S. 204. Accordingly, they have held durational residency requirements for congressional elections (and by implication presidential elections) violate the Equal Protection Clause. See Burg v. Canniffe, 315 F.Supp. 380 (Mass.1970); Blumstein v. Ellington, ___ F.Supp. ___ (MD Tenn.1970); Hadnott v. Amos, 320 F.Supp. 107 (MD Ala.1970); Bufford v. Holton, 319 F.Supp. 843 (ED Va.1970).
In none of these cases was an Act of Congress involved.
Article IV, § 2, of the Constitution provides:
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
The Forteenth Amendment provides in § 1 that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
The cases relied on by my Brother HARLAN post at 400 U. S. 214, are not to the contrary. Snowden v. Hughes, 321 U. S. 1, 321 U. S. 7, states:
"The right to become a candidate for state office, like the right to vote for the election of state officers . . . is a right or privilege of state citizenship."
(Emphasis added.) Arguably Minor v. Happersett, 21 Wall. 162, is to the contrary, but to the extent its dicta indicated otherwise, it was limited in Ex parte Yarbrough. Breedlove v. Suttles, 302 U. S. 277, overruled by Harper v. Virginia Board of Elections, 383 U. S. 663, involved a poll tax applied in both federal and state elections; it erroneously cited Yarbrough for the proposition voting is not a privilege and immunity of national citizenship. Pope v. Williams, 193 U. S. 621, involved durational residency requirements, but expressly reserved the question of their application to presidential and vice-presidential elections. Our holdings concerning privileges and immunities of national citizenship were analyzed less than five years ago by my Brother HARLAN. After referring to Ex parte Yarbrough, and United States v. Classic, he stated that those cases
"are essentially concerned with the vindication of important relationships with the Federal Government -- voting in federal elections, involvement in federal law enforcement, communicating with the Federal Government."
United States v. Guest, 383 U. S. 745, 383 U. S. 772 (separate opinion) (emphasis added).
Contrary to the suggestion of my Brother HARLAN, post at 400 U. S. 213, we need not rely on the power of Congress to declare the meaning of § 1 of the Fourteenth Amendment. This Court had determined that voting for national officers is a privilege and immunity of national citizenship. No congressional declaration was necessary. Congressional power under § 5 of the Fourteenth Amendment is, as stated, buttressed by congressional power under the Necessary and Proper Clause. Thus, even if the durational residency requirements do not violate the Privileges and Immunities Clause, Congress can determine that it is necessary and proper to abolish them in national elections to effectuate and further the purpose of § 1 as it has been declared by this Court.
MR. JUSTICE HARLAN, concurring in part and dissenting in part.
From the standpoint of this Court's decisions during an era of judicial constitutional revision in the field of the suffrage, ushered in eight years ago by Baker v. Carr, 369 U. S. 186 (1962), I would find it difficult not to sustain all three aspects of the Voting Rights Act Amendments of 1970, Pub.L. 91-285, 84 Stat. 314, here challenged. From the standpoint of the bedrock of the constitutional structure of this Nation, these cases bring us to a crossroad that is marked with a formidable "Stop" sign. That sign compels us to pause before we allow those decisions to carry us to the point of sanctioning Congress' decision to alter state-determined voter qualifications by simple legislation, and to consider whether sound doctrine does not, in truth, require us to hold that one or more of the changes which Congress has thus sought to make can be accomplished only by constitutional amendment.
The four cases require determination of the validity of the Voting Rights Act Amendments in three respects. In Nos. 43, Orig., and 44, Orig., Oregon and Texas have sought to enjoin the enforcement of § 302 of the Act as applied to lower the voting age in those States from 21 to 18. [Footnote 3/1]
In Nos. 46, Orig., and 47, Orig., the United States seeks a declaration of the validity of the Act and an injunction requiring Arizona and Idaho to conform their laws to it. The Act would lower the voting age in each State from 21 to 18. It would suspend until August 6, 1975, the Arizona literacy test, which requires that applicants for registration be able to read the United States Constitution in English and write their names. It would require Idaho to make several changes in its laws governing residency, registration, and absentee voting in presidential elections. Among the more substantial changes, Idaho's present 60-day state residency requirement will, in effect, be lowered to 30 days; its 30-day county residency requirement for intrastate migrants will be abolished; Idaho will have to permit voting by citizens of other States formerly domiciled in Idaho who emigrated too recently to register in their new homes; and it must permit absentee registration and voting by persons who have lived in Idaho for less than six months. The relevant provisions of the Act and of the constitutions and laws of the four States are set out in an 400 U. S.
