< Oregon v. Mitchell


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] [p153]

In Nos. 46, Orig., and 47, Orig., the United States seeks a declaration of the validity of the Act and an injunction requiring Arizona and Idaho to conform their laws to it. The Act would lower the voting age in each State from 21 to 18. It would suspend until August 6, 1975, the Arizona literacy test, which requires that applicants for registration be able to read the United States Constitution in English and write their names. It would require Idaho to make several changes in its laws governing residency, registration, and absentee voting in presidential elections. Among the more substantial changes, Idaho's present 60-day state residency requirement will, in effect, be lowered to 30 days; its 30-day county residency requirement for intrastate migrants will be abolished; Idaho will have to permit voting by citizens of other States formerly domiciled in Idaho who emigrated too recently to register in their new homes; and it must permit absentee registration and voting by persons who have lived in Idaho for less than six months. The relevant provisions of the Act and of the constitutions and laws of the four States are set out in an Appendix to this opinion.

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 § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment by appropriate [p154] legislation. For reasons to follow, I am of the opinion that the Fourteenth Amendment was never intended to restrict the authority of the States to allocate their political power as they see fit, and therefore that it does not authorize Congress to set voter qualifications, in either state or federal elections. I find no other source of congressional power to lower the voting age as fixed by state laws, or to alter state laws on residency, registration, and absentee voting, with respect to either state or federal elections. The suspension of Arizona's literacy requirement, however, can be deemed an appropriate means of enforcing the Fifteenth Amendment, and I would sustain it on that basis.

I

It is fitting to begin with a quotation from one of the leading members of the 39th Congress, which proposed the Fourteenth Amendment to the States in 1866:

Every Constitution embodies the principles of its framers. It is a transcript of their minds. If its meaning in any place is open to doubt, or if words are used which seem to have no fixed signification, we cannot err if we turn to the framers; and their authority increases in proportion to the evidence which they have left on the question.

Cong.Globe, 39th Cong., 1st Sess., 677 (1866) (Sen. Sumner). Believing this view to be undoubtedly sound, I turn to the circumstances in which the Fourteenth Amendment was adopted for enlightenment on the intended reach of its provisions. This, for me, necessary undertaking has unavoidably led to an opinion of more than ordinary length. Except for those who are willing to close their eyes to constitutional history in making constitutional interpretations or who read such history with a preconceived determination to attain a particular constitutional [p155] goal, I think that the history of the Fourteenth Amendment makes it clear beyond any reasonable doubt that no part of the legislation now under review can be upheld as a legitimate exercise of congressional power under that Amendment.

