U.S. Supreme Court

Oregon v. Mitchell,400U.S. 112 (1970)Oregon v. Mitchell

No. 43, Orig.

Argued October 19,1970

Decided December 21, 1970400U.S. 112ast|>*

400U.S. 112

ON BILL OFCOMPLAINT

Syllabus

These original actions involve the constitutionality of threeprovisions of the Voting Rights Act Amendments of 1970 which (1)lower the minimum age of voters in both state and federal electionsfrom 21 to 18, (2) bar the use of literacy tests (and similarvoting eligibility requirements) for a five-year period in stateand federal elections in any area where such tests are not alreadyproscribed by the Voting Rights Act of 1965, and (3) forbid Statesfrom disqualifying voters in presidential and vice-presidentialelections for failure to meet state residency requirements andprovide uniform national rules for absentee voting in suchelections.

Held: (1) The 18-year-old minimum-age requirement ofthe Voting Rights Act Amendments is valid for national elections.(2) That requirement is not valid for state and local elections.(3) The literacy test provision is valid. (4) The residency andabsentee balloting provisions are valid. Pp.400 U. S.117-296.

Relief granted in part and denied in part.

MR. JUSTICE BLACK concluded that:

1. Congress has the authority to permit 18-year-old citizens tovote in national elections, under Art. I, § 4, Art. II, § 1, andthe Necessary and Proper Clause, of the Constitution, since thoseprovisions fully empower Congress to make or alter regulations innational elections, to supervise such elections, and to set thequalifications for voters therein. Pp.400 U. S. 117,400 U. S.119-124.

2. But under Art I, § 2, the States have the power to setqualifications to vote in state and local elections, and the wholeConstitution reserves that power to the States except as it hasbeen curtailed by specific constitutional amendments. No amendment(including the Equal Protection Clause of the Fourteenth Amendmentand the other Civil War Amendments) authorizes Congress' attempt tolower the voting age in state and local elections. Pp.400 U. S. 118,400 U. S.124-131.

Page 400 U. S. 113

3. The literacy test ban is constitutional under the EnforcementClauses of the Fourteenth and Fifteenth Amendments, in view of theevidence of racial discrimination that Congress found in variousparts of the Nation: racial discrimination resulting from literacytests, the educational inequality stemming from the "separate butequal" rule, and other racially discriminatory practices. Pp.400 U. S. 118,400 U. S.131-134.

4. The provisions forbidding States from disqualifying voters innational elections for presidential and vice-presidential electorsbecause they have not met state residency requirements andestablishing absentee balloting rules are valid under Congress'broad powers to regulate federal elections and maintain a nationalgovernment.* Pp.400 U. S. 118,400 U. S.134.

MR. JUSTICE DOUGLAS concluded that:*

1. The authority of Congress to fix at 18 the minimum age forthe civil right of voting in national elections derives from theEqual Protection Clause of the Fourteenth Amendment and the powerto "enforce" granted by § 5 of that Amendment. Congress had anadequate basis for concluding that 18-year-olds are mature enoughto vote and that to deprive them of the franchise would be a denialof equal protection. Pp.400 U. S.135-144.

3. The bar against a State's denying the right to vote in anyfederal, state, or local election because of a literacy test issustainable as appropriate legislation to enforce the EqualProtection Clause, Congress having concluded that such tests havebeen used to discriminate against the voting rights of minoritygroups and that the tests are not necessary to ensure that votersbe well informed. Pp.400 U. S.144-147.

4. The right to vote in national elections is a privilege andimmunity of national citizenship and the congressional judgment toban durational residency requirements in presidential andvice-presidential elections is a manifestly permissible means ofenforcing that privilege and immunity under § 5 of the FourteenthAmendment. Pp.400 U. S.147-150.

MR. JUSTICE HARLAN concluded that:*

2. The Fourteenth Amendment was not intended to restrict theauthority of the States to allocate their political power as theysee

Page 400 U. S. 114

fit and neither that Amendment nor any other provision of theConstitution authorizes Congress to set voter qualifications instate or local elections. Pp.400 U. S.154-213.

3. The literacy requirement can be deemed an appropriate meansof enforcing the Fifteenth Amendment since Congress could havedetermined that racial prejudice is prevalent throughout the Nationand that literacy tests unduly lend themselves to discriminatoryapplication. Pp.400 U. S.216-217.

MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALLconcluded that:*

1. Congress has the power to forbid the disenfranchisement innational elections of persons over the age of 18 because of theirage, in order to enforce the Equal Protection Clause of theFourteenth Amendment. There was ample evidence to support Congress'conclusion that the exclusion of citizens 18 to 21 years of agefrom the franchise is unnecessary to promote any legitimateinterest the States may have in assuring intelligent andresponsible voting. Pp.400 U. S.239-281.

3. The congressional determination that a nationwide ban onliteracy tests was necessary to prevent racial discrimination invoting is amply supported by the legislative record, and theproscription of literacy tests is well within the power of Congressgranted by § 2 of the Fifteenth Amendment. Pp.400 U. S.231-236.

4. There is adequate constitutional basis for the residencyprovisions of the Act in § 5 of the Fourteenth Amendment, as thereis ample justification for the congressional findings thatdurational residence requirements abridge the right of freeinterstate migration and that such requirements are not reasonablyrelated to any compelling state interests. Pp.400 U. S.236-239.

MR. JUSTICE STEWART, joined by THE CHIEF JUSTICE and MR. JUSTICEBLACKMUN, concluded that:*

2. Congress has no power to confer the right to vote in state orlocal elections on citizens from the ages of 18 to 21, since underthe Constitution only the States have the power to set votingqualifications. Pp.400 U. S.293-296.

3. The literacy test ban is constitutional under the EnforcementClause of the Fifteenth Amendment. Pp.400 U. S.282-284.

4. The residency provisions of the Act are constitutionalbecause Congress, while it does not have general authority toestablish qualifications for voting in congressional orpresidential elections,

Page 400 U. S. 115

does have the power under the Necessary and Proper Clause toprotect the privileges of United States citizenship, including thefreedom to travel and to change one's residence. Pp.400 U. S.285-292.

BLACK, J., delivered an opinion announcing the judgments of theCourt and expressing his own view of the case. DOUGLAS, J., filed aseparate opinion,post, p.400 U. S. 135.HARLAN, J., filed an opinion concurring in part and dissenting inpart,post, p.400 U. S. 152.BRENNAN, WHITE, and MARSHALL, JJ., filed an opinion dissenting fromthe judgments in part and concurring in the judgments in part,post, p.400 U. S. 229.STEWART, J., filed an opinion concurring in part and dissenting inpart, in which BURGER., C.J., and BLACKMUN, J., joined,post, p.400 U. S.281.

Page 400 U. S. 117

MR. JUSTICE BLACK, announcing the judgments of the Court in anopinion expressing his own view of the cases.

In these suits, certain States resist compliance with the VotingRights Act Amendments of 1970, Pub.L. 91-285, 84 Stat. 314, becausethey believe that the Act takes away from them powers reserved tothe States by the Constitution to control their own elections.[Footnote 1] By its terms, theAct does three things. First: it lowers the minimum age of votersin both state and federal elections from 21 to 18. Second: basedupon a finding by Congress that literacy tests have been used todiscriminate against voters on account of their color, the Actenforces the Fourteenth and Fifteenth Amendments by barring the useof such tests in all elections, state and national, for a five-yearperiod. Third: the Act forbids States from disqualifying voters innational elections for presidential and vice-presidential electorsbecause they have not met state residency requirements.

For the reasons set out in400 U. S. Ibelieve Congress can fix the age of voters in national elections,such as congressional, senatorial, vice-presidential

Page 400 U. S. 118

and presidential elections, but cannot set the voting age instate and local elections. For reasons expressed in separateopinions, my Brothers DOUGLAS, BRENNAN, WHITE, and MARSHALL join mein concluding that Congress can enfranchise 18-year-old citizens innational elections, but dissent from the judgment that Congresscannot extend the franchise to 18-year-old citizens in state andlocal elections. For reasons expressed in separate opinions, myBrothers THE CHIEF JUSTICE, HARLAN, STEWART, and BLACKMUN join mein concluding that Congress cannot interfere with the age forvoters set by the States for state and local elections. They,however, dissent from the judgment that Congress can control voterqualifications in federal elections. In summary, it is the judgmentof the Court that the 18-year-old vote provisions of the VotingRights Act Amendments of 1970 are constitutional and enforceableinsofar as they pertain to federal elections, and unconstitutionaland unenforceable insofar as they pertain to state and localelections.

For the reasons set out in400 U. S. Ibelieve that Congress, in the exercise of its power to enforce theFourteenth and Fifteenth Amendments, can prohibit the use ofliteracy tests or other devices used to discriminate against voterson account of their race in both state and federal elections. Forreasons expressed in separate opinions, all of my Brethren join mein this judgment. Therefore the literacy-test provisions of the Actare upheld.

For the reasons set out in400 U. S. Ibelieve Congress can set residency requirements and provide forabsentee balloting in elections for presidential andvice-presidential electors. For reasons expressed in separateopinions, my Brothers THE CHIEF JUSTICE, DOUGLAS, BRENNAN, STEWART,WHITE, MARSHALL, and BLACKMUN concur in this judgment. MyBrother

Page 400 U. S. 119

HARLAN, for the reasons stated in his separate opinion,considers that the residency provisions of the statute areunconstitutional. Therefore the residency and absentee ballotingprovisions of the Act are upheld.

Let judgments be entered accordingly.

IThe Framers of our Constitution provided in Art. I, § 2, thatmembers of the House of Representatives should be elected by thepeople and that the voters for Representatives should have "theQualifications requisite for Electors of the most numerous Branchof the State Legislature." Senators were originally to be electedby the state legislatures, but, under the Seventeenth Amendment,Senators are also elected by the people, and voters for Senatorshave the same qualifications as voters for Representatives. In thevery beginning, the responsibility of the States for setting thequalifications of voters in congressional elections was madesubject to the power of Congress to make or alter such regulationsif it deemed it advisable to do so. [Footnote 2] This was done in Art. I, § 4, of theConstitution, which provides:

"The Times, Places and Manner of holding Elections for Senatorsand Representatives, shall be

Page 400 U. S. 120

prescribed in each State by the Legislature thereof;but theCongress may at any time by Law make or alter suchRegulations, except as to the Places of chusing Senators."

(Emphasis supplied.) Moreover, the power of Congress to makeelection regulations in national elections is augmented by theNecessary and Proper Clause.SeeMcCulloch v.Maryland, 4 Wheat. 316 (1819). InUnited Statesv. Classic,313 U. S. 299(1941), where the Court upheld congressional power to regulateparty primaries, Mr. Justice Stone, speaking

Page 400 U. S. 121

for the Court, construed the interrelation of these clauses ofthe Constitution, stating:

"While, in a loose sense, the right to vote for representativesin Congress is sometimes spoken of as a right derived from thestates . . . , this statement is true only in the sense that thestates are authorized by the Constitution to legislate on thesubject as provided by § 2 of Art. I, to the extent that Congresshas not restricted state action by the exercise of its powers toregulate elections under § 4 and its more general power underArticle I, § 8, clause 18 of the Constitution 'to make all lawswhich shall be necessary and proper for carrying into execution theforegoing powers.'"

313 U.S. at313 U. S. 315.See also Ex parte Siebold,100 U.S. 371 (1880);Ex parte Yarbrough,110 U.S. 651 (1884);Swafford v. Templeton,185 U. S. 487(1902);Wiley v. Sinkler,179 U. S.58 (1900)

The breadth of power granted to Congress to make or alterelection regulations in national elections, including thequalifications of voters, is demonstrated by the fact that theFramers of the Constitution and the state legislatures whichratified it intended to grant to Congress the power to lay out oralter the boundaries of the congressional districts. In theratifying conventions, speakers

"argued that the power given Congress in Art. I, § 4, was meantto be used to vindicate the people's right to equality ofrepresentation in the House,"

Wesberry v. Sanders,376 U. S. 1,376 U. S. 16(1964), and that Congress would "most probably . . . lay thestate off into districts.'" And inColegrove v. Green,328 U. S. 549(1946), no Justice of this Court doubted Congress' power torearrange the congressional districts according to population; thefight in that case revolved about the judicial power to compelredistricting.

Page 400 U. S. 122

Surely no voterqualification was more important to theFramers than thegeographical qualification embodied inthe concept of congressional districts. The Framers expectedCongress to use this power to eradicate "rotten boroughs,"[Footnote 3] and Congress has,in fact, used its power to prevent States from electing allCongressmen at large. [Footnote4] There can be no doubt that the power to alter congressionaldistrict lines is vastly more significant in its effect than thepower to permit 18-year-old citizens to go to the polls and vote inall federal elections.

Any doubt about the powers of Congress to regulate congressionalelections, including the age and other qualifications of thevoters, should be dispelled by the opinion of this Court inSmiley v. Holm,285 U. S. 355(1932). There, Chief Justice Hughes, writing for a unanimous Court,discussed the scope of congressional power under § 4 at somelength. He said:

"The subject matter is the 'times, places and manner of holdingelections for Senators and Representatives.' It cannot be doubtedthat these comprehensive words embrace authority to provide acomplete code for congressional elections, not only as to times andplaces, but in relation to notices, registration, supervision ofvoting, protection of voters, prevention of fraud and corruptpractices, counting of votes, duties of inspectors and canvassers,and making and publication of election returns; in short, to enactthe numerous requirements as to procedure and safeguards whichexperience shows are necessary in order to enforce the fundamentalright involved. . . ."

"This view is confirmed by the second clause of Article I,section 4, which provides that 'the Congress

Page 400 U. S. 123

may at any time by law make or alter such regulations,' with thesingle exception stated. The phrase 'such regulations' plainlyrefers to regulations of the same general character that thelegislature of the State is authorized to prescribe with respect tocongressional elections. In exercising this power, the Congress maysupplement these state regulations or may substitute its own. . . .It 'has a general supervisory power over the whole subject.'"

Id. at285 U. S.366-367.

In short, the Constitution allotted to the States the power tomake laws regarding national elections, but provided that, ifCongress became dissatisfied with the state laws, Congress couldalter them. [Footnote 5] Anewly created national government could hardly have been expectedto survive without the ultimate power to rule itself and to fillits offices under its own laws. The Voting Rights Act Amendments of1970, now before this Court,

Page 400 U. S. 124

evidence dissatisfaction of Congress with the voting age set bymany of the States for national elections. I would hold, as have along line of decisions in this Court, that Congress has ultimatesupervisory power over congressional elections. [Footnote 6] Similarly, it is the prerogativeof Congress to oversee the conduct of presidential andvice-presidential elections and to set the qualifications forvoters for electors for those offices. It cannot be seriouslycontended that Congress has less power over the conduct ofpresidential elections than it has over congressional elections.[Footnote 7]

On the other hand, the Constitution was also intended topreserve to the States the power that even the Colonies had toestablish and maintain their own separate and independentgovernments, except insofar as the Constitution itself commandsotherwise. My Brother HARLAN has persuasively demonstrated that theFramers of the Constitution intended the States to keep forthemselves,

Page 400 U. S. 125

as provided in the Tenth Amendment, [Footnote 8] the power to regulate elections. My majordisagreement with my Brother HARLAN is that, while I agree as tothe States' power to regulate the elections of their own officials,I believe, contrary to his view, that Congress has the finalauthority over federal elections. No function is more essential tothe separate and independent existence of the States and theirgovernments than the power to determine, within the limits of theConstitution, the qualifications of their own voters for state,county, and municipal offices and the nature of their own machineryfor filling local public offices.Pope v. Williams,193 U. S. 621(194);Minor v.Happersett, 21 Wall. 162 (1875). Moreover, Art. I,§ 2, [Footnote 9] is a clearindication that the Framers intended the States to determine thequalifications of their own voters for state offices, because thosequalifications were adopted for federal offices unless Congressdirects otherwise under Art. I, § 4. It is a plain fact of historythat the Framers never imagined that the national Congress wouldset the qualifications for voters in every election from Presidentto local constable or village alderman. It is obvious that thewhole Constitution reserves to the States the power to set voterqualifications in state and local elections, except to the limitedextent that the people, through constitutional amendments, havespecifically narrowed the powers of the States. AmendmentsFourteen, Fifteen, Nineteen, and Twenty-four, each of which hasassumed that the States had general supervisory power

Page 400 U. S. 126

over state elections, are examples of express limitations on thepower of the States to govern themselves. And the Equal ProtectionClause of the Fourteenth Amendment was never intended to destroythe States' power to govern themselves, making the Nineteenth andTwenty-fourth Amendments superfluous. My Brother BRENNAN's opinion,if carried to its logical conclusion, would, under the guise ofinsuring equal protection, blot out all state power, leaving the 50States as little more than impotent figureheads. In interpretingwhat the Fourteenth Amendment means, the Equal Protection Clauseshould not be stretched to nullify the States' powers overelections which they had before the Constitution was adopted andwhich they have retained throughout our history.

Of course, the original design of the Founding Fathers wasaltered by the Civil War Amendments and various other amendments tothe Constitution. The Thirteenth, Fourteenth, Fifteenth, andNineteenth Amendments have expressly authorized Congress to"enforce" the limited prohibitions of those amendments by"appropriate legislation." The Solicitor General contends in thesecases that Congress can set the age qualifications for voters instate elections under its power to enforce the Equal ProtectionClause of the Fourteenth Amendment.

Above all else, the framers of the Civil War Amendments intendedto deny to the States the power to discriminate against persons onaccount of their race.Loving v. Virginia,388 U. S.1 (1967);Gomillion v. Lightfoot,364 U.S. 339 (1960);Brown v. Board of Education,347 U. S. 483(1954);Slaughter-HouseCases, 16 Wall. 36,83 U. S. 71-72(1873). While this Court has recognized that the Equal ProtectionClause of the Fourteenth Amendment in some instances protectsagainst discriminations

Page 400 U. S. 127

other than those on account of race, [Footnote 10]see Reynolds v. Sims,377 U. S. 533(1964);Hadley v. Junior College District,397 U. S.50 (1970);see also Kotch v. Board of River PortPilots,330 U. S. 552(1947), and cases cited therein, it cannot be successfully arguedthat the Fourteenth Amendment was intended to strip the States oftheir power, carefully preserved in the original Constitution, togovern themselves. The Fourteenth Amendment was surely not intendedto make every discrimination between groups of people aconstitutional denial of equal protection. Nor was the EnforcementClause of the Fourteenth Amendment intended to permit Congress toprohibit every discrimination between groups of people. On theother hand, the Civil War Amendments were unquestionably designedto condemn and forbid every distinction, however trifling, onaccount of race.

To fulfill their goal of ending racial discrimination and toprevent direct or indirect state legislative encroachment on therights guaranteed by the amendments, the Framers gave Congresspower to enforce each of the Civil War Amendments. Theseenforcement powers are broad. InJones v. Alfred H. MayerCo.,392 U. S. 409,392 U. S. 439(1968), the Court held that § 2 of the Thirteenth

Page 400 U. S. 128

Amendment "clothedCongress with power to passall lawsnecessary and proper for abolishing all badges and incidents ofslavery in the United States.'" In construing § 5 of theFourteenth Amendment, the Court has stated:

"It is not said thejudicial power of the generalgovernment shall extend to enforcing the prohibitions and toprotecting the rights and immunities guaranteed. It is not saidthat branch of the government shall be authorized to declare voidany action of a State in violation of the prohibitions.It isthe power of Congress which has been enlarged."

Ex parte Virginia,100 U. S. 339,100 U. S. 345(1880). (Emphasis added in part.) And inSouth Carolina v.Katzenbach,383 U. S. 301(1966) (BLACK, J., dissenting on other grounds), the Court upheldthe literacy test ban of the Voting Rights Act of 1965, 79 Stat.437, under Congress' Fifteenth Amendment enforcement power.

As broad as the congressional enforcement power is, it is notunlimited. Specifically, there are at least three limitations uponCongress' power to enforce the guarantees of the Civil WarAmendments. First, Congress may not by legislation repeal otherprovisions of the Constitution. Second, the power granted toCongress was not intended to strip the States of their power togovern themselves or to convert our national government ofenumerated powers into a central government of unrestrainedauthority over every inch of the whole Nation. Third, Congress mayonly "enforce" the provisions of the amendments, and may do so onlyby "appropriate legislation." Congress has no power under theenforcement sections to undercut the amendments' guarantees ofpersonal equality and freedom from discrimination,seeKatzenbach v. Morgan,384 U. S. 641,384 U. S. 651n.

Page 400 U. S. 129

10 (1966), or to undermine those protections of the Bill ofRights which we have held the Fourteenth Amendment made applicableto the States. [Footnote11]

Of course, we have upheld congressional legislation under theEnforcement Clauses in some cases where Congress has interferedwith state regulation of the local electoral process. InKatzenbach v. Morgan, supra, the Court upheld a statutewhich outlawed New York's requirement of literacy in English as aprerequisite to voting as this requirement was applied to PuertoRicans with certain educational qualifications. The New Yorkstatute overridden by Congress applied to all elections. And inSouth Carolina v. Katzenbach, supra, (BLACK, J.,dissenting on other grounds), the Court upheld the literacy testban of the Voting Rights Act of 1965. That Act proscribed the useof the literacy test in all elections in certain areas. Butdivision of power between state and national governments, likeevery provision of the Constitution, was expressly qualified by theCivil War Amendments' ban on racial discrimination. Where Congressattempts to remedy racial discrimination under its enforcementpowers, its authority is enhanced by the avowed intention of theframers of the Thirteenth, Fourteenth, and Fifteenth Amendments.Cf. Harper v. Virginia Board of Elections,383 U.S. 663,383 U. S. 670(1966) (BLACK, J., dissenting).

Page 400 U. S. 130

In enacting the 18-year-old vote provisions of the Act nowbefore the Court, Congress made no legislative findings that the21-year-old vote requirement was used by the States todisenfranchise voters on account of race. I seriously doubt thatsuch a finding, if made, could be supported by substantialevidence. Since Congress has attempted to invade an area preservedto the States by the Constitution without a foundation forenforcing the Civil War Amendments' ban on racial discrimination, Iwould hold that Congress has exceeded its powers in attempting tolower the voting age in state and local elections. On the otherhand, where Congress legislates in a domain not exclusivelyreserved by the Constitution to the States, its enforcement powerneed not be tied so closely to the goal of eliminatingdiscrimination on account of race.

To invalidate part of the Voting Rights Act Amendments of 1970,however, does not mean that the entire Act must fall, or that theconstitutional part of the 18-year-old vote provision cannot begiven effect. In passing the Voting Rights Act Amendments of 1970,Congress recognized that the limits of its power under theEnforcement Clauses were largely undetermined, and thereforeincluded a broad severability provision:

"If any provision of this Act or the application of anyprovision thereof to any person or circumstance is judiciallydetermined to be invalid, the remainder of this Act or theapplication of such provision to other persons or circumstancesshall not be affected by such determination."

84 Stat. 318. In this case, it is the judgment of the Court thatTitle III, lowering the voting age to 18, is invalid as applied tovoters in state and local elections. It is also the judgment of theCourt that Title III is valid with respect to national elections.We would fail to follow the

Page 400 U. S. 131

express will of Congress in interpreting its own statute if werefused to sever these two distinct aspects of Title III. Moreover,it is a longstanding canon of statutory construction thatlegislative enactments are to be enforced to the extent that theyare not inconsistent with the Constitution, particularly where thevalid portion of the statute does not depend upon the invalid part.See, e.g., Watson v. Buck,313 U.S. 387 (1941);Marsh v. Buck,313 U.S. 406 (1941). Here, of course, the enforcement of the18-year-old vote in national elections is in no way dependent uponits enforcement in state and local elections.

IIIn Title I of the Voting Rights Act Amendments of 1970, Congressextended the provisions of the Voting Rights Act of 1965 which banthe use of literacy tests in certain States upon the finding ofcertain conditions by the United States Attorney General. The Courtupheld the provisions of the 1965 Act over my partial dissent inSouth Carolina v. Katzenbach, supra, andGaston Countyv. United States,395 U. S. 285(1969). The constitutionality of Title I is not raised by any ofthe parties to these suits. [Footnote 12]

In Title II of the Amendments, Congress prohibited until August6, 1975, the use of any test or device resembling a literacy testin any national, state, or local election

Page 400 U. S. 132

in any area of the United States where such test is not alreadyproscribed by the Voting Rights Act of 1965. The State of Arizonamaintains that Title II cannot be enforced to the extent that it isinconsistent with Arizona's literacy test requirement,Ariz.Rev.Stat.Ann. §§ 16-101.A.4, 16-101.A.5 (1956). I would holdthat the literacy test ban of the 1970 Amendments is constitutionalunder the Enforcement Clause of the Fifteenth Amendment, and thatit supersedes Arizona's conflicting statutes under the SupremacyClause of the Federal Constitution. In enacting the literacy testban of Title II, Congress had before it a long history of thediscriminatory use of literacy tests to disfranchise voters onaccount of their race. Congress could have found that, as late asthe summer of 1968, the percentage registration of nonwhite votersin seven Southern States was substantially below the percentageregistration of white voters. [Footnote 13] Moreover, Congress had before it strikingevidence to show that the provisions of the 1965 Act had had, inthe span of four years, a remarkable impact on minority group voterregistration. [Footnote 14]Congress also had evidence to show that voter registration in areaswith large Spanish-American populations was consistently below thestate and national averages. In Arizona, for example, only twocounties out of eight with Spanish surname populations in excess of15% showed a voter registration equal to the state-wide average.[Footnote 15] Arizona alsohas a serious problem of deficient voter registration amongIndians. Congressional

Page 400 U. S. 133

concern over the use of a literacy test to disfranchise PuertoRicans in New York State is already a matter of record in thisCourt.Katzenbach v. Morgan, supra. And as to the Nationas a whole, Congress had before it statistics which demonstratethat voter registration and voter participation are consistentlygreater in States without literacy tests. [Footnote 16]

Congress also had before it this country's history ofdiscriminatory educational opportunities in both the North and theSouth. The children who were denied an equivalent education by the"separate but equal" rule ofPlessy v. Ferguson,163 U. S. 537(1896), overruled inBrown v. Board of Education,347 U. S. 483(1954), are now old enough to vote. There is substantial, if notoverwhelming, evidence from which Congress could have concludedthat it is a denial of equal protection to condition the politicalparticipation of children educated in a dual school system upontheir educational achievement. Moreover, the history of thislegislation suggests that concern with educational inequality wasperhaps uppermost in the minds of the congressmen who sponsored theAct. The hearings are filled with references to educationalinequality. Faced with this and other evidence that literacy testsreduce voter participation in a discriminatory manner not only inthe South but throughout the Nation, Congress was supported bysubstantial evidence in concluding that a nationwide ban onliteracy tests was appropriate to enforce the Civil Waramendments.

Finally, there is yet another reason for upholding the literacytest provisions of this Act. In imposing a nationwide ban onliteracy tests, Congress has recognized a national problem for whatit is -- a seriousnational dilemma that touches everycorner of our land.