Each of the States contests the power of Congress to enact the provisions of the Act involved in its suit. [Footnote 3/2] The Government places primary reliance on the power of Congress under § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment by appropriate
legislation. For reasons to follow, I am of the opinion that the Fourteenth Amendment was never intended to restrict the authority of the States to allocate their political power as they see fit, and therefore that it does not authorize Congress to set voter qualifications, in either state or federal elections. I find no other source of congressional power to lower the voting age as fixed by state laws, or to alter state laws on residency, registration, and absentee voting, with respect to either state or federal elections. The suspension of Arizona's literacy requirement, however, can be deemed an appropriate means of enforcing the Fifteenth Amendment, and I would sustain it on that basis.
I
It is fitting to begin with a quotation from one of the leading members of the 39th Congress, which proposed the Fourteenth Amendment to the States in 1866:
"Every Constitution embodies the principles of its framers. It is a transcript of their minds. If its meaning in any place is open to doubt, or if words are used which seem to have no fixed signification, we cannot err if we turn to the framers; and their authority increases in proportion to the evidence which they have left on the question."
Cong.Globe, 39th Cong., 1st Sess., 677 (1866) (Sen. Sumner). Believing this view to be undoubtedly sound, I turn to the circumstances in which the Fourteenth Amendment was adopted for enlightenment on the intended reach of its provisions. This, for me, necessary undertaking has unavoidably led to an opinion of more than ordinary length. Except for those who are willing to close their eyes to constitutional history in making constitutional interpretations or who read such history with a preconceived determination to attain a particular constitutional
goal, I think that the history of the Fourteenth Amendment makes it clear beyond any reasonable doubt that no part of the legislation now under review can be upheld as a legitimate exercise of congressional power under that Amendment.
A. Historical Setting [Footnote 3/3]
The point of departure for considering the purpose and effect of the Fourteenth Amendment with respect to the suffrage should be, I think, the preexisting provisions of the Constitution. Article I, § 2, provided that, in determining the number of Representatives to which a State was entitled, only three-fifths of the slave population should be counted. [Footnote 3/4] The section also provided that the qualifications of voters for such Representatives should be the same as those established by the States for electors of the most numerous branch of their respective legislatures. Article I, § 4, provided that, subject to congressional veto, the States might prescribe the times, places, and manner of holding elections for Representatives. Article II, § 1, provided that the States might direct the manner of choosing electors for President and Vice President, except that Congress might fix a uniform time for the choice. [Footnote 3/5] Nothing in the original
Constitution controlled the way States might allocate their political power except for the guarantee of a Republican Form of Government, which appears in Art. IV, § 4. [Footnote 3/6] No relevant changes in the constitutional structure were made until after the Civil War.
At the close of that war, there were some four million freed slaves in the South, none of whom was permitted to vote. The white population of the Confederacy had been overwhelmingly sympathetic with the rebellion. Since there was only a comparative handful of persons in these States who were neither former slaves nor Confederate sympathizers, the place where the political power should be lodged was a most vexing question. In a series of proclamations in the summer of 1865, President Andrew Johnson had laid the groundwork for the States to be controlled by the white populations which had held power before the war, eliminating only the leading rebels and those unwilling to sign a loyalty oath. [Footnote 3/7] The Radicals, on the other hand, were ardently in favor of Negro suffrage as essential to prevent resurgent rebellion, requisite to protect the freedmen, and necessary to ensure continued Radical control of the government. This ardor cooled as it ran into northern racial prejudice. At that time, only six States -- Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and New York -- permitted Negroes to vote, and New York imposed special property and residency requirements on Negro voters. [Footnote 3/8] In referenda late that year, enfranchising proposals
were roundly beaten in Connecticut, Wisconsin, Minnesota, the Territory of Colorado, and the District of Columbia. Gillette, supra, 400 U. S. 3, at 25-26. Such popular rebuffs led the Radicals to pull in their horns and hope for a protracted process of reconstruction during which the North could be educated to the advisability of Negro suffrage, at least for the South. In the meantime, of course, it would be essential to bar southern representation in Congress lest a combination of southerners and Democrats obtain control of the government and frustrate Radical goals.