I A

  1. ↑ . The Attorney General of the United States, a citizen of New York, is named as defendant. The jurisdictional basis alleged is Art. III, § 2, which gives this Court original jurisdiction over controversies between a State and a citizen of another State. We held a similar suit justiciable and otherwise within our original jurisdiction in South Carolina v. Katzenbach, 383 U.S. 301, 307 (1966). The parties have not asked us to reexamine the validity of that ruling, and since the Court has not undertaken to do so, I am content to sustain jurisdiction on the authority of that decision.
  2. ↑ . In response to inquiries from the Attorney General, Arizona, Oregon, and Texas indicated willingness to abide by § 202 of the Act, governing residency, registration, and absentee voting in presidential elections and to conform conflicting state laws.
  3. . The account in the text is largely drawn from J. James, The Framing of the Fourteenth Amendment (1956) (hereafter James), and to some extent from W. Gillette, The Right To Vote: Politics and the Passage of the Fifteenth Amendment (1969) (hereafter Gillette), and B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction (1914) (hereafter Kendrick), as well.
  4. .
  5. . See infra at 209-212, for the text of these provisions, and for discussion of the contention that they empower Congress to set qualifications of voters in federal elections.
  6. . "The United States shall guarantee to every State in this Union a Republican Form of Government."
  7. . E.g., Proclamation of May 29, 1865, 13 Stat. 760 (North Carolina).
  8. . 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).
  9. . James 33.
  10. . See Globe 209 (Freedmen's Bureau Bill); Globe 211 (Civil Rights Bill).
  11. . While formally further consideration was postponed until a date in April, six weeks off, Globe 1095, it was generally understood that "April means indefinitely." 2 Nation 289 (Mar. 1, 1866), quoted in James 87.
  12. . The only change made in § 1 was the addition of the Citizenship Clause by the Senate. Globe 3041. The primary change made in § 2 was to condition reduction of representation on denial or abridgment of the right to vote in certain named elections, rather than to speak generally of denial or abridgment of "the elective franchise." Ibid. That section now reads:
  13. . Section 1 of that Act provided in part that
  14. . In this connection, Professor Fairman's admonition of 20 years ago is even more forceful than it was when he wrote:
  15. . See, e.g., Globe 599 (Sen. Trumbull); Globe 1117 (Cong. Wilson of Iowa, quoting Kent's Commentaries and Bouvier's Law Dictionary); Globe 1152 (Cong. Thayer). There were some, however, who considered the distinction either nonexistent or too uncertain to be a basis for legislation. E.g., Globe 477 (Sen. Saulsbury); Globe 1157 (Cong. Thornton); Globe 1292-1293 (Cong. Bingham).
  16. . See generally Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan.L.Rev. 5 (1949), especially at 9.
  17. . 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.
  18. . While this provision might seem useless in light of the Fifteenth Amendment, it was doubtless intended to prohibit the imposition of property or literacy qualifications which, even though fairly applied, would have the effect of disfranchising most of the Negroes. The Radicals had sought to prohibit such qualifications in the Fifteenth Amendment, but were unsuccessful. See Gillette 53, 56-62, 69-72, 76.
  19. . While the history indicates that the supporters of the Fourteenth Amendment would have been surprised at the suggestion that the Amendment brought qualifications for state office under federal supervision, office-holding was not the focus of attention during the consideration of the Amendment. Moreover, state power to set voter qualifications, unlike state power to set qualifications for office, is explicitly recognized not only in the original Constitution but in § 2 of the Fourteenth Amendment itself. Whether these distinctions are sufficient to justify testing state qualifications for office by the Fourteenth Amendment is a matter not presented by these cases.
  20. . Hearings, supra, n. 8, at 128-129.
  21. . See, e.g., Globe 141-142 (Cong. Blaine); Globe 2766-2767 (Sen. Howard); Globe 2769-2770 (Sens. Wade and Wilson); Globe 3033 (Sen. Henderson).
  22. . The Journal is reprinted in Kendrick, supra, n. 3, at 37-129.
  23. . The attempts were not altogether successful. See James 108-109.
  24. . See generally Kendrick 18-22. For reasons to be developed below, infra at 197, the report of the Joint Committee, H.R.Rep. No. 30, 39th Cong., 1st Sess. (1866), is less useful as an indication of the understanding of the Committee and the Congress than as an indication of the understanding of the ratifying States.
  25. . Owen's account of the Fourteenth Amendment is given in Political Results from the Varioloid, 35 Atlantic Monthly 660 (June 1875).
  26. . See James 109-112; Gillette 24; Owen, supra, n. 25, at 666.
  27. . See the votes on Stevens' motion to select the alternative which reduced representation, rather than that which prohibited racial restrictions on the ballot, Kendrick 52; Boutwell's motion to condition readmission of Tennessee on that State's agreement not to discriminate in its voter qualifications, Kendrick 70; Stevens' motion to strike out the provision of the Owen plan enfranchising Negroes after 1876, Kendrick 101; and the motion to condition readmission of Tennessee and Arkansas on their having provided impartial male suffrage, as well as on conforming their laws and constitutions to the requirements of the proposed amendment (which included Bingham's provision when this motion was made), Kendrick 109.