Page 400 U. S. 134

In this legislation, Congress has recognized that discriminationon account of color and racial origin is not confined to the South,but exists in various parts of the country. Congress has decidedthat the way to solve the problems of racial discrimination is todeal with nationwide discrimination with nationwide legislation.Compare South Carolina v. Katzenbach, supra, and Gaston Countyv. United States, supra.

IIIIn Title II of the Voting Rights Act Amendments Congress alsoprovided that, in presidential and vice-presidential elections, novoter could be denied his right to cast a ballot because he had notlived in the jurisdiction long enough to meet its residencyrequirements. Furthermore, Congress provided uniform national rulesfor absentee voting in presidential and vice-presidentialelections. In enacting these regulations, Congress was attemptingto insure a fully effective voice to all citizens in nationalelections. What I said in400 U. S.Acting under its broad authority to create and maintain a nationalgovernment, Congress unquestionably has power under theConstitution to regulate federal elections. The Framers of ourConstitution were vitally concerned with setting up a nationalgovernment that could survive. Essential to the survival and to thegrowth of our national government is its power to fill its electiveoffices and to insure that the officials who fill those offices areas responsive as possible to the will of the people whom theyrepresent.

IVOur judgments today give the Federal Government the power theFramers conferred upon it, that is, the final control of theelections of its own officers. Our judgments also save for theStates the power to control state and

Page 400 U. S. 135

local elections which the Constitution originally reserved tothem and which no subsequent amendment has taken from them.[Footnote 17] Thegeneralities of the Equal Protection Clause of the FourteenthAmendment were not designed or adopted to render the Statesimpotent to set voter qualifications in elections for their ownlocal officials and agents in the absence of some specificconstitutional limitations.

* Together with No. 44, Orig.,Texas v. Mitchell, AttorneyGeneral, No. 46, Orig.,United States v. Arizona, andNo. 47, Orig.,United States v. Idaho, also on bills ofcomplaint.

* [NOTE: A numbered category that is used for MR. JUSTICEBLACK's opinion is not repeated below where the opinion beingheadnoted does not concur or concur in the result with respect tothe point involved in that category.]

[Footnote 1]

In Nos. 43, Orig., and 44, Orig., Oregon and Texas,respectively, invoke the original jurisdiction of this Court to suethe United States Attorney General seeking an injunction againstthe enforcement of Title III (18-year-old vote) of the Act. In No.46, Orig., the United States invokes our original jurisdictionseeking to enjoin Arizona from enforcing its laws to the extentthat they conflict with the Act, and directing the officials ofArizona to comply with the provisions of Title II (nationwideliteracy test ban), § 201, 84 Stat. 315, and Title III (18-year-oldvote), §§ 301, 302, 84 Stat. 318, of the Act. In No. 47, Orig., theUnited States invokes our original jurisdiction seeking to enjoinIdaho from enforcing its laws to the extent that they conflict withTitle II (abolition of residency requirements in presidential andvice-presidential elections), § 202, 84 Stat. 316, and Title III(18-year-old vote) of the Act. No question has been raisedconcerning the standing of the parties or the jurisdiction of thisCourt.

[Footnote 2]

Article I, § 4, was a compromise between those delegates to theConstitutional Convention who wanted the States to have finalauthority over the election of all state and federal officers andthose who wanted Congress to make laws governing nationalelections, 2 J. Story, Commentaries on the Constitution of theUnited States 280-292 (1st ed. 1833). The contemporaryinterpretation of this compromise reveals that those who favorednational authority over national elections prevailed. Six Statesincluded in their resolutions of ratification the recommendationthat a constitutional amendment be adopted to curtail the power ofthe Federal Government to regulate national elections. Such anamendment was never adopted.

A majority of the delegates to the Massachusetts ratifyingconvention must have assumed that Art. I, § 4, gave very broadpowers to Congress. Otherwise, that convention would not haverecommended an amendment providing:

"That Congress do not exercise the powers vested in them by the4th section of the 1st article, but in cases where a state shallneglect or refuse to make the regulations therein mentioned, orshall make regulations subversive of the rights of the people to afree and equal representation in Congress, agreeably to theConstitution."

2 J. Elliot's Debates on the Federal Constitution 177 (1876).The speech of Mr. Cabot, one delegate to the Massachusettsconvention, who argued that Art. I, § 4, was "to be as highlyprized as any in the Constitution," expressed a view of the breadthof that section which must have been shared by most of hiscolleagues:

"[I]f the state legislatures are suffered to regulateconclusively the elections of the democratic branch, they may . . .finally annihilate that control of the general government, whichthe people ought always to have. . . ."

Id. at 26.

And Cabot was supported by Mr. Parsons, who added:

"They might make an unequal and partial division of the statesinto districts for the election of representatives, or they mighteven disqualify one third of the electors. Without these power inCongress, the people can have no remedy; but the 4th sectionprovides a remedy, a controlling power in a legislature, composedof senators and representatives of twelve states, without theinfluence of our commotions and factions, who will hearimpartially, and preserve and restore to the people their equal andsacred rights of election."

Id. at 27.

[Footnote 3]

See Wesberry v. Sanders,376 U. S.1,376 U. S. 14-16(1964).

[Footnote 4]

See, e.g., Act of Aug. 8, 1911, 37 Stat. 13.

[Footnote 5]

My Brother STEWART has cited the debates of the ConstitutionalConvention to show that Ellsworth, Mason, Madison, and Franklinsuccessfully opposed granting Congress the power to regulatefederal elections, including the qualifications of voters, in theoriginal Constitution. I read the history of our Constitutiondifferently. Mr. Madison, for example, explained Art. I, § 4, tothe Virginia ratifying convention as follows:

"[I]t was thought that the regulation of time, place, andmanner, of electing the representatives should be uniformthroughout the continent. Some States might regulate the electionson the principles of equality, and others might regulate themotherwise. This diversity would be obviously unjust. . . . Shouldthe people of any state by any means be deprived of the right ofsuffrage, it was judged proper that it should be remedied by thegeneral government."

3 J. Elliot's Debates on the Federal Constitution 367 (1876).And Mr. Mason, who was supposedly successful in opposing a broadgrant of power to Congress to regulate federal elections, stillfound it necessary to support an unsuccessful Virginia proposal tocurb the power of Congress under Art. I, § 4.Id. at403.

[Footnote 6]

See, e.g., Ex parte Siebold,100 U.S. 371 (1880);Ex parte Yarbrough,110 U.S. 651 (1884);United States v. Mosley,238 U. S. 383(1915);United States v. Classic,313 U.S. 299 (1941).

[Footnote 7]

With reference to the selection of the President and VicePresident, Art. II, § 1, provides:

"Each State shall appoint, in such Manner as the Legislaturethereof may direct, a Number of Electors, equal to the whole Numberof Senators and Representatives to which the State may be entitledin the Congress. . . ."

But this Court, inBurroughs v. United States,290 U. S. 534(1934), upheld the power of Congress to regulate certain aspects ofelections for presidential and vice-presidential electors,specifically rejecting a construction of Art. II, § 1, that wouldhave curtailed the power of Congress to regulate such elections.Finally, and most important, inherent in the very concept of asupreme national government with national officers is a residualpower in Congress to insure that those officers represent theirnational constituency as responsively as possible. This powerarises from the nature of our constitutional system of governmentand from the Necessary and Proper Clause.

[Footnote 8]

"The powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved tothe States respectively, or to the people."

U.S.Const., Amdt. X.

[Footnote 9]

"The House of Representatives shall be composed of Memberschosen every second Year by the People of the several States, andthe Electors in each State shall have the Qualifications requisitefor Electors of the most numerous Branch of the StateLegislature."

[Footnote 10]

My Brother BRENNAN relies uponCarrington v. Rash,380 U. S. 89(1965);Cipriano v. City of Houma,395 U.S. 701 (1969); andEvans v. Cornman,398 U. S. 419(1970). These typical equal protection cases, in which I joined,are not relevant or material to our decision in the cases beforeus. The establishment of voter age qualifications is a matter oflegislative judgment which cannot be properly decided under theEqual Protection Clause. The crucial question here is not who isdenied equal protection, but, rather, which political body, stateor federal, is empowered to fix the minimum age of voters. TheFramers intended the States to make the voting age decision in allelections with the provision that Congress could override statejudgments concerning the qualifications of voters in federalelections.

[Footnote 11]

See: the First Amendment,e.g., Gitlow v. NewYork,268 U. S. 652(1925);Cantwell v. Connecticut,310 U.S. 296 (1940);Edwards v. South Carolina,372 U. S. 229(1963); the Fourth Amendment,Mapp v. Ohio,367 U.S. 643 (1961); the Fifth Amendment,Chicago, B.& Q. R. Co. v. Chicago,166 U. S. 226(1897);Malloy v. Hogan,378 U. S. 1 (1964);Benton v. Maryland,395 U. S. 784(1969); the Sixth Amendment,Gideon v. Wainwright,372 U. S. 335(1963);Pointer v. Texas,380 U.S. 400 (1965);Klopfer v. North Carolina,386 U. S. 213(1967);Duncan v. Louisiana,391 U.S. 145 (1968); and the Eighth Amendment,Robinson v.California,370 U. S. 660(1962).

[Footnote 12]

Yuma County, Arizona, is presently subject to the literacy testban of the Voting Rights Act of 1965 pursuant to a determination ofthe Attorney General under § 4(a) of the 1965 Act. I do notunderstand Arizona to contest the application of the 1965 Act orits extension to that county. Arizona "does not question" Congress'authority to enforce the Fourteenth and Fifteenth Amendments "whenCongress possesses aspecial legislative competence'"; andcitesSouth Carolina v. Katzenbach,383 U.S. 301 (1966), andKatzenbach v. Morgan,384 U. S. 641(1966), with approval. Answer and Brief for Arizona, No. 46, Orig.,O.T. 1970.

[Footnote 13]

Hearings on H.R. 4249, H.R. 5538, and Similar Proposals beforeSubcommittee No. 5 of the House Committee on the Judiciary, 91stCong., 1st Sess., Ser. 3, p. 14 (1969).

[Footnote 14]

Id. at 93.

[Footnote 15]

Hearings on S. 818, S. 2456, S. 2507, and Title IV of S. 2029before the Subcommittee on Constitutional Rights of the SenateCommittee on the Judiciary, 91st Cong., 1st and 2d Sess., 406(1969-1970).

[Footnote 16]

Id. at 401.

[Footnote 17]

That these views are not novel is demonstrated by Mr. JusticeStory in his Commentaries on the Constitution of the United States,vol. 2, pp. 284-285 (1st ed. 1833):

"There is, too, in the nature of such a provision [Art. I, § 4],something incongruous, if not absurd. What would be said of aclause introduced into the national constitution to regulate thestate elections of the members of the state legislatures? It wouldbe deemed a most unwarrantable transfer of power, indicating apremeditated design to destroy the state governments. It would bedeemed so flagrant a violation of principle, as to require nocomment. It would be said, and justly, that the state governmentsought to possess the power of self-existence and self-organization,independent of the pleasure of the national government.Whydoes not the same reasoning apply to the national government?What reason is there to suppose, that the state governments will bemore true to the Union, than the national government will be to thestate governments?"

(Emphasis added.) (Footnote omitted.)

MR. JUSTICE DOUGLAS.

I dissent from the judgments of the Court insofar as theydeclare § 302 of the Voting Rights Act, 84 Stat. 318,unconstitutional as applied to state elections and concur in thejudgments as they affect federal elections, but for differentreasons. I rely on the Equal Protection Clause and on thePrivileges and Immunities Clause of the Fourteenth Amendment.

IThe grant of the franchise to 18-year-olds by Congress is, in myview, valid across the board.

Page 400 U. S. 136

I suppose that, in 1920, when the Nineteenth Amendment wasratified giving women the right to vote, it was assumed by mostconstitutional experts that there was no relief by way of the EqualProtection Clause of the Fourteenth Amendment. InMinor v.Happersett, 21 Wall. 162, the Court held in the1874 Term that a State could constitutionally restrict thefranchise to men. While the Fourteenth Amendment was relied upon,the thrust of the opinion was directed at the Privileges andImmunities Clause with a subsidiary reference to the Due ProcessClause. It was much later, indeed not until the 1961 Term -- nearlya century after the Fourteenth Amendment was adopted -- thatdiscrimination against voters on groundsother than racewas struck down.

The first case in which this Court struck down a statute underthe Equal Protection Clause of the Fourteenth Amendment wasStrauder v. West Virginia,100 U.S. 303, decided in the 1879 Term. [Footnote 2/1] In the 1961 Term, we squarely held thatthe manner of apportionment of members of a state legislatureraised a justiciable question under the Equal Protection Clause,Baker v. Carr,369 U. S. 186.That case was followed by numerous others,e.g.: that oneperson could not be given twice or 10 times the voting power ofanother person in a state-wide election merely because he lived ina rural area or

Page 400 U. S. 137

in the smallest rural county; [Footnote 2/2] that the principle of equality applied toboth Houses of a bicameral legislature; [Footnote 2/3] that political parties receive protectionunder the Equal Protection Clause just as voters do. [Footnote 2/4]

The reapportionment cases, however, are not quite in point here,though they are the target of my Brother HARLAN's dissent. Hispainstaking review of the history of the Equal Protection Clauseleads him to conclude that "political" rights are not protected,though "civil" rights are protected. The problem of what questionsare "political" has been a recurring issue in this Court from thebeginning, and we recently reviewed them all inBaker v. Carr,supra, and inPowell v. McCormack,395 U.S. 486.Baker v. Carr was a reapportionmentcase, andPowell v. McCormack involved the exclusion fromthe House of Representatives of a Congressman. The issue of"political" question versus "justiciable" question was arguedpro andcon in those cases, and my Brother HARLANstated inBaker v. Carr, 369 U.S. at369 U.S. 330et seq., and onrelated occasions (Gray v. Sanders,372 U.S. 368,372 U. S. 382;Wesberry v. Sanders,376 U. S. 1,376 U. S. 20;Reynoldsv.

Page 400 U. S. 138

Sims,377 U. S. 533,377 U.S. 589) his views onthe constitutional dimensions of the "political" question in thesetting of the reapportionment problem.

Those cases involved the question whether legislatures must beso structured as to reflect with approximate equality the voice ofevery voter. The ultimate question was whether, absent a properapportionment by the legislature, a federal court could itself makean apportionment. That kind of problem raised issues irrelevanthere. Reapportionment, as our experience shows, presented a tangleof partisan politics in which geography, economics, urban life,rural constituencies, and numerous other nonlegal factors playvarying roles. The competency of courts to deal with them waschallenged. Yet we held the issues were justiciable. None of thoseso-called "political" questions are involved here.

This case, so far as equal protection is concerned, is no whitdifferent from a controversy over a state law that disqualifieswomen from certain types of employment,Goesaert v.Cleary,335 U. S. 464, orthat imposes a heavier punishment on one class of offender than onanother whose crime is not intrinsically different.Skinner v.Oklahoma,316 U. S. 535. Theright to vote is, of course, different in one respect from theother rights in the economic, social, or political field which, asindicated in the400U.S. 112app|>Appendix to this opinion, are under the EqualProtection Clause. The right to vote is a civil right deeplyembedded in the Constitution. Article I, § 2, provides that theHouse is composed of members "chosen . . . by the People" and theelectors "shall have the Qualifications requisite for Electors ofthe most numerous Branch of the State Legislature." The SeventeenthAmendment states that Senators shall be "elected by the people."The Fifteenth Amendment speaks of the "right of citizens of theUnited States to vote" -- not only in federal

Page 400 U. S. 139

but in state elections. The Court inEx parteYarbrough,110 U. S. 651,110 U. S. 665,stated:

"This new constitutional right was mainly designed for citizensof African descent. The principle, however, that the protection ofthe exercise of this right is within the power of Congress, is asnecessary to the right of other citizens to vote as to the coloredcitizen, and to the right to vote in general as to the right to beprotected against discrimination."

It was in that tradition that we said inReynolds v. Sims,supra, at377 U. S.555,

"The right to vote freely for the candidate of one's choice isof the essence of a democratic society, and any restrictions onthat right strike at the heart of representative government."

This "right to choose, secured by the Constitution,"UnitedStates v. Classic,313 U. S. 299,313 U. S. 315,is a civil right of the highest order. Voting concerns "political"matters; but the right is not "political" in the constitutionalsense. Interference with it has given rise to a long and consistentline of decisions by the Court; and the claim has always beenupheld as justiciable. [Footnote2/5] Whatever distinction may have been made, following theCivil War, between "civil" and "political" rights, has passed intohistory. InHarper v. Virginia Board of Elections,383 U. S. 663,383 U. S. 669,we stated: "Notions of what constitutes equal treatment forpurposes of the Equal Protection Clause do change." That statementis in harmony with my view of the Fourteenth Amendment, asexpressed by my Brother BRENNAN:

"We must therefore conclude that its framers understood theirAmendment to be a broadly worded injunction capable of beinginterpreted

Page 400 U. S. 140

by future generations in accordance with the vision and needs ofthose generations."

Post at400 U. S. 278.Hence, the history of the Fourteenth Amendment tendered by myBrother HARLAN is irrelevant to the present problem.

Since the right is civil and not "political," it is protected bythe Equal Protection Clause of the Fourteenth Amendment which inturn, by § 5 of that Amendment, can be "enforced" by Congress.

InCarrington v. Rash,380 U. S.89, we held that Texas could not bar a person, otherwisequalified, from voting merely because he was a member of the armedservices. Occupation, we held, when used to bar a person fromvoting, was that invidious discrimination which the EqualProtection Clause condemns. InEvans v. Cornman,398 U. S. 419, weheld that a State could not deny the vote to residents of a federalenclave when it treated them as residents for many other purposes.InHarper v. Virginia Board of Elections, 383 U.S. at383 U. S. 666,we held a State could not in harmony with the Equal ProtectionClause keep a person from voting in state elections because of "theaffluence of the voter or payment of any fee." InKramer v.Union School District,395 U. S. 621, weheld that a person could not be barred from voting in school boardelections merely because he was a bachelor. So far as the EqualProtection Clause was concerned, we said that the line betweenthose qualified to vote and those not qualified turns on whetherthose excluded have "a distinct and direct interest in the schoolmeeting decisions."Id. at395 U. S. 632.InCipriano v. City of Houma,395 U.S. 701, we held that a state law which gave only"property taxpayers" the right to vote on the issuance of revenuebonds of a municipal utility system violated equal protection as"the benefits and burdens of the bond issue fall indiscriminatelyon property owner and nonproperty owner alike."Id. at395 U. S. 705.And only on June 23, 1970, we held inPhoenix v.Kolodziejski,399 U. S. 204,that

Page 400 U. S. 141

it violates equal protection to restrict those who may vote ongeneral obligation bonds to real property taxpayers. We looked tosee if there was any "compelling state interest" in the votingrestrictions. We held that "nonproperty owners" are not"substantially less interested in the issuance of these securitiesthan are property owners,"id. at399 U. S. 212,and that, presumptively,

"when all citizens are affected in important ways by agovernmental decision subject to a referendum, the Constitutiondoes not permit weighted voting or the exclusion of otherwisequalified citizens from the franchise. [Footnote 2/6]"

Id. at399 U. S. 209.And as recently as November 9, 1970, we summarily affirmed adistrict court decision (310 F.Supp. 1172) on the basis ofKolodzejski.Parish School Board of St. Charles v.Stewart, post, p. 884, where Louisiana gave a vote onmunicipal bond issues only to "property taxpayers."

The powers granted Congress by § 5 of the Fourteenth Amendmentto "enforce" the Equal Protection Clause are "the same broad powersexpressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18."Katzenbach v. Morgan,384 U. S. 641,384 U. S. 650.As we stated in that case,

"Correctly viewed, § 5 is a positive grant of legislative powerauthorizing Congress to exercise its discretion in determiningwhether and what legislation is needed to secure the guarantees ofthe Fourteenth Amendment."

Id. at384 U. S.651.

Congress might well conclude that a reduction in the voting agefrom 21 to 18 was needed in the interest of equal protection. TheAct itself brands the denial of

Page 400 U. S. 142

the franchise to 18-year-olds as "a particularly unfairtreatment of such citizens in view of the national defenseresponsibilities imposed" on them. §.301(a)(1), Voting Rights Act,84 Stat. 318. The fact that only males are drafted while the voteextends to females as well is not relevant, for the femalecomponent of these families or prospective families is also caughtup in war, and hit hard by it. Congress might well believe that menand women alike should share the fateful decision.

It is said, why draw the line at 18? Why not 17? Congress candraw lines, and I see no reason why it cannot conclude that18-year-olds have that degree of maturity which entitles them tothe franchise. They are

"generally considered by American law to be mature enough tocontract, to marry, to drive an automobile, to own a gun, and to beresponsible for criminal behavior as an adult. [Footnote 2/7]"

Moreover, we are advised that, under state laws, mandatoryschool attendance does not, as a matter of practice, extend beyondthe age of 18. On any of these items, the States, of course, haveleeway to raise or lower the age requirements. But voting is "afundamental matter in a free and democratic society,"Reynoldsv. Sims,377 U. S. 533,377 U. S.561-562. Where

"fundamental rights and liberties are asserted under the EqualProtection Clause, classifications which might invade or restrainthem must be closely scrutinized and carefully confined."

Harper v. Virginia Board of Elections,383 U.S. 663,383 U. S. 670.There, we were speaking of state restrictions on those rights.Here, we are dealing with the right of Congress to "enforce" theprinciples of equality enshrined in the Fourteenth Amendment. Theright to "enforce" granted by § 5 of that Amendment is, as noted,parallel with the Necessary and Proper Clause, whose reach ChiefJustice Marshall described inMcCullochv.

Page 400 U. S. 143

Maryland, 4 Wheat. 316,17 U. S.421:

"Let the end be legitimate, let it be within the scope of theconstitution, and all means which are appropriate, which areplainly adapted to that end, which are not prohibited, but consistwith the letter and spirit of the constitution, areconstitutional."

Equality of voting by all who are deemed mature enough to voteis certainly consistent "with the letter and spirit of theconstitution." Much is made of the fact that Art. I, § 4, of theConstitution [Footnote 2/8] gaveCongress only the power to regulate the "Manner of holdingElections," not the power to fix qualifications for voting inelections. But the Civil War Amendments -- the Thirteenth,Fourteenth, and Fifteenth -- made vast inroads on the power of theStates. Equal protection became a standard for state action andCongress was given authority to "enforce" it.See Katzenbach v.Morgan,384 U. S. 641,384 U. S. 647.The manner of enforcement involves discretion; but that discretionis largely entrusted to the Congress, not to the courts. If racialdiscrimination were the only concern of the Equal ProtectionClause, then across-the-board voting regulations set by the Stateswould be of no concern to Congress. But it is much too late inhistory to make that claim, as the cases listed in the Appendix tothis opinion show. Moreover, election inequalities created by statelaws and based on factors other than race may violate the EqualProtection Clause, as we have held over and over again. The reachof § 5 to "enforce" equal protection by eliminating electioninequalities would seem quite broad. Certainly there is

Page 400 U. S. 144

not a word of limitation in § 5 which would restrict itsapplicability to matters of race alone. And if, as stated inMcCulloch v. Maryland, the measure of the power ofCongress is whether the remedy is consistent "with the letter andspirit of the constitution," we should have no difficulty here. Wesaid inGray v. Sanders,372 U. S. 368,372 U. S.381:

"The conception of political equality from the Declaration ofIndependence, to Lincoln's Gettysburg Address, to the Fifteenth,Seventeenth, and Nineteenth Amendments can mean only one thing --one person, one vote."

It is a reasoned judgment that those who have such a large"stake" in modern elections as 18-year-olds, whether, in times ofwar or peace, should have political equality. As was made plain inthe dissent inColegrove v. Green,328 U.S. 549,328 U. S. 566(whose reasoning was approved inGray v. Sanders,372 U. S. 368,372 U. S.379), the Equal Protection Clause does service toprotect the right to vote in federal as well as in stateelections.

I would sustain the choice which Congress has made.

III likewise find the objections that Arizona and Idaho make tothe literacy and residence requirements of the 1970 Act to beinsubstantial.

Literacy. We held inLassiter v. NorthamptonElection Board,360 U. S. 45, thata State could apply a literacy test in selecting qualified votersprovided the test is not "discriminatory" and does not contravene"any restriction that Congress, acting pursuant to itsconstitutional powers, has imposed."Id. at360 U. S. 51.The question in these cases is whether Congress has the power under§ 5 of the Fourteenth Amendment to bar literacy tests in allfederal, state, or local elections.

Section 201 bars a State from denying the right to vote in anyfederal, state, or local election because of "any

Page 400 U. S. 145

test or device" which is defined,inter alia, toinclude literacy. [Footnote 2/9] Wetraveled most of the distance needed to sustain this Act inKatzenbach v. Morgan,384 U. S. 641,where we upheld the constitutionality of an earlier Act whichprohibited the application of English literacy tests to personseducated in Puerto Rico. The power of Congress in § 5 to "enforce"the Equal Protection Clause was sufficiently broad, we held, toenable it to abolish voting requirements which might pass musterunder the Equal Protection Clause, absent an Act of Congress.Id. at384 U. S.648-651.

The question, we said, was whether the Act of Congress was"appropriate legislation to enforce the Equal ProtectionClause":

"It was well within congressional authority to say that thisneed of the Puerto Rican minority for the vote warranted federalintrusion upon any state interests served by the English literacyrequirement. It was for Congress, as the branch that made thisjudgment, to assess and weigh the various conflictingconsiderations -- the risk or pervasiveness of the discriminationin governmental services, the effectiveness of eliminating thestate restriction on the right to vote as a means of dealing withthe evil, the adequacy or availability of alternative remedies, andthe nature and significance of the state interests that would beaffected by the nullification of the English literacy requirementas applied to residents who have successfully completed

Page 400 U. S. 146

the sixth grade in a Puerto Rican school. It is not for us toreview the congressional resolution of these factors. It is enoughthat we be able to perceive a basis upon which the Congress mightresolve the conflict as it did."

Id. at384 U. S.653.

We also held that the Act might be sustained as an attack on theEnglish language test as a device to discriminate.Id. at384 U. S. 654.And we went on to say that Congress might have concluded that,

"as a means of furthering the intelligent exercise of thefranchise, an ability to read or understand Spanish is as effectiveas ability to read English for those to whom Spanish languagenewspapers and Spanish language radio and television programs areavailable to inform them of election issues and governmentalaffairs."

Id. at384 U. S.655.

We took a further step toward sustaining the present type of lawinGaston County v. United States,395 U.S. 285. That decision involved a provision of the VotingRights Act of 1965 which suspended the use of any "test or device,"including literacy, as a prerequisite to registration in a Statewhich was found by the Attorney General and the Director of theCensus to have used it in any election on November 1, 1964, and inwhich less than 50% of the residents of voting age were registeredor had voted. [Footnote 2/10]Gaston County, North Carolina, was so classified, and its literacytest was thereupon suspended. In a suit to remove the ban, wesustained it. We noted that Congress had concluded that

"the County deprived its black residents of equal educationalopportunities, which in turn deprived them of an equal chance topass the literacy test."

