OREGON v. MITCHELL, ATTORNEY GENERAL
No. 43, Orig.
Supreme Court of the United States
Argued October 19, 1970—Decided December 21, 1970
400 U.S. 112
*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.
Lee Johnson, Attorney General of Oregon, argued the cause for plaintiff in No. 43, Orig. With him on the briefs were Diarmuid F. O‘Scannlain, Deputy Attorney General, Jacob B. Tanzer, Solicitor General, and Al J. Laue and Thomas H. Denney, Assistant Attorneys General. Charles Alan Wright argued the cause for plaintiff in No. 44, Orig. With him on the brief were Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis, W. O. Shultz II, and John Reeves, Assistant Attorneys General.
Solicitor General Griswold argued the cause for defendant in Nos. 43, Orig., and 44, Orig., and for the United States in Nos. 46, Orig., and 47, Orig. With him on the briefs were Attorney General Mitchell, pro se, Assistant Attorney General Leonard, Peter L. Strauss, and Samuel Huntington.
Gary K. Nelson, Attorney General of Arizona, and John M. McGowan II, Special Assistant Attorney General, argued the cause and filed a brief for defendant in No. 46, Orig. Robert M. Robson, Attorney General of Idaho, argued the cause for defendant in No. 47, Orig. With him on the brief was Richard H. Greener, Assistant Attorney General.
In these suits certain States resist compliance with the
For the reasons set out in Part I of this opinion, I believe Congress can fix the age of voters in national elections, such as congressional, senatorial, vice-presidential
For the reasons set out in Part II of this opinion, 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 Part III of this opinion, 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
Let judgments be entered accordingly.
I
The Framers of our Constitution provided in
“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 underArticle 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 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
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
“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 Con-
gress 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 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.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
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,
Of course, the original design of the Founding Fathers was altered by the Civil War Amendments and various other amendments to the Constitution. The
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); Slaughter-House Cases, 16 Wall. 36, 71-72 (1873). While this Court has recognized that the Equal Protection Clause of the Fourteenth Amendment in some instances protects against discrim-
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, 439 (1968), the Court held that
“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, 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
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, 651 n. 10 (1966), or to undermine those protections of the Bill of
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
To invalidate part of the
“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
II
In Title I of the
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 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.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.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 statewide average.15 Arizona also has a serious problem of deficient voter registration among Indians. Congres-
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.
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 Part I of this opinion applies with equal force here. 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
MR. JUSTICE DOUGLAS.
I dissent from the judgments of the Court insofar as they declare § 302 of the
I
The grant of the franchise to 18-year-olds by Congress is in my view valid across the board.
The first case in which this Court struck down a statute, under the Equal Protection Clause of the
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 330 et seq., and on related occasions (Gray v. Sanders, 372 U. S. 368, 382; Wesberry v. Sanders, 376 U. S. 1, 20; Reynolds v. Sims, 377 U. S. 533, 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 Appendix to this opinion, are under the Equal Protection Clause. The right to vote is a civil right deeply embedded in the Constitution.
“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 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, 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.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, 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
Since the right is civil and not “political,” it is protected by the Equal Protection Clause of the
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 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 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 705. And only on June 23, 1970, we held in Phoenix v. Kolodziejski, 399 U. S. 204, that
The powers granted Congress by § 5 of the
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
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.”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, 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, 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
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
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, 566 (whose reasoning was approved in Gray v. Sanders, 372 U. S. 368, 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 51. The question in these cases is whether Congress has the power under § 5 of the
Section 201 bars a State from denying the right to vote in any federal, state, or local election because of “any
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 com-
pleted 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 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 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 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
“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 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 residency11 and provides
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.”
The
Contrary to the suggestion of my Brother HARLAN, post, at 213, we need not rely on the power of Congress to declare the meaning of § 1 of the
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
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).
INDIGENTS
Douglas 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 Takahashi v. Fish & Game Commission, 334 U. S. 410 (denial of fishing rights to aliens ineligible for citizenship).
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 18.1
Each of the States contests the power of Congress to enact the provisions of the Act involved in its suit.2 The Government places primary reliance on the power of Congress under
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
A. Historical Setting3
The point of departure for considering the purpose and effect of the Fourteenth Amendment with respect to the suffrage should be, I think, the pre-existing provisions of the Constitution.
At the close of that war, there were some four million freed slaves in the South, none of whom were 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.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.8 In referenda late that year, enfranchising pro-
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: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 repre-
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.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
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.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
B. The Language of the Amendment and Reconstruction Measures
Sections 1 and 2 of the Fourteenth Amendment as originally reported12 read as follows:
“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 when-
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.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.14 No doubt in the case of
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.15 Others no doubt relied on
Since the Privileges and Immunities Clause was expected to be the primary source of substantive protection, the Equal Protection and Due Process Clauses were relegated to a secondary role, as the debates and other contemporary materials make clear.16 Those clauses, which appear on their face to correspond with the latter portion of § 1 of the Civil Rights Act, see n. 13, supra, and to be primarily concerned with person and property, would not have been expected to enfranchise the freedmen if the Privileges and Immunities Clause did not.
Other members of Congress no doubt saw § 2 of the proposed Amendment as the Committee‘s resolution of the related problems of suffrage and representation. Since that section did not provide for enfranchisement, but simply reduced representation for disfranchisement, any doubts about the effect of the broad language of § 1 were removed. Congressman Bingham, who was primarily responsible for the language of § 1,
Finally, characterization of the Amendment by such figures as Stevens and Bingham in the House and Howard in the Senate, not contested by the Democrats except in passing remarks, was no doubt simply accepted by many members of Congress; they, repeating it, gave further force to the interpretation, with the result that, as will appear below, not one speaker in the debates on the Fourteenth Amendment unambiguously stated that it would affect state voter qualifications, and only three, all opponents of the measure, can fairly be characterized as raising the possibility.17 Further evidence of this original understanding can be found in later events.
The 39th Congress, which proposed the Fourteenth Amendment, also enacted the first Reconstruction Act, c. 153, 14 Stat. 428 (1867). This Act required, as a condition precedent to readmission of the Southern States, that they adopt constitutions providing that the elective franchise should be enjoyed by all male citizens over the age of 21 who had been residents for more than one year and were not disfranchised for treason or common-law felony; even so, no State would be readmitted until a legislature elected under the new Constitution had ratified the proposed Fourteenth Amendment and that Amendment had become part of the Constitution.
The next development came when the ratification drive in the North stalled. After a year had passed during which only one Northern State had ratified the proposed Fourteenth Amendment, Arkansas was readmitted to the Union by the Act of June 22, 1868, 15
The 40th Congress, not content with enfranchisement in the South, proposed the Fifteenth Amendment to extend the suffrage to northern Negroes. See Gillette, supra, n. 3, at 46. This fact alone is evidence that they did not understand the Fourteenth Amendment to have accomplished such a result. Less well known is the fact that the 40th Congress considered and very nearly adopted a proposed amendment which would have expressly prohibited not only discriminatory voter qualifications but discriminatory qualifications for office as well. Each House passed such a measure by the required two-thirds margin. Cong. Globe, 40th Cong., 3d Sess., 1318, 1428 (1869). A conference committee, composed of Senators Stewart and Conkling and Representatives Boutwell, Bingham, and Logan, struck out the officeholding provision, id., at 1563, 1593, and with Inauguration Day only a week away, both Houses accepted the conference report. Id., at 1564, 1641. See generally Gillette 58-77. While the reasons for these actions are unclear, it is unlikely that they were provoked by the idea that the Fourteenth Amendment covered the field; such a rationale seemingly would have made the enfranchising provision itself unnecessary.
These materials demonstrate not only that § 1 of the Fourteenth Amendment is susceptible of an interpretation that it does not reach suffrage qualifications, but that this is the interpretation given by the immediately succeeding Congresses. Such an interpretation is the most reasonable reading of the section in view of the background against which it was proposed and adopted, particularly the doubts about the constitutionality of the Civil Rights Act, the prejudice in the North against any recognition of the principle of Negro suffrage, and the basic constitutional structure of leaving suffrage qualifications with the States.19 If any further clarification were
The Government suggests that the list of protected qualifications in § 2 is “no more than descriptive of voting laws as they then stood.” Brief for the United States, Nos. 46, Orig., and 47, Orig., 75. This is wholly inaccurate. Aside from racial restrictions, all States had residency requirements and many had literacy, property, or taxation qualifications. On the other hand, several of the Western States permitted aliens to vote if they had satisfied certain residency requirements and had declared
Assuming, then, that § 2 represents a deliberate selection of the voting qualifications to be penalized, what is the point of it? The Government notes that “it was intended—although it has never been used—to provide a remedy against exclusion of the newly freed slaves from the vote.” Brief for the Defendant, Nos. 43, Orig., and 44, Orig., 20. Undoubtedly this was the primary purpose. But the framers of the Amendment, with their attention thus focused on racial voting qualifications, could hardly have been unaware of § 1. If they understood that section to forbid such qualifications, the simple means of penalizing this conduct would have been to impose a reduction of representation for voting discrimination in violation of § 1. Their adoption instead of the awkward phrasing of § 2 is therefore significant.
To be sure, one might argue that § 2 is simply a rhetorical flourish, and that the qualifications listed there are merely the ones which the framers deemed to be consistent with the alleged prohibition of § 1. This argument is not only unreasonable on its face and untenable in light of the historical record; it is fatal to the validity of the reduction of the voting age in § 302 of the Act before us.
The only sensible explanation of § 2, therefore, is that the racial voter qualifications it was designed to penalize
C. The Joint Committee
The first place to look for the understanding of the framers of the Fourteenth Amendment is the Journal of the Joint Committee on Reconstruction.22 The exact sequence of the actions of this Committee presumably had little or no effect on the members of Congress who were not on the Committee, for the Committee attempted to keep its deliberations secret,23 and the Journal itself was lost for nearly 20 years.24 Nevertheless the Journal, although only a record of proposals and votes, illustrates the thoughts of those leading figures of Congress who were members and participated in the drafting of the Amendment.
Two features emerge from such a review with startling clarity. First, the Committee regularly rejected explicitly
This correspondence was present from the start. Five plans were proposed to deal with representation. One would have prohibited racial qualifications for voters and based representation on the whole number of citizens in the State; the other four proposals contained no enfranchising provision but in various ways would have reduced representation for States where the vote was racially restricted. Kendrick 41-44. A subcommittee reduced the five proposals to two, one prohibiting discrimination and the other reducing representation where it was present. On Stevens’ motion the latter alternative was accepted by a vote of 11 to 3, Kendrick 51; with minor changes it was subsequently reported as H. R. 51.
The subcommittee also proposed that whichever provision on the basis of representation was adopted, the Congress should be empowered to legislate to secure all citizens “the same political rights and privileges” and also “equal protection in the enjoyment of life, liberty and property.” Kendrick 51. After the Committee reported H. R. 51, it turned to consideration of this proposal. At a meeting attended by only 10 members, a motion to strike out the clause authorizing Congress to legislate for equal political rights and privileges lost by a vote of six to four. Kendrick 57. At a subsequent meeting, however, Bingham had the subcommittee proposal replaced with another which did not mention political rights and privileges, but was otherwise quite similar. Kendrick 61; see the opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE
MARSHALL, post, at 258-259, for the text of the two provisions. The Committee reported the substitute as H. R. 63. In the House so much concern was expressed over the centralization of power the amendment would work—a few said it would even authorize Congress to regulate the suffrage—that the matter was dropped. Post, at 260.