The problem of congressional representation was acute. With the freeing of the slaves, the Three-Fifths Compromise ceased to have any effect. While predictions of the precise effect of the change varied with the person doing the calculating, the consensus was that the South would be entitled to at least 15 new members of Congress, and, of course, a like number of new presidential electors. The Radicals had other rallying cries which they kept before the public in the summer of 1865, but one author gives this description of the mood as Congress convened: [Footnote 3/9]
"Of all the movements influencing the Fourteenth Amendment which developed prior to the first session of the Thirty-ninth Congress, that for Negro suffrage was the most outstanding. The volume of private and public comment indicates that it was viewed as an issue of prime importance. The cry for a changed basis of representation was, in reality, subsidiary to this, and was meant by Radicals to secure in another way what Negro suffrage might accomplish for them: removal of the danger of Democratic dominance as a consequence of Southern restoration. The danger of possible repudiation of the national obligations, and assumption of the rebel
debt, was invariably presented to show the need for Negro suffrage or a new basis of representation. Sentiment for disqualification of ex-Confederates, though a natural growth, well suited such purposes. The movement to guarantee civil rights, sponsored originally by the more conservative Republicans, received emphasis from Radicals only when state elections indicated that suffrage would not serve as a party platform."
When Congress met, the Radicals, led by Thaddeus Stevens, were successful in obtaining agreement for a Joint Committee on Reconstruction, composed of 15 members, to
"inquire into the condition of the States which formed the so-called confederate States of America, and report whether they, or any of them, are entitled to be represented in either House of Congress. . . ."
Cong.Globe, 39th Cong., 1st Sess., 30, 46 (1865) (hereafter Globe).
All papers relating to representation of the Southern States were to be referred to the Committee of Fifteen without debate. The result, which many had not foreseen, was to assert congressional control over Reconstruction and at the same time to put the congressional power in the hands of a largely Radical secret committee.
The Joint Committee began work with the beginning of 1866, and in due course reported a joint resolution, H.R. 51, to amend the Constitution. The proposal would have based representation and direct taxes on population, with a proviso that
"whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation."
Globe 351. The result, if the Southern States did not provide for Negro suffrage, would be a decrease in southern representation
in Congress and the electoral college by some 24 seats from their pre-war position instead of an increase of 15. The House, although somewhat balky, approved the measure after lengthy debate. Globe 538. The Senate proved more intractable. An odd combination of Democrats, moderate Republicans, and extreme Radicals combined to defeat the measure, with the Radicals basing their opposition largely on the fear that the proviso would be read to authorize racial voter qualifications, and thus prevent Congress from enfranchising the freedmen under powers assertedly granted by other clauses of the Constitution. See, e.g., Globe 67687 (Sen. Sumner).
At about this same time the Civil Rights Bill and the Second Freedmen's Bureau Bill were being debated. Both bills provided a list of rights secured, not including voting. [Footnote 3/10] Senator Trumbull, who reported the Civil Rights Bill on behalf of the Senate Judiciary Committee, stated: "I do not want to bring up the question of negro suffrage in the bill." Globe 606. His House counterpart exhibited the same reluctance. Globe 1162 (Cong. Wilson of Iowa). Despite considerable uncertainty as to the constitutionality of the measures, both ultimately passed. In the midst of the Senate debates on the basis of representation, President Johnson vetoed the Freedmen's Bureau Bill, primarily on constitutional grounds. This veto, which was narrowly sustained, was followed shortly by the President's bitter attack on Radical Reconstruction in his Washington's Birthday speech. These two actions, which were followed a month later by the veto of the Civil Rights Bill, removed any lingering hopes among the Radicals that Johnson would support them in a thoroughgoing plan of reconstruction. By the same token, they increased the Radicals' need for an
articulated plan of their own to be put before the country in the upcoming elections as an alternative to the course the President was taking.