Id. at395 U. S. 291.Congress, it was argued, should have employed a formula based oneducational disparities between the races or one based on

Page 400 U. S. 147

literacy rates.Id. at395 U. S. 292.But the choice of appropriate remedies is for Congress, and therange of available ones is wide. It was not a defect in the formulathat some literate Negroes would be turned out by Negroschools.

"It is only reasonable to infer that, among black childrencompelled to endure a segregated and inferior education, fewer willachieve any given degree of literacy than will theirbetter-educated white contemporaries. And on the Government'sshowing, it was certainly proper to infer that Gaston County'sinferior Negro schools provided many of its Negro residents with asubliterate education, and gave many others little inducement toenter or remain in school."

Id. at395 U. S.295-296.

By like reasoning, Congress in the present legislation need notmake findings as to the incidence of literacy. It can rely on thefact that most States do not have literacy tests; that the testshave been used at times as a discriminatory weapon against someminorities, not only Negroes, but Americans of Mexican ancestry,and American Indians; that radio and television have made itpossible for a person to be well informed even though he may not beable to read and write. We know from the legislative history thatthese and other desiderata influenced Congress in the choice itmade in the present legislation; and we certainly cannot say thatthe means used were inappropriate.

Residence. The residency requirements of § 202 relateonly to elections for President and Vice President. Section 202abolishes durational residency [Footnote 2/11] and provides

Page 400 U. S. 148

for absentee voting provided that registration may be required30 days prior to the election. The effect of § 202 is to reduce allstate durational residency requirements to 30 days.

In presidential elections no parochial interests of the State,county, or city are involved. Congress found that a durationalresidency requirement "in some instances has the impermissiblepurpose or effect of denying citizens the right to vote." §202(a)(4). It found in § 202(a)(3) that a durational residencyrequirement denies citizen their privileges and immunities.[Footnote 2/12]

The Seventeenth Amendment states that Senators shall be "electedby the people." Article I, § 2, provides

Page 400 U. S. 149

that the House shall be chosen "by the People of the severalStates." The right to vote for national officers is a privilege andimmunity of national citizenship.Ex parte Yarbrough,110 U. S. 651;In re Quarles,158 U. S. 532,158 U. S. 534;Twining v. New Jersey,211 U. S. 78,211 U. S. 97;Burroughs v. United States,290 U.S. 534;United States v. Classic,313 U.S. 299,313 U. S. 315.[Footnote 2/13]

Page 400 U. S. 150

The Fourteenth Amendment provides that: "No State shall make orenforce any law which shall abridge the privileges or immunities ofcitizens of the United States." Durational residency laws of theStates had such effect, says Congress. The "choice of means" toprotect such a privilege presents "a question primarily addressedto the judgment of Congress."Burroughs v. United States,supra, at290 U. S. 547.The relevance of the means which Congress adopts to the conditionsought to be remedied, the degree of their necessity, and theextent of their efficacy are all matters for Congress.Id.at290 U. S.548.

The judgment which Congress has made respecting the ban ofdurational residency in presidential elections is plainly apermissible one in its efforts under § 5 to "enforce" theFourteenth Amendment.

|400U.S. 112app|

APPENDIX TO OPINION OF DOUGLAS, J.

Cases which have struck down state statutes under the EqualProtection Clause other than statutes which discriminate on thebasis of race.

STATUTES WHICH DISCRIMINATED

AGAINST CERTAIN BUSINESSES

Gulf, C. & S. F. R. Co. v. Ellis,165 U.S. 150;Atchison, T. & S. F. R. Co. v.Vosburg,238 U. S. 56(railroad must pay attorney fees if it loses suit, but otherbusinesses need not).Kentucky Finance Corp. v. Paramount AutoExchange,262 U. S. 544;Power Co. v. Saunders,274 U. S. 490(burdens placed upon out-of-state corporations in litigation).

STATUTES WHICH FAVORED CERTAIN BUSINESSES

Connolly v. Union Sewer Pipe Co.,184 U.S. 540 (exemption from state antitrust law foragricultural goods);Smith v. Cahoon,283 U.S. 553 (act exempting certain motor vehicles frominsurance requirements);Mayflower

Page 400 U. S. 151

Farms v. Ten Eyck,297 U. S. 266 (actallowing certain milk dealers to sell at lower than the regulatedprice);Hartford Co. v. Harrison,301 U.S. 459 (statute permitting mutual, but not stock,insurance companies to act through salaried representatives), andMorey v. Dowd,354 U. S. 457(American Express exempted from licensing requirements applied to"currency exchanges").

TAXING STATUTES STRUCK DOWN

Concordia Ins. Co. v. Illinois,292 U.S. 535;Iowa-Des Moines Bank v. Bennett,284 U. S. 239;Cumberland Coal Co. v. Board,284 U. S.23;Quaker City Cab Co. v. Pennsylvania,277 U. S. 389;Louisville Gas Co. v. Coleman,277 U. S.32;Hanover Fire Ins. Co. v. Harding,272 U. S. 494;Schlesinger v. Wisconsin,270 U.S. 230;Sioux City Bridge v. Dakota County,260 U. S. 441;F. S. Royster Guano Co. v. Virginia,253 U.S. 412; andSouthern R. Co. v. Greene,216 U. S. 400.

TREATMENT OF CONVICTED CRIMINALS

Rinaldi v. Yeager,384 U. S. 305(statute requiring unsuccessful criminal appellants who were injail to pay cost of trial transcript);Baxstrom v. Herold,383 U. S. 107(statute denying convict a sanity hearing before a jury prior tocivil commitment); andSkinner v. Oklahoma,316 U.S. 535 (sterilization of some convicts).

INDIGENTSDouglas v. California,372 U.S. 353 (Rule of Criminal Procedure which did not providecounsel for appeal to indigents); andShapiro v. Thompson,394 U. S. 618(denial of welfare benefits based on residency requirement).

LEGITIMACY

Glona v. American Guarantee Co.,391 U. S.73 (mother denied right to sue for wrongful death ofillegitimate

Page 400 U. S. 152

child); andLevy v. Louisiana,391 U. S.68 (illegitimate children denied recovery for wrongfuldeath of mother).

ALIENS

Truax v. Raich,239 U. S. 33(statute limiting the number of aliens that could be employed to20%); andTakahshi v. Fish & Game Commission,334 U. S. 410(denial of fishing rights to aliens ineligible forcitizenship).

[Footnote 2/1]

Strauder was tried for murder. He had sought removal to federalcourts on the ground that,

"by virtue of the laws of the State of West Virginia, no coloredman was eligible to be a member of the grand jury or to serve on apetit jury in the State."

Id. at100 U. S. 304.He was convicted of murder, and the West Virginia Supreme Courtaffirmed. This Court held the West Virginia statute limiting juryduty to whites only unconstitutional:

"We do not say that within the limits from which it is notexcluded by the amendment a State may not prescribe thequalifications of its jurors, and in so doing make discriminations.. . . [The aim of the Fourteenth Amendment] was againstdiscrimination because of race or color."

100 U.S. at100 U. S.310.

[Footnote 2/2]

Gray v. Sanders,372 U. S. 368;Davis v. Mann,377 U. S. 678;Swann v. Adams,385 U. S. 440;Kilgarlin v. Hill,386 U. S. 120;Avery v. Midland County,390 U. S. 474;Moore v. Ogilvie,394 U. S. 814;Hadley v. Junior College District,397 U. S.50.

[Footnote 2/3]

Reynolds v. Sims,377 U. S. 533;WMCA v. Lomenzo,377 U. S. 633;Roman v. Sincock,377 U. S. 695.

[Footnote 2/4]

Williams v. Rhodes,393 U. S. 23. Wealso held in federal elections that the command of Art. I, § 2, ofthe Constitution that representatives be chosen "by the People ofthe several States" means that, "as nearly as is practicable oneman's vote in a congressional election is to be worth as much asanother's,"Wesberry v. Sanders,376 U. S.1,376 U.S. 7-8,and that that meant "vote-diluting discrimination" could not beaccomplished "through the device of districts containing widelyvaried numbers of inhabitants."Id. at376 U. S. 8;Lucas v. Colorado General Assembly,377 U.S. 713;Kirkpatrick v. Preisler,394 U.S. 526;Wells v. Rockefeller,394 U.S. 542.

[Footnote 2/5]

Ex parte Siebold,100 U. S. 371;Ex parte Yarbrough,110 U. S. 651;Guinn v. United States,238 U. S. 347;United States v. Mosley,238 U. S. 383;Lane v. Wilson,307 U. S. 268;United States v. Classic,313 U.S. 299;United States v. Saylor,322 U.S. 385.

[Footnote 2/6]

We noted that general obligation bonds may be satisfied not fromreal property taxes, but from revenues from other local taxes paidby nonowners of property as well as those who own realty. Moreover,we noted that property taxes paid initially by property owners areoften passed on to tenants or customers. 399 U.S. at399 U. S.209-211.

[Footnote 2/7]

Engdahl, Constitutionality of the Voting Age Statute, 39Geo.Wash.L.Rev. 1, 36 (1970).

[Footnote 2/8]

Article I, § 4, provides:

"[1] The Times, Places and Manner of holding Elections forSenators and Representatives, shall be prescribed in each State bythe Legislature thereof; but the Congress may at any time by Lawmake or alter such Regulations, except as to the Places of chusingSenators."

"[2] The Congress shall assemble at least once in every Year,and such Meeting shall be on the first Monday in December, unlessthey shall by Law appoint a different Day."

[Footnote 2/9]

Section 201(b) defines "test or device" as

"any requirement that a person as a prerequisite for voting orregistration for voting (1) demonstrate the ability to read, write,understand, or interpret any matter, (2) demonstrate anyeducational achievement or his knowledge of any particular subject,(3) possess good moral character, or (4) prove his qualificationsby the voucher of registered voters or members of any otherclass."

84 Stat. 315.

[Footnote 2/10]

The constitutionality of that procedure has been sustained inSouth Carolina v. Katzenbach,383 U.S. 301.

[Footnote 2/11]

This Court upheld durational residency requirements as appliedin presidential and vice-presidential elections absent an Act ofCongress.See Drueding v. Devlin, 234 F.Supp. 721 (Md.1964),aff'd,380 U.S. 125. Subsequently we vacated as moot a casepresenting the same question.Hall v. Beals,396 U. S.45. The district courts have been faced with the issueof durational residency requirements as they would be applied tocongressional elections. Two have concluded the requirement isconstitutional.Howe v. Brown, 319 F.Supp. 862 (ND Ohio 1970);Cocanower v.Marston, 318 F.Supp. 402 (Ariz.1970). Additionally, one other court hasrefused a preliminary injunction in a case presenting the issue.Piliavin v. Hoel, 320 F. Supp.66 (WD Wis.1970). Some district courts, however, believe thatDrueding cannot stand (absent an Act of Congress) afterCarrington v. Rash,380 U. S. 89;Kramer v. Union School District,395 U.S. 621;Cipriano v. City of Houma,395 U.S. 701, andPhoenix v. Kolodziejski,399 U. S. 204.Accordingly, they have held durational residency requirements forcongressional elections (and by implication presidential elections)violate the Equal Protection Clause.See Burg v.Canniffe, 315 F.Supp. 380 (Mass.1970);Blumstein v. Ellington, ___F.Supp. ___ (MD Tenn.1970);Hadnott v.Amos, 320 F.Supp. 107 (MD Ala.1970);Bufford v.Holton, 319 F.Supp. 843 (ED Va.1970).

In none of these cases was an Act of Congress involved.

[Footnote 2/12]

Article IV, § 2, of the Constitution provides:

"The Citizens of each State shall be entitled to all Privilegesand Immunities of Citizens in the several States."

The Forteenth Amendment provides in § 1 that: "No State shallmake or enforce any law which shall abridge the privileges orimmunities of citizens of the United States."

[Footnote 2/13]

The cases relied on by my Brother HARLANpost at400 U. S. 214,are not to the contrary.Snowden v. Hughes,321 U. S.1,321 U. S. 7,states:

"The right to become a candidate forstate office, likethe right to vote for the election ofstate officers . . .is a right or privilege of state citizenship."

(Emphasis added.) ArguablyMinor v.Happersett, 21 Wall. 162, is to the contrary, butto the extent its dicta indicated otherwise, it was limited inEx parte Yarbrough.Breedlove v. Suttles,302 U. S. 277,overruled byHarper v. Virginia Board of Elections,383 U. S. 663,involved a poll tax applied in both federal and state elections; iterroneously citedYarbrough for the proposition voting isnot a privilege and immunity of national citizenship.Pope v.Williams,193 U. S. 621,involved durational residency requirements, but expressly reservedthe question of their application to presidential andvice-presidential elections. Our holdings concerning privileges andimmunities of national citizenship were analyzed less than fiveyears ago by my Brother HARLAN. After referring toEx parteYarbrough, andUnited States v. Classic, he statedthat those cases

"are essentially concerned with the vindication of importantrelationships with the Federal Government --voting in federalelections, involvement in federal law enforcement,communicating with the Federal Government."

United States v. Guest,383 U.S. 745,383 U. S. 772(separate opinion) (emphasis added).

Contrary to the suggestion of my Brother HARLAN,postat400 U. S. 213,we need not rely on the power of Congress to declare the meaning of§ 1 of the Fourteenth Amendment. This Court had determined thatvoting for national officers is a privilege and immunity ofnational citizenship. No congressional declaration was necessary.Congressional power under § 5 of the Fourteenth Amendment is, asstated, buttressed by congressional power under the Necessary andProper Clause. Thus, even if the durational residency requirementsdo not violate the Privileges and Immunities Clause, Congress candetermine that it is necessary and proper to abolish them innational elections to effectuate and further the purpose of § 1 asit has been declared by this Court.

MR. JUSTICE HARLAN, concurring in part and dissenting inpart.

From the standpoint of this Court's decisions during an era ofjudicial constitutional revision in the field of the suffrage,ushered in eight years ago byBaker v. Carr,369 U.S. 186 (1962), I would find it difficult not to sustainall three aspects of the Voting Rights Act Amendments of 1970,Pub.L. 91-285, 84 Stat. 314, here challenged. From the standpointof the bedrock of the constitutional structure of this Nation,these cases bring us to a crossroad that is marked with aformidable "Stop" sign. That sign compels us to pause before weallow those decisions to carry us to the point of sanctioningCongress' decision to alter state-determined voter qualificationsby simple legislation, and to consider whether sound doctrine doesnot, in truth, require us to hold that one or more of the changeswhich Congress has thus sought to make can be accomplished only byconstitutional amendment.

The four cases require determination of the validity of theVoting Rights Act Amendments in three respects. In Nos. 43, Orig.,and 44, Orig., Oregon and Texas have sought to enjoin theenforcement of § 302 of the Act as applied to lower the voting agein those States from 21 to 18. [Footnote 3/1]

Page 400 U. S. 153

In Nos. 46, Orig., and 47, Orig., the United States seeks adeclaration of the validity of the Act and an injunction requiringArizona and Idaho to conform their laws to it. The Act would lowerthe voting age in each State from 21 to 18. It would suspend untilAugust 6, 1975, the Arizona literacy test, which requires thatapplicants for registration be able to read the United StatesConstitution in English and write their names. It would requireIdaho to make several changes in its laws governing residency,registration, and absentee voting in presidential elections. Amongthe more substantial changes, Idaho's present 60-day stateresidency requirement will, in effect, be lowered to 30 days; its30-day county residency requirement for intrastate migrants will beabolished; Idaho will have to permit voting by citizens of otherStates formerly domiciled in Idaho who emigrated too recently toregister in their new homes; and it must permit absenteeregistration and voting by persons who have lived in Idaho for lessthan six months. The relevant provisions of the Act and of theconstitutions and laws of the four States are set out in an400U.S. 112app2|>Appendix to this opinion.

Each of the States contests the power of Congress to enact theprovisions of the Act involved in its suit. [Footnote 3/2] The Government places primary reliance onthe power of Congress under § 5 of the Fourteenth Amendment toenforce the provisions of that Amendment by appropriate

Page 400 U. S. 154

legislation. For reasons to follow, I am of the opinion that theFourteenth Amendment was never intended to restrict the authorityof the States to allocate their political power as they see fit,and therefore that it does not authorize Congress to set voterqualifications, in either state or federal elections. I find noother source of congressional power to lower the voting age asfixed by state laws, or to alter state laws on residency,registration, and absentee voting, with respect to either state orfederal elections. The suspension of Arizona's literacyrequirement, however, can be deemed an appropriate means ofenforcing the Fifteenth Amendment, and I would sustain it on thatbasis.

IIt is fitting to begin with a quotation from one of the leadingmembers of the 39th Congress, which proposed the FourteenthAmendment to the States in 1866:

"Every Constitution embodies the principles of its framers. Itis a transcript of their minds. If its meaning in any place is opento doubt, or if words are used which seem to have no fixedsignification, we cannot err if we turn to the framers; and theirauthority increases in proportion to the evidence which they haveleft on the question."

Cong.Globe, 39th Cong., 1st Sess., 677 (1866) (Sen. Sumner).Believing this view to be undoubtedly sound, I turn to thecircumstances in which the Fourteenth Amendment was adopted forenlightenment on the intended reach of its provisions. This, forme, necessary undertaking has unavoidably led to an opinion of morethan ordinary length. Except for those who are willing to closetheir eyes to constitutional history in making constitutionalinterpretations or who read such history with a preconceiveddetermination to attain a particular constitutional

Page 400 U. S. 155

goal, I think that the history of the Fourteenth Amendment makesit clear beyond any reasonable doubt that no part of thelegislation now under review can be upheld as a legitimate exerciseof congressional power under that Amendment.

A. Historical Setting [Footnote3/3]

The point of departure for considering the purpose and effect ofthe Fourteenth Amendment with respect to the suffrage should be, Ithink, the preexisting provisions of the Constitution. Article I, §2, provided that, in determining the number of Representatives towhich a State was entitled, only three-fifths of the slavepopulation should be counted. [Footnote3/4] The section also provided that the qualifications ofvoters for such Representatives should be the same as thoseestablished by the States for electors of the most numerous branchof their respective legislatures. Article I, § 4, provided that,subject to congressional veto, the States might prescribe thetimes, places, and manner of holding elections for Representatives.Article II, § 1, provided that the States might direct the mannerof choosing electors for President and Vice President, except thatCongress might fix a uniform time for the choice. [Footnote 3/5] Nothing in the original

Page 400 U. S. 156

Constitution controlled the way States might allocate theirpolitical power except for the guarantee of a Republican Form ofGovernment, which appears in Art. IV, § 4. [Footnote 3/6] No relevant changes in the constitutionalstructure were made until after the Civil War.

At the close of that war, there were some four million freedslaves in the South, none of whom was permitted to vote. The whitepopulation of the Confederacy had been overwhelmingly sympatheticwith the rebellion. Since there was only a comparative handful ofpersons in these States who were neither former slaves norConfederate sympathizers, the place where the political powershould be lodged was a most vexing question. In a series ofproclamations in the summer of 1865, President Andrew Johnson hadlaid the groundwork for the States to be controlled by the whitepopulations which had held power before the war, eliminating onlythe leading rebels and those unwilling to sign a loyalty oath.[Footnote 3/7] The Radicals, on theother hand, were ardently in favor of Negro suffrage as essentialto prevent resurgent rebellion, requisite to protect the freedmen,and necessary to ensure continued Radical control of thegovernment. This ardor cooled as it ran into northern racialprejudice. At that time, only six States -- Maine, New Hampshire,Vermont, Massachusetts, Rhode Island, and New York -- permittedNegroes to vote, and New York imposed special property andresidency requirements on Negro voters. [Footnote 3/8] In referenda late that year, enfranchisingproposals

Page 400 U. S. 157

were roundly beaten in Connecticut, Wisconsin, Minnesota, theTerritory of Colorado, and the District of Columbia. Gillette,supra,400U.S. 112fn3/3|>n. 3, at 25-26. Such popular rebuffs led theRadicals to pull in their horns and hope for a protracted processof reconstruction during which the North could be educated to theadvisability of Negro suffrage, at least for the South. In themeantime, of course, it would be essential to bar southernrepresentation in Congress lest a combination of southerners andDemocrats obtain control of the government and frustrate Radicalgoals.

The problem of congressional representation was acute. With thefreeing of the slaves, the Three-Fifths Compromise ceased to haveany effect. While predictions of the precise effect of the changevaried with the person doing the calculating, the consensus wasthat the South would be entitled to at least 15 new members ofCongress, and, of course, a like number of new presidentialelectors. The Radicals had other rallying cries which they keptbefore the public in the summer of 1865, but one author gives thisdescription of the mood as Congress convened: [Footnote 3/9]

"Of all the movements influencing the Fourteenth Amendment whichdeveloped prior to the first session of the Thirty-ninth Congress,that for Negro suffrage was the most outstanding. The volume ofprivate and public comment indicates that it was viewed as an issueof prime importance. The cry for a changed basis of representationwas, in reality, subsidiary to this, and was meant by Radicals tosecure in another way what Negro suffrage might accomplish forthem: removal of the danger of Democratic dominance as aconsequence of Southern restoration. The danger of possiblerepudiation of the national obligations, and assumption of therebel

Page 400 U. S. 158

debt, was invariably presented to show the need for Negrosuffrage or a new basis of representation. Sentiment fordisqualification of ex-Confederates, though a natural growth, wellsuited such purposes. The movement to guarantee civil rights,sponsored originally by the more conservative Republicans, receivedemphasis from Radicals only when state elections indicated thatsuffrage would not serve as a party platform."

When Congress met, the Radicals, led by Thaddeus Stevens, weresuccessful in obtaining agreement for a Joint Committee onReconstruction, composed of 15 members, to

"inquire into the condition of the States which formed theso-called confederate States of America, and report whether they,or any of them, are entitled to be represented in either House ofCongress. . . ."

Cong.Globe, 39th Cong., 1st Sess., 30, 46 (1865) (hereafterGlobe).

All papers relating to representation of the Southern Stateswere to be referred to the Committee of Fifteen without debate. Theresult, which many had not foreseen, was to assert congressionalcontrol over Reconstruction and at the same time to put thecongressional power in the hands of a largely Radical secretcommittee.

The Joint Committee began work with the beginning of 1866, andin due course reported a joint resolution, H.R. 51, to amend theConstitution. The proposal would have based representation anddirect taxes on population, with a proviso that

"whenever the elective franchise shall be denied or abridged inany State on account of race or color, all persons of such race orcolor shall be excluded from the basis of representation."

Globe 351. The result, if the Southern States did not providefor Negro suffrage, would be a decrease in southernrepresentation

Page 400 U. S. 159

in Congress and the electoral college by some 24 seats fromtheir pre-war position instead of an increase of 15. The House,although somewhat balky, approved the measure after lengthy debate.Globe 538. The Senate proved more intractable. An odd combinationof Democrats, moderate Republicans, and extreme Radicals combinedto defeat the measure, with the Radicals basing their oppositionlargely on the fear that the proviso would be read to authorizeracial voter qualifications, and thus prevent Congress fromenfranchising the freedmen under powers assertedly granted by otherclauses of the Constitution.See, e.g., Globe 67687 (Sen.Sumner).

At about this same time the Civil Rights Bill and the SecondFreedmen's Bureau Bill were being debated. Both bills provided alist of rights secured, not including voting. [Footnote 3/10] Senator Trumbull, who reported theCivil Rights Bill on behalf of the Senate Judiciary Committee,stated: "I do not want to bring up the question of negro suffragein the bill." Globe 606. His House counterpart exhibited the samereluctance. Globe 1162 (Cong. Wilson of Iowa). Despite considerableuncertainty as to the constitutionality of the measures, bothultimately passed. In the midst of the Senate debates on the basisof representation, President Johnson vetoed the Freedmen's BureauBill, primarily on constitutional grounds. This veto, which wasnarrowly sustained, was followed shortly by the President's bitterattack on Radical Reconstruction in his Washington's Birthdayspeech. These two actions, which were followed a month later by theveto of the Civil Rights Bill, removed any lingering hopes amongthe Radicals that Johnson would support them in a thoroughgoingplan of reconstruction. By the same token, they increased theRadicals' need for an

Page 400 U. S. 160

articulated plan of their own to be put before the country inthe upcoming elections as an alternative to the course thePresident was taking.

The second major product of the Reconstruction Committee, beforethe resolution which became the Fourteenth Amendment, was aproposal to add an equal rights provision to the Constitution. Thismeasure, H.R. 63, which foreshadowed § 1 of the FourteenthAmendment, read as follows:

"The Congress shall have power to make all laws which shall benecessary and proper to secure to the citizens of each State allprivileges and immunities of citizens in the several States, and toall persons in the several States equal protection in the rights oflife, liberty, and property."

Globe 1034.

It was reported by Congressman Bingham of Ohio, who lateropposed the Civil Rights Bill because he believed itunconstitutional. Globe 1292-1293. The amendment immediately raninto serious opposition in the House, and the subject was dropped.[Footnote 3/11]

Such was the background of the Fourteenth Amendment. Congress,at loggerheads with the President over Reconstruction, had not comeup with a plan of its own after six months of deliberations; bothfriends and foes prodded it to develop an alternative. TheReconstruction Committee had been unable to produce anything whichcould even get through Congress, much less obtain the adherence ofthree-fourths of the States. The Radicals, committed to Negrosuffrage, were confronted with widespread public opposition to thatgoal and the necessity for a reconstruction plan that could doservice as a party platform in the elections that fall. Thelanguage

Page 400 U. S. 161

of the Fourteenth Amendment must be read with awareness that itwas designed in response to this situation.

B. The Language of the Amendment and ReconstructionMeasures

Sections 1 and 2 of the Fourteenth Amendment as originallyreported read as follows: [Footnote3/12]

"SEC. 1. No State shall make or enforce any law which shallabridge the privileges or immunities of citizens of the UnitedStates; nor shall any State deprive any person of life, liberty, orproperty without due process of law; nor deny to any person withinits jurisdiction the equal protection of the laws."

"SEC. 2. Representatives shall be apportioned among the severalStates which may be included within this Union, according to theirrespective numbers, counting the whole number of persons in eachState, excluding Indians not taxed. But whenever,

Page 400 U. S. 162

in any State, the elective franchise shall be denied to anyportion of its male citizens not less than twenty-one years of age,or in any way abridged except for participation in rebellion orother crime, the basis of representation in such State shall bereduced in the proportion which the number of such male citizensshall bear to the whole number of male citizens not less thantwenty-one years of age."

Globe 2286.

