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MR. JUSTICE BLACK, announcing the judgments of the Court in an opinion expressing his own view of the cases.
MR. JUSTICE HARLAN, concurring in part and dissenting in part.
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in part and dissenting in part.
MR. JUSTICE DOUGLAS, dissenting
MR. JUSTICE STEWART, with whom THE
CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in part
and dissenting in part.
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
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 interstate migration that is not necessary to further a compelling
state interest. 1 Finally,
the States of Oregon, Texas, Arizona, and Idaho would have us
strike down as unreasonable and beyond congressional power the
findings, embodied in § 301 (a) of the Amendments, that denying
the vote to otherwise qualified persons 18 to 21 years of age,
while granting it to those 21 years of age and older, violates
the Equal Protection Clause and is, in any event, not reasonably
related to any compelling state interest. 2
In Nos. 43, Orig., and 44, Orig., Oregon and Texas have invoked
our original jurisdiction under Art.
III, § 2, of the Constitution to restrain the Attorney General
of the United States, a citizen of New York, from enforcing the
18-year-old voting provisions of the Amendments. South Carolina
v. Katzenbach, 383 U.S. 301, 307 (1966). In Nos. 46, Orig., and
47, Orig., the United States seeks orders enjoining Arizona from
enforcing age and literacy limitations on the franchise, 3
and enjoining Idaho from enforcing age, residence, and absentee
voting limitations, 4 insofar
as those limitations are inconsistent with the 1970 Amendments.
Original jurisdiction, again, is founded upon Art. III, §
2, of the Constitution. See United States v. California, 332 U.S.
19, 22 (1947). Since, in our view, congressional power to enact
the challenged Amendments is found in the enforcement clauses
of the Fourteenth and Fifteenth Amendments, and since we may easily
perceive a rational basis for the congressional judgments underlying
each of them, we would deny relief in Nos. 43, Orig., and 44,
Orig., and issue the requested orders in Nos. 46, Orig., and 47,
Orig.
I
The Voting Rights Act of 1965, 79 Stat. 438, 42 U. S. C. §
1973 et seq. (1964 ed., Supp. V), proscribed the use of any "test
or device," 5 including
literacy tests, in States or their political subdivisions that
fell within a coverage formula set forth in § 4 (b) of the
1965 Act. 42 U. S. C. §§ 1973b (a), (b) (1964 ed., Supp.
V). Although we had previously concluded that literacy tests,
fairly administered, violate neither the Fourteenth nor the Fifteenth
Amendment, Lassiter v. Northampton Election Board, 360 U.S. 45
(1959), we nevertheless upheld their selective proscription by
Congress. South Carolina v. Katzenbach, 383 U.S. 301 (1966). Canvassing
the "voluminous" legislative history of the 1965 Act,
we found ample basis for a legislative conclusion that such a
proscription was necessary to combat the "insidious and pervasive
evil" of racial discrimination with regard to voting. Id.,
at 308-315. Accordingly, we held the proscription to be well within
the power of Congress granted by § 2 of the Fifteenth Amendment.
Id., at 327-334. Three years later, in Gaston County v. United
States, 395 U.S. 285 (1969), we sustained application of the ban
on literacy tests to a county where there was no evidence that
the test itself was discriminatory or that -- at least since 1962
6 -- it had been administered
in a discriminatory manner. Notwithstanding this fact, we noted
that the record did contain substantial evidence that in years
past, "Gaston County [had] systematically deprived its black
citizens of the educational opportunities it granted to its white
citizens." Id., at 297. Since this "in turn deprived
them of an equal chance to pass the literacy test," id.,
at 291, even impartial administration of an impartial test would
inevitably result in just the discrimination that Congress and
the Fifteenth Amendment had sought to proscribe. Id., at 296-297;
see South Carolina v. Katzenbach, 383 U.S., at 308, 333-334.
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
The legislative history of the 1970 Amendments contains substantial
information upon which Congress could have based a finding that
the use of literacy tests in Arizona and in other States where
their use was not proscribed by the 1965 Act has the effect of
denying the vote to racial minorities whose illiteracy is the
consequence of a previous, governmentally sponsored denial of
equal educational opportunity. The Attorney General of Arizona
told the Senate Subcommittee on Constitutional Rights that many
older Indians in the State were "never privileged to attend
a formal school." 8 Extensive
testimony before both Houses indicated that racial minorities
have long received inferior educational opportunities throughout
the United States. 9 And interstate
migration of such persons, particularly of Negroes from the Southern
States, has long been a matter of common knowledge. 10
Moreover, Congress was given testimony explicitly relating the
denial of educational opportunity to inability to pass literacy
tests in States not covered by the formula contained in the 1965
Act. The United States Commission on Civil Rights reported a survey
of the Northern and Western States which concluded that literacy
tests have a negative impact upon voter registration which "falls
most heavily on blacks and persons of Spanish surname." 11
With regard specifically to Arizona, the Chairman of the Navajo
Tribal Council testified that a greater percentage of Navajos
are registered in New Mexico, which has no literacy test, than
in Arizona. 12
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 nevertheless
operate to disenfranchise racial minorities because of previous
governmental discrimination against them in education. Gaston
County v. United States, 395 U.S., at 287, 289-293. Five years
of experience with the 1965 Act persuaded Congress that a nationwide
ban on literacy and other potentially discriminatory tests was
necessary to prevent racial discrimination in voting throughout
the country. That conclusion is amply supported in the legislative
record and § 201 of the 1970 Amendments is accordingly well
within the scope of congressional power.