The
with the following now-familiar language:“No discrimination shall be made by any State, or by the United States, as to the civil rights of persons, because of race, color, or previous condition of servitude”
“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.” Kendrick 106.
The summary style of the Journal leaves unclear the reasons for the change. However, Bingham himself had rather consistently voted against proposals for direct and immediate enfranchisement,27 and on the face of things it seems unlikely that the other members of the Joint Committee understood his provision to be an enfranchising proposal.28 That they did not so understand is
Notes
“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.” Id., at 310.
The Attorney General of the United States, a citizen of New York, is named as defendant. The jurisdictional basis alleged is“(2) denies or abridges the inherent constitutional right of citizens to enjoy their free movement across State lines;
“(6) does not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections.”
2 M. Farrand, Records of the Federal Convention of 1787, p. 153 (1911).“(1) denies and abridges the inherent constitutional rights of citizens eighteen years of age but not yet twenty-one years of age to vote—a particularly unfair treatment of such citizens in view of the national defense responsibilities imposed upon such citizens;
“(2) has the effect of denying to citizens eighteen years of age but not yet twenty-one years of age the due process and equal protection of the laws that are guaranteed to them under the fourteenth amendment of the Constitution; and
“(3) does not bear a reasonable relationship to any compelling State interest.”
Id., at 164.“[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.”
The texts of the state constitutions are most readily available in F. Thorpe, The Federal and State Constitutions (1909). The qualifications imposed by the various States three years later, when the Fifteenth Amendment was proposed, are presented in tabular form in Hearings on the Voting Rights Bill, S. 1564, before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 128-129 (1965). Hearings on Amendments to the Voting Rights Act of 1965 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 675 (1969-1970) (hereafter Senate Hearings). Schooling of Indians has for some time been the responsibility of the Federal Government. See Warren Trading Post Co. v. Arizona Tax Commission, 380 U. S. 685, 690-691 (1965). Id., at 206.“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” Senate Hearings 678. Tribal Chairman Nakai viewed Arizona‘s literacy test as the primary cause of this disparity. Carrington v. Rash, 380 U. S. 89 (1965); Louisiana v. United States, 380 U. S. 145 (1965); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); Katzenbach v. Morgan, 384 U. S. 641 (1966); Kramer v. Union Free School District, 395 U. S. 621 (1969); Cipriano v. City of Houma, 395 U. S. 701 (1969); Evans v. Cornman, 398 U. S. 419 (1970); Phoenix v. Kolodziejski, 399 U. S. 204 (1970).
“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.)
The remarks of these three Democrats, Niblack, Boyer, and Rogers, are discussed infra, at 182-185. Also discussed there are the remarks of a fourth Democratic Representative, Phelps, which were delivered before the start of debate on the proposed Fourteenth Amendment. Senate Hearings 282.Where the state action has a racial basis, see Anderson v. Martin, 375 U. S. 399 (1964), I am not prepared to assume that the Fifteenth Amendment provides no protection. Despite the statement in the opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL, post, at 252, I would find it surprising if a State could undercut the right to vote by taking steps to ensure that all candidates are unpalatable to voters of a certain race. Although an explicit provision on officeholding was deleted from the proposed Fifteenth Amendment at the eleventh hour, the idea that the right to vote without more implies the right to be voted for was specifically referred to by supporters of the Fifteenth Amendment in both Houses of Congress. See Cong. Globe, 40th Cong., 3d Sess., 1425-1426 (1869) (Cong. Boutwell); id., at 1426 (Cong. Butler); id., at 1629 (Sen. Sawyer). Ibid.
Bingham was not, however, wholly opposed to Negro suffrage. As chairman of the subcommittee, he reported the equal-rights provision which would have empowered Congress to provide for equal political rights and privileges, Kendrick 56, although he was the one who subsequently had that replaced with the first equal-rights provision reported to Congress. Kendrick 61. As already noted, the substitute contained substantially identical language, but omitted reference to political rights and privileges. Bingham also voted for Owen‘s plan, which would have enfranchised Negroes in 1876, when it was first presented. Kendrick 85. In February 1867 he moved to condition readmission of the Southern States on impartial male suffrage as well as on the States’ ratifying the
“A declaration who is a citizen: unnecessary, if we had given suffrage to the negro; since there could be no possible doubt that an elector, nativeborn, is a citizen of the United States. Also a specification of the particular civil rights to be assured: out of place, I think, in a constitutional amendment, though necessary and proper in a civil rights bill.” Owen, supra, n. 25, at 666 (emphasis added).
Hawaii and Alaska have, since their admission to the Union in 1959, allowed the vote to 19-year-olds (Alaska) and 20-year-olds (Hawaii).D. In Congress
On May 8, 1866, Thaddeus Stevens led off debate on H. R. 127, the Joint Resolution proposing theIn the climate of the times, Stevens could hardly have been understood as referring to anything other than the failure of the measure to make some provision for the enfranchisement of the freedmen. However, lest any mistake be made, he recounted the history of the Committee‘s prior effort in the field of representation and suf“This proposition is not all that the committee desired. It falls far short of my wishes, but it fulfills my hopes. I believe it is all that can be obtained in the present state of public opinion. Not only Congress but the several States are to be consulted. Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this.” Globe 2459.
Stevens recognized that it might take several years for the coercive effect of the Amendment to result in Negro suffrage, but since this would give time for education and enlightenment of the freedmen, “That short delay would“If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive.” Ibid.
“I give notice that I will offer the following amendment if I shall have the opportunity:
Like Phelps, Niblack found it unnecessary to participate in the debates. He was not heard from again until the vote on the call for the previous question. As Garfield ascertained at the time, the only opportunity to amend H. R. 127 would arise if the demand was voted down. Niblack voted to sustain it. Globe 2545. Debate in the House was substantially concluded by Bingham, the man primarily responsible for the language of § 1. Without equivocation, he stated:“‘Add to the fifth section as follows:
“’Provided, That nothing contained in this article shall be so construed as to authorize Congress to regulate or control the elective franchise within any State, or to abridge or restrict the power of any State to regulate or control the same within its own jurisdiction, except as in the third section hereof prescribed.‘” Globe 2465.
Stevens then arose briefly in rebuttal. He attacked Bingham for saying in another portion of his speech that the disqualification provisions of § 3 were unenforceable. He did not contradict—or even refer to—Bingham‘s“The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States.
“The second section excludes the conclusion that by the first section suffrage is subjected to congressional law; save, indeed, with this exception, that as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment a remedy might be given directly for a case supposed by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people.” Globe 2542.
Howard‘s forthright attempt to prevent misunderstanding was completely successful insofar as the Senate was concerned; at least, no one has yet discovered a remark during the Senate debates on the proposed“the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a depotism [sic].” Globe 2766.
“The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right.” Ibid. Howard stated that while he personally would have preferred to see the freedmen enfranchised, the Committee was confronted with the necessity of proposing an amendment which could be ratified.
“The committee were of opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the subject. It was our opinion that three fourths of the States of this Union could not be induced to vote to grant the right of suffrage, even in any degree or under any restriction, to the colored race.” Ibid.
“We know very well that the States retain the power, which they have always possessed, of regulating the right of suffrage in the States. It is the theory of the Constitution itself. That right has never been taken from them; no endeavor has ever been made to take it from them; and the theory of this whole amendment is, to leave the power of regulating the suffrage with the people or Legislatures of the States, and not to assume to regulate
Shortly thereafter the Amendment was approved. Globe 3041-3042.
In the House, there was a brief discussion of the Senate amendments and the measure generally, chiefly by the Democrats. Stevens then concluded the debate as he had begun it, expressing his regret that the Amendment would not enfranchise the freedmen.69 The House accepted the Senate changes and sent the measure to the States. Globe 3149.
E. Collateral Evidence of Congressional Intent
It has been suggested that despite this evidence of congressional understanding, which seems to me overwhelming, the history is nonetheless inconclusive. Primary reliance is placed on debates over H. R. 51, the Joint Committee‘s first effort in the field of the basis of representation. In these debates, some of the more extreme Radicals, typified by Senator Sumner of Massachusetts, suggested that Congress had power to interfere with state voter qualifications at least to the extent of enfranchising the freedmen. This power was said to exist in a variety of constitutional provisions, including
This argument, however, is even logically fallacious, and quite understandably none of the opinions filed today place much reliance on it. I do not maintain that the framers of the
In any event, even disregarding its analytical difficulties, the argument is based on blatant factual shortcomings. All but one of the speakers on whose statements
Finally, some of those determined to sustain the legislation now before us rely on speeches made between two and three years after Congress had sent the proposed Amendment to the States. Boutwell and Stevens in the House, and Sumner in the Senate, argued that the Fif
F. Ratification
State materials relating to the ratification process are not very revealing. For the most part only gubernatorial messages and committee reports have survived.72 So far as my examination of these materials reveals, while the opponents of the Amendment were divided
The scanty official materials can be supplemented by other sources. There was a congressional election in the fall of the year the
The tone of the campaign was set by the formal report of the Joint Committee, which Fessenden openly stated he had composed as a partisan document. James 147. Indeed, it was not even submitted to Congress until the day the Senate approved the measure, and then only in manuscript form. Globe 3038. On the delicate issue of Negro suffrage, the report read as follows:76
“Doubts were entertained whether Congress had power, even under the amended Constitution, to prescribe the qualifications of voters in a State, or could act directly on the subject. It was doubtful, in the opinion of your committee, whether the States would consent to surrender a power they had always exercised, and to which they were attached. As the best if not the only method of surmounting the difficulty, and as eminently just and proper in itself, your committee came to the conclusion that political power should be possessed in all the States exactly in proportion as the right of suffrage should be granted, without distinction of color or race.
This it was thought would leave the whole question with the people of each State; holding out to all the advantage of increased political power as an inducement to allow all to participate in its exercise. Such a provision would be in its nature gentle and persuasive, and would lead, it was hoped, at no distant day, to an equal participation of all, without distinction, in all the rights and privileges of citizenship, thus affording a full and adequate protection to all classes of citizens, since all would have, through the ballot-box, the power of self-protection. “Holding these views, your committee prepared an amendment to the Constitution to carry out this idea; and submitted the same to Congress. Unfortunately, as we think, it did not receive the necessary constitutional support in the Senate, and therefore could not be proposed for adoption by the States. The principle involved in that amendment is, however, believed to be sound, and your committee have again proposed it in another form, hoping that it may receive the approbation of Congress.”
Newspapers expressed the same view of the reach of the Amendment. Even while deliberations were underway, predictions that Congress would come up with a plan involving enfranchisement of the freedmen had gradually ceased. James 91. When the Amendment was released to the press, Andrew Johnson was reported as seeing in it a “practical abandonment of the negro suffrage issue.” Cincinnati Daily Commercial, April 30, 1866, quoted in James 117. The New York Herald had reported editorially that the Amendment reflected an abandonment of the Radical push for Negro suffrage and acceptance of Johnson‘s position that control over suffrage rested exclusively with the States. May 1, 1866, reported in James 119. The Nation, a Radical organ,
Much the same picture emerges from the campaign speeches. Although an occasional Democrat expressed the fear that the Amendment would or might result in political equality,77 the supporters of the Amendment denied such effects without exception that I have discovered. Among the leading congressional figures who stated in campaign speeches that the Amendment did not prohibit racial voting qualifications were Senators Howe, Lane, Sherman, Sumner, and Trumbull, and Congressmen Bingham, Delano, Schenck, and Stevens. See James 159-168, 173, 178; Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5, 70-78 (1949).