In the historical context, no one could have understood thislanguage as anything other than an abandonment of the principle ofNegro suffrage, for which the Radicals had been so eager. By thesame token, the language could hardly have been understood asaffecting the provisions of the Constitution placing votingqualifications in the hands of the States. Section 1 must have beenseen as little more than a constitutionalization of the 1866 CivilRights Act, concededly one of the primary goals of that portion ofthe Amendment. [Footnote3/13]

While these conclusions may, I think, be confidently asserted,it is not so easy to explain just how contemporary observers wouldhave construed the three clauses of § 1 to reach this result.[Footnote 3/14] No doubt in thecase of

Page 400 U. S. 163

many congressmen it simply never occurred to them that theStates' longstanding plenary control over voter qualificationswould be affected without explicit language to that effect. Andsince no speaker during the debates on the Fourteenth Amendmentpursued the contention that § 1 would be construed to include thefranchise, those who took the opposite view rarely explained howthey arrived at their conclusions.

In attempting to unravel what was seldom articulated, theappropriate starting point is the fact that the framers of theAmendment expected the most significant portion of § 1 to be theclause prohibiting state laws "which shall abridge the privilegesor immunities of citizens of the United States." These privilegeswere no doubt understood to include the ones set out in the firstsection of the Civil Rights Act. To be prohibited by law fromenjoying these rights would hardly be consistent with fullmembership in a civil society.

The same is not necessarily true with respect to prohibitions onparticipation in the political process. Many members of Congressaccepted the jurisprudence of the day, in which the rights of manfell into three categories: natural, civil, and political. Theprivileges of citizens, being "civil" rights, were distinct fromthe rights arising from governmental organization, which werepolitical in character. [Footnote3/15] Others no doubt relied on

Page 400 U. S. 164

the experience under the similar language of Art. IV, § 2, whichhad never been held to guarantee the right to vote. The remarks ofSenator Howard of Michigan, who, as spokesman for the JointCommittee, explained in greater detail than most why the Amendmentdid not reach the suffrage, contain something of each view.See Globe 2766, quotedinfra at 187; nn. 56 and57,infra; cf. Blake v. McClung,172 U.S. 239,172 U. S. 256(1898) (dictum).

Since the Privileges and Immunities Clause was expected to bethe primary source of substantive protection, the Equal Protectionand Due Process Clauses were relegated to a secondary role, as thedebates and other contemporary materials make clear. [Footnote 3/16] Those clauses, whichappear on their face to correspond with the latter portion of § 1of the Civil Rights Act,see400U.S. 112fn3/13|>n. 13,supra, and to be primarilyconcerned with person and property, would not have been expected toenfranchise the freedmen if the Privileges and Immunities Clausedid not.

Other members of Congress no doubt saw § 2 of the proposedAmendment as the Committee's resolution of the related problems ofsuffrage and representation. Since that section did not provide forenfranchisement, but simply reduced representation fordisfranchisement, any doubts about the effect of the broad languageof § 1 were removed. Congressman Bingham, who was primarilyresponsible for the language of § 1,

Page 400 U. S. 165

stated this view. Globe 2542, quotedinfra at400 U. S. 185.Finally, characterization of the Amendment by such figures asStevens and Bingham in the House and Howard in the Senate, notcontested by the Democrats except in passing remarks, was no doubtsimply accepted by many members of Congress; they, repeating it,gave further force to the interpretation, with the result that, aswill appear below, not one speaker in the debates on the FourteenthAmendment unambiguously stated that it would affect state voterqualifications, and only three, all opponents of the measure, canfairly be characterized as raising the possibility. [Footnote 3/17] Further evidence of thisoriginal understanding can be found in later events.

The 39th Congress, which proposed the Fourteenth Amendment, alsoenacted the first Reconstruction Act, c. 153, 14 Stat. 428 (1867).This Act required, as a condition precedent to readmission of theSouthern States, that they adopt constitutions providing that theelective franchise should be enjoyed by all male citizens over theage of 21 who had been residents for more than one year and werenot disfranchised for treason or common law felony; even so, noState would be readmitted until a legislature elected under the newConstitution had ratified the proposed Fourteenth Amendment andthat Amendment had become part of the Constitution.

The next development came when the ratification drive in theNorth stalled. After a year had passed during which only oneNorthern State had ratified the proposed Fourteenth Amendment,Arkansas was readmitted to the Union by the Act of June 22, 1868,15

Page 400 U. S. 166

Stat. 72. This readmission was based on the "fundamentalcondition" that the state constitution should not be amended torestrict the franchise, except with reference to residencyrequirements. Three days later, the Act of June 25, 1868, 15 Stat.73, held out a promise of similar treatment to North Carolina,South Carolina, Louisiana, Georgia, Alabama, and Florida if theywould ratify the Fourteenth Amendment. By happy coincidence, theassent of those six States was just sufficient to complete theratification process. It can hardly be suggested, therefore, thatthe "fundamental condition" was exacted from them as a measure ofcaution lest the Fourteenth Amendment fail of ratification.

The 40th Congress, not content with enfranchisement in theSouth, proposed the Fifteenth Amendment to extend the suffrage tonorthern Negroes.See Gillette, supra,400U.S. 112fn3/3|>n. 3, at 46. This fact alone is evidence thatthey did not understand the Fourteenth Amendment to haveaccomplished such a result. Less well known is the fact that the40th Congress considered and very nearly adopted a proposedamendment which would have expressly prohibited not onlydiscriminatory voter qualifications but discriminatoryqualifications for office as well. Each House passed such a measureby the required two-thirds margin. Cong.Globe, 40th Cong., 3dSess., 1318, 1428 (1869). A conference committee, composed ofSenators Stewart and Conkling and Representatives Boutwell,Bingham, and Logan, struck out the office-holding provision,id. at 1563, 1593, and, with Inauguration Day only a weekaway, both Houses accepted the conference report.Id. at1564, 1641.See generally Gillette 58-77. While thereasons for these actions are unclear, it is unlikely that theywere provoked by the idea that the Fourteenth Amendment covered thefield; such a rationale seemingly would have made the enfranchisingprovision itself unnecessary.

Page 400 U. S. 167

The 41st Congress readmitted the remaining three States of theConfederacy. The admitting act in each case recited good faithratification of the Forteenth and Fifteenth Amendments, and imposedthe fundamental conditions that the States should not restrict theelective franchise, [Footnote3/18] and

"[t]hat it shall never be lawful for the said State to depriveany citizen of the United States, on account of his race, color, orprevious condition of servitude, of the right to hold office underthe constitution and laws of said State."

Act of Jan. 26, 1870, c. 10, 16 Stat. 62, 63 (Virginia); Act ofFeb. 23, 1870, c.19, 16 Stat. 67, 68 (Mississippi); Act of Mar. 30,1870, c. 39, 16 Stat. 80, 81 (Texas).

These materials demonstrate not only that § 1 of the FourteenthAmendment is susceptible of an interpretation that it does notreach suffrage qualifications, but that this is the interpretationgiven by the immediately succeeding Congresses. Such aninterpretation is the most reasonable reading of the section inview of the background against which it was proposed and adopted,particularly the doubts about the constitutionality of the CivilRights Act, the prejudice in the North against any recognition ofthe principle of Negro suffrage, and the basic constitutionalstructure of leaving suffrage qualifications with the States.[Footnote 3/19] If any furtherclarification were

Page 400 U. S. 168

needed, one would have thought it provided by the second sectionof the same Amendment, which specifically contemplated that theright to vote would be denied or abridged by the States on racialor other grounds. As a unanimous Court once asked, "Why this, if itwas not in the power of the [state] legislature to deny the rightof suffrage to some male inhabitants?"Minor v.Happersett, 21 Wall. 162,88 U. S. 174(1875).

The Government suggests that the list of protectedqualifications in § 2 is "no more than descriptive of voting lawsas they then stood." Brief for the United States, Nos. 4, Orig.,and 47, Orig., 75. This is wholly inaccurate. Aside from racialrestrictions, all States had residency requirements, and many hadliteracy, property, or taxation qualifications. On the other hand,several of the Western States permitted aliens to vote if they hadsatisfied certain residency requirements and had declared

Page 400 U. S. 169

their intention to become citizens. [Footnote 3/20] It hardly seems necessary to observethat the politicians who framed the Fourteenth Amendment werefamiliar with the makeup of the electorate. In any event, thecongressional debates contain such proof in ample measure.[Footnote 3/21]

Assuming, then, that § 2 represents a deliberate selection ofthe voting qualifications to be penalized, what is the point of it?The Government notes that "it was intended -- although it has neverbeen used -- to provide a remedy against exclusion of the newlyfreed slaves from the vote." Brief for the Defendant, Nos. 43,Orig., and 44, Orig., 20. Undoubtedly this was the primary purpose.But the framers of the Amendment, with their attention thus focusedon racial voting qualifications, could hardly have been unaware of§ 1. If they understood that section to forbid such qualifications,the simple means of penalizing this conduct would have been toimpose a reduction of representation for voting discrimination inviolation of § 1. Their adoption instead of the awkward phrasing of§ 2 is therefore significant.

To be sure, one might argue that § 2 is simply a rhetoricalflourish, and that the qualifications listed there are merely theones which the framers deemed to be consistent with the allegedprohibition of § 1. This argument is not only unreasonable on itsface and untenable in light of the historical record; it is fatalto the validity of the reduction of the voting age in § 302 of theAct before us.

The only sensible explanation of § 2, therefore, is that theracial voter qualifications it was designed to penalize

Page 400 U. S. 170

were understood to be permitted by § 1 of the FourteenthAmendment. The Amendment was a halfway measure, adopted to deprivethe South of representation until it should enfranchise thefreedmen, but to have no practical effect in the North. It waspolitically acceptable precisely because of its regionalconsequences and its avoidance of an explicit recognition of theprinciple of Negro suffrage. As my Brother BLACK states:

"[I]t cannot be successfully argued that the FourteenthAmendment was intended to strip the States of their power,carefully preserved in the original Constitution, to governthemselves."

Ante at400 U. S. 127.The detailed historical materials make this unmistakably clear.

C. The Joint Committee

The first place to look for the understanding of the framers ofthe Fourteenth Amendment is the Journal of the Joint Committee onReconstruction. [Footnote 3/22]The exact sequence of the actions of this Committee presumably hadlittle or no effect on the members of Congress who were not on theCommittee, for the Committee attempted to keep its deliberationssecret, [Footnote 3/23] and theJournal itself was lost for nearly 20 years. [Footnote 3/24] Nevertheless the Journal, althoughonly a record of proposals and votes, illustrates the thoughts ofthose leading figures of Congress who were members and participatedin the drafting of the Amendment.

Two features emerge from such a review with startling clarity.First, the Committee regularly rejected explicitly

Page 400 U. S. 171

enfranchising proposals in favor of plans which would postponeenfranchisement, leave it to congressional discretion, or abandonit altogether. Second, the abandonment of Negro suffrage as a goalexactly corresponded with the adoption of provisions to reducerepresentation for discriminatory restrictions on the ballot.

This correspondence was present from the start. Five plans wereproposed to deal with representation. One would have prohibitedracial qualifications for voters and based representation on thewhole number of citizens in the State; the other four proposalscontained no enfranchising provision, but in various ways wouldhave reduced representation for States where the vote was raciallyrestricted. Kendrick 41-44. A subcommittee reduced the fiveproposals to two, one prohibiting discrimination and the otherreducing representation where it was present. On Stevens' motion,the latter alternative was accepted by a vote of 11 to 3, Kendrick51; with minor changes it was subsequently reported as H.R. 51.

The subcommittee also proposed that whichever provision on thebasis of representation was adopted, the Congress should beempowered to legislate to secure all citizens "the same politicalrights and privileges" and also "equal protection in the enjoymentof life, liberty and property." Kendrick 51. After the Committeereported H.R. 51, it turned to consideration of this proposal. At ameeting attended by only 10 members, a motion to strike out theclause authorizing Congress to legislate for equal political rightsand privileges lost by a vote of six to four. Kendrick 57. At asubsequent meeting, however, Bingham had the subcommittee proposalreplaced with another which did not mention political rights andprivileges, but was otherwise quite similar. Kendrick 61;see the opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE,and MR. JUSTICE

Page 400 U. S. 172

MARSHALL,post at400 U. S.258-259, for the text of the two provisions. TheCommittee reported the substitute as H.R. 63. In the House, so muchconcern was expressed over the centralization of power theamendment would work -- a few said it would even authorize Congressto regulate the suffrage -- that the matter was dropped.Post at400 U. S.260.

The Fourteenth Amendment had as its most direct antecedent aproposal drafted by Robert Dale Owen, who was not a member ofCongress, and presented to the Joint Committee by Stevens.[Footnote 3/25] Originally, theplan provided for mandatory enfranchisement in 1876 and forreduction of representation until that date. Kendrick 82-84.However, Stevens was pressured by various congressional delegationswho wanted nothing to do with Negro suffrage, even at a remove of10 years. [Footnote 3/26] Hetherefore successfully moved to strike out the enfranchisingprovision and correspondingly to abolish the 10-year limitation onreduction of representation for racial discrimination. The motioncarried by a vote of 12 to 2. Kendrick 101.

Bingham was then successful in replacing § 1 of Owen's proposal,which read:

"No discrimination shall be made by any State, or by the UnitedStates, as to the civil rights of persons, because of race, color,or previous condition of servitude"

with the following now-familiar language:

"No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; norshall any State deprive

Page 400 U. S. 173

any person of life, liberty, or property, without due process oflaw, nor deny to any person within its jurisdiction the equalprotection of the laws."

Kendrick 106. The summary style of the Journal leaves unclearthe reasons for the change. However, Bingham himself had ratherconsistently voted against proposals for direct and immediateenfranchisement, [Footnote 3/27]and, on the face of things, it seems unlikely that the othermembers of the Joint Committee understood his provision to be anenfranchising proposal. [Footnote3/28] That they did not so understand is

Page 400 U. S. 174

demonstrated by the speeches in the debates on the floor.[Footnote 3/29]

Before I examine those debates, a word of explanation is inorder. For obvious reasons, the discussions of voter qualificationsin the 39th Congress and among the public were cast primarily interms of racial disqualifications. This does not detract from theirutility as guides to interpretation. When an individual speakersaid that the Amendment would not result in the enfranchisement ofNegroes, he must have taken one of two views: either the Amendmentdid not reach voter qualifications at all or it set standardslimiting state restrictions on the ballot, but those standards didnot prohibit racial discrimination. I have already set out some ofthe reasons which lead me to conclude that the formerinterpretation is correct, and that it is the understanding

Page 400 U. S. 175

shared by the framers of the Amendment, as well as by almost allof the opponents. The mere statement of the latter position appearsto me to be a complete refutation of it. Even on its whollyunsupportable assumptions (1) that certain framers of the Amendmentcontemplated that the privileges and immunities of citizensincluded the vote, (2) that they intended to permit state laws toabridge the privileges and immunities of citizens whenever it wasrational to do so, and (3) that they agreed on the rationality ofprohibiting the freed slaves from voting, this remarkable theorystill fails to explain why they understood the Amendment to permitracial voting qualifications in the free States of the North.

D. In Congress

On May 8, 1866, Thaddeus Stevens led off debate on H.R. 127, theJoint Resolution proposing the Fourteenth Amendment. Afterexplaining the delay of the Joint Committee in coming up with aplan of reconstruction, he apologized for his proposal inadvance:

"This proposition is not all that the committee desired. Itfalls far short of my wishes, but it fulfills my hopes. I believeit is all that can be obtained in the present state of publicopinion. Not only Congress but the several States are to beconsulted. Upon a careful survey of the whole ground, we did notbelieve that nineteen of the loyal States could be induced toratify any proposition more stringent than this."

Globe 2459.

In the climate of the times, Stevens could hardly have beenunderstood as referring to anything other than the failure of themeasure to make some provision for the enfranchisement of thefreedmen. However, lest any mistake be made, he recounted thehistory of the Committee's prior effort in the field ofrepresentation and suffrage,

Page 400 U. S. 176

H.R. 51, which "would surely have secured the enfranchisement ofevery citizen at no distant period." That measure was dead,"slaughtered by a puerile and pedantic criticism," and "unless this(less efficient, I admit) shall pass, its death has postponed theprotection of the colored race perhaps for ages."Ibid.

With this explanation made, Stevens turned to asection-by-section study of the proposed resolution. The results tobe achieved by § 1, as he saw it, would be equal punishment forcrime, equal entitlement to the benefits of "[w]hatever lawprotects the white man," equal means of redress, and equalcompetence to testify.Ibid. If he thought the sectionprovided equal access to the polls, despite his immediatelypreceding apology for the fact that it did not, his failure tomention that application is remarkable. [Footnote 3/30]

Turning then to § 2, Stevens again discussed racialqualifications for voting. He explained the section as follows:

"If any State shall exclude any of her adult male citizens fromthe elective franchise, or abridge that right, she shall forfeither right to representation in the same proportion. The effect ofthis provision will be either to compel the States to grantuniversal suffrage or so to shear them of their power as to keepthem forever in a hopeless minority in the national Government,both legislative and executive."

Ibid. Stevens recognized that it might take severalyears for the coercive effect of the Amendment to result in Negrosuffrage, but since this would give time for education andenlightenment of the freedmen, "That short delay would

Page 400 U. S. 177

not be injurious."Ibid. He did not indicate that hebelieved it would be unconstitutional. He admitted that § 2 was notso good as the proposal which had been defeated in the Senate, forthat, by reducing representation by all the members of a race ifany one was discriminated against, would have hastened fullenfranchisement. Section 2 allowed proportional credit. "But it isa short step forward. The large stride which we in vain proposed isdead. . . ." Globe 2460.

I have dealt at length with Stevens' remarks because of hisprominent position in the House and in the Joint Committee. Theremaining remarks, except for Bingham's summation, can be treatedin more summary fashion. Of the supporters of the Amendment,Garfield of Ohio, [Footnote 3/31]Kelley of Pennsylvania, [Footnote3/32] Boutwell of Massachusetts (a member of the JointCommittee), [Footnote 3/33]

Page 400 U. S. 178

Eliot of Massachusetts, [Footnote3/34] Beaman of Michigan, [Footnote 3/35] and Farnsworth of Illinois, [Footnote 3/36] expressed their regretthat the Amendment did not prohibit restrictions on the franchise.As the quotations set out in the margin indicate, the absence ofsuch a prohibition was generally attributed to prejudice in theCongress, in the States, or both, to such an extent that anenfranchising amendment could not pass. This corresponds with thefirst part of Stevens' introductory speech.

Page 400 U. S. 179

Other supporters of the Amendment obviously based their remarkson their understanding that it did not affect state laws imposingdiscriminatory voting.qualifications, but did not indicate that theomission was a drawback in their view. In this group were Thayer ofPennsylvania, [Footnote 3/37]Broomall of Pennsylvania, [Footnote3/38] Raymond of New York, [Footnote 3/39] McKee of Kentucky, [Footnote 3/40] Miller of Pennsylvania, [Footnote 3/41]

Page 400 U. S. 180

Banks of Massachusetts, [Footnote3/42] and Eckley of Ohio. [Footnote 3/43]

The remaining members of the House who supported the FourteenthAmendment either did not speak at all or did not address themselvesto the suffrage issue in any very clear terms. Those in the lattergroup who gave speeches on the proposed Amendment included

Page 400 U. S. 181

Spalding of Ohio, [Footnote3/44] Longyear of Michigan, [Footnote 3/45] and Shellabarger of Ohio. [Footnote 3/46] The remaining Republicanmembers of the Joint Committee -- Washburne of Illinois, Morrill ofVermont, Conkling of New York, and Blow of Missouri -- did notparticipate in the debates over the Amendment.

In the opposition to the Amendment were only the handful ofDemocrats. Even they, with one seeming exception, did not assertthat the Amendment was applicable to suffrage, although they wouldhave been expected to do so if they thought such a readingplausible. Finck of Ohio and Shanklin of Kentucky did not even

Page 400 U. S. 182

mention Negro suffrage in their attacks on the Amendment,although Finck discussed the reasons why the Southern States couldnot be expected to ratify it, Globe 2460-2462, and Shanklincharacterized the Amendment as "tyrannical and oppressive." Globe2501. Eldridge of Wisconsin [Footnote3/47] and Randall of Pennsylvania [Footnote 3/48] affirmatively indicated theirunderstanding that, with the Amendment, the Radicals had at leasttemporarily abandoned their crusade for Negro suffrage, as didFinck when the measure returned from the Senate with amendments.[Footnote 3/49]

The other two Democrats to participate in the three days ofdebate on H.R. 127, Boyer of Pennsylvania and Rogers of New Jersey,have been a source of great comfort to those who set out to provethat the history of the Fourteenth Amendment is inconclusive onthis issue. Each, in the course of a lengthy speech, included asentence which, taken out of context, can be read to indicate afear that § 1 might prohibit racial restrictions on the ballot.Boyer said,

"The first section embodies the principles of the civil rightsbill, and is intended to secure ultimately, and to some extentindirectly,

Page 400 U. S. 183

the political equality of the negro race."

Globe 2467. Rogers, commenting on the uncertain scope of thePrivileges and Immunities Clause, observed "The right to vote is aprivilege." Globe 2538.

While these two statements are perhaps innocuous enough to beleft alone, it is noteworthy that each speaker had earlier in thesession delivered a tirade against the principle of Negro suffrage;[Footnote 3/50] if eitherseriously believed that the Fourteenth Amendment might enfranchisethe freedmen, he was unusually calm about the fact. That they didnot seriously interpret the Amendment in this way is indicated aswell by other portions of their speeches. [Footnote 3/51]

Page 400 U. S. 184

Two other opponents of the Fourteenth Amendment, Phelps ofMaryland and Niblack of Indiana, made statements which have beenadduced to show that there was no consensus on the applicability ofthe Fourteenth Amendment to suffrage laws. Phelps voiced hissentiments on May 5, three days before the beginning of debate.[Footnote 3/52] In the course ofa speech urging a soft policy on reconstruction, he expressed thefear that the Amendment would authorize Congress to define theprivileges of citizens to include the suffrage -- or indeed that itmight have that effectproprio vigore. Globe 2398. Phelpsdid not repeat this sentiment after he was contradicted by speakerafter speaker during the debates proper; indeed, he did not takepart in the debates at all, but simply voted against the Amendment,along with most of his Democratic colleagues. Globe 2545. [Footnote 3/53]

As for Niblack, on the first day of debate, he made thefollowing remarks:

"I give notice that I will offer the following amendment if Ishall have the opportunity: "

Page 400 U. S. 185

" Add to the fifth section as follows: "

"Provided, That nothing contained in this articleshall be so construed as to authorize Congress to regulate orcontrol the elective franchise within any State, or to abridge orrestrict the power of any State to regulate or control the samewithin its own jurisdiction, except as in the third section hereofprescribed."

Globe 2465. Like Phelps, Niblack found it unnecessary toparticipate in the debates. He was not heard from again until thevote on the call for the previous question. As Garfield ascertainedat the time, the only opportunity to amend H.R. 127 would arise ifthe demand was voted down. Niblack voted to sustain it. Globe2545.

Debate in the House was substantially concluded by Bingham, theman primarily responsible for the language of § 1. Withoutequivocation, he stated:

"The amendment does not give, as the second section shows, thepower to Congress of regulating suffrage in the severalStates."

"The second section excludes the conclusion that, by the firstsection, suffrage is subjected to congressional law, save, indeed,with this exception, that as the right in the people of each Stateto a republican government and to choose their Representatives inCongress is of the guarantees of the Constitution, by thisamendment a remedy might be given directly for a case supposed byMadison, where treason might change a State government from arepublican to a despotic government, and thereby deny suffrage tothe people."

Globe 2542.

Stevens then arose briefly in rebuttal. He attacked Bingham forsaying in another portion of his speech that the disqualificationprovisions of § 3 were unenforceable. He did not contradict -- oreven refer to -- Bingham's

Page 400 U. S. 186

interpretation of §§ 1 and 2. Globe 2544. The vote was taken andthe resolution passed immediately thereafter. Globe 2545.

To say that Stevens did not contradict Bingham is to minimizethe force of the record. Not once during the three days of debatedidany supporter of the Amendment criticize or correctany of the Republicans or Democrats who observed that theAmendment left the ballot "exclusively under the control of theStates." Globe 2542 (Bingham). This fact is tacitly admitted evenby those who find the debates "inconclusive." The only contraryauthority they can find in the debates is the pale remarks of thefour Democrats already discussed. [Footnote 3/54]

In the Senate, which did not have a gag rule, matters proceededat a more leisurely pace. The introductory speech would normallyhave been given by Senator Fessenden of Maine, the Chairman of theJoint Committee on behalf of the Senate, but he was still weak withillness, and unable to deliver a lengthy speech. The duty ofpresenting the views of the Joint Committee therefore devolved onSenator Howard of Michigan. [Footnote3/55]

Page 400 U. S. 187

Howard minced no words. He stated that

"the first section of the proposed amendment does not give toeither of these classes the right of voting. The right of suffrageis not, in law, one of the privileges or immunities thus secured bythe Constitution. It is merely the creature of law. It has alwaysbeen regarded in this country as the result of positive local law,not regarded as one of those fundamental rights lying at the basisof all society and without which a people cannot exist except asslaves, subject to a depotism [sic]."

Globe 2766. "The second section leaves the right to regulate theelective franchise still with the States, and does not meddle withthat right."Ibid. Howard stated that, while he personallywould have preferred to see the freedmen enfranchised, theCommittee was confronted with the necessity of proposing anamendment which could be ratified.

"The committee were of opinion that the States are not yetprepared to sanction so fundamental a change as would be theconcession of the right of suffrage to the colored race. We may aswell state it plainly and fairly, so that there shall be nomisunderstanding on the subject. It was our opinion thatthree-fourths of the States of this Union could not be induced tovote to grant the right of suffrage, even in any degree or underany restriction, to the colored race."

Ibid. Howard's forthright attempt to preventmisunderstanding was completely successful insofar as the Senatewas concerned; at least, no one has yet discovered a remark duringthe Senate debates on the proposed Fourteenth Amendment whichindicates any contrary impression. [Footnote 3/56]

Page 400 U. S. 188

For some, however, time has muddied the clarity with which hespoke. [Footnote 3/57]

The Senate, like the House, made frequent reference to the factthat the proposed amendment would not result in the enfranchisementof the freedmen. The supporters

Page 400 U. S. 189

who expressed their regret at the fact were Wade of Ohio,[Footnote 3/58] Poland ofVermont, [Footnote 3/59] Stewartof Nevada, [Footnote 3/60] Howeof Wisconsin, [Footnote 3/61]Henderson of Missouri, [Footnote3/62]

Page 400 U. S. 190

and Yates of Illinois. [Footnote3/63] The remarks of Senator Sherman of Ohio, whose support forthe amendment was lukewarm,see Globe 2986, seem to havebeen based on the common interpretation. [Footnote 3/64]

Doolittle of Wisconsin, whose support for the President resultedin his virtually being read out of the Republican Party, proposedto base representation on adult male voters. Globe 2942. In adiscussion with Senator Grimes of Iowa, a member of the JointCommittee, about the desirability of this change, Doolittledefended himself by pointing out that: "Your amendment proposesto

Page 400 U. S. 191

allow the States to say who shall vote." Globe 2943. Grimes didnot respond. Among the Democrats, no different view was expressed.Those whose remarks are informative are Hendricks of Indiana,[Footnote 3/65] Cowan ofPennsylvania, [Footnote 3/66]Davis of Kentucky, [Footnote3/67] and Johnson of Maryland. [Footnote 3/68]

Senator Howard, who had opened debate, made the last remarks infavor of the Amendment. He said:

"We know very well that the States retain the power, which theyhave always possessed, of regulating the right of suffrage in theStates. It is the theory of the Constitution itself. That right hasnever been taken from them; no endeavor has ever been made to takeit from them; and the theory of this whole amendment is to leavethe power of regulating the suffrage with the people orLegislatures of the States, and not to assume to regulate

Page 400 U. S. 192

it by any clause of the Constitution of the United States."