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).
Idaho challenges the power of Congress to enact such legislation
insofar as it conflicts with Idaho's statutory and constitutional
provisions regarding durational residence requirements for voting;
regarding absentee voting; and regarding absentee registration.
14 The State's argument in
brief is that the Constitution has left to the States the power
to set qualifications for voters in both state and federal elections,
subject only to certain explicit limitations such as, for example,
those imposed by the Fourteenth, Fifteenth, Nineteenth, and Twenty-fourth
Amendments. Admitting that unreasonable residence requirements
may not withstand judicial scrutiny, Carrington v. Rash, 380 U.S.
89 (1965), Idaho urges that its 60-day residence requirement is
necessary for protection against fraud, and for administrative
purposes. In consequence, § 202 of the 1970 Amendments is
said to be of no weight against these compelling state interests.
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 and its fundamental importance to our Federal Union
have long been established beyond question.
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.
Idaho Code § 34-409 (1963). And Idaho's assertion of the
administrative unfeasibility of maintaining separate registration
lists for fully qualified voters and for those qualified only
for presidential balloting is difficult to credit in light of
the fact that the Idaho Constitution, Art. 6, § 2, itself
sets separate qualifications for voting in general and in presidential
elections. The provisions for absentee voting, as Senator Goldwater
pointed out on the floor of the Senate, were likewise "drawn
from the proven practice of the States themselves." 18
Thirty-seven States allow application within a week of the election,
and 40 permit the marked ballot to be returned on election day.
19 Finally, Idaho has provided
no evidence beyond the mere assertion that the scheme of §
202 is inadequate to protect against fraud. But the only kind
of fraud asserted is the possibility of dual voting, and Idaho
has provided no explanation why the 30-day period between the
closing of new registrations and the date of election would not
provide, in light of modern communications, adequate time to insure
against such frauds. Accordingly, we find ample justification
for the congressional conclusion that § 202 is a reasonable
means for eliminating an unnecessary burden on the right of interstate
migration. United States v. Guest, supra.
III
The final question presented by these cases is the propriety of
Title III of the 1970 Amendments, which forbids the States from
disenfranchising persons over the age of 18 because of their age.
Congress was of the view that this prohibition, embodied in §
302 of the Amendments, was necessary among other reasons in order
to enforce the Equal Protection Clause of the Fourteenth Amendment.
See §§ 301 (a)(2), (b). The States involved in the present
litigation question the assertion of congressional power to make
that judgment.
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
All parties to these cases are agreed that the States are given
power, under the Constitution, to determine the qualifications
for voting in state elections. Art. I, § 2; Lassiter v. Northampton
Election Board, 360 U.S. 45, 50 (1959); Carrington v. Rash, 380
U.S. 89, 91 (1965). But it is now settled that exercise of this
power, like all other exercises of state power, is subject to
the Equal Protection Clause of the Fourteenth Amendment. Carrington
v. Rash, supra; Harper v. Virginia Board of Elections, 383 U.S.
663 (1966); Kramer v. Union School District, 395 U.S. 621 (1969);
Evans v. Cornman, 398 U.S. 419 (1970). Although it once was thought
that equal protection required only that a given legislative classification,
once made, be evenly applied, see Hayes v. Missouri, 120 U.S.
68, 71-72 (1887), for more than 70 years we have consistently
held that the classifications embodied in a state statute must
also meet the requirements of equal protection. Gulf, C. &
S. F. R. Co. v. Ellis, 165 U.S. 150, 155 (1897); see McLaughlin
v. Florida, 379 U.S. 184, 189-191 (1964), and cases cited.
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. Cf. Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S.
580, 583-584 (1935). " A more exacting standard obtains."
Kramer v. Union School District, 395 U.S., at 633. In such cases,
"the Court must determine whether the exclusions are necessary
to promote a compelling state interest." Id., at 627; Cipriano
v. City of Houma, 395 U.S. 701, 704 (1969).
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, every State permits 18-year-olds to marry, and 39 States
do not require parental consent for such persons of one or both
sexes. 24 State statutory
practice in other areas follows along these lines, albeit not
as consistently. 25
Goldfarb, California Juvenile Court Practice 35-36 (1968). This
may well indicate that the California statute reflects merely
a legislative conclusion that the slight burden of waiver hearings
is outweighed by the possibility, however slight, that a very
few individuals between the ages of 18 and 21 might in fact be
more appropriately treated as juveniles.
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
Whether or not a State could in any circumstances condition exercise
of the franchise upon educational achievements beyond the level
reached by 18-year-olds today, there is no question but that no
State purports to do so. Accordingly, that 18-year-olds as a class
may be less educated than some of their elders 27
cannot justify restriction of the franchise, for the States themselves
have determined that this incremental education is irrelevant
to voting qualifications. And finally, we have been cited to no
material whatsoever that would support the proposition that intelligence,
as opposed to educational attainment, increases between the ages
of 18 and 21.
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-olds in both States
were at least as interested, able, and responsible in voting as
were their elders. 29
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 courts cloaked by the presumption that the legislature has,
as it should, acted within constitutional limitations. Kotch v.