As was pointed out above, all but a handful of Northern States prohibited blacks from voting at all,
Small wonder, then, that in early 1869 substantially the same group of men who three years earlier had proposed the
II
The history of the
When the Constitution with its original Amendments came into being; the States delegated some of their sovereign powers to the Federal Government, surrendered other powers, and expressly retained all powers not delegated or surrendered.
It must be recognized, of course, that the amending process is not the only way in which constitutional understanding alters with time. The judiciary has long been entrusted with the task of applying the Constitution in changing circumstances, and as conditions change the Constitution in a sense changes as well. But when the Court gives the language of the Constitution an
As the Court is not justified in substituting its own views of wise policy for the commands of the Constitution, still less is it justified in allowing Congress to disregard those commands as the Court understands them. Although Congress’ expression of the view that it does have power to alter state suffrage qualifications is entitled to the most respectful consideration by the judiciary, coming as it does from a coordinate branch of government,85 this cannot displace the duty of this Court to make an independent determination whether Congress has exceeded its powers. The reason for this goes beyond Marshall‘s assertion that: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).86 It inheres in the structure of the
It is suggested that the proper basis for the doctrine enunciated in Morgan lies in the relative factfinding competence of Court, Congress, and state legislatures. Post, at 246-249. In this view, as I understand it, since Congress is at least as well qualified as a state legislature to determine factual issues, and far better qualified than this Court, where a dispute is basically factual in nature the congressional finding of fact should control, subject only to review by this Court for reasonableness.
In the first place, this argument has little or no force as applied to the issue whether the
When my Brothers refer to “complex factual questions,” post, at 248, they call to mind disputes about primary, objective facts dealing with such issues as the number of persons between the ages of 18 and 21, the extent of their education, and so forth. The briefs of the four States in these cases take no issue with respect to any of the facts of this nature presented to Congress and relied on by my Brothers DOUGLAS, ante, at 141-143, and BRENNAN, WHITE, and MARSHALL, post, at 243-246, 279-280. Except for one or two matters of dubious relevance, these facts are not subject to rational dispute. The disagreement in these cases revolves around the evaluation of this largely uncontested factual material.87 On the assumption that maturity and experience are relevant to intelligent and responsible exercise of the elective franchise, are the immaturity and inexperience of the average 18-, 19-, or 20-year-old sufficiently serious to justify denying such a person a direct voice in decisions affecting his or her life? Whether or not this judgment is characterized as “factual,” it calls for striking a balance between incommensurate interests. Where the balance is to be struck depends ultimately on the values and the perspective of the decisionmaker. It is a matter as to which men of good will can and do reasonably differ.
I fully agree that judgments of the sort involved here are beyond the institutional competence and constitu
Judicial deference is based, not on relative factfinding competence, but on due regard for the decision of the body constitutionally appointed to decide. Establishment of voting qualifications is a matter for state legislatures. Assuming any authority at all, only when the Court can say with some confidence that the legislature has demonstrably erred in adjusting the competing interests is it justified in striking down the legislative judgment. This order of things is more efficient and more congenial to our system and, in my judgment, much more likely to achieve satisfactory results than one in which the Court has a free hand to replace state legislative judgments with its own. See Ferguson v. Skrupa, 372 U.S. 726 (1963).
The same considerations apply, and with almost equal force, to Congress’ displacement of state decisions with its own ideas of wise policy. The sole distinction between Congress and the Court in this regard is that Congress, being an elective body, presumptively has popular authority for the value judgment it makes. But since the state legislature has a like authority, this distinction between Congress and the judiciary falls short of justifying a congressional veto on the state judgment. The perspectives and values of national legislators on the issue of voting qualifications are likely to differ from those of state legislators, but I see no reason
To be sure, my colleagues do not expressly say that Congress or this Court is empowered by the Constitution to substitute its own judgment for those of the States. However, before sustaining a state judgment they require a “clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest.”88 Post, at 238; see post, at 247 n. 30. I should think that if the state interest were truly “compelling” and “substantial,” and a clear showing could be made that the voter qualification was “necessary” to its preservation, no reasonable person would think the qualification undesirable. Equivalently, if my colleagues or a majority of Congress deem a given voting qualification undesirable as a matter of policy, they must consider that the state interests involved are not “compelling” or “substantial” or that they can be adequately protected in other ways. It follows that my colleagues must be prepared to hold invalid as a matter
It seems to me that the notion of deference to congressional interpretation of the Constitution, which the Court promulgated in Morgan, is directly related to this higher standard of constitutionality which the Court intimated in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), and brought to fruition in Kramer. When the scope of federal review of state determinations became so broad as to be judicially unmanageable, it was natural for the Court to seek assistance from the national legislature. If the federal role were restricted to its traditional and appropriate scope, review for the sort of “plain error” which is variously described as “arbitrary and capricious,” “irrational,” or “invidious,” there would be no call for the Court to defer to a congressional judgment on this score that it did not find convincing. Whether a state judgment has so exceeded the bounds of reason as to authorize federal intervention is not a matter as to which the political process is intrinsically likely to produce a sounder or more acceptable result. It is a matter of the delicate adjustment of the federal system. In this area, to rely on Congress would make that body a judge in its own cause. The role of final arbiter belongs to this Court.
III
Since I cannot agree that the
The constitutional provisions controlling the regulation of congressional elections are the following:
Art. I, § 2 : “the Electors [for Representatives] in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
Art. I, § 4 : “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.”
Amdt. XVII : “The electors [for Senators] in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”
It is difficult to see how words could be clearer in stating what Congress can control and what it cannot control. Surely nothing in these provisions lends itself to the view that voting qualifications in federal elections are to be set by Congress. The reason for the scheme is not hard to find. In the Constitutional Convention, Madison expressed the view that: “The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution.” 2 M. Farrand, Records of the Federal Convention of 1787, pp. 249-250 (1911). He explained further in The Federalist No. 52, p. 326 (C. Rossiter ed. 1961):
“To have reduced the different qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the
States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution.”
See also Federalist No. 60, p. 371 (C. Rossiter ed. 1961) (Hamilton), quoted in the opinion of MR. JUSTICE STEWART, post, at 290, which is to the same effect.
As to presidential elections, the Constitution provides:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . .”
Art. II, § 1, cl. 2 .“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
Art. II, § 1, cl. 4 .
Even the power to control the “Manner” of holding elections, given with respect to congressional elections by
IV
With these major contentions resolved, it is convenient to consider the three sections of the Act individually to determine whether they can be supported by any other basis of congressional power.
A. Voting Age
The only constitutional basis advanced in support of the lowering of the voting age is the power to enforce the Equal Protection Clause, a power found in
The history of the
I therefore conclude, for these and other reasons given in this opinion, that in § 302 of the Voting Rights Act Amendments of 1970 Congress exceeded its delegated powers.
B. Residency
For reasons already stated, neither the power to regulate voting qualifications in presidential elections, asserted by my Brother BLACK, nor the power to declare the meaning of
While the right of qualified electors to cast their ballots and to have their votes counted was held to be a privilege of citizenship in Ex parte Yarbrough, 110 U. S. 651 (1884), and United States v. Classic, 313 U. S. 299 (1941), these decisions were careful to observe that it
“The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States. . . .”
It is inconceivable that these words when used in the Articles could have been understood to abolish state durational residency requirements.93 There is not a
The right to travel across state lines, see United States v. Guest, 383 U. S. 745, 757-758 (1966), and Shapiro v. Thompson, 394 U. S. 618, 630 (1969), is likewise insufficient to require Idaho to conform its laws to the requirements of § 202. MR. JUSTICE STEWART justifies § 202 solely on the power under
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL do not anchor the right of interstate travel to any specific constitutional provision. Post, at 237-238. Past decisions to which they refer have relied on the two Privileges and Immunities Clauses, just discussed, the Due Process Clause of the
C. Literacy
The remaining provision of the Voting Rights Act Amendments involved in these cases is the five-year suspension of Arizona‘s requirement that registrants be able to read the Constitution in English and to write their names. Although the issue is not free from difficulty, I am of the opinion that this provision can be sustained as a valid means of enforcing the
Despite the lack of evidence of specific instances of discriminatory application or effect, Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious.94 This danger of violation of
Whether to engage in a more particularized inquiry into the extent and effects of discrimination, either as a condition precedent or as a condition subsequent to suspension of literacy tests, was a choice for Congress to make.95 The fact that the suspension is only for five years will require Congress to re-evaluate at the close of that period. While a less sweeping approach
For the reasons expressed in this opinion, I would grant the relief requested in Nos. 43, Orig., and 44, Orig. I would dismiss the complaint in No. 47, Orig., for failure to state a claim on which relief can be granted. In No. 46, Orig., I would grant declaratory relief with respect to the validity of § 201 of the Voting Rights Act Amendments as applied to Arizona‘s current literacy test; I would deny relief in all other respects, with leave to reapply to the United States District Court for the District of Arizona for injunctive relief in the event it proves necessary, which I am confident it will not.
V
In conclusion I add the following. The consideration that has troubled me most in deciding that the 18-year-old and residency provisions of this legislation should be held unconstitutional is whether I ought to regard the doctrine of stare decisis as preventing me from arriving at that result. For as I indicated at the outset of this opinion, were I to continue to consider myself constricted by recent past decisions holding that the Equal Protection Clause of the Fourteenth Amendment reaches
After much reflection I have reached the conclusion that I ought not to allow stare decisis to stand in the way of casting my vote in accordance with what I am deeply convinced the Constitution demands. In the annals of this Court few developments in the march of events have so imperatively called upon us to take a fresh hard look at past decisions, which could well be mustered in support of such developments, as do the legislative lowering of the voting age and, albeit to a lesser extent, the elimination of state residential requirements in presidential elections. Concluding, as I have, that such decisions cannot withstand constitutional scrutiny, I think it my duty to depart from them, rather than to lend my support to perpetuating their constitutional error in the name of stare decisis.
In taking this position, I feel fortified by the evident malaise among the members of the Court with those decisions. Despite them, a majority of the Court holds that this congressional attempt to lower the voting age by simple legislation is unconstitutional, insofar as it relates to state elections. Despite them, four members of the Court take the same view of this legislation with respect to federal elections as well; and the fifth member of the Court who considers the legislation constitutionally infirm as regards state elections relies not at all on any of those decisions in reaching the opposite conclusion in federal elections. And of the eight members of the Court who vote to uphold the residential provision of the stat
In these circumstances I am satisfied that I am free to decide these cases unshackled by a line of decisions which I have felt from the start entailed a basic departure from sound constitutional principle.
APPENDIX TO OPINION OF HARLAN, J.
VOTING RIGHTS ACT AMENDMENTS OF 1970, PUB. L. 91-285, 84 STAT. 314
TITLE II—SUPPLEMENTAL PROVISIONS
APPLICATION OF PROHIBITION TO OTHER STATES
SEC. 201. (a) Prior to August 6, 1975, no citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State as to which the provisions of section 4 (a) of this Act are not in effect by reason of determinations made under section 4 (b) of this Act.