Globe 3039. Shortly thereafter, the Amendment was approved.Globe 3041-3042.

In the House, there was a brief discussion of the Senateamendments and the measure generally, chiefly by the Democrats.Stevens then concluded the debate as he had begun it, expressinghis regret that the Amendment would not enfranchise the freedmen.[Footnote 3/69] The Houseaccepted the Senate changes and sent the measure to the States.Globe 3149.

E. Collateral Evidence of Congressional Intent

It has been suggested that, despite this evidence ofcongressional understanding, which seems to me overwhelming, thehistory is nonetheless inconclusive. Primary reliance is placed ondebates over H.R. 51, the Joint Committee's first effort in thefield of the basis of representation. In these debates, some of themore extreme Radicals, typified by Senator Sumner of Massachusetts,suggested that Congress had power to interfere with state voterqualifications at least to the extent of enfranchising thefreedmen. This power was said to exist in a variety ofconstitutional provisions, including Art. I, § 2, Art. I, § 4, thewar power, the power over territories, the guarantee of arepublican form of government, and § 2 of the Thirteenth Amendment.Those who held this view expressed concern lest the Committee'sproposal be read to authorize the States to discriminate on racialgrounds, and stated that they could not vote for the measure ifsuch was the correct construction. They were sometimes comforted bysupporters

Page 400 U. S. 193

of the committee proposal, who assured them that there would beno such effect. From these statements, and the fact that some ofthose who took the extreme view ultimately did vote for theproposed Fourteenth Amendment, it is sought to construct acounter-argument: if H.R. 51, properly interpreted, would not haveprecluded congressional exercise of power otherwise existing underthe constitutional provisions referred to, then § 2 of theFourteenth Amendment, properly interpreted, does not preclude theexercise of congressional power under §§ 1 and 5 of thatAmendment.

This argument, however, is even logically fallacious, and, quiteunderstandably, none of the opinions filed today places muchreliance on it. I do not maintain that the framers of theFourteenth Amendment took away with one hand what they had givenwith the other, but simply that the Amendment must be construed asa whole, and that, for the reasons already given,supra,at400 U. S.167-170, the inclusion of § 2 demonstrates that theframers never intended to confer the power which my Brethren seekto find in §§ 1 and 5. Bingham, for one, distinguished betweenthese two positions. When it was suggested in the debates over H.R.51 that the proviso would remove preexisting congressional powerover voting qualifications, Bingham made the response quoted by mycolleagues. Globe 431-432;see post at400 U. S.276-277. When it was observed during the debates overthe proposed Fourteenth Amendment that § 2 demonstrated that theAmendment did not reach state control over voting qualifications,Bingham was the one making the observation. Globe 2542, quotedsupra at400 U. S. 185.As Bingham seems to have recognized, the sort of argument he madein connection with H.R. 51 is beside the point with respect to theFourteenth Amendment.

In any event, even disregarding its analytical difficulties, theargument is based on blatant factual shortcomings. All but one ofthe speakers on whose statements

Page 400 U. S. 194

primary reliance is placed stated, either during the debates onthe Fourteenth Amendment or subsequently, that the Amendment didnot enfranchise the freedmen. [Footnote 3/70] Finally, some of those determined tosustain the legislation now before us rely on speeches made betweentwo and three years after Congress had sent the proposed Amendmentto the States. Boutwell and Stevens in the House, and Sumner in theSenate, argued that the Fifteenth

Page 400 U. S. 195

Amendment or enfranchising legislation was unnecessary becausethe Fourteenth Amendment prohibited racial discrimination in voterqualifications. Each had earlier expressed the opposite position.[Footnote 3/71] Their subsequentattempts to achieve by assertion what they had not had the votes toachieve by constitutional processes can hardly be entitled toweight.

F. Ratification

State materials relating to the ratification process are notvery revealing. For the most part, only gubernatorial messages andcommittee reports have survived. [Footnote 3/72] So far as my examination of thesematerials reveals, while the opponents of the Amendment weredivided

Page 400 U. S. 196

and sometimes equivocal on whether it might be construed torequire enfranchisement, [Footnote3/73] the supporters of the Amendment in the States approachedthe congressional proponents in the unanimity of theirinterpretation. I have discovered only one brief passage in supportof the Amendment which appears to be based on the assumption thatit would result in enfranchisement. [Footnote 3/74] These remarks, in the message of theGovernor of Illinois, had to compete in the minds of thelegislators with the viewpoint of the Chicago Tribune. This Radicaljournal repeatedly criticized the Amendment's lack of anenfranchising provision, and at one time it even expressed the hopethat the South would refuse to ratify the Amendment so that theNorth would turn to enfranchisement of the freedmen as the onlymeans of reconstruction. June 25, 1866, quoted in James 177. In allthe other States I have examined, where the materials aresufficiently full for the understanding of a supporter of theAmendment to appear, his understanding

Page 400 U. S. 197

has been that enfranchisement would not result. [Footnote 3/75]

The scanty official materials can be supplemented by othersources. There was a congressional election in the fall of the yearthe Fourteenth Amendment went to the States. The Radicals ran onthe Amendment as their reconstruction program, attempting to forcevoters to choose between their plan and that of President Johnson.From the campaign speeches and from newspaper reactions, we can getsome further idea of the understanding of the States.

The tone of the campaign was set by the formal report of theJoint Committee, which Fessenden openly stated he had composed as apartisan document. James 147. Indeed, it was not even submitted toCongress until the day the Senate approved the measure, and thenonly in manuscript form. Globe 3038. On the delicate issue of Negrosuffrage, the report read as follows: [Footnote 3/76]

"Doubts were entertained whether Congress had power, even underthe amended Constitution, to prescribe the qualifications of votersin a State, or could act directly on the subject. It was doubtful,in the opinion of your committee, whether the States would consentto surrender a power they had always exercised, and to which theywere attached. As the best if not the only method of surmountingthe difficulty, and as eminently just and proper in itself, yourcommittee came to the conclusion that political power should bepossessed in all the States exactly in proportion as the right ofsuffrage should be granted, without distinction of color orrace.

Page 400 U. S. 198

This, it was thought, would leave the whole question with thepeople of each State, holding out to all the advantage of increasedpolitical power as an inducement to allow all to participate in itsexercise. Such a provision would be, in its nature, gentle andpersuasive, and would lead, it was hoped, at no distant day, to anequal participation of all, without distinction, in all the rightsand privileges of citizenship, thus affording a full and adequateprotection to all classes of citizens, since all would have,through the ballot-box, the power of self-protection."

"Holding these views, your committee prepared an amendment tothe Constitution to carry out this idea, and submitted the same toCongress. Unfortunately, as we think, it did not receive thenecessary constitutional support in the Senate, and therefore couldnot be proposed for adoption by the States. The principle involvedin that amendment is, however, believed to be sound, and yourcommittee have again proposed it in another form, hoping that itmay receive the approbation of Congress."

Newspapers expressed the same view of the reach of theAmendment. Even while deliberations were under way, predictionsthat Congress would come up with a plan involving enfranchisementof the freedmen had gradually ceased. James 91. When the Amendmentwas released to the press, Andrew Johnson was reported as seeing init a "practical abandonment of the negro suffrage issue."Cincinnati Daily Commercial, April 30, 1866, quoted in James 117.The New York Herald had reported editorially that the Amendmentreflected an abandonment of the Radical push for Negro suffrage andacceptance of Johnson's position that control over suffrage restedexclusively with the States. May 1, 1866, reported in James 119.The Nation, a Radical organ,

Page 400 U. S. 199

attributed the absence of any provision on Negro suffrage to"sheer want of confidence in the public." 2 Nation 545 (May 1,1866), quoted in James 10. The Chicago Tribune, another Radicalorgan, complained that § 1 was objectionable as "surplusage," May5, 1866, quoted in James 123, and, later in the same month,criticized the measure for "postponing, and not settling" thematter of equal political rights for Negroes. May 31, 1866, quotedin James 146. As deliberations continued, the reporting went on inthe same vein. The New York Times reported that, with electionsapproaching, "No one now talks or dreams of forcing Negro suffrageupon the Southern States." June 6, 1866. The Cincinnati DailyCommercial and the Boston Daily Journal for June 7, 1866, commentedon the Radicals' abandonment of Negro suffrage. James 145.

Much the same picture emerges from the campaign speeches.Although an occasional Democrat expressed the fear that theAmendment would or might result in political equality, [Footnote 3/77] the supporters of theAmendment denied such effects without exception that I havediscovered. Among the leading congressional figures who stated incampaign speeches that the Amendment did not prohibit racial votingqualifications were Senators Howe, Lane, Sherman, Sumner, andTrumbull, and Congressmen Bingham, Delano, Schenck, and Stevens.See James 159-168, 173, 178; Fairman, Does the FourteenthAmendment Incorporate the Bill of Rights?, 2 Stan.L.Rev. 5, 70-78(1949)

As was pointed out above, all but a handful of Northern Statesprohibited blacks from voting at all,

Page 400 U. S. 200

and opposition to a change was intense. Between 1865 and 1869,referenda on the issue rejected impartial Negro suffrage inColorado Territory, Connecticut, Wisconsin, Minnesota (twice), theDistrict of Columbia, Nebraska Territory, Kansas, Ohio, Michigan,Missouri, and New York. Only Iowa and Minnesota accepted it, andthat on the day Grant was elected to the Presidency. [Footnote 3/78] It is inconceivable thatthose States, in that climate, could have ratified the Amendmentwith the expectation that it would require them to permit theirblack citizens to vote.

Small wonder, then, that, in early 1869, substantially the samegroup of men who three years earlier had proposed the FourteenthAmendment felt it necessary to make further modifications in theConstitution if state suffrage laws were to be controlled even tothe minimal degree of prohibiting qualifications which, on theirface, discriminated on the basis of race. If the consequences forour federal system were not so serious, the contention that thehistory is "inconclusive" would be undeserving of attention. And,with all respect, the transparent failure of attempts to cast doubton the original understanding is simply further evidence of theforce of the historical record.

IIThe history of the Fourteenth Amendment with respect to suffragequalifications is remarkably free of the problems which bedevilmost attempts to find a reliable guide to present decision in thepages of the past. Instead, there is virtually unanimous agreement,clearly and repeatedly expressed, that § 1 of the Amendment did notreach discriminatory voter qualifications. In this ratherremarkable situation, the issue of the bearing of the historicalunderstanding on constitutional interpretation squarely arises.

Page 400 U. S. 201

I must confess to complete astonishment at the position of someof my Brethren that the history of the Fourteenth Amendment hasbecome irrelevant.Ante at400 U.S. 139-140. In the six yearssince I first set out much of this history, [Footnote 3/79] I have seen no justification for such aresult which appears to me at all adequate. With matters in thisposture, I need do no more by way of justifying my reliance onthese materials than sketch the familiar outlines of ourconstitutional system.

When the Constitution, with its original Amendments, came intobeing, the States delegated some of their sovereign powers to theFederal Government, surrendered other powers, and expresslyretained all powers not delegated or surrendered. Amdt. X. Thepower to set state voting qualifications was neither surrenderednor delegated, except to the extent that the guarantee of arepublican form of government [Footnote 3/80] may be thought to require a certainminimum distribution of political power. The power to setqualifications for voters for national office, created by theConstitution, was expressly committed to the States by Art. I, § 2,and Art. II, § 1. [Footnote 3/81]By Art. V, States may be deprived of their retained powers onlywith the concurrence of two-thirds of each House of Congress andthree-fourths of the States. No one asserts that the power to setvoting qualifications was taken from the States or subjected tofederal control by any Amendment before the Fourteenth. Thehistorical evidence makes it plain that the Congress and the Statesproposing and ratifying that Amendment affirmatively understoodthat they were not limiting state power over voting qualifications.The

Page 400 U. S. 202

existence of the power therefore survived the amending process,and, except as it has been limited by the Fifteenth, Nineteenth,and Twenty-fourth Amendments, it still exists today. [Footnote 3/82] Indeed, the very fact thatconstitutional amendments were deemed necessary to bring aboutfederal abolition of state restrictions on voting by reason of race(Amdt. XV), sex (Amdt. XIX), and, even with respect to federalelections, the failure to pay state poll taxes (Amdt. XXIV), isitself forceful evidence of the common understanding in 1869, 1919,and 1962, respectively, that the Fourteenth Amendment did notempower Congress to legislate in these respects.

It must be recognized, of course, that the amending process isnot the only way in which constitutional understanding alters withtime. The judiciary has long been entrusted with the task ofapplying the Constitution in changing circumstances, and asconditions change the Constitution in a sense changes as well. Butwhen the Court gives the language of the Constitution an

Page 400 U. S. 203

unforeseen application, it does so, whether explicitly orimplicitly, in the name of some underlying purpose of the Framers.[Footnote 3/83] This isnecessarily so; the federal judiciary, which by expressconstitutional provision is appointed for life, and thereforecannot be held responsible by the electorate, has no inherentgeneral authority to establish the norms for the rest of society.It is limited to elaboration and application of the preceptsordained in the Constitution by the political representatives ofthe people. When the Court disregards the express intent andunderstanding of the Framers, it has invaded the realm of thepolitical process to which the amending power was committed, and ithas violated the constitutional structure which it is its highestduty to protect. [Footnote3/84]

Page 400 U. S. 204

As the Court is not justified in substituting its own views ofwise policy for the commands of the Constitution, still less is itjustified in allowing Congress to disregard those commands as theCourt understands them. Although Congress' expression of the viewthat it does have power to alter state suffrage qualifications isentitled to the most respectful consideration by the judiciary,coming as it does from a coordinate branch of government, [Footnote 3/85] this cannot displace theduty of this Court to make an independent determination whetherCongress has exceeded its powers. The reason for this goes beyondMarshall's assertion that: "It is emphatically the province andduty of the judicial department to say what the law is."Marbury v.Madison, 1 Cranch 137,5 U. S. 177(1803). [Footnote 3/86] Itinheres in the structure of the

Page 400 U. S. 205

constitutional system itself. Congress is subject to none of theinstitutional restraints imposed on judicial decisionmaking; it iscontrolled only by the political process. In Article V, the Framersexpressed the view that the political restraints on Congress alonewere an insufficient control over the process of constitutionmaking. The concurrence of two-thirds of each House and ofthree-fourths of the States was needed for the political check tobe adequate. To allow a simple majority of Congress to have finalsay on matters of constitutional interpretation is thereforefundamentally out of keeping with the constitutional structure. Noris that structure adequately protected by a requirement that thejudiciary be able to perceive a basis for the congressionalinterpretation, the only restriction laid down inKatzenbach v.Morgan,384 U. S. 641(1966).

It is suggested that the proper basis for the doctrineenunciated inMorgan lies in the relative factfindingcompetence of Court, Congress, and state legislatures.Post at400 U. S.246-249. In this view, as I understand it, sinceCongress is at least as well qualified as a state legislature todetermine factual issues, and far better qualified than this Court,where a dispute is basically factual in nature, the congressionalfinding of fact should control, subject only to review by thisCourt for reasonableness.

In the first place, this argument has little or no force asapplied to the issue whether the Fourteenth Amendment covers voterqualifications. Indeed, I do not understand the adherents ofMorgan to maintain the contrary.

Page 400 U. S. 206

But even on the assumption that the Fourteenth Amendment doesplace a limit on the sorts of voter qualifications which a Statemay adopt, I still do not see any real force in the reasoning.

When my Brothers refer to "complex factual questions,"post at400 U. S. 248,they call to mind disputes about primary, objective facts dealingwith such issues as the number of persons between the ages of 18and 21, the extent of their education, and so forth. The briefs ofthe four States in these cases take no issue with respect to any ofthe facts of this nature presented to Congress and relied on by myBrothers DOUGLAS,ante at400 U. S.141-143, and BRENNAN, WHITE, and MARSHALL,postat400 U. S.243-246,400 U. S.279-280. Except for one or two matters of dubiousrelevance, these facts are not subject to rational dispute. Thedisagreement in these cases revolves around the evaluation of thislargely uncontested factual material. [Footnote 3/87] On the assumption that maturity andexperience are relevant to intelligent and responsible exercise ofthe elective franchise, are the immaturity and inexperience of theaverage 18-, 19-, or 20-year-old sufficiently serious to justifydenying such a person a direct voice in decisions affecting his orher life? Whether or not this judgment is characterized as"factual," it calls for striking a balance between incommensurateinterests. Where the balance is to be struck depends ultimately onthe values and the perspective of the decisionmaker. It is a matteras to which men of good will can and do reasonably differ.

I fully agree that judgments of the sort involved here arebeyond the institutional competence and constitutional

Page 400 U. S. 207

authority of the judiciary.See, e.g., Baker v. Carr,369 U. S. 186,369 U.S. 266-330 (1962)(Frankfurter, J., dissenting);Kramer v. Union SchoolDistrict,395 U. S. 621,395 U. S.634-641 (1969) (STEWART, J., dissenting). They arepreeminently matters for legislative discretion, with judicialreview, if it exists at all, narrowly limited. But the same reasonswhich, in my view, would require the judiciary to sustain areasonable state resolution of the issue also require Congress toabstain from entering the picture.

Judicial deference is based not on relative factfindingcompetence, but on due regard for the decision of the bodyconstitutionally appointed to decide. Establishment of votingqualifications is a matter for state legislatures. Assuming anyauthority at all, only when the Court can say with some confidencethat the legislature has demonstrably erred in adjusting thecompeting interests is it justified in striking down thelegislative judgment. This order of things is more efficient andmore congenial to our system, and, in my judgment, much more likelyto achieve satisfactory results than one in which the Court has afree hand to replace state legislative judgments with its own.See Ferguson v. Skrupa,372 U. S. 726(1963).

The same considerations apply, and with almost equal force, toCongress' displacement of state decisions with its own ideas ofwise policy. The sole distinction between Congress and the Court inthis regard is that Congress, being an elective body, presumptivelyhas popular authority for the value judgment it makes. But sincethe state legislature has a like authority, this distinctionbetween Congress and the judiciary falls short of justifying acongressional veto on the state judgment. The perspectives andvalues of national legislators on the issue of votingqualifications are likely to differ from those of statelegislators, but I see no reason

Page 400 U. S. 208

a priori to prefer those of the national figures, whosecollective decision, applying nationwide, is necessarily less ableto take account of peculiar local conditions. Whether one agreeswith this judgment or not, it is the one expressed by the Framersin leaving voter qualifications to the States. The Supremacy Clausedoes not, as my colleagues seem to argue, represent a judgment thatfederal decisions are superior to those of the States whenever thetwo may differ.

To be sure, my colleagues do not expressly say that Congress orthis Court is empowered by the Constitution to substitute its ownjudgment for those of the States. However, before sustaining astate judgment, they require a "clear showing that the burdenimposed is necessary to protect a compelling and substantialgovernmental interest." [Footnote3/88]Post at400 U. S. 238;see post at400 U. S. 247n. 30. I should think that, if the state interest were truly"compelling" and "substantial," and a clear showing could be madethat the voter qualification was "necessary" to its preservation,no reasonable person would think the qualification undesirable.Equivalently, if my colleagues or a majority of Congress deem agiven voting qualification undesirable as a matter of policy, theymust consider that the state interests involved are not"compelling" or "substantial" or that they can be adequatelyprotected in other ways. It follows that my colleagues must beprepared to hold invalid as a matter

Page 400 U. S. 209

of federal constitutional law all state voting qualificationswhich they deem unwise, as well as all such qualifications whichCongress reasonably deems unwise. For this reason, I find theirargument subject to the same objection as if it explicitlyacknowledged such a conclusion.

It seems to me that the notion of deference to congressionalinterpretation of the Constitution, which the Court promulgated inMorgan, is directly related to this higher standard ofconstitutionality which the Court intimated inHarper v.Virginia Board of Elections,383 U. S. 663(1966), and brought to fruition inKramer. When the scopeof federal review of state determinations became so broad as to bejudicially unmanageable, it was natural for the Court to seekassistance from the national legislature. If the federal role wererestricted to its traditional and appropriate scope, review for thesort of "plain error" which is variously described as "arbitraryand capricious," "irrational," or "invidious," there would be nocall for the Court to defer to a congressional judgment on thisscore that it did not find convincing. Whether a state judgment hasso exceeded the bounds of reason as to authorize federalintervention is not a matter as to which the political process isintrinsically likely to produce a sounder or more acceptableresult. It is a matter of the delicate adjustment of the federalsystem. In this area, to rely on Congress would make that body ajudge in its own cause. The role of final arbiter belongs to thisCourt.

IIISince I cannot agree that the Fourteenth Amendment empoweredCongress, or the federal judiciary, to control voterqualifications, I turn to other asserted sources of congressionalpower. My Brother BLACK would find that such power exists withrespect tofederal elections by

Page 400 U. S. 210

virtue of Art. I, § 4, and seemingly other considerations thathe finds implicit in federal authority.

The constitutional provisions controlling the regulation ofcongressional elections are the following:

Art. I, § 2:

"the Electors [for Representatives] in each State shall have theQualifications requisite for Electors of the most numerous Branchof the State Legislature."

Art. I, § 4:

"The Times, Places and Manner of holding Elections for Senatorsand Representatives, shall be prescribed in each State by theLegislature thereof; but the Congress may at any time by Law makeor alter such Regulations, except as to the Places of chusingSenators."

Amdt. XVII:

"The electors [for Senators] in each State shall have thequalifications requisite for electors of the most numerous branchof the State legislatures."

It is difficult to see how words could be clearer in statingwhat Congress can control and what it cannot control. Surelynothing in these provisions lends itself to the view that votingqualifications in federal elections are to be set by Congress. Thereason for the scheme is not hard to find. In the ConstitutionalConvention, Madison expressed the view that:

"The qualifications of electors and elected were fundamentalarticles in a Republican Govt. and ought to be fixed by theConstitution. If the Legislature could regulate those of either, itcan by degrees subvert the Constitution."

2 M. Farrand, Records of the Federal Convention of 1787, pp.249-250 (1911). He explained further in The Federalist No. 52, p.326 (C. Rossiter ed.1961):

"To have reduced the different qualifications in the differentStates to one uniform rule would probably have been asdissatisfactory to some of the

Page 400 U. S. 211

States as it would have been difficult to the convention. Theprovision made by the convention appears, therefore, to be the bestthat lay within their option. It must be satisfactory to everyState, because it is conformable to the standard alreadyestablished, or which may be established, by the State itself. Itwill be safe to the United States because, being fixed by the Stateconstitutions, it is not alterable by the State governments, and itcannot be feared that the people of the States will alter this partof their constitutions in such a manner as to abridge the rightssecured to them by the federal Constitution."

See also Federalist No. 60, p. 371 (C. Rossitered.1961) (Hamilton), quoted in the opinion of MR. JUSTICE STEWART,post at400 U. S. 290,which is to the same effect.

As to presidential elections, the Constitution provides:

"Each State shall appoint, in such Manner as the Legislaturethereof may direct, a Number of Electors. . . ."

Art. II, § 1, cl. 2.

"The Congress may determine the Time of chusing the Electors,and the Day on which they shall give their Votes; which Day shallbe the same throughout the United States."

Art. II, § 1, cl. 4. Even the power to control the "Manner" ofholding elections, given with respect to congressional elections byArt. I, § 4, is absent with respect to the selection ofpresidential electors. [Footnote3/89] And, of course, the fact that it was deemed necessary toprovide separately for congressional

Page 400 U. S. 212

power to regulate the time of choosing presidential electors andthe President himself demonstrates that the power over "Times,Places and Manner" given by Art. I, § 4, does not refer topresidential elections, but only to the elections for Congressmen.Any shadow of a justification for congressional power with respectto congressional elections therefore disappears utterly inpresidential elections.

IVWith these major contentions resolved, it is convenient toconsider the three sections of the Act individually to determinewhether they can be supported by any other basis of congressionalpower.

A. Voting Age

The only constitutional basis advanced in support of thelowering of the voting age is the power to enforce the EqualProtection Clause, a power found in § 5 of the FourteenthAmendment. For the reasons already given, it cannot be said thatthe statutory provision is valid as declaratory of the meaning ofthat clause. Its validity therefore must rest on congressionalpower to lower the voting age as a means of preventing invidiousdiscrimination that is within the purview of that clause.

The history of the Fourteenth Amendment may well foreclose thepossibility that § 5 empowers Congress to enfranchise a class ofcitizens so that they may protect themselves against discriminationforbidden by the first section, but it is unnecessary for me toexplore that question. For I think it fair to say that thesuggestion that members of the age group between 18 and 21 arethreatened with unconstitutional discrimination, or that anyhypothetical discrimination is likely to be affected by loweringthe voting age, is little short of fanciful. I see no justificationfor stretching to find any such possibility

Page 400 U. S. 213

when all the evidence indicates that Congress -- led on byrecent decisions of this Court -- thought simply that 18-year-oldswere fairly entitled to the vote and that Congress could give it tothem by legislation. [Footnote3/90]

I therefore conclude, for these and other reasons given in thisopinion, that, in § 302 of the Voting Rights Act Amendments of1970, Congress exceeded its delegated powers.

B. Residency

For reasons already stated, neither the power to regulate votingqualifications in presidential elections, asserted by my BrotherBLACK, nor the power to declare the meaning of § 1 of theFourteenth Amendment, relied on by my Brother DOUGLAS, can support§ 202 of the Act. It would also be frivolous to contend thatrequiring States to allow new arrivals to vote in presidentialelections is an appropriate means of preventing localdiscrimination against them in other respects, or of forestallingviolations of the Fifteenth Amendment. The remaining grounds reliedon are the Privileges and Immunities Clause of Art. IV, § 2,[Footnote 3/91] and the right totravel across state lines.

While the right of qualified electors to cast their ballots andto have their votes counted was held to be a privilege ofcitizenship inEx parte Yarbrough,110 U.S. 651 (1884), andUnited States v. Classic,313 U. S. 299(1941), these decisions were careful to observe that it

Page 400 U. S. 214

remained with the States to determine the class of qualifiedvoters. It was federal law, acting on this state-defined class,which turned the right to vote into a privilege of nationalcitizenship. As the Court has consistently held, the Privileges andImmunities Clauses do not react on the mere status of citizenshipto enfranchise any citizen whom an otherwise valid state law doesnot allow to vote.Minor v.Happersett, 21 Wall. 162,88 U. S.170-175 (1875);Pope v. Williams,193 U.S. 621,193 U. S. 632(1904);Breedlove v. Suttles,302 U.S. 277,302 U. S. 283(1937);cf. Snowden v. Hughes,321 U. S.1,321 U. S. 7(1944). Minors, felons, insane persons, and persons who have notsatisfied residency requirements are among those citizens who arenot allowed to vote in most States. [Footnote 3/92] The Privileges and Immunities Clause ofArt. IV of the Constitution is a direct descendant of Art. IV ofthe Articles of Confederation:

"The better to secure and perpetuate mutual friendship andintercourse among the people of the different States in this Union,the free inhabitants of each of these States, paupers, vagabondsand fugitives from justice excepted, shall be entitled to allprivileges and immunities of free citizens in the several States. .. ."