Board of River Port Pilots, 330 U.S. 552, 556, 563-564 (1947);
see Kramer v. Union School District, 395 U.S., at 627-628. Accordingly,
"[a] statutory discrimination will not be set aside as the
denial of equal protection of the laws if any state of facts reasonably
may be conceived to justify it." Metropolitan Cas. Ins. Co.
v. Brownell, 294 U.S., at 584. 30
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 determination of complex factual
questions of the kind so often involved in constitutional adjudication.
Courts, therefore, will overturn a legislative determination of
a factual question only if the legislature's finding is so clearly
wrong that it may be characterized as "arbitrary," "irrational,"
or "unreasonable." Communist Party v. Control Board,
367 U.S. 1, 94-95 (1961); United States v. Carolene Products Co.,
304 U.S. 144, 152-154 (1938); Metropolitan Cas. Ins. Co . v. Brownell,
294 U.S., at 583-584.
Limitations stemming from the nature of the judicial process,
however, have no application to Congress. Section 5 of the Fourteenth
Amendment provides that "the 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.
"Where we find that the legislators, in light of the facts
and testimony before them, have a rational basis for finding a
chosen regulatory scheme necessary . . . our investigation is
at an end." Katzenbach v. McClung, 379 U.S. 294, 303-304
(1964); Katzenbach v. Morgan, 384 U.S., at 653; see Galvan v.
Press, 347 U.S. 522, 529 (1954). 31
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 curiae of
Virginia and, perhaps, Mississippi. 33
We could not accept this thesis even if it were supported by historical
evidence far stronger than anything adduced here today. But in
our view, our Brother HARLAN's historical analysis is flawed by
his ascription of 20th-century meanings to the words of 19th-century
legislators. In consequence, his analysis imposes an artificial
simplicity upon a complex era, and presents, as universal, beliefs
that were held by merely one of several groups competing for political
power. We can accept neither his judicial conclusion nor his historical
premise that the original understanding of the Fourteenth Amendment
left it within the power of the States to deny the vote to Negro
citizens.
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 "we 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, far more is involved than merely shifting the doctrinal
basis of such cases as Nixon v. Herndon from the Fourteenth to
the Fifteenth Amendment. For the Fifteenth Amendment applies only
to voting, not to the holding of public office; in consequence,
our Brother HARLAN's view would appear to leave the States free
to encourage citizens to cast their votes solely on the basis
of race (a practice found to violate the Fourteenth Amendment
in Anderson v. Martin, supra), or even presumably to deny Negro
citizens the right to run for office at all. 34
We cannot believe that the Equal Protection Clause would permit
such discrimination.
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 Lincoln 515-516 (rev. ed. 1951).
Nor would the postwar period of Reconstruction be substantially
different.
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).
The starting point must be the key fact that, as of 1860, the
Republicans were very much the Nation's minority party. Lincoln
had won the Presidency that year with less than 40% of the popular
vote, while the Republicans had secured control of Congress only
when southern Democrats had left Washington following the secession
of their States. The compromise in the original Constitution,
by which only three-fifths of the slaves in Southern States were
computed in determining representation in the House of Representatives
and votes in the electoral college also was a matter of critical
importance in 1865; with slavery abolished, southern and hence
Democratic power in the House and in the electoral college would
increase. The Republicans had calculated this matter rather carefully;
as the Chicago Tribune had demonstrated as early as the summer
of 1865, the increased southern delegation would need only 29
readily obtainable Democratic votes from the North in order to
dominate the House. See James 21-23. But Republicans had no intention
of permitting such a Democratic resurgence to occur; in their
view, as one Republican Senator observed, Republicans would be
"faithless" to their "trust," if they allowed
"men who have thus proven themselves faithless" to recover
"the very political power which they have hitherto used for
the destruction of this Government." Cong. Globe, 39th Cong.,
1st Sess. (hereafter Globe) 2918 (1866) (remarks of Sen. Willey).
Whether one looks upon such sentiments as a grasp for partisan
political power or as an idealistic determination that the gains
of the Civil War not be surrendered, the central fact remains
that Republicans found it essential to bar or at least to delay
the return of all-white southern delegations to Congress.
Temporarily, they proposed to do so by refusing to seat Congressmen
from the seceded States. They usually justified their refusal
on constitutional grounds, presenting a variety of theories as
to how the former Confederate States had forfeited their rights
by secession. See generally E. McKitrick, Andrew Johnson and Reconstruction
93-119 (1960). But exclusion of southern representatives could
not be a permanent solution; a better solution seemed to be to
elect at least some Republican representatives from the South
by enfranchising the only class that could be expected to vote
Republican in large numbers -- the freedmen.
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 as of 1866,
see Van Alstyne, supra, at 70, and extension of the suffrage was
rejected by voters in 17 of 19 popular referenda held on the subject
between 1865 and 1868. Moreover, Republicans suffered some severe
election setbacks in 1867 on account of their support of Negro
suffrage. See W. Gillette, The Right to Vote 25-27, 32-38 (1969).
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 plausibility,
contend that Bingham sought to do no more than substitute for
his earlier specific language more general language which had
already appeared elsewhere in the Constitution. 36
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 Owen which Representative Stevens had
placed before the committee. Its relevant provisions were as follows:
"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 Williams, an Oregon radical, moved to
delete Bingham's section, and his motion was carried by a vote
of 7 to 5, with radicals Howard and Boutwell and Democrats Grider
and Johnson voting for the motion and Stevens, Bingham, and Democrat
Rogers voting against. Bingham then moved to submit his proposal
as a separate amendment, but he was supported by only the three
Democrats on the committee. The committee then agreed to submit
the Owen proposal to Congress with only slight modifications,
but postponed the submission until after one further meeting to
be held three days hence. Id., at 98-100.