(b) As used in this section, the term “test or device” means 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.
RESIDENCE REQUIREMENTS FOR VOTING
SEC. 202. (a) The Congress hereby finds that the imposition and application of the durational residency requirement as a precondition to voting for the offices of President and Vice President, and the lack of sufficient
- denies or abridges the inherent constitutional right of citizens to vote for their President and Vice President;
- denies or abridges the inherent constitutional right of citizens to enjoy their free movement across State lines;
- denies or abridges the privileges and immunities guaranteed to the citizens of each State under article IV, section 2, clause 1, of the Constitution;
- in some instances has the impermissible purpose or effect of denying citizens the right to vote for such officers because of the way they may vote;
- has the effect of denying to citizens the equality of civil rights, and due process and equal protection of the laws that are guaranteed to them under the fourteenth amendment; and
- does not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections.
(b) Upon the basis of these findings, Congress declares that in order to secure and protect the above-stated rights of citizens under the Constitution, to enable citizens to better obtain the enjoyment of such rights, and to enforce the guarantees of the fourteenth amendment, it is necessary (1) to completely abolish the durational residency requirement as a precondition to voting for President and Vice President, and (2) to establish nationwide, uniform standards relative to absentee registration and absentee balloting in presidential elections.
(c) No citizen of the United States who is otherwise qualified to vote in any election for President and Vice President shall be denied the right to vote for electors for President and Vice President, or for President and Vice President, in such election because of the failure of such citizen to comply with any durational residency
(d) For the purposes of this section, each State shall provide by law for the registration or other means of qualification of all duly qualified residents of such State who apply, not later than thirty days immediately prior to any presidential election, for registration or qualification to vote for the choice of electors for President and Vice President or for President and Vice President in such election; and each State shall provide by law for the casting of absentee ballots for the choice of electors for President and Vice President, or for President and Vice President, by all duly qualified residents of such State who may be absent from their election district or unit in such State on the day such election is held and who have applied therefor not later than seven days immediately prior to such election and have returned such ballots to the appropriate election official of such State not later than the time of closing of the polls in such State on the day of such election.
(e) If any citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any election for President and Vice President has begun residence in such State or political subdivision after the thirtieth day next preceding such election and, for that reason, does not satisfy the registration requirements of such State or political subdivision he shall be allowed to vote for the choice of electors for President and Vice
(f) No citizen of the United States who is otherwise qualified to vote by absentee ballot in any State or political subdivision in any election for President and Vice President shall be denied the right to vote for the choice of electors for President and Vice President, or for President and Vice President, in such election because of any requirement of registration that does not include a provision for absentee registration.
(g) Nothing in this section shall prevent any State or political subdivision from adopting less restrictive voting practices than those that are prescribed herein.
SEPARABILITY
SEC. 205. 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.
TITLE III—REDUCING VOTING AGE TO EIGHTEEN IN FEDERAL, STATE, AND LOCAL ELECTIONS
DECLARATION AND FINDINGS
SEC. 301. (a) The Congress finds and declares that the imposition and application of the requirement that a
- denies and abridges the inherent constitutional rights of citizens eighteen years of age but not yet twenty-one years of age to vote—a particularly unfair treatment of such citizens in view of the national defense responsibilities imposed upon such citizens;
- has the effect of denying to citizens eighteen years of age but not yet twenty-one years of age the due process and equal protection of the laws that are guaranteed to them under the fourteenth amendment of the Constitution; and
- does not bear a reasonable relationship to any compelling State interest.
(b) In order to secure the constitutional rights set forth in subsection (a), the Congress declares that it is necessary to prohibit the denial of the right to vote to citizens of the United States eighteen years of age or over.
PROHIBITION
SEC. 302. Except as required by the Constitution, no citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any primary or in any election shall be denied the right to vote in any such primary or election on account of age if such citizen is eighteen years of age or older.
EFFECTIVE DATE
SEC. 305. The provisions of title III shall take effect with respect to any primary or election held on or after January 1, 1971.
ARIZONA CONSTITUTION
ARIZONA REVISED STATUTES ANNOTATED
A. Every resident of the state is qualified to become an elector and may register to vote at all elections authorized by law if he:
- Is a citizen of the United States.
- Will be twenty-one years or more of age prior to the regular general election next following his registration.
- Will have been a resident of the state one year and of the county in which he claims the right to vote thirty days next preceding the election.
- Is able to read the constitution of the United States in the English language in a manner showing that he is neither prompted nor reciting from memory, unless prevented from so doing by physical disability.
- Is able to write his name, unless prevented from so doing by physical disability.
B. At an election held between the date of registration and the next regular general election, the elector is eligible to vote if at the date of the intervening election he is twenty-one years of age and has been a resident of the state one year and the county thirty days.
C. A person convicted of treason or a felony, unless restored to civil rights, or an idiot, insane person or person under guardianship is not qualified to register. As amended, Laws 1970, c. 151, § 1.
A. No elector shall be registered to vote between five o‘clock p. m. of the day which is two months preceding the date of the next primary election and seven o‘clock p. m. of the day of the primary election.
B. No elector shall be registered to vote between five o‘clock p. m. of the eighth Monday preceding a general election and seven o‘clock p. m. of the day thereof. As amended, Laws 1958, c. 48, § 1; Laws 1970, c. 151, § 5.
IDAHO CONSTITUTION
IDAHO CODE
- he otherwise possesses the substantive qualifications to vote in this state, except the requirement of residence and registration, and
- he complies with the provisions of this act.
OREGON CONSTITUTION
(a) Is 21 years of age or older . . . .
Section 1. The following classes of persons shall not be allowed to vote in this State, to wit:
First: Persons under twenty-one (21) years of age.
Second: Idiots and lunatics.
Third: All paupers supported by any county.
Fourth: All persons convicted of any felony, subject to such exceptions as the Legislature may make.
Sec. 2. Every person subject to none of the foregoing disqualifications who shall have attained the age of twenty-one (21) years and who shall be a citizen of the United States and who shall have resided in this State one (1) year next preceding an election and the last six (6) months within the district or county in which such person offers to vote, shall be deemed a qualified elector; provided, however, that before offering to vote at an election a voter shall have registered annually, but such requirement for registration shall not be considered a qualification of an elector within the meaning of the term “qualified elector” as used in any other Article of this Constitution in respect to any matter except qualification and eligibility to vote at an election. Any legislation enacted in anticipation of the adoption of this Amendment shall not be invalid because of its anticipatory nature. The Legislature may authorize absentee voting. And this provision of the Constitution shall be self-enacting without the necessity of further legislation.
TEXAS ELECTION CODE
The following classes of persons shall not be allowed to vote in this state:
- Persons under twenty-one years of age.
- Idiots and lunatics.
All paupers supported by the county. - All persons convicted of any felony except those restored to full citizenship and right of suffrage or pardoned.
Every person subject to none of the foregoing disqualifications who shall have attained the age of twenty-one years and who shall be a citizen of the United States and who shall have resided in this state one year next preceding an election and the last six months within the district or county in which such person offers to vote, and who shall have registered as a voter, shall be deemed a qualified elector. No person shall be permitted to vote unless he has registered in accordance with the provisions of this code. The provisions of this section, as modified by Sections 35 and 39 of this code, shall apply to all elections, including general, special, and primary elections, whether held by the state, by a county, municipality, or other political subdivision of the state, or by a political party.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL dissent from the judgments insofar as they declare § 302 unconstitutional as applied to state and local elections, and concur in the judgments in all other respects, for the following reasons.
These cases draw into question the power and judgment of Congress in enacting Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 314. The State of Arizona challenges the power of Congress to impose a nationwide ban, until August 6, 1975, on the use of literacy and certain other tests to limit the franchise in any election. The State of Idaho takes issue with the asserted congressional power to find that the imposition of a durational residence requirement to deny the right to vote in elections for President and Vice President imposes a burden upon the right of free inter-
I
The Voting Rights Act of 1965, 79 Stat. 438,
No challenge is made in the present cases either to the 1965 Act or to the five-year extension of its ban on tests or devices embodied in Title I of the 1970 Amendments. Arizona does, however, challenge § 201 of the Amendments, which extends (until August 6, 1975) the 1965 Act‘s selective ban on the use of tests or devices to all States and political subdivisions in which it is not already in force by virtue of the 1965 Act. In substance, Arizona argues that it is and has been providing education of equal quality for all its citizens; that its literacy test is both fair and fairly administered; and that there is no evidence in the legislative record upon which Congress could have relied to reach a contrary conclusion. It urges that to the extent that any citizens of Arizona have been denied the right to vote because of illiteracy resulting from discriminatory governmental practices, the unlawful discrimination has been by governments other than the State of Arizona or its political subdivisions. Arizona, it suggests, should not have its laws overridden to cure discrimination on the part of governmental bodies elsewhere in the country.
We need not question Arizona‘s assertions as to the nondiscriminatory character, past and present, of its educational system. Congressional power to remedy the evils resulting from state-sponsored racial discrimination does not end when the subject of that discrimination removes himself from the jurisdiction in which the injury occurred. The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935); see Edwards v. California, 314 U. S. 160, 173-176 (1941). In upholding the suspension of literacy tests as applied to Gaston County under the 1965 Act, we could see no legal significance in the possibility that adult residents of the county might have received their education in other counties or States also maintaining segregated and unequal school systems. Gaston County v. United States, 395 U. S., at 293 n. 9.7
In short, there is no question but that Congress could legitimately have concluded that the use of literacy tests anywhere within the United States has the inevitable effect of denying the vote to members of racial minorities whose inability to pass such tests is the direct consequence of previous governmental discrimination in education. Almost five years ago, we found in § 2 of the Fifteenth Amendment an ample grant of legislative power for Congress to decree a selective proscription of such tests in certain portions of the country. South Carolina v. Katzenbach, 383 U. S., at 327-334. We have since held that power ample to cover the proscription of fair literacy tests, fairly administered, which
II
Section 202 of the 1970 Amendments abolishes all durational state residence requirements restricting the right to vote in presidential elections. In their place, Congress has undertaken to prescribe a uniform nationwide system of registration and absentee voting designed to allow all otherwise qualified persons to vote in such elections regardless of the length of time they have lived in a particular jurisdiction.13 The States are required to keep open their registration rolls for presidential elections until 30 days preceding the election. § 202 (d). Persons who have changed their residence within 30 days of the election are, if otherwise qualified, entitled to vote either in person or by absentee ballot in the State of their previous residence, § 202 (e), and the States are compelled to permit the casting of absentee ballots by all properly qualified persons who have made application not less than seven days prior to the election, and returned the ballot to the appropriate officials not later than the closing of polls on election day. §§ 202 (b), (d). Provision must also be made by the States to allow absentee registration. § 202 (f).