  28. . While any guess as to the motives of Bingham and the other members of the committee is sheer speculation, it is not necessarily true that they believed they were replacing specific language with general. The author of the original plan, for one, seems to have taken the opposite view. He gave the following characterization of § 1 some years later:
  29. . The proceedings of the Joint Committee are examined in greater detail in the opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL. Post at 257-263. I agree with their apparent conclusion that the Journal sheds little light on the contemporary construction of the Fourteenth Amendment. One is left to do what he can with the two facts noted at the outset of this section: that of the plans considered by the Joint Committee, all provided either for reduction of representation or for enfranchisement while none provided for both at the same time; and that the Committee consistently rejected provisions to enfranchise the freedmen, with the conceivable exception of a plan which was defeated in the House largely because of the scope of the powers it transferred from the States to the Federal Government.
  30. . Unless, of course, one adopts a "conspiracy theory" of the history of the Fourteenth Amendment. Thus, far no one has (quite) done so in this context.
  31. .
  32. .
  33. .
  34. .
  35. .
  36. .
  37. .
  38. .
  39. . H.R. 51
  40. .
  41. .
  42. .
  43. .
  44. . Spalding's speeches are given at Globe 2509-2510. His only remarks addressed to §§ 1 and 2 read:
  45. . Longyear's speech is published at Globe 2536-2537. He did not in terms address himself to any section except the third. However, it is not difficult to read his statement that the proposals of the Joint Committee disappointed "the expectations of the people" and his personal hopes as having reference to the absence of any provision on suffrage.
  46. . Shellabarger spoke only briefly, and this in connection with the disfranchising section. In the course of his remarks, he expressed the view that congressional power to regulate voter qualifications in federal elections was granted by Art. I, § 4. Globe 2512.
  47. .
  48. .
  49. .
  50. . Boyer's speech was made in opposition to a proposal to enfranchise Negroes in the District of Columbia. He then thought Negro suffrage a "monstrous proposition," Globe 176, which was incompatible with "the broad general principle that this is, and of right ought to be, a white man's Government." Globe 175. One of Rogers' harangues on the subject came in connection with the same bill. There he spoke of "the monstrous doctrine of political equality of the negro race with the white at the ballot-box," Globe 198, and launched into an attack remarkable for its vitriol.
  51. . Boyer viewed § 3, which at that time would have prohibited voluntary participants in the rebellion from voting in federal elections, as "the most objectionable of all the parts," Globe 2467, as it would disfranchise nine-tenths of the voting population of the South for more than four years. The second section he found objectionable as designed
  52. . The Amendment, however, had been released to the press on April 28. James 115.
  53. . It is not amiss to point out that, whatever force Phelps' and Rogers' interpretations may have in the face of the contrary authority, even they foresaw no danger from the Equal Protection Clause as a source of federal power over the suffrage.
  54. . Like my colleagues, post at 264, I find it difficult to understand what Bingham meant when he said that
  55. . Fessenden, however, was present in the Senate and participated in the discussion. See Globe 2763, 2769, 2770. He was therefore in a position to correct any gross misinterpretation of his views or of those of the Committee.
  56. . My colleagues, post at 264, point to Howard's reference to Corfield v. Coryell, 6 Fed.Cas. 546 (No. 3230) (CCED Pa. 1825), in order to "gather some intimation of what probably will be the opinion of the judiciary" on the scope of the Privileges and Immunities Clause of § 1. Globe 2765. As the text indicates, Howard rejected Justice Washington's lengthy dictum insofar as it said that the protected privileges and immunities included "the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised." No other Senator quoted or referred to this portion of Washington's opinion during the debates over the proposed Fourteenth Amendment. Corfield, which held that New Jersey could constitutionally restrict access to her oyster beds to her own residents, was the leading authority on privileges and immunities in the mind of the 39th Congress, but it was not the only one. Campbell v. Morris, 3 H. & McH. 535 (Md. 1797) (Samuel Chase, J.), and Abbot v. Bayley, 6 Pick. 89 (Mass. 1827) (Parker, C.J.), were also cited. See Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan.L.Rev. 5, 12-15 (1949). Both specifically stated that the privileges and immunities protected by Art. IV, § 2, did not include the right of suffrage or the right to hold office.
  57. . Howard was a very clear-spoken man. When it was suggested, during the debates over the Fifteenth Amendment, that the freedmen were entitled to the ballot by virtue of the Privileges and Immunities Clause of the Fourteenth Amendment, he recalled his role in the framing of that Amendment and said:
  58. .
  59. .
  60. .
  61. .
  62. . Henderson, who had offered a direct enfranchising provision as an alternative to the Committee's first effort in the field of representation, see Globe App. 115, stated that he now recognized that "the country is not yet prepared" to share political power with Negroes, and he supported the Committee plan. Globe 3035.
  63. .
  64. .
  65. . If you think the negro ought to have the right of voting; if you are in favor of it, and intend it shall be given, why do you not in plain words confer it upon them? It is much fairer than to seek it by indirection, and the people will distinctly understand you when you propose such a change of the Constitution.