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 for Owen's version. Perhaps the changes in
§ 1 of the Amendment were thought by the committee to be
mere linguistic improvements which did not substantially modify
Owen's meaning and which did not extend its coverage to political
as distinguished from civil rights. But, at the very least the
committee must have realized that it was substituting for Owen's
rather specific language Bingham's far more elastic language --
language that, as one scholar has noted, is far more "capable
of growth" and "receptive to 'latitudinarian' construction."
Bickel, The Original Understanding and the Segregation Decision,
69 Harv. L. Rev. 1, 61, 63 (1955). It is, moreover, at least equally
plausible that the committee meant to substitute for Owen's narrow
provision dealing solely with civil rights a broader provision
that had originated and been understood only two months earlier
as protecting equality in the right of suffrage as well as equality
of civil rights.
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 "the
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 as unambiguous as they initially appear
to be. Thus, Howard, with that "lack of legal precision"
typical of the period, stated that the right of suffrage was not
one of the privileges and immunities protected by the Constitution,
Globe 2766, immediately after he had read into the record an excerpt
from the case of Corfield v. Coryell, 6 F. Cas. 546 (No. 3230)
(CCED Pa. 1825), an excerpt which listed the elective franchise
as among the privileges and immunities. Globe 2765. Bingham was
equally ambiguous, for he too thought that the elective franchise
was a constitutionally protected privilege and immunity. Globe
2542. Indeed, at one point in the debates, Bingham made what is
for us a completely incongruous statement:
"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 ought to begin with Art. IV, § 2 --
the Privileges and Immunities Clause of the original Constitution.
In the minds of members of the 39th Congress, the leading case
to construe that clause was Corfield v. Coryell, supra, which
had listed among a citizen's privileges and immunities "the
elective franchise, as regulated and established by the laws or
constitution of the state in which it is to be exercised."
6 F. Cas., at 552. Here again is the same apparent ambiguity that
later occurred in Bingham's thought -- that the franchise is a
federally protected right, but only to the extent it is regulated
and established by state law. The ambiguity was, however, only
apparent and not real, for the Privileges and Immunities Clause
of the original Constitution served a peculiar function; it did
not create absolute rights but only placed a noncitizen of a State
"upon a perfect equality with its own citizens" as to
those fundamental rights already created by state law. Scott v.
Sandford, 19 How. 393, 407 (1857). Accord, id., at 584 (dissenting
opinion). The Privileges and Immunities Clause, that is, was a
sort of equal protection clause adopted for the benefit of out-of-state
citizens; 38 it required,
for example, that if a State gave its own citizens a right to
enter into a lawful business, it could not arbitrarily deny the
same right to out-of-state citizens solely because they came from
out of State. See Ward v. Maryland, 12 Wall. 418, 430 (1871).
Thus, what Bingham may have meant in indicating that the franchise
was included within the scope of the Privileges and Immunities
Clause of the Fourteenth Amendment while remaining entirely under
the control of the States was that, although the States would
be free in general to confer the franchise upon whomever they
chose, Congress would have power to bar them from racial or other
arbitrary discriminations in making their choices. In short, the
Privileges and Immunities Clause might for Bingham have meant
the same as the Equal Protection Clause; as he later explained
in a campaign speech, § 1 was nothing but "a simple,
strong, plain declaration that equal laws and equal and exact
justice shall hereafter be secured within every State of this
Union . . . ." Cincinnati Daily Commercial, Aug. 27, 1866,
quoted in James 160.
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 "the 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. Radical Senator Stewart, for example,
while unhappy that the Amendment did not directly confer suffrage,
nevertheless could "support this plan" because it did
"not preclude Congress from adopting other means by a two-thirds
vote, 39 when experience
shall have demonstrated, as it certainly will, the necessity for
a change of policy. In fact it furnishes a conclusive argument
in favor of universal amnesty and impartial suffrage." Globe
2964. Likewise, the more conservative Congressman Raymond of New
York supported the first section because he thought Congress should
have the power to legislate on behalf of equal rights "in
courts and elsewhere," Globe 2513, after the radical Congressman
Wilson of Iowa had informed him that, "if we give a reasonable
construction to the term 'elsewhere,' we may include in that the
jury-box and the ballot-box." Globe 2505. Congressman Stevens,
meanwhile, was informing Congress that "if this amendment
prevails you must legislate to carry out many parts of it,"
Globe 2544, and was looking forward to "further legislation;
in enabling acts or other provisions," Globe 3148, while
even the Joint Committee submitted the Amendment to the Nation
"in the hope that its imperfections may be cured, and its
deficiencies supplied, by legislative wisdom . . . ." Report
of the Joint Committee on Reconstruction, H. R. Rep. No. 30, 39th
Cong., 1st Sess., xxi (1866). Nor did the radical Republican press
disagree; as the Lansing State Republican argued in its editorial
columns, even "if impartial suffrage, the real vital question
of the whole struggle . . . [was] postponed through the mulish
obstinacy of Andrew Johnson," "freedom" would "triumph
by the adoption of the proposed amendment," which would be
followed by "equal rights to all . . . ." July 11, 1866.