Whether or not the Constitution vests Congress with particular power to set qualifications for voting in strictly federal elections,15 we believe there is an adequate constitutional basis for § 202 in § 5 of the Fourteenth Amendment. For more than a century, this Court has recognized the constitutional right of all citizens to unhindered interstate travel and settlement. Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J.); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U. S. 160 (1941); United States v. Guest, 383 U. S. 745, 757-758 (1966); Shapiro v. Thompson, 394 U. S. 618, 629-631, 634 (1969). From whatever constitutional provision this right may be said to flow,16 both its existence
By definition, the imposition of a durational residence requirement operates to penalize those persons, and only those persons, who have exercised their constitutional right of interstate migration. Of course, governmental action that has the incidental effect of burdening the exercise of a constitutional right is not ipso facto unconstitutional. But in such a case, governmental action may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest. Shapiro v. Thompson, 394 U. S., at 634; United States v. Jackson, 390 U. S. 570, 582-583 (1968); Sherbert v. Verner, 374 U. S. 398, 406-409 (1963). And once it be determined that a burden has been placed upon a constitutional right, the onus of demonstrating that no less intrusive means will adequately protect compelling state interests is upon the party seeking to justify the burden. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958).
In the present case, Congress has explicitly found both that the imposition of durational residence requirements abridges the right of free interstate migration and that such requirements are not reasonably related to any compelling state interests. 1970 Amendments, §§ 202 (a)(2), (6). The latter finding was made with full cognizance of the possibility of fraud and administrative difficulty. Senator Goldwater, testifying at Senate hearings on the bill, pointed out that 40 States presently allow registration until 30 days or less prior to the election.17 Idaho itself allows registration by those desiring to vote as new residents in presidential elections within 10 days of balloting.
III
The final question presented by these cases is the propriety of Title III of the 1970 Amendments, which
It is important at the outset to recognize what is not involved in these cases. We are not faced with an assertion of congressional power to regulate any and all aspects of state and federal elections, or even to make general rules for the determination of voter qualifications. Nor are we faced with the assertion that Congress is possessed of plenary power to set minimum ages for voting throughout the States. Every State in the Union has conceded by statute that citizens 21 years of age and over are capable of intelligent and responsible exercise of the right to vote. The single, narrow question presented by these cases is whether Congress was empowered to conclude, as it did, that citizens 18 to 21 years of age are not substantially less able.
We believe there is serious question whether a statute granting the franchise to citizens 21 and over while denying it to those between the ages of 18 and 21 could, in any event, withstand present scrutiny under the Equal Protection Clause. Regardless of the answer to this question, however, it is clear to us that proper regard for the special function of Congress in making determinations of legislative fact compels this Court to respect those determinations unless they are contradicted by evidence far stronger than anything that has been adduced in these cases. We would uphold § 302 as a valid exercise of congressional power under § 5 of the Fourteenth Amendment.
A
The right to vote has long been recognized as a fundamental political right, because preservative of all rights. Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886); see Reynolds v. Sims, 377 U. S. 533, 562 (1964); Williams v. Rhodes, 393 U. S. 23, 31 (1968). Any unjustified discrimination in determining who may participate in political affairs . . . undermines the legitimacy of representative government. Kramer v. Union School District, 395 U. S., at 626. Consequently, when exclusions from the franchise are challenged as violating the Equal Protection Clause, judicial scrutiny is not confined to the question whether the exclusion may reasonably be thought to further a permissible interest of the State.
In the present cases, the States justify exclusion of 18- to 21-year-olds from the voting rolls solely on the basis of the States’ interests in promoting intelligent and responsible exercise of the franchise.20 There is no reason to question the legitimacy and importance of these interests. But standards of intelligence and responsibility, however defined, may permissibly be applied only to the means whereby a prospective voter determines how to exercise his choice, and not to the actual choice itself. Were it otherwise, such standards could all too easily serve as mere epithets designed to cloak the exclusion of a class of voters simply because of the way they might vote. Cf. Evans v. Cornman, 398 U. S., at 422-423. Such a state purpose is, of course, constitutionally impermissible. Carrington v. Rash, 380 U. S., at 94. We must, therefore, examine with particular care the asserted connection between age limitations and the admittedly laudable state purpose to further intelligent and responsible voting.
We do not lack a starting point for this inquiry. Although the question has never been squarely presented, we have in the past indicated that age is a factor not necessarily irrelevant to qualifications for voting. Lassiter v. Northampton Election Board, 360 U. S., at 51; Kramer v. Union School District, 395 U. S., at 625-626. But recognition that age is not in all circumstances a capricious or irrelevant factor, Harper v. Virginia Board of Elections, 383 U. S., at 668, does not insure the validity of the particular limitation involved here. Evans v. Cornman, 398 U. S., at 425-426. Every State in the Union has concluded for itself that citizens 21 years of age and over are capable of responsible and intelligent voting. Accepting this judgment, there remains the question whether citizens 18 to 21 years of age may fairly be said to be less able.
State practice itself in other areas casts doubt upon any such proposition. Each of the 50 States has provided special mechanisms for dealing with persons who are deemed insufficiently mature and intelligent to understand, and to conform their behavior to, the criminal laws of the State.21 Forty-nine of the States have concluded that, in this regard, 18-year-olds are invariably to be dealt with according to precisely the same standards prescribed for their elders.22 This at the very least is evidence of a nearly unanimous legislative judgment on the part of the States themselves that differences in maturity and intelligence between 18-year-olds and persons 21 years of age and over are too trivial to warrant specialized treatment for any of the former class in the critically important matter of criminal responsibility.23 Similarly,
Uniform state practice in the field of education points the same way. No State in the Union requires attendance at school beyond the age of 18. Of course, many 18-year-olds continue their education to 21 and beyond. But no 18-year-old who does not do so will be disenfranchised thereby once he reaches the age of 21.26
One final point remains. No State seeking to uphold its denial of the franchise to 18-year-olds has adduced anything beyond the mere difference in age. We have already indicated that the relevance of this difference is contradicted by nearly uniform state practice in other areas. But perhaps more important is the uniform experience of those States—Georgia since 1943, and Kentucky since 1955—that have permitted 18-year-olds to vote.28 We have not been directed to a word of testimony or other evidence that would indicate either that 18-year-olds in those States have voted any less intelligently and responsibly than their elders, or that there is any reasonable ground for belief that 18-year-olds in other States are less able than those in Georgia and Kentucky. On the other hand, every person who spoke to the issue in either the House or Senate was agreed that 18-year-
In short, we are faced with an admitted restriction upon the franchise, supported only by bare assertions and long practice, in the face of strong indications that the States themselves do not credit the factual propositions upon which the restriction is asserted to rest. But there is no reason for us to decide whether, in a proper case, we would be compelled to hold this restriction a violation of the Equal Protection Clause. For as our decisions have long made clear, the question we face today is not one of judicial power under the Equal Protection Clause. The question is the scope of congressional power under § 5 of the Fourteenth Amendment. To that question we now turn.
B
As we have often indicated, questions of constitutional power frequently turn in the last analysis on questions of fact. This is particularly the case when an assertion of state power is challenged under the Equal Protection Clause of the Fourteenth Amendment. For although equal protection requires that all persons under like circumstances and conditions be treated alike, Hayes v. Missouri, 120 U. S., at 71, such a formulation merely raises, but does not answer the question whether a legislative classification has resulted in different treatment of persons who are in fact under like circumstances and conditions.
Legislatures, as well as courts, are bound by the provisions of the Fourteenth Amendment. Cooper v. Aaron, 358 U. S. 1, 18-20 (1958). When a state legislative classification is subjected to judicial challenge as violating the Equal Protection Clause, it comes before the
But, as we have consistently held, this limitation on judicial review of state legislative classifications is a limitation stemming, not from the Fourteenth Amendment itself, but from the nature of judicial review. It is simply a salutary principle of judicial decision, Metropolitan Cas. Ins. Co. v. Brownell, supra; at 584, one of the self-imposed restraints intended to protect [the Court] and the state against irresponsible exercise of [the Court‘s] unappealable power. Fay v. New York, 332 U. S. 261, 282 (1947). The nature of the judicial process makes it an inappropriate forum for the deter-
Limitations stemming from the nature of the judicial process, however, have no application to Congress. Section 5 of the Fourteenth Amendment provides that [t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Should Congress, pursuant to that power, undertake an investigation in order to determine whether the factual basis necessary to support a state legislative discrimination actually exists, it need not stop once it determines that some reasonable men could believe the factual basis exists. Section 5 empowers Congress to make its own determination on the matter. See Katzenbach v. Morgan, 384 U. S. 641, 654-656 (1966). It should hardly be necessary to add that if the asserted factual basis necessary to support a given state discrimination does not exist, § 5 of the Fourteenth Amendment vests Congress with power to remove the discrimination by appropriate means. Id., at 656-657; Fay v. New York, 332 U. S., at 282-283; Ex parte Virginia, 100 U. S. 339, 347-348 (1880).
The scope of our review in such matters has been established by a long line of consistent decisions. It is not for the courts to re-examine the validity of these legislative findings and reject them. Communist Party v. Control Board, 367 U. S., at 94. [W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regu-
This scheme is consistent with our prior decisions in related areas. The core of dispute over the constitutionality of Title III of the 1970 Amendments is a conflict between state and federal legislative determinations of the factual issues upon which depends decision of a federal constitutional question—the legitimacy, under the Equal Protection Clause, of state discrimination against persons between the ages of 18 and 21. Our cases have repeatedly emphasized that, when state and federal claims come into conflict, the primacy of federal power requires that the federal finding of fact control. See England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 415-417 (1964); Townsend v. Sain, 372 U. S. 293, 311-312 (1963); Tarble‘s Case, 13 Wall. 397, 406-407 (1872); cf. United States v. Darby, 312 U. S. 100, 119 (1941). The Supremacy Clause requires an identical result when the conflict is one of legislative, not judicial, findings.
Finally, it is no answer to say that Title III intrudes upon a domain reserved to the States—the power to set qualifications for voting. It is no longer open to question that the Fourteenth Amendment applies to this, as to any other, exercise of state power. Kramer v. Union School District, supra, and cases cited. As we said in answer to a similar contention almost a century ago, the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment. It is but a limited authority, true, extending only to a single class of cases; but within its limits it is complete. Ex parte Virginia, 100 U. S., at 347-348.