It is inconceivable that these words when used in the Articlescould have been understood to abolish state durational residencyrequirements. [Footnote 3/93]There is not a

Page 400 U. S. 215

vestige of evidence that any further extent was envisioned forthem when they were carried over into the Constitution. And, as Ihave shown, when they were substantially repeated in § 1 of theFourteenth Amendment, it was affirmatively understood that they didnot include the right to vote. The Privileges and Immunities Clauseis therefore unavailing to sustain any portion of § 202.

The right to travel across state lines,see United States v.Guest,383 U. S. 745,383 U. S.757-758 (1966), andShapiro v. Thompson,394 U. S. 618,394 U. S. 630(1969), is likewise insufficient to require Idaho to conform itslaws to the requirements of § 202. MR. JUSTICE STEWART justifies §202 solely on the power under § 5 of the Fourteenth Amendment toenforce the Privileges and Immunities Clause of § 1, which he deemsthe basis for the right to travel.Post at400 U. S.285-287. I find it impossible to square the positionthat § 5 authorizes Congress to abolish state voting qualificationsbased on residency with the position that it does not authorizeCongress to abolish such qualifications based on race. Since thehistorical record compels me to accept the latter position, I mustreject the former.

MR. JUSTICE; BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICEMARSHALL do not anchor the right of interstate travel to anyspecific constitutional provision.Post at400 U. S.237-238. Past decisions to which they refer have reliedon the two Privileges and Immunities Clauses, just discussed, theDue Process Clause of the Fifth Amendment, and the Commerce Clause.See Shapiro v. Thompson, 394 U.S. at394 U. S. 630n. 8;id. at394 U. S.663-671 (dissenting opinion). The Fifth Amendment iswholly inapplicable to state laws; and surely the Commerce Clausecannot be seriously relied on to sustain the Act here challenged.With no specific clause of the Constitution

Page 400 U. S. 216

empowering Congress to enact § 202, I fail to see how thatnebulous judicial construct, the right to travel, can do so.

C. Literacy

The remaining provision of the Voting Rights Act Amendmentsinvolved in these cases is the five-year suspension of Arizona'srequirement that registrants be able to read the Constitution inEnglish and to write their names. Although the issue is not freefrom difficulty, I am of the opinion that this provision can besustained as a valid means of enforcing the FifteenthAmendment.

Despite the lack of evidence of specific instances ofdiscriminatory application or effect, Congress could havedetermined that racial prejudice is prevalent throughout theNation, and that literacy tests unduly lend themselves todiscriminatory application, either conscious or unconscious.[Footnote 3/94] This danger ofviolation of § 1 of the Fifteenth Amendment was sufficient toauthorize the exercise of congressional power under § 2.

Whether to engage in a more particularized inquiry into theextent and effects of discrimination, either as a conditionprecedent or as a condition subsequent to suspension of literacytests, was a choice for Congress to make. [Footnote 3/95] The fact that the suspension is only forfive years will require Congress to reevaluate at the close of thatperiod. While a less sweeping approach

Page 400 U. S. 217

in this delicate area might well have been appropriate, thechoice which Congress made was within the range of the reasonable.[Footnote 3/96] I therefore agreethat § 201 of the Act is a valid exercise of congressional power tothe extent it is involved in this case. I express no view about itsvalidity as applied to suspend tests such as educationalqualifications, which do not lend themselves so readily todiscriminatory application or effect.

For the reasons expressed in this opinion, I would grant therelief requested in Nos. 43, Orig., and 44, Orig. I would dismissthe complaint in No. 47, Orig., for failure to state a claim onwhich relief can be granted. In No. 46, Orig., I would grantdeclaratory relief with respect to the validity of § 201 of theVoting Rights Act Amendments as applied to Arizona's currentliteracy test; I would deny relief in all other respects, withleave to reapply to the United States District Court for theDistrict of Arizona for injunctive relief in the event it provesnecessary, which I am confident it will not.

VIn conclusion, I add the following. The consideration that hastroubled me most in deciding that the 18-year-old and residencyprovisions of this legislation should be held unconstitutional iswhether I ought to regard the doctrine ofstare decisis aspreventing me from arriving at that result. For, as I indicated atthe outset of this opinion, were I to continue to consider myselfconstricted by recent past decisions holding that the EqualProtection Clause of the Fourteenth Amendment reaches

Page 400 U. S. 218

state electoral processes, I would, particularly perforce of thedecisions cited in400U.S. 112fn3/84|>n. 84,supra, be led to cast myvote with those of my Brethren who are of the opinion that thelowering of the voting age and the abolition of state residencyrequirements in presidential elections are within the ordinarylegislative power of Congress.

After much reflection, I have reached the conclusion that Iought not to allowstare decisis to stand in the way ofcasting my vote in accordance with what I am deeply convinced theConstitution demands. In the annals of this Court few developmentsin the march of events have so imperatively called upon us to takea fresh hard look at past decisions, which could well be musteredin support of such developments, as do the legislative lowering ofthe voting age and, albeit to a lesser extent, the elimination ofstate residential requirements in presidential elections.Concluding, as I have, that such decisions cannot withstandconstitutional scrutiny, I think it my duty to depart from them,rather than to lend my support to perpetuating their constitutionalerror in the name ofstare decisis.

In taking this position, I feel fortified by the evidentmalaise among the members of the Court with thosedecisions. Despite them, a majority of the Court holds that thiscongressional attempt to lower the voting age by simple legislationis unconstitutional, insofar as it relates to state elections.Despite them, four members of the Court take the same view of thislegislation with respect to federal elections as well; and thefifth member of the Court who considers the legislationconstitutionally infirm as regards state elections relies not atall on any of those decisions in reaching the opposite conclusionin federal elections. And of the eight members of the Court whovote to uphold the residential provision of the statute,

Page 400 U. S. 219

only four appear to rely upon any of those decisions in reachingthat result.

In these circumstances, I am satisfied that I am free to decidethese cases unshackled by a line of decisions which I have feltfrom the start entailed a basic departure from sound constitutionalprinciple.

|400U.S. 112app2|

APPENDIX TO OPINION OF HARLAN, J.

VOTING RIGHTS ACT AMENDMENTS OF 1970,PUB. L. 91-285, 84 STAT. 314

TITLE II- SUPPLEMENTAL PROVISIONS

APPLICATION OF PROHIBITION TO OTHER STATES

SEC. 201. (a) Prior to August 6, 1975, no citizen shall bedenied, because of his failure to comply with any test or device,the right to vote in any Federal, State, or local electionconducted in any State or political subdivision of a State as towhich the provisions of section 4(a) of this Act are not in effectby reason of determinations made under section 4(b) of thisAct.

(b) As used in this section, the term "test or device" means anyrequirement that a person as a prerequisite for voting orregistration for voting (1) demonstrate the ability to read, write,understand, or interpret any matter, (2) demonstrate anyeducational achievement or his knowledge of any particular subject,(3) possess good moral character, or (4) prove his qualificationsby the voucher of registered voters or members of any otherclass.

RESIDENCE REQUIREMENTS FOR VOTING

SEC. 202. (a) The Congress hereby finds that the imposition andapplication of the durational residency requirement as aprecondition to voting for the offices of President and VicePresident, and the lack of sufficient

Page 400 U. S. 220

opportunities for absentee registration and absentee ballotingin presidential elections --

(1) denies or abridges the inherent constitutional right ofcitizens to vote for their President and Vice President;

(2) denies or abridges the inherent constitutional right ofcitizens to enjoy their free movement across State lines;

(3) denies or abridges the privileges and immunities guaranteedto the citizens of each State under article IV, section 2, clause1, of the Constitution;

(4) in some instances has the impermissible purpose or effect ofdenying citizens the right to vote for such officers because of theway they may vote;

(5) has the effect of denying to citizens the equality of civilrights, and due process and equal protection of the laws that areguaranteed to them under the fourteenth amendment; and

(6) does not bear a reasonable relationship to any compellingState interest in the conduct of presidential elections.

(b) Upon the basis of these findings, Congress declares that, inorder to secure and protect the above-stated rights of citizensunder the Constitution, to enable citizens to better obtain theenjoyment of such rights, and to enforce the guarantees of thefourteenth amendment, it is necessary (1) to completely abolish thedurational residency requirement as a precondition to voting forPresident and Vice President, and (2) to establish nationwide,uniform standards relative to absentee registration and absenteeballoting in presidential elections.

(c) No citizen of the United States who is otherwise qualifiedto vote in any election for President and Vice President shall bedenied the right to vote for electors for President and VicePresident, or for President and Vice President, in such electionbecause of the failure of such citizen to comply with anydurational residency

Page 400 U. S. 221

requirement of such State or political subdivision; nor shallany citizen of the United States be denied the right to vote forelectors for President and Vice President, or for President andVice President, in such election because of the failure of suchcitizen to be physically present in such State or politicalsubdivision at the time of such election, if such citizen shallhave complied with the requirements prescribed by the law of suchState or political subdivision providing for the casting ofabsentee ballots in such election.

(d) For the purposes of this section, each State shall provideby law for the registration or other means of qualification of allduly qualified residents of such State who apply, not later thanthirty days immediately prior to any presidential election, forregistration or qualification to vote for the choice of electorsfor President and Vice President or for President and VicePresident in such election; and each State shall provide by law forthe casting of absentee ballots for the choice of electors forPresident and Vice President, or for President and Vice President,by all duly qualified residents of such State who may be absentfrom their election district or unit in such State on the day suchelection is held and who have applied therefor not later than sevendays immediately prior to such election and have returned suchballots to the appropriate election official of such State notlater than the time of closing of the polls in such State on theday of such election.

(e) If any citizen of the United States who is otherwisequalified to vote in any State or political subdivision in anyelection for President and Vice President has begun residence insuch State or political subdivision after the thirtieth day nextpreceding such election and, for that reason, does not satisfy theregistration requirements of such State or political subdivision,he shall be allowed to vote for the choice of electors forPresident and Vice

Page 400 U. S. 222

President, or for President and Vice President, in suchelection, (1) in person in the State or political subdivision inwhich he resided immediately prior to his removal if he hadsatisfied, as of the date of his change of residence, therequirements to vote in that State or political subdivision, or (2)by absentee ballot in the State or political subdivision in whichhe resided immediately prior to his removal if he satisfies, butfor his nonresident status and the reason for his absence, therequirements for absentee voting in that State or politicalsubdivision.

(f) No citizen of the United States who is otherwise qualifiedto vote by absentee ballot in any State or political subdivision inany election for President and Vice President shall be denied theright to vote for the choice of electors for President and VicePresident, or for President and Vice President, in such electionbecause of any requirement of registration that does not include aprovision for absentee registration.

(g) Nothing in this section shall prevent any State or politicalsubdivision from adopting less restrictive voting practices thanthose that are prescribed herein.

SEPARABILITY

SEC. 205. If any provision of this Act or the application of anyprovision thereof to any person or circumstance is judiciallydetermined to be invalid, the remainder of this Act or theapplication of such provision to other persons or circumstancesshall not be affected by such determination.

TITLE III- REDUCING VOTING AGE TO EIGHTEEN INFEDERAL,

STATE, AND LOCAL ELECTIONS DECLARATION AND FINDINGS

SEC. 301. (a) The Congress finds and declares that theimposition and application of the requirement that a

Page 400 U. S. 223

citizen be twenty-one years of age as a precondition to votingin any primary or in any election --

(1) denies and abridges the inherent constitutional rights ofcitizens eighteen years of age but not yet twenty-one years of ageto vote -- a particularly unfair treatment of such citizens in viewof the national defense responsibilities imposed upon suchcitizens;

(2) has the effect of denying to citizens eighteen years of agebut not yet twenty-one years of age the due process and equalprotection of the laws that are guaranteed to them under thefourteenth amendment of the Constitution; and

(3) does not bear a reasonable relationship to any compellingState interest.

(b) In order to secure the constitutional rights set forth insubsection (a), the Congress declares that it is necessary toprohibit the denial of the right to vote to citizens of the UnitedStates eighteen years of age or over.

PROHIBITION

SEC. 302. Except as required by the Constitution, no citizen ofthe United States who is otherwise qualified to vote in any Stateor political subdivision in any primary or in any election shall bedenied the right to vote in any such primary or election on accountof age if such citizen is eighteen years of age or older.

EFFECTIVE DATE

SEC. 305. The provisions of title III shall take effect withrespect to any primary or election held on or after January 1,1971.

ARIZONA CONSTITUTION

Art. 7, § 2. No person shall be entitled to vote at any generalelection, or for any office that now is, or hereafter may be,elective by the people, or upon any question

Page 400 U. S. 224

which may be submitted to a vote of the people, unless suchperson be a citizen of the United States of the age of twenty-oneyears or over, and shall have resided in the State one yearimmediately preceding such election, provided that qualificationsfor voters at a general election for the purpose of electingpresidential electors shall be as prescribed by law. The word"citizen" shall include persons of the male and female sex.

ARIZONA REVISED STATUTES ANNOTATED

"§ 16-101. Qualifications of elector"

A. Every resident of the state is qualified to become an electorand may register to vote at all elections authorized by law ifhe:

1. Is a citizen of the United States.

2. Will be twenty-one years or more of age prior to the regulargeneral election next following his registration.

3. Will have been a resident of the state one year and of thecounty in which he claims the right to vote thirty days nextpreceding the election.

4. Is able to read the constitution of the United States in theEnglish language in a manner showing that he is neither promptednor reciting from memory, unless prevented from so doing byphysical disability.

5. Is able to write his name, unless prevented from so doing byphysical disability.

B. At an election held between the date of registration and thenext regular general election, the elector is eligible to vote ifat the date of the intervening election he is twenty-one years ofage and has been a resident of the state one year and the countythirty days.

C. A person convicted of treason or a felony, unless restored tocivil rights, or an idiot, insane person or person underguardianship is not qualified to register. As amended, Laws 1970,c. 151, § 1.

Page 400 U. S. 225

§ 16-107. Closing of registrations

A. No elector shall be registered to vote between five o'clockp.m. of the day which is two months preceding the date of the nextprimary election and seven o'clock p.m. of the day of the primaryelection.

B. No elector shall be registered to vote between five o'clockp.m. of the eighth Monday preceding a general election and seveno'clock p.m. of the day thereof. As amended, Laws 1958, c. 48, § 1;Laws 1970, c. 151, § 5.

IDAHO CONSTITUTIONArt. 6, § 2. Qualifications of electors. -- Except as in thisarticle otherwise provided, every male or female citizen of theUnited States, twenty-one years old, who has actually resided inthis state or territory for six months, and in the county where heor she offers to vote, thirty days next preceding the day ofelection, if registered as provided by law, is a qualified elector;provided however, that every citizen of the United States,twenty-one years old, who has actually resided in this state forsixty days next preceding the day of election, if registered asrequired by law, is a qualified elector for the sole purpose ofvoting for presidential electors; and until otherwise provided bythe legislature, women who have the qualifications prescribed inthis article may continue to hold such school offices and vote atsuch school elections as provided by the laws of Idahoterritory.

IDAHO CODESec. 34-401. Qualifications of voters. -- Every person over theage of twenty-one (21) years, possessing the qualificationsfollowing, shall be entitled to vote at all elections: He shall bea citizen of the United States and shall have resided in this statesix (6) months immediately preceding the election at which heoffers to vote,

Page 400 U. S. 226

and in the county thirty (30) days: provided, that no personshall be permitted to vote at any county seat election who has notresided in the county six (6) months, and in the precinct ninety(90) days, where he offers to vote; nor shall any person bepermitted to vote at any election for the division of the county,or striking off from any county any part thereof, who has not thequalifications provided for in section 3, article 18, of theconstitution; nor shall any person be denied the right to vote atany school district election, nor to hold any school districtoffice on account of sex.

34-408. Eligibility of new residents to vote. -- Each citizen ofthe United States who, immediately prior to his removal to thisstate, was a citizen of another state and who has been a residentof this state for sixty (60) days next preceding the day ofelection but for less than the six (6) month period of requiredresidence for voting prior to a presidential election, is entitledto vote for presidential and vice-presidential electors at thatelection, but for no other offices, if (1) he otherwise possessesthe substantive qualifications to vote in this state, except therequirement of residence and registration, and (2) he complies withthe provisions of this act.

34-409. Application for presidential ballot by new residents. --A person desiring to qualify under this act in order to vote forpresidential and vice-presidential electors shall be considered asregistered within the meaning of this act if on or before ten (10)days prior to the date of the general election, he shall make anapplication in the form of an affidavit executed in duplicate inthe presence of the county auditor, substantially as follows. . ..

34-413. Voting by new residents. -- (1) The applicant, uponreceiving the ballot for presidential and vice-presidentialelectors shall mark forthwith the ballot in the

Page 400 U. S. 227

presence of the county auditor, but in a manner that theofficial cannot know how the ballot is marked. He shall then foldthe ballot in the county auditor's presence so as to conceal themarkings, and deposit and seal it in an envelope furnished by thecounty auditor.

34-1101. Absent voting authorized. -- Any qualified elector ofthe state of Idaho who is absent or expects to be absent from theelection precinct in which he resides on the day of holding anyelection under any of the laws of this state in which an officialballot is required, or who is within the election precinct and is,or will be, unable, because of physical disability, or because ofblindness, to go to the voting place, and if registration isrequired for such election, who is duly registered therefor, mayvote at any such election, as hereinafter provided.

34-1105. Return of ballot. -- On marking such ballot or ballotssuch absent or disabled or blind elector shall refold same astheretofore folded and shall inclose the same in said officialenvelope and seal said envelope securely and mail by registered orcertified mail or deliver it in person to the officer who issuedsame; provided, that an absentee ballot must be received by theissuing officer by 12:00 o'clock noon on the day of the electionbefore such ballot may be counted. Said ballot or ballots shall beso marked, folded and sealed by said voter in private and secretly.Provided, that, whenever the disability or blindness makes itnecessary that the voter shall be assisted in marking his ballot,such voter may have the assistance of any person of his choice inmarking his ballot.

OREGON CONSTITUTION

Art. II, § 2. Qualifications of electors. (1) Every citizen ofthe United States is entitled to vote in all elections nototherwise provided for by this Constitution if such citizen:

(a) Is 21 years of age or older. . . .

Page 400 U. S. 228

TEXAS CONSTITUTION

Art. 6, § 1. Classes of persons not allowed to vote

Section 1. The following classes of persons shall not be allowedto vote in this State, to-wit:

First: Persons under twenty-one (21) years of age.

Second: Idiots and lunatics.

Third: All paupers supported by any county.

Fourth: All persons convicted of any felony, subject to suchexceptions as the Legislature may make.

§ 2. Qualified elector; registration; absentee voting

Sec. 2. Every person subject to none of the foregoingdisqualifications who shall have attained the age of twenty-one(21) years and who shall be a citizen of the United States and whoshall have resided in this State one (1) year next preceding anelection and the last six (6) months within the district or countyin which such person offers to vote, shall be deemed a qualifiedelector; provided, however, that, before offering to vote at anelection a voter shall have registered annually, but suchrequirement for registration shall not be considered aqualification of an elector within the meaning of the term"qualified elector" as used in any other Article of thisConstitution in respect to any matter except qualification andeligibility to vote at an election. Any legislation enacted inanticipation of the adoption of this Amendment shall not be invalidbecause of its anticipatory nature. The Legislature may authorizeabsentee voting. And this provision of the Constitution shall beself-enacting without the necessity of further legislation.

TEXAS ELECTION CODE

Article 5.01. Classes of persons not qualified to vote

The following classes of persons shall not be allowed to vote inthis state:

1. Persons under twenty-one years of age.

2. Idiots and lunatics.

Page 400 U. S. 229

3. All paupers supported by the county.

4. All persons convicted of any felony except those restored tofull citizenship and right of suffrage or pardoned.

Art. 5.02. Qualification and requirements for voting

Every person subject to none of the foregoing disqualificationswho shall have attained the age of twenty-one years and who shallbe a citizen of the United States and who shall have resided inthis state one year next preceding an election and the last sixmonths within the district or county in which such person offers tovote, and who shall have registered as a voter, shall be deemed aqualified elector. No person shall be permitted to vote unless hehas registered in accordance with the provisions of this code. Theprovisions of this section, as modified by Sections 35 and 39 ofthis code, shall apply to all elections, including general,special, and primary elections, whether held by the state, by acounty, municipality, or other political subdivision of the state,or by a political party.

[Footnote 3/1]

The Attorney General of the United States, a citizen of NewYork, is named as defendant. The jurisdictional basis alleged isArt. III, § 2, which gives this Court original jurisdiction overcontroversies between a State and a citizen of another State. Weheld a similar suit justiciable and otherwise within our originaljurisdiction inSouth Carolina v. Katzenbach,383 U.S. 301,383 U. S. 307(1966). The parties have not asked us to reexamine the validity ofthat ruling, and since the Court has not undertaken to do so, I amcontent to sustain jurisdiction on the authority of thatdecision.

[Footnote 3/2]

In response to inquiries from the Attorney General, Arizona,Oregon, and Texas indicated willingness to abide by § 202 of theAct, governing residency, registration, and absentee voting inpresidential elections and to conform conflicting state laws.

[Footnote 3/3]

The account in the text is largely drawn from J. James, TheFraming of the Fourteenth Amendment (1956) (hereafter James), andto some extent from W. Gillette, The Right To Vote: Politics andthe Passage of the Fifteenth Amendment (1969) (hereafter Gillette),and B. Kendrick, The Journal of the Joint Committee of Fifteen onReconstruction (1914) (hereafter Kendrick), as well.

[Footnote 3/4]

"Representatives and direct Taxes shall be apportioned among theseveral States which may be included within this Union, accordingto their respective Numbers, which shall be determined by adding tothe whole Number of free Persons, including those bound to Servicefor a Term of Years, and excluding Indians not taxed, three fifthsof all other Persons."

[Footnote 3/5]

See infra at400 U. S.209-212, for the text of these provisions, and fordiscussion of the contention that they empower Congress to setqualifications of voters in federal elections.

[Footnote 3/6]

"The United States shall guarantee to every State in this Uniona Republican Form of Government."

[Footnote 3/7]

E.g., Proclamation of May 29, 1865, 13 Stat. 760 (NorthCarolina).

[Footnote 3/8]

The texts of the state constitutions are most readily availablein F. Thorpe, The Federal and State Constitutions (1909). Thequalifications imposed by the various States three years later,when the Fifteenth Amendment was proposed, are presented in tabularform in Hearings on the Voting Rights Bill, S. 1564, before theSenate Committee on the Judiciary, 89th Cong., 1st Sess., 128-129(1965).

[Footnote 3/9]

James 33.

[Footnote 3/10]

See Globe 209 (Freedmen's Bureau Bill); Globe 211(Civil Rights Bill).

[Footnote 3/11]

While formally further consideration was postponed until a datein April, six weeks off, Globe 1095, it was generally understoodthat "April means indefinitely." 2 Nation 289 (Mar. 1, 1866),quoted in James 87.

[Footnote 3/12]

The only change made in § 1 was the addition of the CitizenshipClause by the Senate. Globe 3041. The primary change made in § 2was to condition reduction of representation on denial orabridgment of the right to vote in certain named elections, ratherthan to speak generally of denial or abridgment of "the electivefranchise."Ibid. That section now reads:

"Representatives shall be apportioned among the several Statesaccording to their respective numbers, counting the whole number ofpersons in each State, excluding Indians not taxed. But when theright to vote at any election for the choice of electors forPresident and Vice President of the United States, Representativesin Congress, the Executive and Judicial officers of a State, or themembers of the Legislature thereof, is denied to any of the maleinhabitants of such State, being twenty-one years of age, andcitizens of the United States, or in any way abridged, except forparticipation in rebellion, or other crime, the basis ofrepresentation therein shall be reduced in the proportion which thenumber of such male citizens shall bear to the whole number of malecitizens twenty-one years of age in such State."

[Footnote 3/13]

Section 1 of that Act provided in part that

"all persons . . . shall have the same right, in every State andTerritory in the United States, to make and enforce contracts, tosue, be parties, and give evidence, to inherit, purchase, lease,sell, hold, and convey real and personal property, and to full andequal benefit of all laws and proceedings for the security ofperson and property, as is enjoyed by white citizens, and shall besubject to like punishment, pains, and penalties, and to noneother, any law, statute, ordinance, regulation, or custom to thecontrary notwithstanding."

Act of Apr. 9, 1866, § 1, 14 Stat. 27.

[Footnote 3/14]

In this connection, Professor Fairman's admonition of 20 yearsago is even more forceful than it was when he wrote:

"We know so much more about the constitutional law of theFourteenth Amendment than the men who adopted it that we shouldremind ourselves not to be surprised to find them vague where wewant them to prove sharp. Eighty years of adjudication has taughtus distinctions and subtleties where the men of 1866 did not evenperceive the need for analysis."

Fairman, Does the Fourteenth Amendment Incorporate the Bill ofRights?, 2 Stan.L.Rev. 5, 9 (1949).

[Footnote 3/15]

See, e.g., Globe 599 (Sen. Trumbull); Globe 1117 (Cong.Wilson of Iowa, quoting Kent's Commentaries and Bouvier's LawDictionary); Globe 1152 (Cong. Thayer). There were some, however,who considered the distinction either nonexistent or too uncertainto be a basis for legislation.E.g., Globe 477 (Sen.Saulsbury); Globe 1157 (Cong. Thornton); Globe 1292-1293 (Cong.Bingham).

It hardly seems necessary to point out that the jurisprudentialconcept of "political," as opposed to "civil" or "natural," rightsbears no relation to that class of nonjusticiable issues perhapsinappropriately known as "political questions."See theopinion of MR. JUSTICE DOUGLAS,ante at400 U. S.137-140.

[Footnote 3/16]

See generally Fairman, Does the Fourteenth AmendmentIncorporate the Bill of Rights?, 2 Stan.L.Rev. 5 (1949), especiallyat 9.

[Footnote 3/17]

The remarks of these three Democrats, Niblack, Boyer, andRogers, are discussedinfra at400 U. S.182-185. Also discussed there are the remarks of afourth Democratic Representative, Phelps, which were deliveredbefore the start of debate on the proposed FourteenthAmendment.

[Footnote 3/18]

While this provision might seem useless in light of theFifteenth Amendment, it was doubtless intended to prohibit theimposition of property or literacy qualifications which, eventhough fairly applied, would have the effect of disfranchising mostof the Negroes. The Radicals had sought to prohibit suchqualifications in the Fifteenth Amendment, but were unsuccessful.See Gillette 53, 56-62, 69-72, 76.