And, of course, once the Amendment had been ratified, Republicans
in Congress began to make speeches in favor of legislation which
would implement the Amendment by guaranteeing equal suffrage.
See, e. g., Cong. Globe, 40th Cong., 2d Sess., 1966-1967 (1868)
(remarks of Cong. Stevens); 3d Sess., 1008 (1869) (remarks of
Sen. Sumner).
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 in denying it to them while granting it to whites.
As the debates make clear, proponents of the Amendment did not
understand the Equal Protection Clause to forbid States to distinguish
among persons where justification for distinctions appeared. See,
e. g., Globe 1064 (Congressman Stevens). At the time the Fourteenth
Amendment was adopted, the overwhelming majority of Negro residents
of the United States were former slaves living in the Southern
States. Most of them were illiterate and uneducated. Except for
those few who had been kidnaped by slave traders after reaching
adulthood, they had no prior experience with the responsibilities
of citizenship. Given this state of affairs, it would hardly be
surprising if some of the framers of the Fourteenth Amendment
felt that the Equal Protection Clause would not forbid the States
from classifying Negroes as a group to be denied the right to
vote. Equal protection has never been thought to require identical
treatment of all persons in all respects. Metropolitan Cas. Ins.
Co. v. Brownell, 294 U.S., at 583-584, and cases cited. It requires
only that the State provide adequate justification for treating
one group differently from another. Levy v. Louisiana, 391 U.S.
68 (1968). Entirely aside from any concepts of racial inequality
that may have been held by some members of Congress at that time,
it seems clear that many members had serious reservations about
the ability of the majority of Negroes, after centuries of slavery,
to cast an intelligent and responsible vote. See, for example,
the debates over a proposal to enfranchise Negroes in the District
of Columbia in Cong. Globe, 38th Cong., 1st Sess., 2140-2141,
2239-2243, 2248 (1864). Of course, we would not now hold that
even the situation existing in 1866 would justify wholesale exclusion
of Negroes from the franchise: our decisions have consistently
held that a particular group may not be denied the right to vote
merely because many, or even most, of its members could properly
be excluded. Carrington v. Rash, 380 U.S., at 93-96; Kramer v.
Union School District, 395 U.S., at 632-633; Evans v. Cornman,
398 U.S., at 424-426; cf. Tussman & TenBroek, The Equal Protection
of the Laws, 37 Calif. L. Rev. 341, 351-352 (1949). But mere administrative
convenience was once thought to be sufficient justification for
an overly broad legislative classification, so long at least as
the resultant discrimination could be justified as to a majority
of the class affected. Terrace v. Thompson, 263 U.S. 197, 218-222
(1923); cf. Kotch v. Board of River Port Pilots, 330 U.S. 552
(1947). Rejection of this approach has been the result of a judicial
development that could hardly have been known to the framers of
the Amendment. Cf. Baxstrom v. Herold, 383 U.S. 107, 114-115 (1966).
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 "we 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 accepted at face value assurances
that the Fourteenth Amendment gave Congress no power over the
suffrage. As a result, at least three identifiable groups may
have existed within the Republican majorities that enacted and
ratified the Amendment -- those who thought that Congress would
have power to insure to Negroes the same right to suffrage as
the States gave to whites, those who thought that Congress would
not have such power since Negroes and whites constituted distinct
and dissimilar classes for voting purposes, and those who thought
Congress would possess no power at all over the suffrage. Perhaps
all three such groups did not exist in 1866 in Congress and in
the Nation at large, but surely the evidence is not clear "beyond
any reasonable doubt" that the only existent group was the
last one, consisting of men who, despite the broad language of
§ 1 and the hints by speakers of its applicability to the
suffrage, simply assumed without developing any analytical framework
in support of their assumption that the section would not be so
applied.
The evidence, in sum, plausibly suggests that the men who framed
the Fourteenth Amendment possessed differing views as to the limits
of its applicability but that they papered over their differences
because those differences were not always fully apparent and because
they could not foresee with precision how their amendment would
operate in the future. Moreover, political considerations militated
against clarification of issues and in favor of compromise. Much
of the North, as already noted, opposed Negro suffrage, and many
Republicans in Congress had to seek re-election from constituencies
where racial prejudice remained rampant. Republicans in the forthcoming
elections thus found it convenient to speak differently before
different constituencies; as the Republican state chairman of
Ohio wrote, in northern counties of the State "some of our
Speakers have openly advocated impartial suffrage, while in other
places it was thought necessary, not only to repudiate it but
to oppose it." Letter from B. R. Cowan to S. P. Chase, Oct.
12, 1866, quoted in James 168. Similarly, Senator Wilson of Massachusetts,
when accused shortly after the 1866 elections of misrepresenting
the issues of the campaign in Delaware by saying nothing of Negro
suffrage, replied that since he had been "in a State where
not much progress had been made, I acted somewhat on the scriptural
principle of giving 'milk to babes.'" Cong. Globe, 39th Cong.,
2d Sess., 42. Apparently Congressman Ashley of Ohio acted upon
similar principles, for when he was asked after the House had
initially approved the Amendment whether Congress had "power
to confer the right of suffrage upon negroes in the States,"
he responded,
"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 ultimately would
support the Amendment, observed that "all the excitement
that had been raised about constitutional amendments . . . has
been simply dust thrown in the eyes of the public to cover the
approach to the grand fundamental, indispensable principle of
universal negro suffrage . . . ." April 27, 1866, quoted
in Harris, supra, at 433.