  66. . What is to be the operation of this amendment? Just this: your whip is held over Pennsylvania, and you say to her that she must either allow her negroes to vote or have one member of Congress less.
  67. .
  68. .
  69. .
  70. . Kelley: see Globe 2469, quoted at n. 32, supra.
  71. . Stevens: see Globe 2459-2460, quoted supra at 175-177; Globe 3148, quoted at n. 69, supra; James 163 (campaign speech in fall of 1866).
  72. . For citations to the state materials, see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan.L.Rev. 5, 84-132 (1949).
  73. . Fear that the Amendment would reach voting was expressed in Brevier Legis.Rep. [Indiana] 45-46, 80, 88-89 (1867); Tenn.H.R.J. 38 (Extra Sess. 1866); Fla.S.J. 102 (1866); N.C.S.J. 96-97 (1866-1867); S.C.H.R.J. 34 (1866); and Tex.S.J. 422-423 (1866). The last four States rejected the proposed Amendment. Opponents of the Amendment stated or assumed that it would not reach voting qualifications in Ark.H.R.J. 288-289 (1866); Fla.S.J. 8-9 (1866); Report of the Joint Committee on Federal Relations, Md.H.R.Doc. MM, p. 15 (Mar. 18, 1867); Mass.H.R.Doc. No. 149, pp. 7-9, 16-17 (1867); and Wis.S.J. 102-103 (1867). Fla.H.R.J. 76-78 (1866); Ind.H.R.J. 102-103 (1867); and N.H.S.J. 71-72 (1866) are equivocal.
  74. .
  75. . Ind.H.R.J. 47-48 (1867); Kan.S.J. 45 (1867); Maine S.J. 23 (1867); Mass.H.R.Doc. No. 149, pp. 25-26 (1867); Nev.S.J. App. 9 (1867); Vt.S.J. 28 (1866); W.Va.S.J.19 (1867); Wis.Assembly J. 33 (1867).
  76. .l H.R.Rep. No. 30, 39th Cong., 1st Sess., XIII-XIV (1866).
  77. . I have found references to only two such speeches, one by Senator Hendricks and the other by one George M. Morgan, a candidate for Congress in Ohio. Cincinnati Daily Commercial, Aug. 9, 1866, p. 1, col. 4, quoted in Fairman, supra, n. 14, at 72; Cincinnati Daily Commercial, Aug. 23, 1866, p. 2, col. 3, quoted in Fairman, supra, at 75.
  78. . See Gillette, supra, n. 3, at 227.
  79. . Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting opinion).
  80. . Art. IV, § 4. See n. 6, supra, for the text.
  81. . The contention that Congress has power to override state judgments as to qualifications for voting in federal elections is discussed infra at 209-212.
  82. . Amdt. XV:
  83. . See, e.g., Harper v. Virginia Board of Elections, 383 U.S. 663, 670 (1966):
  84. . Most of the cases in which this Court has used the Equal Protection Clause to strike down state voter qualifications have been decided since 1965. Eight such cases have been decided by opinion. 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 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). Other cases have been summarily disposed of. In none of these cases did the Court advert to the argument based on the historical understanding.
  85. . In this particular instance the other two branches of the Government have, in fact, expressed conflicting views as to the validity of Title III of the Act, the voting age provision. See H.R.Doc. No. 91-326 (1970).
  86. . In fact, however, I do not understand how the doctrine of deference to rational constitutional interpretation by Congress, espoused by the majority in Katzenbach v. Morgan, 384 U.S. 641 (1966), is consistent with this statement of Chief Justice Marshall or with our reaffirmation of it in Cooper v. Aaron, 358 U.S. 1, 18 (1958):
  87. . Contrast Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580 (1935), relied on by my colleagues. In that case, the crucial factual issue, on which the record was silent, was whether casualty insurance companies not incorporated in Indiana "generally keep their funds and maintain their business offices, and their agencies for the settlement of claims, outside the state." 294 U.S. at 585.
  88. . It might well be asked why this standard is not equally applicable to the congressional expansion of the franchise before us. Lowering of voter qualifications dilutes the voting power of those who could meet the higher standard, and it has been held that
  89. . Although MR. JUSTICE BLACK rests his decision in part on the assumption that the selection of presidential electors is a "federal" election, the Court held in In re Green, 134 U.S. 377, 379 (1890), and repeated in Ray v. Blair, 343 U.S. 214, 224-225 (1952), that presidential electors act by authority of the States and are not federal officials.
  90. . At the time these suits were filed only two of the 50 States, Georgia and Kentucky, allowed 18-year-olds to vote, and only two other States, Hawaii and Alaska, set the voting age below 21. In subsequent referenda, voters in 10 States declined to lower the voting age; five States lowered the voting age to 19 or 20; and Alaska lowered the age from 19 to 18. See the Washington Post, Nov. 5, 1970, p. A13, col. 5.
  91. . "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
  92. . At the time the Constitution was adopted, additional restrictions based on payment of taxes and ownership of property, as well as creed and sex, were imposed, making the proposition even clearer.
  93. . See Art. II:
  94. . The legislative history of the Voting Rights Act Amendments contains sufficient evidence to this effect, if any be needed.
  95. . Cf. § 4 of the Voting Rights Act of 1965, 79 Stat. 438, which suspended literacy tests only in areas falling within a coverage formula and allowed reinstatement of the tests upon judicial determination that, during the preceding five years no tests had been used with discriminatory purpose or effect. 42 U.S.C. § 1973b(a) (1964 ed., Supp. V), amended by Pub.L. No. 91-285 § 3, 84 Stat. 315.
  96. . I assume that reasonableness is the applicable standard, notwithstanding the fact that the instant legislation is challenged on the ground that it improperly dilutes the votes of literate Arizona citizens. But see Kramer v. Union School District, 395 U.S. 621 (1969); n. 88, supra.
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