[Footnote 3/19]

While the history indicates that the supporters of theFourteenth Amendment would have been surprised at the suggestionthat the Amendment brought qualifications for state office underfederal supervision, office-holding was not the focus of attentionduring the consideration of the Amendment. Moreover, state power toset voter qualifications, unlike state power to set qualificationsfor office, is explicitly recognized not only in the originalConstitution but in § 2 of the Fourteenth Amendment itself. Whetherthese distinctions are sufficient to justify testing statequalifications for office by the Fourteenth Amendment is a matternot presented by these cases.

Where the state action has a racial basis,see Anderson v.Martin,375 U. S. 399(1964), I am not prepared to assume that the Fifteenth Amendmentprovides no protection. Despite the statement in the opinion of MR.JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL,post at400 U. S. 252,I would find it surprising if a State could undercut the right tovote by taking steps to ensure that all candidates are unpalatableto voters of a certain race. Although an explicit provision onoffice-holding was deleted from the proposed Fifteenth Amendment atthe eleventh hour, the idea that the right to vote without moreimplies the right to be voted for was specifically referred to bysupporters of the Fifteenth Amendment in both Houses of Congress.See Cong.Globe, 40th Cong., 3d Sess., 1421426 (1869)(Cong. Boutwell);id. at 1426 (Cong. Butler);id.at 1629 (Sen. Sawyer).

[Footnote 3/20]

Hearings,supra,400U.S. 112fn3/8|>n. 8, at 128-129.

[Footnote 3/21]

See, e.g., Globe 141-142 (Cong. Blaine); Globe2766-2767 (Sen. Howard); Globe 2769-2770 (Sens. Wade and Wilson);Globe 3033 (Sen. Henderson).

[Footnote 3/22]

The Journal is reprinted in Kendrick,supra,400U.S. 112fn3/3|>n. 3, at 37-129.

[Footnote 3/23]

The attempts were not altogether successful.See James108-109.

[Footnote 3/24]

See generally Kendrick 18-22. For reasons to bedeveloped below,infra at400 U. S. 197,the report of the Joint Committee, H.R.Rep. No. 30, 39th Cong., 1stSess. (1866), is less useful as an indication of the understandingof the Committee and the Congress than as an indication of theunderstanding of the ratifying States.

[Footnote 3/25]

Owen's account of the Fourteenth Amendment is given in PoliticalResults from the Varioloid, 35 Atlantic Monthly 660 (June1875).

[Footnote 3/26]

See James 109-112; Gillette 24; Owen,supra,400U.S. 112fn3/25|>n. 25, at 666.

[Footnote 3/27]

See the votes on Stevens' motion to select the alternative whichreduced representation, rather than that which prohibited racialrestrictions on the ballot, Kendrick 52; Boutwell's motion tocondition readmission of Tennessee on that State's agreement not todiscriminate in its voter qualifications, Kendrick 70; Stevens'motion to strike out the provision of the Owen plan enfranchisingNegroes after 1876, Kendrick 101; and the motion to conditionreadmission of Tennessee and Arkansas on their having providedimpartial male suffrage, as well as on conforming their laws andconstitutions to the requirements of the proposed amendment (whichincluded Bingham's provision when this motion was made), Kendrick109.

Bingham was not, however, wholly opposed to Negro suffrage. Aschairman of the subcommittee, he reported the equal rightsprovision which would have empowered Congress to provide for equalpolitical rights and privileges, Kendrick 56, although he was theone who subsequently had that replaced with the first equal rightsprovision reported to Congress. Kendrick 61. As already noted, thesubstitute contained substantially identical language, but omittedreference to political rights and privileges. Bingham also votedfor Owen's plan, which would have enfranchised Negroes in 1876,when it was first presented. Kendrick 85. In February, 1867, hemoved to condition readmission of the Southern States on impartialmale suffrage, as well as on the States' ratifying the FourteenthAmendment and conforming their laws thereto. Kendrick 123.

[Footnote 3/28]

While any guess as to the motives of Bingham and the othermembers of the committee is sheer speculation, it is notnecessarily true that they believed they were replacing specificlanguage with general. The author of the original plan, for one,seems to have taken the opposite view. He gave the followingcharacterization of § 1 some years later:

"A declaration who is a citizen: unnecessary, if we had givensuffrage to the negro; since there could be no possible doubt thatan elector, native-born, is a citizen of the United States. Also aspecification of theparticular civil rights tobe assured: out of place, I think, in a constitutional amendment,though necessary and proper in a civil rights bill."

Owen,supra,400U.S. 112fn3/25|>n. 25, at 666 (emphasis added).

[Footnote 3/29]

The proceedings of the Joint Committee are examined in greaterdetail in the opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE,and MR. JUSTICE MARSHALL.Post at400 U. S.257-263. I agree with their apparent conclusion that theJournal sheds little light on the contemporary construction of theFourteenth Amendment. One is left to do what he can with the twofacts noted at the outset of this section: that of the plansconsidered by the Joint Committee, all provided either forreduction of representation or for enfranchisement while noneprovided for both at the same time; and that the Committeeconsistently rejected provisions to enfranchise the freedmen, withthe conceivable exception of a plan which was defeated in the Houselargely because of the scope of the powers it transferred from theStates to the Federal Government.

[Footnote 3/30]

Unless, of course, one adopts a "conspiracy theory" of thehistory of the Fourteenth Amendment. Thus, far no one has (quite)done so in this context.

[Footnote 3/31]

"I regret more than I shall be able to tell this House that wehave not found the situatiou [sic] of affairs in thiscountry such, and the public virtue such, that we might come out onthe plain, unanswerable proposition that every adult intelligentcitizen of the United States, unconvicted of crime, shall enjoy theright of suffrage."

Globe 2462.

[Footnote 3/32]

"I shall, Mr. Speaker, vote for this amendment not because Iapprove it. Could I have controlled the report of the committee offifteen, it would have proposed to give the right of suffrage toevery loyal man in the country."

Globe 2469.

"So far as I am individually concerned, I object to theamendment as a whole, because it does not go far enough and proposeto at once enfranchise every loyal man in the country."

Ibid.

[Footnote 3/33]

"The proposition in the matter of suffrage falls short of what Idesire, but, so far as it goes, it tends to the equalization of theinequality at present existing; and while I demand and shallcontinue to demand the franchise for all loyal male citizens ofthis country -- and I cannot but admit the possibility thatultimately those eleven States may be restored to representativepower without the right of franchise being conferred upon thecolored people -- I should feel myself doubly humiliated anddisgraced, and criminal even, if I hesitated to do what I can for aproposition which equalizes representation."

Globe 2508.

[Footnote 3/34]

"The second section, Mr. Speaker, is, in my judgment, as nearlycorrect as it can be without being fully, in full measure, right.But one thing is right, and that is secured by the amendment.Manifestly no State should have its basis of nationalrepresentation enlarged by reason of a portion of citizens withinits borders to which the elective franchise is denied. If politicalpower shall be lost because of such denial, not imposed because ofparticipation in rebellion or other crime, it is to be hoped thatpolitical interests may work in the line of justice, and that theend will be the impartial enfranchisement of all citizens notdisqualified by crime. Whether that end shall be attained or not,this will be secured: that the measure of political power of anyState shall be determined by that portion of its citizens which canspeak and act at the polls, and shall not be enlarged because ofthe residence within the State of portions of its citizens deniedthe right of franchise. So much for the second section of theamendment. It is not all that I wish and would demand; but odiousinequalities are removed by it and representation will beequalized, and the political rights of all citizens will, under itsoperation be, as we believe, ultimately recognized andadmitted."

Globe 2511.

[Footnote 3/35]

"I did hope to see the rights of the freedmen completelyestablished. . . . I did hope . . . that we should have the manhoodand magnanimity to declare that men who have wielded the sword indefense of their country are fit to be intrusted with the ballot.But I am convinced that my expectations, hitherto fondly cherished,are doomed to some disappointment."

Globe 2537.

[Footnote 3/36]

"This is a step in the right direction; and although I shouldprefer to see incorporated into the Constitution a guarantee ofuniversal suffrage, as we cannot get the required two thirds forthat, I cordially support this proposition as the next best."

Globe 2540.

[Footnote 3/37]

"[If the freed slaves had been added] to the thinking, votingmen of the southern States, it would be just and proper that thataddition should be represented in this body. But we all know thatsuch is not the case. In those States themselves, the late slavesdo not enter into the basis of local representation. . . ."

"Would it not be a most unprecedented thing that, when thispopulation are not permitted where they reside to enter into thebasis of representation in their own State, we should receive it asan element of representation here. . . ."

Globe 2464.

[Footnote 3/38]

"The second proposition is, in short, to limit therepresentation of the several States as those States themselvesshall limit suffrage. . . ."

". . . And why not? If the negroes of the South are not to becounted as a political element in the government of the South inthe States, why should they be counted as a political element inthe government of the country in the Union? If they are not to becounted as against the southern people themselves, why should theybe counted as against us?"

Globe 2498

[Footnote 3/39]

H.R. 51

"deprived [the southern States] of all inducement for [the]gradual admission [of the freedmen] to the right of suffrage,inasmuch as it exacted universal suffrage as the only conditionupon which they should be counted in the basis of representation atall. . . . I voted against a proposition which seemed to me sounjust and so injurious, not only to the whites of the southernStates, but to the colored race itself. Well, sir, that amendmentwas rejected in the Senate, and the proposition, as embodied in thecommittee's report, comes before us in a very different form. It isnow proposed to base representation upon suffrage, upon the numberof voters, instead of upon the aggregate population in every Stateof the Union. And as I believe that to be essentially just, andlikely to remedy the unequal representation of which complaint isso justly made, I shall give it my vote."

Globe 2502.

Later, in discussion of § 3, which at that time would havedisfranchised certain rebels in federal elections, Raymond remarkedthat the effect would be to allow

"one fifth, one eighth, or one tenth, as the case may be, of thepeople of these southern States to elect members from those States,to hold seats upon this floor."

Ibid. It is obvious that the possibility of Negroes'voting in these elections did not cross his mind.

[Footnote 3/40]

"But this House is not prepared to enfranchise all men; thenation, perhaps, is not prepared for it to-day; the colored raceare not prepared for it, probably, and I am sure the rebels areunfit for it; and as Congress has not the moral courage to vote forit, then put in this provision which cuts off the traitor from allpolitical power in the nation, and then we have secured to theloyal men that control which they so richly deserve."

Globe 2505.

[Footnote 3/41]

"This amendment will settle the complication in regard tosuffrage and representation, leaving each State to regulate thatfor itself, so that it will be for it to decide whether or not itshall have a representation for all its male citizens not less thantwenty-one years of age."

Globe 2510.

[Footnote 3/42]

"I have no doubt that the Government of the United States hasfull power to extend the elective franchise to the coloredpopulation of the insurgent States. I mean authority; I said power.I have no doubt that the Government of the United States hasauthority to do this under the Constitution, but I do not thinkthey have the power. The distinction I make between authority andpower is this: we have, in the nature of our Government, the rightto do it, but the public opinion of the country is such at thisprecise moment as to make it impossible we should do it. It wastherefore most wise on the part of the committee on reconstructionto waive this matter in deference to public opinion."

Globe 2532.

[Footnote 3/43]

"If South Carolina persists in withholding the ballot from thecolored man, then let her take the alternative we offer, ofconfining her to the white basis of representation. . . ."

Globe 2535.

[Footnote 3/44]

Spalding's speeches are given at Globe 2509-2510. His onlyremarks addressed to §§ 1 and 2 read:

"As to the first measure proposed, a person may read it fivehundred years hence without gathering from it any idea that thisrebellion ever existed. The same may be said of the secondproposition, for it only proposes that, the bondsmen being madefree, the apportionment of Representatives in Congress shall bebased upon the whole number of persons who exercise the electivefranchise, instead of the population."

Globe 2509.

A month later, in the debate over the Amendment when it hadreturned from the Senate, Spalding expressed his views moreclearly:

"I say, as an individual, that I would more cheerfully give myvote if that provision allowed all men of proper age whom we havemade free to join in the exercise of the right of suffrage in thiscountry. But if I cannot obtain all that I wish, I will go heartilyto secure all we can obtain."

Globe 3146.

[Footnote 3/45]

Longyear's speech is published at Globe 2536-2537. He did not interms address himself to any section except the third. However, itis not difficult to read his statement that the proposals of theJoint Committee disappointed "the expectations of the people" andhis personal hopes as having reference to the absence of anyprovision on suffrage.

[Footnote 3/46]

Shellabarger spoke only briefly, and this in connection with thedisfranchising section. In the course of his remarks, he expressedthe view that congressional power to regulate voter qualificationsin federal elections was granted by Art. I, § 4. Globe 2512.

[Footnote 3/47]

"Why is it that the gentleman from Pennsylvania [Mr. STEVENS]gives up universal suffrage? Why is it that he and other gentlemengive up universal confiscation? Why is it that other gentlemen giveup universal butchery of that people? It is a compromise of whatthey call principle for the purpose of saving their party in thenext fall election."

Globe 2506.

[Footnote 3/48]

"Gentlemen here admit that they desire [federal control oversuffrage], but that the weak-kneed of their party are not equal tothe issue. Your purpose is the same, and, but for that timidity,you would now ingraft negro suffrage upon our Constitution andforce it on the entire people of this Union."

Globe 2530.

[Footnote 3/49]

"While this [second] section admits the right of the States thusto exclude negroes from voting, it says to them, if you do soexclude them, they shall also be excluded from all representation;and you shall suffer the penalty by loss of representation."

Globe 3145.

[Footnote 3/50]

Boyer's speech was made in opposition to a proposal toenfranchise Negroes in the District of Columbia. He then thoughtNegro suffrage a "monstrous proposition," Globe 176, which wasincompatible with "the broad general principle that this is, and ofright ought to be, a white man's Government." Globe 175. One ofRogers' harangues on the subject came in connection with the samebill. There he spoke of "the monstrous doctrine of politicalequality of the negro race with the white at the ballot-box," Globe198, and launched into an attack remarkable for its vitriol.

[Footnote 3/51]

Boyer viewed § 3, which at that time would have prohibitedvoluntary participants in the rebellion from voting in federalelections, as "the most objectionable of all the parts," Globe2467, as it would disfranchise nine-tenths of the voting populationof the South for more than four years. The second section he foundobjectionable as designed

"to reduce the number of southern representatives in Congressand in the Electoral College; and also to operate as a standinginducement to negro suffrage."

Globe 2467. These remarks indicate no awareness that the firstsection would increase the number of voters in the Southern Statesand also render any "inducement" to Negro suffrage unnecessary.

Rogers later in his speech asserted:

"The committee dare not submit the broad proposition to thepeople of the United States of negro suffrage. They dare not todaypass the negro suffrage bill which passed this House in the Senateof the United States, because, as I have heard one honorable andleading man on the Republican side of the House say, it would sinkinto oblivion the party that would advocate before the Americanpeople the equal right of the negro with the white man tosuffrage."

Globe 2538.

When H.R. 127 was returned by the Senate with amendments, Rogersaddressed the House and stated that, when the records of the JointCommittee were made public, it would be revealed that the Committeeat first agreed to recommend universal Negro suffrage, butreconsidered because of the force of public opinion. Globe App.230. Rogers was himself a member of the Joint Committee, and hepresumably was referring to the acceptance and then rejection ofOwen's plan for enfranchisement in 1876.

[Footnote 3/52]

The Amendment, however, had been released to the press on April28. James 115.

[Footnote 3/53]

It is not amiss to point out that, whatever force Phelps' andRogers' interpretations may have in the face of the contraryauthority, even they foresaw no danger from the Equal ProtectionClause as a source of federal power over the suffrage.

[Footnote 3/54]

Like my colleagues,post at400 U. S. 264,I find it difficult to understand what Bingham meant when he saidthat

"the exercise of the elective franchise, though it be one of theprivileges of a citizen of the Republic, is exclusively under thecontrol of the States."

Globe 2542. However, I do not find this mysterious sentence tomean that the exercise of the elective franchise is exclusivelyunder the control of the States and Congress, nor do I find it todilute the force of his explicit statements quoted above that § 1did not reach the right to vote. The general statements by Binghamand Stevens to the effect that the Amendment was designed toachieve equality before the law, or would be effectuated bylegislation in part, likewise do not weaken the force of thestatements specifically addressed to the suffrage question quotedabove.

[Footnote 3/55]

Fessenden, however, was present in the Senate and participatedin the discussion.See Globe 2763, 2769, 2770. He wastherefore in a position to correct any gross misinterpretation ofhis views or of those of the Committee.

[Footnote 3/56]

My colleagues,post at400 U. S. 264,point to Howard's reference toCorfield v. Coryell, 6Fed.Cas. 546 (No. 3230) (CCED Pa. 1825), in order to "gather someintimation of what probably will be the opinion of the judiciary"on the scope of the Privileges and Immunities Clause of § 1. Globe2765. As the text indicates, Howard rejected Justice Washington'slengthy dictum insofar as it said that the protected privileges andimmunities included "the elective franchise, as regulated andestablished by the laws or constitution of the State in which it isto be exercised." No other Senator quoted or referred to thisportion of Washington's opinion during the debates over theproposed Fourteenth Amendment.Corfield, which held thatNew Jersey could constitutionally restrict access to her oysterbeds to her own residents, was the leading authority on privilegesand immunities in the mind of the 39th Congress, but it was not theonly one.Campbell v. Morris, 3 H. & McH. 535 (Md.1797) (Samuel Chase, J.), andAbbot v. Bayley, 6 Pick. 89(Mass. 1827) (Parker, C.J.), were also cited.See Fairman,Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2Stan.L.Rev. 5, 12-15 (1949). Both specifically stated that theprivileges and immunities protected by Art. IV, § 2, did notinclude the right of suffrage or the right to hold office.

[Footnote 3/57]

Howard was a very clear-spoken man. When it was suggested,during the debates over the Fifteenth Amendment, that the freedmenwere entitled to the ballot by virtue of the Privileges andImmunities Clause of the Fourteenth Amendment, he recalled his rolein the framing of that Amendment and said:

"I feel constrained to say here now that this is the first timeit ever occurred to me that the right to vote was to be derivedfrom the fourteenth article. I think such a construction cannot bemaintained."

Cong.Globe, 40th Cong., 3d Sess., 1003 (1869). He then referredto the debates, § 2 of the Fourteenth Amendment, and the factthat

"[n]obody ever supposed that the right of voting or of holdingoffice was guarantied by that second section of the fourth articleof the old Constitution"

to bolster his construction of § 1 of the Fourteenth Amendment.Ibid.

[Footnote 3/58]

"I think our friends, the colored people of the South, shouldnot be excluded from the right of voting, and they shall not be ifmy vote and the votes of a sufficient number who agree with me inCongress shall be able to carry it. I do not agree in thisparticular with the Senator from Michigan [Mr. Howard]. He yieldsto the provision in the committee's resolution on the subjectreluctantly, because he does not believe three fourths of theStates can be got to ratify that proposition, which is right andjust in itself. My own opinion is that, if you go down to the veryfoundation of justice, so far from weakening yourself with thepeople, you will strengthen yourself immensely by it; but I knowthat it is not the opinion of many here, and I suppose we mustaccommodate ourselves to the will of majorities, and if we cannotdo all we would, do all we can. I propose for myself to contend forall I can get in the right direction, and finally to go with thosewho will give us anything that is beneficial."

Globe 2769.

[Footnote 3/59]

"I should be much better satisfied if the right of suffrage hadbeen given at once to the more intelligent of ['the colored peopleof the South'] and such as had served in our Army. . . . Believingthat this amendment probably goes as far in favor of suffrage tothe negro as is practicable to accomplish now, and hoping it may inthe end accomplish all I desire in this respect, I shall vote forits adoption, although I should be glad to go further."

Globe 2963-2964.

[Footnote 3/60]

"It declares that all men are entitled to life, liberty, andproperty, and imposes upon the Government the duty of dischargingthese solemn obligations, but fails to adopt the easy and directmeans for the attainment of the results proposed. It refuses theaid of four million people in maintaining the Government of thepeople. . . . [But] it furnishes a conclusive argument in favor ofuniversal amnesty and impartial suffrage. . . . The utterimpossibility of a final solution of the difficulties by the meansproposed will cause the North to clamor for suffrage."

Globe 2964.

[Footnote 3/61]

"I am sorry to have to put that clause [§ 2] into ourConstitution, as I am sorry for the necessity which calls upon usto put the preceding clause into the Constitution. I wish there wasno community and no State in the United States that was notprepared to say with my friend from Nevada [Mr. Stewart] that allmen may be represented in the Congress of the United States andshall be represented and shall choose their own representatives.That is the better doctrine; that is the true doctrine. I wouldmuch prefer, myself, to unite with the people of the United Statesin saying that, hereafter, no man shall be excluded from the rightto vote, than to unite with them in saying that, hereafter, somemen may be excluded from the right of representation."

Globe App. 219.

[Footnote 3/62]

Henderson, who had offered a direct enfranchising provision asan alternative to the Committee's first effort in the field ofrepresentation,see Globe App. 115, stated that he nowrecognized that "the country is not yet prepared" to sharepolitical power with Negroes, and he supported the Committee plan.Globe 3035.

[Footnote 3/63]

"[A]lthough we do not obtain suffrage now, it is not far off,because the grasping desire of the South for office, that olddesire to rule and reign over this Government and control itsdestinies, will at a very early day hasten the enfranchisement ofthe loyal blacks."

Globe 3038.

[Footnote 3/64]

"There is no reason why the white citizens of South Carolinashould vote the political power of a class of people whom they sayare entirely unfit to vote for themselves. If there is any portionof the people of this country who are unfit to vote for themselves,their neighbors ought not to vote for them."

Globe 2986.

There was no indication that Sherman considered South Carolina'sdisqualification on racial grounds any more improper thanMassachusetts' limitations of the franchise to men, which hementioned in the next breath.

[Footnote 3/65]

If you think the negro ought to have the right of voting; if youare in favor of it, and intend it shall be given, why do you not inplain words confer it upon them? It is much fairer than to seek itby indirection, and the people will distinctly understand you whenyou propose such a change of the Constitution.

Globe 2939.

[Footnote 3/66]

What is to be the operation of this amendment? Just this: yourwhip is held over Pennsylvania, and you say to her that she musteither allow her negroes to vote or have one member of Congressless.

Globe 2987.

[Footnote 3/67]

"[The second section's] true meaning was intended to bedifficult to be reached, but, when understood, it is a measurewhich shrinks from the responsibility of openly forcing negrosuffrage upon the late slave States, but attempts by a greatpenalty to coerce them to accept it."

Globe App. 240.

[Footnote 3/68]

"It says that each of the southern States, and, of course, eachother State in the Union, has a right to regulate for itself thefranchise, and that consequently, as far as the Government of theUnited States is concerned, if the black man is not permitted theright to the franchise, it will be a wrong (if a wrong) which theGovernment of the United States will be impotent to redress."

Globe 3027. Johnson was the only Democratic Senator on the JointCommittee.

[Footnote 3/69]

"With [the rebel States'] enlarged basis of representation, andexclusion of the loyal men of color from the ballot box, I see nohope of safety unless in the prescription of proper enabling acts,which shall do justice to the freedmen and enjoin enfranchisementas a condition precedent."

Globe 3148.

[Footnote 3/70]

Kelley:see Globe 2469, quoted at400U.S. 112fn3/32|>n. 32,supra.

Farnsworth:see Globe 2540, quoted at400U.S. 112fn3/36|>n. 36,supra.

Eliot:see Globe 2511, quoted at n.400U.S. 112fn3/34|>34,supra.

Higby:see Globe 3978 (debate over readmission ofTennessee despite all-white electorate).

Bingham:see Globe 2542, quotedsupra at400 U. S. 185;see also Globe 3979 (debate over readmission ofTennessee).

Stevens:see Globe 2459-2460, quotedsupra at400 U. S.175-177; Globe 3148, quoted at400U.S. 112fn3/69|>n. 69,supra.

Raymond:see Globe 2502, quoted at400U.S. 112fn3/39|>n. 39,supra.

Ashley:see Globe 2882.

Sumner:see400U.S. 112fn3/71|>n. 71,infra.

Fessenden:see H.R.Rep. No. 30, 39th Cong., 1st Sess.,XIII-XIV (1866), quotedinfra at400 U. S.197-198.

Yates:see Globe 3038, quoted at400U.S. 112fn3/63|>n. 63,supra.

Stewart:see Globe 2964, quoted at400U.S. 112fn3/60|>n. 60,supra.

Wade: see Globe 2769, quoted at400U.S. 112fn3/58|>n. 58,supra.

The exception is Senator Wilson of Massachusetts, who did notaddress himself to this issue. However, he participated in thedebates,see Globe 2770, 2986-2987, and was therefore in aposition to express disagreement with the interpretation uniformlyoffered in the Senate.

Secondary reliance is placed on Shellabarger, Cook, Boutwell,Julian, and Lawrence of Ohio. These Representatives, with theexception of Boutwell,see400U.S. 112fn3/33|>n. 33,supra, did not participatesignificantly in the debates over the Fourteenth Amendment. Thesubstance of their earlier remarks is that Congress had some power,usually by way of the Guarantee Clause,see400U.S. 112fn3/6|>n. 6,supra, to oversee state voterqualifications. Shellabarger also relied on Art. I, § 4see400U.S. 112fn3/46|>n. 46,supra; infra at400 U. S. 210;Julian relied on the Thirteenth Amendment; and Boutwell looked tothe Declaration of Independence. The relevance of these views tothe scope of § 1 of the Fourteenth Amendment is not apparent.

[Footnote 3/71]

Stevens:see Globe 2459-2460, quotedsupra at400 U. S.175-177; Globe 3148, quoted at400U.S. 112fn3/69|>n. 69,supra; James 163 (campaignspeech in fall of 1866).

Boutwell:see Globe 2508, quoted at400U.S. 112fn3/33|>n. 33,supra; Globe 3976 (debateover readmission of Tennessee).

Sumner did not actually participate in the debates on H.R. 127.However, after the caucus of Republican Senators had agreed on theform of the Amendment, Sumner gave notice that he intended to moveto amend the bill accompanying the proposed Amendment. This bill,S. 292, provided that any Confederate State might be readmitted torepresentation in Congress once the proposed Amendment had becomepart of the Constitution and the particular State should haveratified it and modified its constitution and laws in conformitytherewith. The bill is reprinted in H.R.Rep. No. 30, 39th Cong.,1st Sess., V-VI, and in Kendrick 117-119. Sumner's amendment wouldhave provided that a State might be readmitted when it should haveratified the Fourteenth Amendment and modified its constitution andlaws in conformity therewith

"and shall havefurther provided that there shall be nodenial of the elective franchise to citizens of the United Statesbecause of race or color, and that all persons shall be equalbefore the law."

Globe 2869 (emphasis added).