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 "it 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 "it
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
Fourteenth Amendment as an explicit abandonment of the radical
goal of equal suffrage for Negroes. Rather the evidence suggests
an alternative hypothesis: that the Amendment was framed by men
who possessed differing views on the great question of the suffrage
and who, partly in order to formulate some program of government
and partly out of political expediency, papered over their differences
with the broad, elastic language of § 1 and left to future
interpreters of their Amendment the task of resolving in accordance
with future vision and future needs the issues that they left
unresolved. Such a hypothesis strikes us as far more consistent
with the turbulent character of the times than one resting upon
a belief that the broad language of the Equal Protection Clause
contained a hidden limitation upon its operation that would prevent
it from applying to state action regulating rights that could
be characterized as "political." 41
Nor is such a hypothesis inconsistent with the subsequent enactment
of the Fifteenth, Nineteenth, and Twenty-fourth Amendments. Those
who submitted the Fifteenth Amendment to the States for ratification
could well have desired that any prohibition against racial discrimination
in voting stand upon a firmer foundation than mere legislative
action capable of repeal 42
or the vagaries of judicial decision. 43
Or they could merely have concluded that, whatever might be the
case with other rights, the right to vote was too important to
allow disenfranchisement of any person for no better reason than
that others of the same race might not be qualified. At least
some of the supporters of the Nineteenth Amendment believed that
sex discrimination in voting was itself proscribed by the Fourteenth
Amendment's guarantee of equal protection. 57 Cong. Rec. 3053
(1919). And finally, the Twenty-fourth Amendment was not proposed
to the States until this Court had held, in Breedlove v. Suttles,
302 U.S. 277 (1937), 44 that
state laws requiring payment of a poll tax as a prerequisite to
voting did not ipso facto violate the Equal Protection Clause.
Accordingly, we see no reason that the mere enactment of these
amendments can be thought to imply that their proponents believed
the Fourteenth Amendment did not apply to state allocations of
political power. At a dubious best, these amendments may be read
as implying that their proponents felt particular state allocations
of power a proper exercise of power under the Equal Protection
Clause.
Nor do we find persuasive our Brother HARLAN's argument that §
2 of the Fourteenth Amendment was intended as an exclusive remedy
for state restrictions on the franchise, and that therefore any
such restrictions are permissible under § 1. As Congressman
Bingham emphatically told the House, when the same argument was
made by Congressman Bromwell,
"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 in the event that
both Congress and the courts took no action under § 1. Neither
logic nor historical evidence compellingly suggests that §
2 was intended to be more than a remedy supplementary, and in
some conceivable circumstances indispensable, to other congressional
and judicial remedies available under §§ 1 and 5. See
generally Van Alstyne, supra.
The historical record left by the framers of the Fourteenth Amendment,
because it is a product of differing and conflicting political
pressures and conceptions of federalism, is thus too vague and
imprecise to provide us with sure guidance in deciding the pending
cases. We must therefore conclude that its framers understood
their Amendment to be a broadly worded injunction capable of being
interpreted by future generations in accordance with the vision
and needs of those generations. We would be remiss in our duty
if, in an attempt to find certainty amidst uncertainty, we were
to misread the historical record and cease to interpret the Amendment
as this Court has always interpreted it.
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 Constitutional Amendments conducted
extensive hearings on the matter in 1968 and again in 1970, 47
and the question was discussed at some length on the floor of
both the House and the Senate.
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 presented with evidence that the age of social and
biological maturity in modern society has been consistently decreasing.
Dr. Margaret Mead, an anthropologist, testified that in the past
century, the "age of physical maturity has been dropping
and has dropped over 3 years." 53
Many Senators and Representatives, including several involved
in national campaigns, testified from personal experience that
18-year-olds of today appeared at least as mature and intelligent
as 21-year-olds in the Congressmen's youth. 54
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 under the Equal Protection Clause, and Congress has ample power to forbid it under § 5 of the Fourteenth Amendment. We would uphold § 302 of the 1970 Amendments as a legitimate exercise of congressional power.
---- Begin EndNotes ----
1 Section 202 (a) of the Amendments
embodies a congressional finding 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 opportunities for
absentee registration and absentee balloting in presidential elections
--
. . . .
"(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 Section 301 (a) of the Amendments
provides:
"The Congress finds and declares that the imposition and
application of the requirement that a citizen be twenty-one years
of age as a precondition to voting in any primary or in any election
--
"(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."
3 Arizona Constitution, Art.
7, § 2, limits the franchise to those 21 years of age and
older. Ariz. Rev. Stat. Ann. § 16-101 (Supp. 1970) requires
voters to be able to read the Federal Constitution (in English),
and to write their names.
4 Idaho Constitution, Art.
6, § 2, requires all voters to be 21 years of age or older,
and requires 60 days' residence within the State as a precondition
to voting in presidential elections. Idaho Code § 34-408
(1963) further requires that 60-day residents have been citizens
of another State prior to their removal to Idaho. Provisions for
absentee balloting are contained in id., §§ 34-1101
to 34-1125.
5 Section 4 (c) of the 1965
Act, 42 U. S. C. § 1973b (c) (1964 ed., Supp. V), defines
a "test or device" as "any requirement that a person
as a prerequisite for voting or registration for voting (1) demonstrate
the ability to read, write, understand, or interpret any matter,
(2) demonstrate any educational achievement or his knowledge of
any particular subject, (3) possess good moral character, or (4)
prove his qualifications by the voucher of registered voters or
members of any other class."