C
Our Brother HARLAN has set out in some detail the historical evidence that persuades him that the framers of the Fourteenth Amendment did not believe that the Equal Protection Clause, either through judicial action or through congressional enforcement under § 5 of the Amendment, could operate to enfranchise Negroes in States that denied them the vote. Ante, at 154-200. From this he has concluded 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. Ante, at 154. This conclusion, if accepted, would seem to require as a corollary that although States may not, under the Fifteenth Amendment, discriminate against Negro voters, they are free so far as the Federal Constitution is concerned to discriminate against Negro or unpopular candidates in any way they desire. Not surprisingly, our Brother HARLAN‘s thesis is explicitly disavowed by all the States party to the present litigation,32 and has been presented to us only in the briefs amici
It is clear that the language of the Fourteenth Amendment, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies on its face to all assertions of state power, however made. More than 40 years ago, this Court faced for the first time the question whether a State could deny Negroes the right to vote in primary elections. Writing for a unanimous Court, Mr. Justice Holmes observed tartly that [w]e find it unnecessary to consider the Fifteenth Amendment, because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth. Nixon v. Herndon, 273 U. S. 536, 540-541 (1927); see Nixon v. Condon, 286 U. S. 73, 83, 87-89 (1932) (Cardozo, J.); Anderson v. Martin, 375 U. S. 399 (1964); cf. Raymond v. Chicago Union Traction Co., 207 U. S. 20, 35-36 (1907). If the broad language of the Equal Protection Clause were to be read as nevertheless allowing the States to deny equal political rights to any citizens they see fit to exclude from the political process,
In any event, it seems to us, the historical record will not bear the weight our Brother HARLAN has placed upon it. His examination of the historical background of the Fourteenth Amendment leads him to conclude that it is “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,” ante, at 155, because the Amendment was not intended “to restrict the authority of the States to allocate their political power as they see fit.” Ante, at 154. Our own reading of the historical background, on the other hand, results in a somewhat imperfect picture of an era of constitutional confusion, confusion that the Amendment did little to resolve. As the leading constitutional historian of the Civil War has observed, constitutional law was characterized during the war years by “a noticeable lack of legal precision” and by “[a] tendency toward irregularity . . . in legislation, and in legal interpretation.” J. Randall, Constitutional Problems under Lin-
For several decades prior to the Civil War, constitutional interpretation had been a pressing concern of the Nation‘s leading statesmen and lawyers, whose attention focused especially on the nature of the relationship of the States to the Federal Government. The onset of the Civil War served only to raise new problems upon which the original Constitution offered, at best, only peripheral guidance. The greatest problem of all, perhaps, was the character of the civil conflict—whether it was to be treated as a rebellion, as a war with a belligerent state, or as some combination of the two. Another issue concerned the scope of federal power to emancipate the slaves; even President Lincoln doubted whether his Emancipation Proclamation would be operative when the war had ended and his special war powers had expired. This particular issue was resolved by the Thirteenth Amendment, but that Amendment only raised new issues, for some men doubted the validity of even a constitutional change upon such a fundamental matter as slavery, particularly while the status of the eleven Confederate States remained unsettled. See id., at 12-24, 59-73, 342-404.
The end of the war did not bring an end to difficult constitutional questions. Two perplexing problems remained. The one was the relation of the former Confederate States to the Federal Government; the other was the relation of the former slaves to the white citizens of the Nation. Both were intimately related to the politics of the day, an understanding of which is essential since the Fourteenth Amendment was presented to the Nation as the Republican Party‘s solution for these problems. See J. James, The Framing of the Fourteenth Amendment 169-173 (1956) (hereafter James).
Temporarily, they proposed to do so by refusing to seat Congressmen from the seceded States. They usually justified their refusal on constitutional grounds,
According to the census of 1860, Negroes had constituted some 4,200,000 of the total population of 12,200,000 in the 15 slave States. In two States—Mississippi and South Carolina—Negroes were a substantial majority of the population, while in several other States the population was at least 40% Negro. Thus, Negro suffrage would probably result in a number of Negro and presumably Republican representatives from the South. The difficulty was with the means of bringing Negro suffrage about. Some, including Chief Justice Chase, looked back toward the Emancipation Proclamation and contended that Negro suffrage could be achieved, at least in the South, by means of a presidential proclamation. See James 5-7; 1 W. Fleming, Documentary History of Reconstruction 142 (1906). Others thought congressional legislation the appropriate vehicle for granting the suffrage, see James 13, 52-53; Van Alstyne, The Fourteenth Amendment, The “Right” to Vote, and the Understanding of the Thirty-Ninth Congress, 1965 Supreme Court Review 33, 49-51, while still others argued for a constitutional amendment. See Cincinnati Daily Commercial, Sept. 19, 1865, in James 11-12 (reporting speech of Cong. Bingham). Disagreement over means, however, was but a minor obstacle in the path of equal suffrage; racial prejudice in the North was a far more significant one. Only five New England States and New York permitted any Negroes to vote
Meeting in the winter and spring of 1866 and facing elections in the fall of the same year, the Republicans in Congress thus faced a difficult dilemma: they desperately needed Negro suffrage in order to prevent total Democratic resurgence in the South, yet they feared that by pressing for suffrage they might create a reaction among northern white voters that would lead to massive Democratic electoral gains in the North. Their task was thus to frame a policy that would prevent total southern Democratic resurgence and that simultaneously would serve as a platform upon which Republicans could go before their northern constituents in the fall. What ultimately emerged as the policy and political platform of the Republican Party was the Fourteenth Amendment.35
As finally adopted, relevant portions of the Fourteenth Amendment read as follows:
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 according to their respective numbers . . . . But when the right to vote at any election . . . is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
Sec. 5. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
The key provision on the suffrage question was, of course, § 2, which was to have the effect of reducing the representation of any State which did not permit Negroes to vote. Section 1 also began, however, as a provision aimed at securing equality of “political rights and privileges“—a fact hardly surprising in view of Republican concern with the question. In their earliest versions in the Joint Congressional Committee on Reconstruction, which framed the Fourteenth Amendment, §§ 1 and 2 read as follows:
[Sec. 1.] Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty and property.” B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 51 (1914) (hereafter Kendrick).
“[Sec. 2.] Representatives and direct taxes shall be apportioned among the several States, which
may be included within this Union, according to their respective numbers of persons, deducting therefrom all of any race or color, whose members or any of them are denied any of the civil or political rights or privileges.” Id., at 43.
The question that must now be pursued is whether § 1 of the Amendment ever lost its original connection with the suffrage question.
It became evident, at an early date that the Joint Committee did not wish to make congressional power over the suffrage more explicit than did the language of the original version of the future § 1. Six days after that section had been proposed by a subcommittee, the full committee refused to adopt an amendment offered by Senator Howard to make the section refer expressly to “political and elective rights and privileges,” id., at 55 (emphasis added), and refused as well to substitute for the language:
“Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States in each State the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty and property.”
the following language offered by Congressman Boutwell:
“Congress shall have power to abolish any distinction in the exercise of the elective franchise in any State, which by law, regulation or usage may exist therein.” Id., at 54-55.
The committee did agree, however, to return the proposal to a special subcommittee, chaired by Congressman John A. Bingham, which at the next meeting of the full committee reported back the following language:
“Congress shall have power to make all laws which shall be necessary and proper to secure all
persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in any State the same immunities and also equal political rights and privileges.” Id., at 56.
This language, it seems clear, did not change the meaning of the section as originally proposed, but the next change in language, proposed several days later by Bingham, arguably did. Bingham moved the following substitute:
“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 (
Art. 4, Sec. 2 ); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment ).” Id., at 61.
This substitute was accepted by a committee vote of 7-6.
No record of the committee‘s debates has been preserved, and thus one can only guess whether Bingham‘s substitute was intended to change the meaning of the original proposal. The breakdown of the committee vote suggests, however, that no change in meaning was intended. The substitute was supported by men of all political views, ranging from Senator Howard and Congressman Boutwell, radicals who had earlier sought to make the section‘s coverage of suffrage explicit, to Congressman Rogers, a Democrat. Similarly, among the six voting against the substitute were a radical, Stevens; a moderate, Fessenden; and a Democrat, Grider. Id., at 61. Thus, while one might continue to argue that Bingham meant his substitute to do away with congressional power to legislate for the preservation of equal rights of suffrage, one can, with at least equal plausibil-
Bingham‘s proposed amendment to the Constitution, as modified, was next submitted to the House of Representatives, where Republicans joined Democrats in attacking it. Republican Representative Hale of New York, for example, thought the amendment “in effect a provision under which all State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen, may be overridden,” Globe 1063, while Representative Davis, also a New York Republican, thought it would give Congress power to establish “perfect political equality between the colored and the white race of the South.” Id., at 1085. Meanwhile, the New York Times, edited by conservative Republican Congressman Henry J. Raymond, wondered if the proposed Amendment was “simply a preliminary to the enactment of negro suffrage.” Feb. 19, 1866. Even the Amendment‘s supporters recognized that it would confer extensive power upon the Federal Government; Representative Kelley, a Pennsylvania radical, who supported the Amendment, concluded, after a lengthy discussion of the right of suffrage, that “the proposed amendment . . . [was] intended to secure it.” Globe 1063. Its proponents, however, could not secure the necessary support for the Amendment in the House and thus were compelled to postpone the matter until a later date, when they failed to bring it again to the floor. Kendrick 215.
Meanwhile, the Joint Committee had returned to work and had begun to consider the direct antecedent of the Fourteenth Amendment, a proposal by Robert Dale
“Section 1. No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.
“Sec. 2. From and after the fourth day of July, in the year one thousand eight hundred and seventy-six, no discrimination shall be made by any state, nor by the United States, as to the enjoyment by classes of persons of the right of suffrage, because of race, color, or previous condition of servitude.
“Sec. 3. Until the fourth day of July, one thousand eight hundred and seventy-six, no class of persons, as to the right of any of whom to suffrage discrimination shall be made by any state, because of race, color, or previous condition of servitude, shall be included in the basis of representation.
“Sec. 5. Congress shall have power to enforce by appropriate legislation, the provisions of this article.” Id., at 83-84.
Congressman Bingham had not, however, given up on his own favorite proposal, and he immediately moved to add the following new section to the Amendment:
“Sec. 5. 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.” Id., at 87.
His motion was adopted on a 10-to-2 party-line vote, but its adoption was only the beginning of some intricate and inexplicable maneuvering. Four days later, Senator
At this meeting, the proposed Fourteenth Amendment was substantially rewritten. First, the committee, by a vote of 12 to 2, deleted § 2, which had barred States from making racial discriminations in the enjoyment of the right of suffrage after 1876, and conformed § 3, so as to insure that it would remain in effect after 1876. After making numerous other changes, the committee then concluded its deliberations by replacing Owen‘s ban in § 1 on discrimination “as to civil rights” with Bingham‘s now familiar language. Here the vote was 10 to 3, with the majority again containing a full spectrum of political views. Id., at 100-106. The reasons for the rewriting are not entirely clear. The only known explanation was given by Owen in 1875, when he wrote an article recalling a contemporary conversation with Stevens. Stevens had reportedly explained that the committee‘s original decisions had “got noised abroad,” and that, as a result, several state delegations had held caucuses which decided that the explicit references to “negro suffrage, in any shape, ought to be excluded from the platform . . . .” Quoted in id., at 302. Thus, the provision for suffrage after 1876 had to be eliminated, but Stevens did not explain why Bingham‘s version of § 1 was then substituted
The purpose of § 1 in relation to the suffrage emerges out of the debates on the floor of Congress with an equal obscurity. In the search for meaning one must begin, of course, with the statements of leading men in Congress, such as Bingham and Howard. Bingham, for one, stated without apparent equivocation that “[t]he amendment does not give . . . the power to Congress of regulating suffrage in the several States.” Globe 2542. Similarly, Senator Howard, after noting that the Amendment would accord to Negroes the same protection in their fundamental rights as the law gave to whites, explicitly cautioned that “the first section of the proposed amendment does not give to either of these classes the right of voting.” Globe 2766.37 But such statements are not
“To be sure we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” Globe 2542.
Bingham seemed to say in one breath first, that the franchise was a constitutionally protected privilege in support of which Congress under § 5 of the Fourteenth Amendment could legislate and then, in the next breath, that the franchise was exclusively under the control of the States.