The second major product of the Reconstruction Committee, before the resolution which became the Fourteenth Amendment, was a proposal to add an equal rights provision to the Constitution. This measure, H.R. 63, which foreshadowed § 1 of the Fourteenth Amendment, read as follows:
"The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property."
Globe 1034.
It was reported by Congressman Bingham of Ohio, who later opposed the Civil Rights Bill because he believed it unconstitutional. Globe 1292-1293. The amendment immediately ran into serious opposition in the House, and the subject was dropped. [Footnote 3/11]
Such was the background of the Fourteenth Amendment. Congress, at loggerheads with the President over Reconstruction, had not come up with a plan of its own after six months of deliberations; both friends and foes prodded it to develop an alternative. The Reconstruction Committee had been unable to produce anything which could even get through Congress, much less obtain the adherence of three-fourths of the States. The Radicals, committed to Negro suffrage, were confronted with widespread public opposition to that goal and the necessity for a reconstruction plan that could do service as a party platform in the elections that fall. The language
of the Fourteenth Amendment must be read with awareness that it was designed in response to this situation.
B. The Language of the Amendment and Reconstruction Measures
Sections 1 and 2 of the Fourteenth Amendment as originally reported read as follows: [Footnote 3/12]
"SEC. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"SEC. 2. Representatives shall be apportioned among the several States which may be included within this Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever,
in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age."
Globe 2286.
In the historical context, no one could have understood this language as anything other than an abandonment of the principle of Negro suffrage, for which the Radicals had been so eager. By the same token, the language could hardly have been understood as affecting the provisions of the Constitution placing voting qualifications in the hands of the States. Section 1 must have been seen as little more than a constitutionalization of the 1866 Civil Rights Act, concededly one of the primary goals of that portion of the Amendment. [Footnote 3/13]
While these conclusions may, I think, be confidently asserted, it is not so easy to explain just how contemporary observers would have construed the three clauses of § 1 to reach this result. [Footnote 3/14] No doubt in the case of
many congressmen it simply never occurred to them that the States' longstanding plenary control over voter qualifications would be affected without explicit language to that effect. And since no speaker during the debates on the Fourteenth Amendment pursued the contention that § 1 would be construed to include the franchise, those who took the opposite view rarely explained how they arrived at their conclusions.
In attempting to unravel what was seldom articulated, the appropriate starting point is the fact that the framers of the Amendment expected the most significant portion of § 1 to be the clause prohibiting state laws "which shall abridge the privileges or immunities of citizens of the United States." These privileges were no doubt understood to include the ones set out in the first section of the Civil Rights Act. To be prohibited by law from enjoying these rights would hardly be consistent with full membership in a civil society.
The same is not necessarily true with respect to prohibitions on participation in the political process. Many members of Congress accepted the jurisprudence of the day, in which the rights of man fell into three categories: natural, civil, and political. The privileges of citizens, being "civil" rights, were distinct from the rights arising from governmental organization, which were political in character. [Footnote 3/15] Others no doubt relied on
the experience under the similar language of Art. IV, § 2, which had never been held to guarantee the right to vote. The remarks of Senator Howard of Michigan, who, as spokesman for the Joint Committee, explained in greater detail than most why the Amendment did not reach the suffrage, contain something of each view. See Globe 2766, quoted infra at 187; nn. 56 and 57, infra; cf. Blake v. McClung, 172 U. S. 239, 172 U. S. 256 (1898) (dictum).
Since the Privileges and Immunities C