6 Gaston County was a suit
by the county under § 4 (a) of the 1965 Act, 42 U. S. C.
§ 1973b (a) (1964 ed., Supp. V), to reinstate the county's
literacy test. The county would have been entitled to do so upon
demonstration that, for the preceding five years, no "test
or device" had been there used for the purpose or with the
effect of abridging the right to vote on account of race or color.
7 We there reserved only the
question of the application of the 1965 Act to suspend literacy
tests "in the face of racially disparate educational or literacy
achievements for which a government bore no responsibility."
395 U.S., at 293 n. 8 (emphasis supplied).
8 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).
9 E. g., Senate Hearings 185-187;
Hearings on the Voting Rights Act Extension before Subcommittee
No. 5 of the House Committee on the Judiciary, 91st Cong., 1st
Sess., ser. 3, pp. 55-57, 223-225 (1969) (hereafter House Hearings).
10 For example, 1960 census
data indicate that from 1955 to 1960, 4,388 blacks moved from
Southern States to Arizona, 74,804 to California, and 74,821 to
New York. Table 100 in 1 1960 Census of Population, pts. 4, 6,
and 34.
11 Senate Hearings 399; see
id., at 400-407.
12 Senate Hearings 678. Tribal
Chairman Nakai viewed Arizona's literacy test as the primary cause
of this disparity.
13 The States are permitted,
should they desire, to adopt practices less restrictive than those
prescribed by the 1970 Amendments. § 202 (g).
14 See n. 4, supra.
15 See the opinion of MR.
JUSTICE DOUGLAS, ante, at 148-150.
16 See Shapiro v. Thompson,
394 U.S., at 630 and n. 8; United States v. Guest, 383 U.S., at
757-758.
17 Senate Hearings 282.
18 116 Cong. Rec. 6991.
19 Ibid. Idaho Code §§
34-1101, 34-1102, 34-1103 appear to allow application to be made
at any time. Id., § 34-1121 allows application up to five
days before the election for persons in United States service.
The ballot may be returned any time prior to noon on election
day, id., § 34-1105 (Supp. 1969). Finally, effective January
1, 1971, applications may be made up to 5 p. m. the day before
the election. Id., § 34-1002 (Supp. 1970). In such circumstances,
the argument of administrative impossibility from the viewpoint
of Idaho seems almost chimerical.
20 Idaho, in addition, claims
that its interest in setting qualifications for voters in its
own elections serves, without more, as a compelling state interest
sufficient to justify the challenged exclusion. But there is no
state interest in the mere exercise of power; the power must be
exercised for some reason. The only reason asserted by Idaho for
the exercise of its power is that already mentioned -- promotion
of intelligent and responsible voting.
21 116 Cong. Rec. 6970 (Library
of Congress, Legislative Reference Service survey).
22 Ibid.
23 Nor does the California
statute, Cal. Welf. & Inst'ns Code § 602 (1966), necessarily
evidence a contrary conclusion. California permits its juvenile
court to waive jurisdiction of persons over the age of 16 to the
regular criminal courts, and state practice appears to be that
very few if any felony defendants over the age of 18 are ever
tried as juveniles. R. Boches & J.
24 116 Cong. Rec. 6970.
25 For example, in California
any woman 18 years old may marry without parental consent, and
any man of that age may marry with the consent of one parent.
Cal. Civ. Code § 4101 (1970). Any married person who has
attained the age of 18 is treated in precisely the same way as
all persons of the age of 21 and over with regard to all provisions
of the Civil Code, Probate Code, and Code of Civil Procedure,
as well as for the purposes of making contracts or entering into
any agreement regarding property or his estate. Cal. Civ. Code
§ 25 (Supp. 1970). The State Labor Department treats males
of the age of 18 and over as adults. Cal. Labor Code §§
1172, 3077 (1955). Persons of the age of 18 and over may serve
civil process in the State. Cal. Civ. Proc. Code § 410 (Supp.
1970).
26 Some States, of course,
do attempt to condition exercise of the franchise upon the ability
to pass a literacy test. Presumably some 18-year-old illiterates
will be literate at 21. But in light of the fact that 81 percent
of the disenfranchised class are high school graduates, it would
seem that the number of 18-year-old illiterates who are literate
three years later is vanishingly small. See Hearings on S. J.
Res. 147 and Others before the Subcommittee on Constitutional
Amendments of the Senate Committee on the Judiciary, 91st Cong.,
2d Sess., 133 (1970) (Sen. Goldwater). Of course, for reasons
that apply as well to 18-year-olds as to others, we have today
upheld a nationwide suspension of all literacy tests. Ante, at
118. But in any event, that some 18-year-olds may be illiterate
is hardly sufficient reason for disenfranchising the entire class.
See Kramer v. Union School District, 395 U.S., at 632-633.
27 Eighteen-year-olds as
a class are better educated than some of their elders. The median
number of school years completed by 18- and 19-year-olds two years
ago was 12.2; it was 8.8 for persons 65 to 74. Bureau of the Census,
Educational Attainment, table 1 (Current Population Reports, Series
P-20, No. 182) (1969).
28 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).
29 See, e. g., 116 Cong.
Rec. 6433-6434 (Sen. Cook), 6929-6930 (Sens. Talmadge and Ervin);
Senate Hearings 343 (Gov. Maddox).