Bingham‘s words make little sense to modern ears; yet, when they were uttered, his words must have made some sense, at least to Bingham and probably to many of his listeners. The search for their meaning probably
One way, then, to reconcile the seemingly incongruous statements of Bingham is to read him as understanding that, while the Fourteenth Amendment did not take from the States nor grant to Congress plenary power to regulate the suffrage, it did give Congress power to invalidate discriminatory state legislation. In his words, the Amendment took “from no State any right which hitherto pertained to the several States of the Union, but it impose[d] a limitation upon the States to correct their abuses of power.” Ibid. Others had a similar understanding. Thus, for Charles Sumner, “Equality of political rights . . . [did] not involve necessarily what is sometimes called the ‘regulation’ of the suffrage by the National Government, although this would be best . . . [but] simply require[d] the abolition of any discrimination among citizens, inconsistent with Equal Rights.” C. Sumner, Are We a Nation? 34 (1867). Or, as Stevens explained in presenting the Amendment to the House, it merely allowed “Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” Globe 2459 (emphasis in original). Clearest of all, perhaps was Thomas M. Cooley in the 1871 edition of his Constitutional Limitations, where he wrote:
“This amendment of the Constitution does not concentrate power in the general government for
any purpose of police government within the States; its object is to preclude legislation by any State which shall ‘abridge the privileges or immunities of citizens of the United States,’ or ‘deprive any person of life, liberty, or property without due process of law,’ or ‘deny to any person within its jurisdiction the equal protection of the laws‘; and Congress is empowered to pass all laws necessary to render such unconstitutional State legislation ineffectual.” T. Cooley, Constitutional Limitations 294 (2d ed. 1871).
There is also other evidence that at least some members of Congress and of the electorate believed that § 1 of the Fourteenth Amendment gave Congress power to invalidate discriminatory state regulations of the suffrage. Thus, Congressman Rogers, a Democrat who had served on the Joint Committee, agreed with Bingham and Howard that “[t]he right to vote is a privilege,” Globe 2538, while Congressman Boyer, another Democrat, feared that § 1 was “intended to secure ultimately, and to some extent indirectly, the political equality of the negro race.” Globe 2467. A third Democrat, Congressman Niblack, thought the section sufficiently ambiguous to warn that he might, although in fact he never did, offer the following addition to it:
“Provided, That nothing contained in this article shall be so construed as to authorize Congress to regulate or control the elective franchise within any State, or to abridge or restrict the power of any State to regulate or control the same within its own jurisdiction, except as in the third section hereof prescribed.” Globe 2465.
Republicans also alluded on occasion to their belief that the Amendment might give Congress power to prevent discrimination in regard to the suffrage. Radi-
Of course, few of the above statements taken from congressional debates, campaign speeches, and the press were made with such clarity and precision that we can know with certainty that its framers intended the Fourteenth Amendment to function as we think they did. But clarity and precision are not to be expected in an age when men are confronting new problems for which old concepts do not provide ready solutions. As we have seen, the 1860‘s were such an age, and the men who formulated the Fourteenth Amendment were facing an especially perplexing problem—that of creating federal mechanisms to insure the fairness of state action without in the process destroying the reserved powers of the States. It would, indeed, be surprising if the men who first faced this difficult problem were possessed of such foresight that they could debate its solution with complete clarity and consistency and with uniformity of views. There is, in short, every reason to believe that different men reconciled in different and often imprecise ways the Fourteenth Amendment‘s broad guarantee of equal rights and the statements of some of its framers that it did not give Congress power to legislate upon the suffrage.
Some men, for example, might have reconciled the broad guarantee and the narrow language by concluding that Negroes were not yet ready to exercise the franchise and hence that a State would not act arbitrarily
Of course, many Americans in the 1860‘s rejected imputations that Negroes were unready for the franchise and thus concluded that distinctions between the races in regard to the franchise would constitute denials of equal protection. Congressman Stevens, for one, had no doubt that to allow a State to deny the franchise to Negroes would be to allow it “to discriminate among the same class.” Globe 2460. And Negroes, of course, indignantly rejected such imputations, arguing that “[w]e are not all so illiterate as you suppose” and that “even if we were, our instincts have proved better than that ‘educated class,’ whose ‘little learning’ prompted them to attempt the impossible thing of destroying this great Republic . . . .” Letter to the Editor, New York Times, Nov. 4, 1866.
Among the men who refused to regard Negroes as ill prepared for the exercise of the franchise, there may have been some who did not understand the subtle distinctions of constitutional lawyers such as Bingham and who thus
The evidence, in sum, plausibly suggests that the men who framed the
“Well, sir, I do not intend to put myself on record against the right of Congress to do that. I am not prepared now to argue the point with my colleague; but I will say to him that when the time comes for the American Congress to take action on the question, I will be ready to speak. I will not say now whether I would vote for or against such a proposition.” Globe 2882.
Thus, precise legal analysis and clarity of thought were both intellectually difficult and politically unwise. What Republicans needed, in the words of Wendell Phillips, the former abolitionist leader, was “a party trick to tide over the elections and save time,” after which they could “float back into Congress, able to pass an act that shall give the ballot to the negro and initiate an amendment to the Constitution which shall secure it to him.” Speech of Wendell Phillips, July 4, 1866, quoted in A. Harris, A Review of the Political Conflict in America 437 (1876). Similarly, the New York Times, edited by Congressman Henry J. Raymond, a conservative Republican who
Not surprisingly, the product of such political needs was an Amendment which contemporaries saw was vague and imprecise. Democratic Senator Hendricks, for example, protested that he had “not heard any Senator accurately define, what are the rights and immunities of citizenship,” Globe 3039, while Congressman Boyer, another Democrat, found the first section “objectionable also in its phraseology, being open to ambiguity and admitting of conflicting constructions.” Globe 2467. Republicans, too, were aware of the Amendment‘s vagueness. Thus, when he presented the Amendment to the Senate, Senator Howard noted that “[i]t would be a curious question to solve what are ‘the privileges and immunities of citizens’ and proposed not to consider the question at length, since “[i]t would be a somewhat barren discussion.” Instead, like the pre-Civil War Supreme Court,40 he “very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudicated when they should happen practically to arise.” Globe 2765.
Thus, the historical evidence does not point to a single, clear-cut conclusion that contemporaries viewed the first section of the
Nor is such a hypothesis inconsistent with the subsequent enactment of the
Nor do we find persuasive our Brother HARLAN‘s argument that § 2 of the
“there has not been such a construction, in my opinion, of a law which imposes only a penalty, for centuries, if ever, in any country where the common law obtains. The construction insisted upon by the gentleman amounts to this, that a law which inflicts a penalty or works a forfeiture for doing an act, by implication authorizes the act to be done for doing which the penalty is inflicted. There
cannot be such a construction of the proviso. It is a penalty. It says in terms that if any of the States of the United States shall disobey the Constitution . . . as a penalty such State shall lose political power in this House . . . . “You place upon your statute-book a law punishing the crime of murder with death. You do not thereby, by implication, say that anybody may, of right, commit murder. You but pass a penal law. You do not prohibit murder in the Constitution; you guaranty life in the Constitution. You do not prohibit the abuse of power by the majority in the Constitution in express terms, but you guaranty the equal right of all free male citizens of full age to elect Representatives; and by the proviso you inflict a penalty upon a State which denies or abridges that right on account of race or color. In doing that we are not to be told that we confer a power to override the express guarantees of the Constitution. We propose the penalty in aid of the guarantee, not in avoidance of it.” Globe 431-432.
See Van Alstyne, supra, at 48-68.
It may be conceivable that § 2 was intended to be the sole remedy available when a State deprived its citizens of their right to vote, but it is at least equally plausible that congressional legislation pursuant to §§ 1 and 5 was thought by the framers of the Amendment to be another potential remedy. Section 2, in such a scheme, is hardly superfluous: it was of critical importance in assuring that, should the Southern States deny the franchise to Negroes, the Congress called upon to remedy that discrimination would not be controlled by the beneficiaries of discrimination themselves. And it could, of course, have been expected to provide at least a limited remedy
The historical record left by the framers of the
D
There remains only the question whether Congress could rationally have concluded that denial of the franchise to citizens between the ages of 18 and 21 was unnecessary to promote any legitimate interests of the States in assuring intelligent and responsible voting. There is no need to set out the legislative history of Title III at any great length here.45 Proposals to lower the voting age to 18 had been before Congress at several times since 1942.46 The Senate Subcommittee on Con-
Congress was aware, of course, of the facts and state practices already discussed.48 It was aware of the opinion of many historians that choice of the age of 21 as the age of maturity was an outgrowth of medieval requirements of time for military training and development of a physique adequate to bear heavy armor.49 It knew that whereas only six percent of 18-year-olds in 1900 had completed high school, 81 percent have done so today.50 Congress was aware that 18-year-olds today make up a not insubstantial proportion of the adult work force;51 and it was entitled to draw upon its experience in supervising the federal establishment to determine the competence and responsibility with which 18-year-olds perform their assigned tasks. As Congress recognized, its judgment that 18-year-olds are capable of voting is consistent with its practice of entrusting them with the heavy responsibilities of military service. See § 301 (a) (1) of the Amendments.52 Finally, Congress was pre-
Finally, and perhaps most important, Congress had before it information on the experience of two States, Georgia and Kentucky, which have allowed 18-year-olds to vote since 1943 and 1955, respectively. Every elected Representative from those States who spoke to the issue agreed that, as Senator Talmadge stated, “young people [in these States] have made the sophisticated decisions and have assumed the mature responsibilities of voting. Their performance has exceeded the greatest hopes and expectations.”55
In sum, Congress had ample evidence upon which it could have based the conclusion that exclusion of citizens 18 to 21 years of age from the franchise is wholly unnecessary to promote any legitimate interest the States may have in assuring intelligent and responsible voting. See Katzenbach v. Morgan, 384 U. S., at 653-656. If discrimination is unnecessary to promote any legitimate state interest, it is plainly unconstitutional
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in part and dissenting in part.
In these cases we deal with the constitutional validity of three provisions of the
Before turning to a discussion of my views, it seems appropriate to state that we are not called upon in these cases to evaluate or appraise the wisdom of abolishing literacy tests, of altering state residency requirements, or of reducing the voting age to 18. Whatever we may think as citizens, our single duty as judges is to determine whether the legislation before us was within the constitutional power of Congress to enact. I find it necessary to state so elementary a proposition only because certain of the separate opinions filed today contain many pages devoted to a demonstration of how beneficent are the goals of this legislation, particularly the extension of the electoral franchise to young men and women of 18. A casual reader could easily get the impression that what we are being asked in these cases is whether or not we think allowing people 18 years old to vote is a good idea. Nothing could be wider of the mark. My Brothers to the contrary, there is no question here as to the “judgment” of Congress; there are questions only of Congress’ constitutional power.
I
I concur in Part II of MR. JUSTICE BLACK‘s opinion, which holds that the literacy test ban of § 201 of the 1970 Amendments is constitutional under the Enforcement Clause of the
Congress has now undertaken to extend the ban on literacy tests to the whole Nation. I see no constitutional impediment to its doing so. Nationwide application reduces the danger that federal intervention will be perceived as unreasonable discrimination against particular States or particular regions of the country. This in turn increases the likelihood of voluntary compliance with the letter and spirit of federal law. Nationwide application facilitates the free movement of citizens from one State to another, since it eliminates the prospect that a change in residence will mean the loss of a federally protected right. Nationwide application avoids the often difficult task of drawing a line between those States where a problem is pressing enough to warrant federal intervention and those where it is not. Such a
Because the justification for extending the ban on literacy tests to the entire Nation need not turn on whether literacy tests unfairly discriminate against Negroes in every State in the Union, Congress was not required to make state-by-state findings concerning either the equality of educational opportunity or actual impact of literacy requirements on the Negro citizen‘s access to the ballot box. In the interests of uniformity, Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records. Cf. Lassiter v. Northampton Election Board, supra. The findings that Congress made when it enacted the
Section 202 added by the
A
Congress, in my view, has the power under the Constitution to eradicate political and civil disabilities that arise by operation of state law following a change in residence from one State to another. Freedom to travel from State to State—freedom to enter and abide in any State in the Union—is a privilege of United States citizenship. Shapiro v. Thompson, 394 U. S. 618; United States v. Guest, 383 U. S. 745, 757-760; Truax v. Raich, 239 U. S. 33, 39; Twining v. New Jersey, 211 U. S. 78, 97; Crandall v. Nevada, 6 Wall. 35. Section 1 of the
“One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” 16 Wall. 36, 80.
Although § 5 of the
In the light of these considerations, § 202 presents no difficulty. Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the privilege of taking up residence in another State. The objective of § 202 is clearly a legitimate one. Federal action is required if the privilege to change residence is not to be undercut by parochial local sanctions. No State could undertake
B
But even though general constitutional power clearly exists, Congress may not overstep the letter or spirit of any constitutional restriction in the exercise of that power. For example, Congress clearly has power to regulate interstate commerce, but it may not, in the exercise of that power, impinge upon the guarantees of the Bill of Rights. I have concluded that, while § 202 applies only to presidential elections, nothing in the Constitution prevents Congress from protecting those who have moved from one State to another from disenfranchisement in any federal election, whether congressional or presidential.
The Constitution withholds from Congress any general authority to change by legislation the qualifications for voters in federal elections. The meaning of the applicable constitutional provisions is perfectly plain.
Contrary to the submission of my Brother BLACK,
This view is confirmed by extrinsic evidence of the intent of the Framers of the Constitution. An early draft of the Constitution provided that the States should fix the qualifications of voters in congressional elections subject to the proviso that these qualifications might “at any Time be altered and superseded by the Legislature of the United States.”1 The records of the Committee on Detail show that it was decided to strike the provision granting to Congress the authority to set voting qualifications and to add in its stead a clause making the qualifications “the same from Time to Time as those of the Electors, in the several States, of the most numerous Branch of their own Legislatures.”2 The proposed draft reported by the Committee on Detail to the Convention included the following:
“The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures.” Art. IV, § 1.
“The times and places and manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States.”3 Art. VI, § 1.
“The right of suffrage is certainly one of the fundamental articles of republican Government, and ought not to be left to be regulated by the Legislature.”7
The proposed motion was defeated by a seven-to-one vote,8 and no substantive change in
Thus, Alexander Hamilton accurately reported the intent of the Convention when he wrote in The Federalist No. 60 that the authority of the national government “would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature [i. e., Congress].” (Emphasis in original.)
Different provisions of the Constitution govern the selection of the President and the Vice President.
The issue, then, is whether, despite the intentional withholding from the Federal Government of a general authority to establish qualifications to vote in either congressional or presidential elections, there exists con-
III
Section 302 added by the
In my view, neither the Morgan case, nor any other case upon which the Government relies, establishes such congressional power, even assuming that all those cases12 were rightly decided. MR. JUSTICE BLACK is surely
To be sure, recent decisions have established that state action regulating suffrage is not immune from the impact of the Equal Protection Clause.13 But we have been careful in those decisions to note the undoubted power of a State to establish a qualification for voting based on age. See, e. g., Kramer v. Union School District, 395 U. S. 621, 625; Lassiter v. Northampton Election Board, 360 U. S., at 51. Indeed, none of the opinions filed today suggest that the States have anything but a constitutionally unimpeachable interest in establishing some age qualification as such. Yet to test the power to establish an age qualification by the “compelling interest” standard is really to deny a State any choice at all, because no State could demonstrate a “compelling interest” in drawing the line with respect to age at one point rather than another. Obviously, the power to establish an age qualification must carry with it the power to choose
Katzenbach v. Morgan, supra, does not hold that Congress has the power to determine what are and what are not “compelling state interests” for equal protection purposes. In Morgan the Court considered the power of Congress to enact a statute whose principal effect was to enfranchise Puerto Ricans who had moved to New York after receiving their education in Spanish-language Puerto Rican schools and who were denied the right to vote in New York because they were unable to read or write English. The Court upheld the statute on two grounds: that Congress could conclude that enhancing the political power of the Puerto Rican community by conferring the right to vote was an appropriate means of remedying discriminatory treatment in public services; and that Congress could conclude that the New York statute was tainted by the impermissible purpose of denying the right to vote to Puerto Ricans,
But it is necessary to go much further to sustain § 302. The state laws that it invalidates do not invidiously discriminate against any discrete and insular minority. Unlike the statute considered in Morgan, § 302 is valid only if Congress has the power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and what state interests are “compelling.” I concurred in MR. JUSTICE HARLAN‘s dissent in Morgan. That case, as I now read it, gave congressional power under § 5 the furthest possible legitimate reach. Yet to sustain the constitutionality of § 302 would require an enormous extension of that decision‘s rationale. I cannot but conclude that § 302 was beyond the constitutional power of Congress to enact.
“So far as I am individually concerned, I object to the amendment as a whole, because it does not go far enough and propose to at once enfranchise every loyal man in the country.” Ibid.
Brief for the State of Oregon 10-13; Brief for the State of Texas 10-12; Brief for the State of Arizona 19; Brief for the State of Idaho 22, 28-30.“Would it not be a most unprecedented thing that when this population are not permitted where they reside to enter into the basis of representation in their own State, we should receive it as an element of representation here . . . .” Globe 2464.
As the statements of Bingham and Howard in the text indicate, the framers of the Amendment were not always clear whether they understood it merely as a grant of power to Congress or whether they thought, in addition, that it would confer power upon the courts, which the courts would use to achieve equality of rights. Since § 5 is clear in its grant of power to Congress and we have consistently held that the Amendment grants power to the courts, this issue is of academic interest only.“. . . And why not? If the negroes of the South are not to be counted as a political element in the government of the South in the States, why should they be counted as a political element in the government of the country in the Union? If they are not to be counted as against the southern people themselves, why should they be counted as against us?” Globe 2498.
According to Paul v. Virginia, 8 Wall. 168, 180 (1869), the Privileges and Immunities Clause inLater, in discussion of § 3, which at that time would have disfranchised certain rebels in federal elections, Raymond remarked that the effect would be to allow “one fifth, one eighth, or one tenth, as the case may be, of the people of these southern States to elect members from those States, to hold seats upon this floor.” Ibid. It is obvious that the possibility of Negroes’ voting in these elections did not cross his mind.
Senator Stewart‘s statement regarding the two-thirds requirement appears to refer to § 3 of the Fourteenth Amendment, which requires such a majority for legislation granting amnesty to former Confederate leaders.“As to the first measure proposed, a person may read it five hundred years hence without gathering from it any idea that this rebellion ever existed. The same may be said of the second proposition, for it only proposes that, the bondsmen being made free, the apportionment of Representatives in Congress shall be based upon the whole number of persons who exercise the elective franchise, instead of the population.” Globe 2509.
A month later, in the debate over the Amendment when it had returned from the Senate, Spalding expressed his views more clearly: “I say, as an individual, that I would more cheerfully give my vote if that provision allowed all men of proper age whom we have made free to join in the exercise of the right of suffrage in this country. But if I cannot obtain all that I wish, I will go heartily to secure all we can obtain.” Globe 3146.
Breedlove has been overruled by Harper v. Virginia Board of Elections, 383 U. S. 663, 669 (1966).Rogers later in his speech asserted: “The committee dare not submit the broad proposition to the people of the United States of negro suffrage. They dare not to-day pass the negro suffrage bill which passed this House in the Senate of the United States because, as I have heard one honorable and leading man on the Republican side of the House say, it would sink into oblivion the party that would advocate before the American people the equal right of the negro with the white man to suffrage.” Globe 2538.
When H. R. 127 was returned by the Senate with amendments, Rogers addressed the House and stated that when the records of the Joint Committee were made public, it would be revealed that the Committee at first agreed to recommend universal Negro suffrage, but reconsidered because of the force of public opinion. Globe App. 230. Rogers was himself a member of the Joint Committee, and he presumably was referring to the acceptance and then rejection of Owen‘s plan for enfranchisement in 1876.
16 Department of Labor, Bureau of Labor Statistics, Employment and Earnings, table A-3 (June 1970).There was no indication that Sherman considered South Carolina‘s disqualification on racial grounds any more improper than Massachusetts’ limitations of the franchise to men, which he mentioned in the next breath.
Farnsworth: see Globe 2540, quoted at n. 36, supra.
Eliot: see Globe 2511, quoted at n. 34, supra.
Higby: see Globe 3978 (debate over readmission of Tennessee despite all-white electorate).
Bingham: see Globe 2542, quoted supra, at 185; see also Globe 3979 (debate over readmission of Tennessee).
Stevens: see Globe 2459-2460, quoted supra, at 175-177; Globe 3148, quoted at n. 69, supra.
Raymond: see Globe 2502, quoted at n. 39, supra.
Ashley: see Globe 2882.
Sumner: see n. 71, infra.
Fessenden: see H. R. Rep. No. 30, 39th Cong., 1st Sess., XIII-XIV (1866), quoted infra, at 197-198.
Yates: see Globe 3038, quoted at n. 63, supra.
Stewart: see Globe 2964, quoted at n. 60, supra.
Wade: see Globe 2769, quoted at n. 58, supra.
The exception is Senator Wilson of Massachusetts, who did not address himself to this issue. However, he participated in the debates, see Globe 2770, 2986-2987, and was therefore in a position to express disagreement with the interpretation uniformly offered in the Senate.
Boutwell: see Globe 2508, quoted at n. 33, supra; Globe 3976 (debate over readmission of Tennessee).
Sumner did not actually participate in the debates on H. R. 127. However, after the caucus of Republican Senators had agreed on the form of the Amendment, Sumner gave notice that he intended to move to amend the bill accompanying the proposed Amendment. This bill, S. 292, provided that any Confederate State might be readmitted to representation in Congress once the proposed Amendment had become part of the Constitution and the particular State should have ratified it and modified its constitution and laws in conformity therewith. The bill is reprinted in H. R. Rep. No. 30, 39th Cong., 1st Sess., V-VI, and in Kendrick 117-119. Sumner‘s amendment would have provided that a State might be readmitted when it should have ratified the
Sumner also referred to Negro suffrage as unfinished business in speeches that fall. James 173, 178.
“Section 2. The Congress shall have power to enforce this article by appropriate legislation.”
Amdt. XIX: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
“Congress shall have power to enforce this article by appropriate legislation.”
Amdt. XXIV: “Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
“Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.”
Before 1965, although this Court had occasionally entertained on the merits challenges to state voter qualifications under the Equal Protection Clause, only two cases had sustained the challenges. Nixon v. Herndon, 273 U.S. 536 (1927), held that a Texas statute limiting participation in the Democratic Party primary to whites violated the