30 The state of facts necessary
to justify a legislative discrimination will of course vary with
the nature of the discrimination involved. When we have been faced
with statutes involving nothing more than state regulation of
business practices, we have often found mere administrative convenience
sufficient to justify the discrimination. E. g., Williamson v.
Lee Optical Co., 348 U.S. 483, 487, 488-489 (1955). But when a
discrimination has the effect of denying or inhibiting the exercise
of fundamental constitutional rights, we have required that it
be not merely convenient, but necessary. Kramer v. Union School
District, 395 U.S., at 627; Carrington v. Rash, 380 U.S., at 96;
see United States v. O'Brien, 391 U.S. 367, 377 (1968); United
States v. Jackson, 390 U.S. 570, 582-583 (1968). And we have required
as well that it be necessary to promote not merely a constitutionally
permissible state interest, but a state interest of substantial
importance. Kramer v. Union School District, supra; Carrington
v. Rash, supra; Shelton v. Tucker, 364 U.S. 479, 487-490 (1960);
see United States v. O'Brien, supra.
31 As we emphasized in Katzenbach
v. Morgan, supra, "§ 5 does not grant Congress power
to . . . enact 'statutes so as in effect to dilute equal protection
and due process decisions of this Court.'" 384 U.S., at 651
n. 10. As indicated above, a decision of this Court striking down
a state statute expresses, among other things, our conclusion
that the legislative findings upon which the statute is based
are so far wrong as to be unreasonable. Unless Congress were to
unearth new evidence in its investigation, its identical findings
on the identical issue would be no more reasonable than those
of the state legislature.
32 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.
33 Brief amicus curiae for
the Commonwealth of Virginia 13-22; see Brief amicus curiae for
the State of Mississippi 7-11.
34 Indeed, since the First
Amendment is applicable to the States only through the Fourteenth,
our Brother HARLAN's view would appear to allow a State to exclude
any unpopular group from the political process solely upon the
basis of its political opinions.
35 Republicans explicitly
looked upon the Fourteenth Amendment as a political platform.
See 2 F. Fessenden, Life and Public Services of William Pitt Fessenden
62 (1907); B. Kendrick, The Journal of the Joint Committee of
Fifteen on Reconstruction 302 (1914). See also infra, at 262.
36 The language appears earlier
in Art. IV, § 2.
37 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.
38 According to Paul v. Virginia,
8 Wall. 168, 180 (1869), the Privileges and Immunities Clause
in Art. 4, § 2, secured to citizens "in other States
the equal protection of their laws."
39 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.
40 This Court had taken such
an approach in Conner v. Elliott, 18 How. 591 (1856).
41 Ironically, the same distinction
between "political" and other rights was drawn by this
Court in Plessy v. Ferguson, 163 U.S. 537, 545-546 (1896). But
the Court there concluded, directly contrary to our Brother HARLAN's
position, that the Fourteenth Amendment applied to "political"
rights and to those rights only.
42 As Thaddeus Stevens had
pointed out in urging passage of the Fourteenth Amendment despite
the fact that, he felt, some of its guarantees could be enforced
by mere legislative enactment, "a law is repealable by a
majority." Globe 2459.
43 Radical disenchantment
with decisions of this Court had led, prior to the Fifteenth Amendment,
to the Act of March 27, 1868, 15 Stat. 44, withdrawing our appellate
jurisdiction over certain habeas corpus cases. See Ex parte McCardle,
7 Wall. 506, 508, 514-515 (1869).
44 Breedlove has been overruled
by Harper v. Virginia Board of Elections, 383 U.S. 663, 669 (1966).
45 For a full collection
of the relevant materials, see Note, Legislative History of Title
III of the Voting Rights Act of 1970, 8 Harv. J. Legis. 123 (1970).
46 See 88 Cong. Rec. 8312,
8316 (1942).
47 Hearings on S. J. Res.
8, 14, and 78 before the Subcommittee on Constitutional Amendments
of the Senate Committee on the Judiciary, 90th Cong., 2d Sess.
(1968); Hearings on S. J. Res. 147 and Others before the Subcommittee
on Constitutional Amendments of the Senate Committee on the Judiciary,
91st Cong., 2d Sess. (1970) (hereafter 1970 Hearings).
48 Supra, at 242-246.
49 See 116 Cong. Rec. 6955;
James, The Age of Majority, 4 Am. J. Legal Hist. 22 (1960); Report
of the Committee on the Age of Majority Presented to the English
Parliament 21 (1967).
50 116 Cong. Rec. 6435.
51 16 Department of Labor,
Bureau of Labor Statistics, Employment and Earnings, table A-3
(June 1970).
52 See also Senate Hearings
323 (Sen. Kennedy), 116 Cong. Rec. 5950-5951 (Sen. Mansfield);
6433 (Sen. Cook). See generally Note, supra, n. 45, at 134-148.
53 1970 Hearings at 223.
Dr. W. Walter Menninger, a psychiatrist, and Dr. S. I. Hayakawa
agreed. Id., at 23, 36.
54 E. g., 116 Cong. Rec.
5950-5951 (Sen. Mansfield); 6433-6434 (Sen. Cook); 6434-6437 (Sen.
Goldwater); 6929-6930 (Sen. Talmadge, joined by Sen. Ervin); 6950-6951
(Sen. Tydings).
55 116 Cong. Rec. 6929.
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