Sumner also referred to Negro suffrage as unfinished business inspeeches that fall. James 173, 178.

[Footnote 3/72]

For citations to the state materials,see Fairman, Doesthe Fourteenth Amendment Incorporate the Bill of Rights?, 2Stan.L.Rev. 5, 84-132 (1949).

[Footnote 3/73]

Fear that the Amendment would reach voting was expressed inBrevier Legis.Rep. [Indiana] 45-46, 80, 88-89 (1867); Tenn.H.R.J.38 (Extra Sess. 1866); Fla.S.J. 102 (1866); N.C.S.J. 96-97(1866-1867); S.C.H.R.J. 34 (1866); and Tex.S.J. 422-423 (1866). Thelast four States rejected the proposed Amendment. Opponents of theAmendment stated or assumed that it would not reach votingqualifications in Ark.H.R.J. 288-289 (1866); Fla.S.J. 8-9 (1866);Report of the Joint Committee on Federal Relations, Md.H.R.Doc. MM,p. 15 (Mar. 18, 1867); Mass.H.R.Doc. No. 149, pp. 7-9, 16-17(1867); and Wis.S.J. 102-103 (1867). Fla.H.R.J. 76-78 (1866);Ind.H.R.J. 102-103 (1867); and N.H.S.J. 71-72 (1866) areequivocal.

[Footnote 3/74]

"Are not all persons born or naturalized in the United Statesand subject to its jurisdiction rightfully citizens of the UnitedStates and of each State, and justly entitled to all the politicaland civil rights citizenship confers? and should any State possessthe power to divest them of these great rights except for treasonor other infamous crime?"

Ill.H.R.J. 40 (1867).

[Footnote 3/75]

Ind.H.R.J. 47-48 (1867); Kan.S.J. 45 (1867); Maine S.J. 23(1867); Mass.H.R.Doc. No. 149, pp. 25-26 (1867); Nev.S.J. App. 9(1867); Vt.S.J. 28 (1866); W.Va.S.J.19 (1867); Wis.Assembly J. 33(1867).

[Footnote 3/76]

l H.R.Rep. No. 30, 39th Cong., 1st Sess., XIII-XIV (1866).

[Footnote 3/77]

I have found references to only two such speeches, one bySenator Hendricks and the other by one George M. Morgan, acandidate for Congress in Ohio. Cincinnati Daily Commercial, Aug.9, 1866, p. 1, col. 4, quoted in Fairman,supra,400U.S. 112fn3/14|>n. 14, at 72; Cincinnati Daily Commercial,Aug. 23, 1866, p. 2, col. 3, quoted in Fairman,supra, at75.

[Footnote 3/78]

See Gillette,supra,400U.S. 112fn3/3|>n. 3, at 227.

[Footnote 3/79]

Reynolds v. Sims,377 U. S. 533,377 U.S. 589 (1964)(dissenting opinion).

[Footnote 3/80]

Art. IV, § 4.See400U.S. 112fn3/6|>n. 6,supra, for the text.

[Footnote 3/81]

The contention that Congress has power to override statejudgments as to qualifications for voting in federal elections isdiscussedinfra at400 U. S.209-212.

[Footnote 3/82]

Amdt. XV:

"Section 1. The right of citizens of the United States to voteshall not be denied or abridged by the United States or by anyState on account of race, color, or previous condition ofservitude."

"Section 2. The Congress shall have power to enforce thisarticle by appropriate legislation."

Amdt. XIX:

"The right of citizens of the United States to vote shall not bedenied or abridged by the United States or by any State on accountof sex."

"Congress shall have power to enforce this article byappropriate legislation."

Amdt. XXIV:

"Section 1. The right of citizens of the United States to votein any primary or other election for President or Vice President,for electors for President or Vice President, or for Senator orRepresentative in Congress, shall not be denied or abridged by theUnited States or any State by reason of failure to pay any poll taxor other tax."

"Sec. 2. The Congress shall have power to enforce this articleby appropriate legislation."

[Footnote 3/83]

See, e.g., Harper v. Virginia Board of Elections,383 U. S. 663,383 U. S. 670(1966):

"Our conclusion, like that inReynolds v.Sims, [377 U.S.533 (1964),] is founded not on what we think governmentalpolicy should be, but on what the Equal Protection Clauserequires."

[Footnote 3/84]

Most of the cases in which this Court has used the EqualProtection Clause to strike down state voter qualifications havebeen decided since 1965. Eight such cases have been decided byopinion.Carrington v. Rash,380 U. S.89 (1965);Louisiana v. United States,380 U. S. 145(1965);Harper v. Virginia Board of Elections,383 U. S. 663(1966);Katzenbach v. Morgan,384 U.S. 641 (1966);Kramer v. Union School District,395 U. S. 621(1969);Cipriano v. City of Houma,395 U.S. 701 (1969);Evans v. Cornman,398 U.S. 419 (1970);Phoenix v. Kolodziejski,399 U. S. 204(1970). Other cases have been summarily disposed of. In none ofthese cases did the Court advert to the argument based on thehistorical understanding.

Before 1965, although this Court had occasionally entertained onthe merits challenges to state voter qualifications under the EqualProtection Clause, only two cases had sustained the challenges.Nixon v. Herndon,273 U. S. 536(1927), held that a Texas statute limiting participation in theDemocratic Party primary to whites violated the FourteenthAmendment.Nixon v. Condon,286 U. S.73 (1932), held that Texas did not avoid the reach oftheHerndon decision by transferring to the party'sexecutive committee the power to set qualifications forparticipation in the primary. In neither of the Nixon cases was thehistory of the Fourteenth Amendment suggested to the Court. Bothcases were argued on the assumption that racial prohibitions onvoting in state general elections would violate the Fourteenth, aswell as the Fifteenth, Amendment. This potential line of decisionsproved abortive whenUnited States v. Classic,313 U. S. 299(1941), laid the groundwork for holding that participation in partyprimaries was included within the "right . . . to vote" protectedby the Fifteenth Amendment.See Reynolds v. Sims,377 U. S. 533,377 U.S. 614 n. 72 (1964)(dissenting opinion). The Nixon opinions were not relied on by theCourt in the subsequent white primary cases,Smith v.Allwright,321 U. S. 649(1944), andTerry v. Adams,345 U.S. 461 (1953), and they were not even referred to in therecent cases on voter qualifications cited above.

[Footnote 3/85]

In this particular instance the other two branches of theGovernment have, in fact, expressed conflicting views as to thevalidity of Title III of the Act, the voting age provision.See H.R.Doc. No. 91-326 (1970).

[Footnote 3/86]

In fact, however, I do not understand how the doctrine ofdeference to rational constitutional interpretation by Congress,espoused by the majority inKatzenbach v. Morgan,384 U. S. 641(1966), is consistent with this statement of Chief Justice Marshallor with our reaffirmation of it inCooper v. Aaron,358 U. S. 1,358 U. S. 18(1958):

"[Marbury] declared the basic principle that thefederal judiciary is supreme in the exposition of the law of theConstitution, and that principle has ever since been respected bythis Court and the Country as a permanent and indispensable featureof our constitutional system."

[Footnote 3/87]

Contrast Metropolitan Cas. Ins. Co. v. Brownell,294 U. S. 580(1935), relied on by my colleagues. In that case, the crucialfactual issue, on which the record was silent, was whether casualtyinsurance companies not incorporated in Indiana "generally keeptheir funds and maintain their business offices, and their agenciesfor the settlement of claims, outside the state." 294 U.S. at294 U. S.585.

[Footnote 3/88]

It might well be asked why this standard is not equallyapplicable to the congressional expansion of the franchise beforeus. Lowering of voter qualifications dilutes the voting power ofthose who could meet the higher standard, and it has been heldthat

the right of suffrage can be denied by a debasement or dilutionof the weight of a citizen's vote just as effectively as by whollyprohibiting the free exercise of the franchise.

Reynolds v. Sims,377 U. S. 533,377 U. S. 555(1964) (footnote omitted). Interference with state control overqualifications for voting in presidential elections in order toencourage interstate migration appears particularly vulnerable toanalysis in terms of compelling federal interests.

[Footnote 3/89]

Although MR. JUSTICE BLACK rests his decision in part on theassumption that the selection of presidential electors is a"federal" election, the Court held inIn re Green,134 U. S. 377,134 U. S. 379(1890), and repeated inRay v. Blair,343 U.S. 214,343 U. S.224-225 (1952), that presidential electors act byauthority of the States and are not federal officials.

[Footnote 3/90]

At the time these suits were filed only two of the 50 States,Georgia and Kentucky, allowed 18-year-olds to vote, and only twoother States, Hawaii and Alaska, set the voting age below 21. Insubsequent referenda, voters in 10 States declined to lower thevoting age; five States lowered the voting age to 19 or 20; andAlaska lowered the age from 19 to 18.See the WashingtonPost, Nov. 5, 1970, p. A13, col. 5.

[Footnote 3/91]

"The Citizens of each State shall be entitled to all Privilegesand Immunities of Citizens in the several States."

[Footnote 3/92]

At the time the Constitution was adopted, additionalrestrictions based on payment of taxes and ownership of property,as well as creed and sex, were imposed, making the proposition evenclearer.

[Footnote 3/93]

See Art. II:

"Each State retains its sovereignty, freedom and independence,and every power, jurisdiction and right, which is not by thisconfederation expressly delegated to the United States, in Congressassembled."

[Footnote 3/94]

The legislative history of the Voting Rights Act Amendmentscontains sufficient evidence to this effect, if any be needed.

[Footnote 3/95]

Cf. § 4 of the Voting Rights Act of 1965, 79 Stat. 438,which suspended literacy tests only in areas falling within acoverage formula and allowed reinstatement of the tests uponjudicial determination that, during the preceding five years notests had been used with discriminatory purpose or effect. 42U.S.C. § 1973b(a) (1964 ed., Supp. V), amended by Pub.L. No. 91-285§ 3, 84 Stat. 315.

[Footnote 3/96]

I assume that reasonableness is the applicable standard,notwithstanding the fact that the instant legislation is challengedon the ground that it improperly dilutes the votes of literateArizona citizens.But see Kramer v. Union School District,395 U. S. 621(1969);400U.S. 112fn3/88|>n. 88,supra.

MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALLdissent from the judgments insofar as they declare § 302unconstitutional as applied to state and local elections, andconcur in the judgments in all other respects, for the followingreasons.

These cases draw into question the power and judgment ofCongress in enacting Titles II and III of the Voting Rights ActAmendments of 1970, 84 Stat. 314. The State of Arizona challengesthe power of Congress to impose a nationwide ban, until August 6,1975, on the use of literacy and certain other tests to limit thefranchise in any election. The State of Idaho takes issue with theasserted congressional power to find that the imposition of adurational residence requirement to deny the right to vote inelections for President and Vice President imposes a burden uponthe right of free interstate

Page 400 U. S. 230

migration that is not necessary to further a compelling stateinterest. [Footnote 4/1] Finally,the States of Oregon, Texas, Arizona, and Idaho would have usstrike down as unreasonable and beyond congressional power thefindings, embodied in § 301(a) of the Amendments, that denying thevote to otherwise qualified persons 18 to 21 years of age, whilegranting it to those 21 years of age and older, violates the EqualProtection Clause and is, in any event, not reasonably related toany compelling state interest. [Footnote 4/2] In Nos. 43, Orig., and 44, Orig., Oregonand Texas have invoked our original jurisdiction under Art. III, §2, of the Constitution to restrain the Attorney General of theUnited States, a citizen of New York, from enforcing the18-year-old voting provisions of the Amendments.

Page 400 U. S. 231

South Carolina v. Katzenbach,383 U.S. 301,383 U. S. 307(1966). In Nos. 46, Orig., and 47, Orig., the United States seeksorders enjoining Arizona from enforcing age and literacylimitations on the franchise, [Footnote4/3] and enjoining Idaho from enforcing age, residence, andabsentee voting limitations, [Footnote4/4] insofar as those limitations are inconsistent with the1970 Amendments. Original jurisdiction, again, is founded upon Art.III, § 2, of the Constitution.See United States v.California,332 U. S. 19,332 U. S. 22(1947). Since, in our view, congressional power to enact thechallenged Amendments is found in the enforcement clauses of theFourteenth and Fifteenth Amendments, and since we may easilyperceive a rational basis for the congressional judgmentsunderlying 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.

IThe Voting Rights Act of 1965, 79 Stat. 438, 42 U.S.C. § 1973et seq. (1964 ed., Supp. V), proscribed the use of any"test or device," [Footnote 4/5]including literacy tests, in States

Page 400 U. S. 232

or their political subdivisions that fell within a coverageformula 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 thatliteracy tests, fairly administered, violate neither the Fourteenthnor the Fifteenth Amendment,Lassiter v. Northampton ElectionBoard,360 U. S. 45(1959), we nevertheless upheld their selective proscription byCongress.South Carolina v. Katzenbach,383 U.S. 301 (1966). Canvassing the "voluminous" legislativehistory of the 1965 Act, we found ample basis for a legislativeconclusion that such a proscription was necessary to combat the"insidious and pervasive evil" of racial discrimination with regardto voting.Id. at383 U. S. 308-315. Accordingly, we held the proscriptionto be well within the power of Congress granted by § 2 of theFifteenth Amendment.Id. at383 U. S.327-334. Three years later, inGaston County v.United States,395 U. S. 285(1969), we sustained application of the ban on literacy tests to acounty where there was no evidence that the test itself wasdiscriminatory or that -- at least since 1962 [Footnote 4/6] -- it had been administered in adiscriminatory manner. Notwithstanding this fact, we noted that therecord did contain substantial evidence that, in years past,"Gaston County [had] systematically deprived its black citizens ofthe educational opportunities it granted to its white citizens."Id. at395 U. S. 297.Since this "in turn deprived them of an equal chance to pass theliteracy test,"id. at395 U. S. 291,even impartial administration of an impartial test would inevitablyresult in just the discrimination that Congress

Page 400 U. S. 233

and the Fifteenth Amendment had sought to proscribe.Id. at395 U. S.296-297;see South Carolina v. Katzenbach, 383U.S. at383 U. S. 308,383 U. S.333-334.

No challenge is made in the present cases either to the 1965 Actor 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 alreadyin force by virtue of the 1965 Act. In substance, Arizona arguesthat it is and has been providing education of equal quality forall its citizens; that its literacy test is both fair and fairlyadministered; and that there is no evidence in the legislativerecord upon which Congress could have relied to reach a contraryconclusion. It urges that, to the extent that any citizens ofArizona have been denied the right to vote because of illiteracyresulting from discriminatory governmental practices, the unlawfuldiscrimination has been by governments other than the State ofArizona or its political subdivisions. Arizona, it suggests, shouldnot have its laws overridden to cure discrimination on the part ofgovernmental bodies elsewhere in the country.

We need not question Arizona's assertions as to thenondiscriminatory character, past and present, of its educationalsystem. Congressional power to remedy the evils resulting fromstate-sponsored racial discrimination does not end when the subjectof that discrimination removes himself from the jurisdiction inwhich the injury occurred.

"The Constitution was framed under the dominion of a politicalphilosophy less parochial in range. It was framed upon the theorythat 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.

Page 400 U. S. 234

511,400 U. S. 523(1935);see Edwards v. California,314 U.S. 160,314 U. S.173-176 (1941). In upholding the suspension of literacytests as applied to Gaston County under the 1965 Act, we could see"no legal significance" in the possibility that adult residents ofthe county might have received their education "in other countiesor States also maintaining segregated and unequal school systems."Gaston County v. United States, 395 U.S. at395 U. S. 293n. 9. [Footnote 4/7] Thelegislative history of the 1970 Amendments contains substantialinformation upon which Congress could have based a finding that theuse of literacy tests in Arizona and in other States where theiruse was not proscribed by the 1965 Act has the effect of denyingthe vote to racial minorities whose illiteracy is the consequenceof a previous, governmentally sponsored denial of equal educationalopportunity. The Attorney General of Arizona told the SenateSubcommittee on Constitutional Rights that many older Indians inthe State were "never privileged to attend a formal school."[Footnote 4/8] Extensive testimonybefore both Houses indicated that racial minorities have longreceived inferior educational opportunities throughout the UnitedStates. [Footnote 4/9] Andinterstate

Page 400 U. S. 235

migration of such persons, particularly of Negroes from theSouthern States, has long been a matter of common knowledge.[Footnote 4/10]

Moreover, Congress was given testimony explicitly relating thedenial of educational opportunity to inability to pass literacytests in States not covered by the formula contained in the 1965Act. The United States Commission on Civil Rights reported a surveyof the Northern and Western States which concluded that literacytests have a negative impact upon voter registration which "fallsmost heavily on blacks and persons of Spanish surname." [Footnote 4/11] With regard specificallyto Arizona, the Chairman of the Navajo Tribal Council testifiedthat a greater percentage of Navajos are registered in New Mexico,which has no literacy test, than in Arizona. [Footnote 4/12]

In short, there is no question but that Congress couldlegitimately have concluded that the use of literacy tests anywherewithin the United States has the inevitable effect of denying thevote to members of racial minorities whose inability to pass suchtests is the direct consequence of previous governmentaldiscrimination in education. Almost five years ago, we found in § 2of the Fifteenth Amendment an ample grant of legislative power forCongress to decree a selective proscription of such tests incertain portions of the country.South Carolina v.Katzenbach, 383 U.S. at383 U. S.327-334. We have since held that power ample to coverthe proscription of fair literacy tests, fairly administered,which

Page 400 U. S. 236

nevertheless operate to disenfranchise racial minorities becauseof previous governmental discrimination against them in education.Gaston County v. United States, 395 U.S. at395 U. S. 287,395 U. S.289-293. Five years of experience with the 1965 Actpersuaded Congress that a nationwide ban on literacy and otherpotentially discriminatory tests was necessary to prevent racialdiscrimination in voting throughout the country. That conclusion isamply supported in the legislative record and § 201 of the 1970Amendments is accordingly well within the scope of congressionalpower.

IISection 202 of the 1970 Amendments abolishes all durationalstate residence requirements restricting the right to vote inpresidential elections. In their place, Congress has undertaken toprescribe a uniform nationwide system of registration and absenteevoting designed to allow all otherwise qualified persons to vote insuch elections regardless of the length of time they have lived ina particular jurisdiction. [Footnote4/13] The States are required to keep open their registrationrolls for presidential elections until 30 days preceding theelection. § 202(d). Persons who have changed their residence within30 days of the election are, if otherwise qualified, entitled tovote either in person or by absentee ballot in the State of theirprevious residence, § 202(e), and the States are compelled topermit the casting of absentee ballots by all properly qualifiedpersons who have made application not less than seven days prior tothe election, and returned the ballot to the appropriate officialsnot later than the closing of polls on election day. §§ 202(b),(d). Provision must also be made by the States to allow absenteeregistration. § 202(f).

Page 400 U. S. 237

Idaho challenges the power of Congress to enact such legislationinsofar as it conflicts with Idaho's statutory and constitutionalprovisions regarding durational residence requirements for voting;regarding absentee voting; and regarding absentee registration.[Footnote 4/14] The State'sargument in brief is that the Constitution has left to the Statesthe power to set qualifications for voters in both state andfederal elections, subject only to certain explicit limitationssuch as, for example, those imposed by the Fourteenth, Fifteenth,Nineteenth, and Twenty-fourth Amendments. Admitting thatunreasonable residence requirements may not withstand judicialscrutiny,Carrington v. Rash,380 U. S.89 (1965), Idaho urges that its 60-day residencerequirement is necessary for protection against fraud, and foradministrative purposes. In consequence, § 202 of the 1970Amendments is said to be of no weight against these compellingstate interests.

Whether or not the Constitution vests Congress with particularpower to set qualifications for voting in strictly federalelections, [Footnote 4/15] webelieve there is an adequate constitutional basis for § 202 in § 5of the Fourteenth Amendment. For more than a century, this Courthas recognized the constitutional right of all citizens tounhindered interstate travel and settlement.PassengerCases, 7 How. 283,48 U. S. 492(1849) (Taney, C.J.);Crandall v.Nevada, 6 Wall. 35,73 U. S. 43-44(1868);Paul v.Virginia, 8 Wall. 168,75 U. S. 180(1869);Edwards v. California,314 U.S. 160 (1941);United States v. Guest,383 U. S. 745,383 U. S.757-758 (1966);Shapiro v. Thompson,394 U. S. 618,394 U. S.629-631,394 U. S. 634(1969). From whatever constitutional provision this right may besaid to flow, [Footnote 4/16]both its existence

Page 400 U. S. 238

and its fundamental importance to our Federal Union have longbeen established beyond question.

By definition, the imposition of a durational residencerequirement operates to penalize those persons, and only thosepersons, who have exercised their constitutional right ofinterstate migration. Of course, governmental action that has theincidental effect of burdening the exercise of a constitutionalright is not,ipso facto, unconstitutional. But in such acase, governmental action may withstand constitutional scrutinyonly upon a clear showing that the burden imposed is necessary toprotect a compelling and substantial governmental interest.Shapiro v. Thompson, 394 U.S. at394 U. S. 634;United States v. Jackson,390 U.S. 570,390 U. S.582-583 (1968);Sherbert v. Verner,374 U. S. 398,374 U. S.406-409 (1963). And once it be determined that a burdenhas been placed upon a constitutional right, the onus ofdemonstrating that no less intrusive means will adequately protectcompelling state interests is upon the party seeking to justify theburden.See Speiser v. Randall,357 U.S. 513,357 U. S.525-526 (1958).

In the present case, Congress has explicitly found both that theimposition of durational residence requirements abridges the rightof free interstate migration and that such requirements are notreasonably related to any compelling state interests. 1970Amendments, §§ 202(a)(2), (6). The latter finding was made withfull cognizance of the possibility of fraud and administrativedifficulty. Senator Goldwater, testifying at Senate hearings on thebill, pointed out that 40 States presently allow registration until30 days or less prior to the election. [Footnote 4/17] Idaho itself allows registration bythose desiring to vote as new residents in presidential electionswithin 10 days of balloting. Idaho Code § 34-409 (1963). AndIdaho's assertion of the administrative unfeasibility

Page 400 U. S. 239

of maintaining separate registration lists for fully qualifiedvoters and for those qualified only for presidential balloting isdifficult to credit in light of the fact that the IdahoConstitution, Art. 6, § 2, itself sets separate qualifications forvoting in general and in presidential elections. The provisions forabsentee voting, as Senator Goldwater pointed out on the floor ofthe Senate, were likewise "drawn from the proven practice of theStates themselves." [Footnote4/18] Thirty-seven States allow application within a week ofthe election, and 40 permit the marked ballot to be returned onelection day. [Footnote 4/19]Finally, Idaho has provided no evidence beyond the mere assertionthat the scheme of § 202 is inadequate to protect against fraud.But the only kind of fraud asserted is the possibility of dualvoting, and Idaho has provided no explanation why the 30-day periodbetween the closing of new registrations and the date of electionwould not provide, in light of modern communications, adequate timeto insure against such frauds. Accordingly, we find amplejustification for the congressional conclusion that § 202 is areasonable means for eliminating an unnecessary burden on the rightof interstate migration.United States v. Guest,supra.

IIIThe final question presented by these cases is the propriety ofTitle III of the 1970 Amendments, which

Page 400 U. S. 240

forbids the States from disenfranchising persons over the age of18 because of their age. Congress was of the view that thisprohibition, embodied in § 302 of the Amendments, was necessaryamong other reasons in order to enforce the Equal Protection Clauseof the Fourteenth Amendment.See §§ 301(a)(2), (b). TheStates involved in the present litigation question the assertion ofcongressional power to make that judgment.

It is important at the outset to recognize what is not involvedin these cases. We are not faced with an assertion of congressionalpower to regulate any and all aspects of state and federalelections, or even to make general rules for the determination ofvoter qualifications. Nor are we faced with the assertion thatCongress is possessed of plenary power to set minimum ages forvoting throughout the States. Every State in the Union has concededby statute that citizens 21 years of age and over are capable ofintelligent and responsible exercise of the right to vote. Thesingle, narrow question presented by these cases is whetherCongress was empowered to conclude, as it did, that citizens 18 to21 years of age are not substantially less able.

We believe there is serious question whether a statute grantingthe franchise to citizens 21 and over while denying it to thosebetween the ages of 18 and 21 could, in any event, withstandpresent scrutiny under the Equal Protection Clause. Regardless ofthe answer to this question, however, it is clear to us that properregard for the special function of Congress in makingdeterminations of legislative fact compels this Court to respectthose determinations unless they are contradicted by evidence farstronger than anything that has been adduced in these cases. Wewould uphold § 302 as a valid exercise of congressional power under§ 5 of the Fourteenth Amendment.

Page 400 U. S. 241

A

All parties to these cases are agreed that the States are givenpower, under the Constitution, to determine the qualifications forvoting in state elections. Art. I, § 2;Lassiter v. NorthamptonElection Board,360 U. S. 45,360 U. S. 50(1959);Carrington v. Rash,380 U. S.89,380 U. S. 91(1965). But it is now settled that exercise of this power, like allother exercises of state power, is subject to the Equal ProtectionClause 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 equalprotection required only that a given legislative classification,once made, be evenly applied,see Hayes v. Missouri,120 U. S. 68,120 U. S. 71-72(1887), for more than 70 years we have consistently held that theclassifications embodied in a state statute must also meet therequirements of equal protection.Gulf, C. & S. F. R. Co.v. Ellis,165 U. S. 150,165 U. S. 155(1897);see McLaughlin v. Florida,379 U.S. 184,379 U. S.189-191 (1964), and cases cited.

The right to vote has long been recognized as a "fundamentalpolitical right, because preservative of all rights."Yick Wov. Hopkins,118 U. S. 356,118 U. S. 370(1886);see Reynolds v. Sims,377 U.S. 533,377 U. S. 562(1964);Williams v. Rhodes,393 U. S.23,393 U. S. 31(1968).

"Any unjustified discrimination in determining who mayparticipate in political affairs . . . undermines the legitimacy ofrepresentative government."

Kramer v. Union School District, 395 U.S. at395 U. S. 626.Consequently, when exclusions from the franchise are challenged asviolating the Equal Protection Clause, judicial scrutiny is notconfined to the question whether the exclusion may reasonably bethought to further a permissible interest of the State.

Page 400 U. S. 242

Cf. Metropolitan Cas. Ins. Co. v. Brownell,294 U. S. 580,294 U. S.583-584 (1935). "A more exacting standard obtains."Kramer v. Union School District, 395 U.S. at395 U. S. 633.In such cases, "the Court must determine whether the exclusions arenecessary to promote a compelling state interest."Id. at395 U. S. 627;Cipriano v. City of Houma,395 U.S. 701,395 U. S. 704(1969).

In the present cases, the States justify exclusion of 18- to21-year-olds from the voting rolls solely on the basis of theStates' interests in promoting intelligent and responsible exerciseof the franchise. [Footnote 4/20]There is no reason to question the legitimacy and importance ofthese interests. But standards of intelligence and responsibility,however defined, may permissibly be applied only to the meanswhereby a prospective voter determines how to exercise his choice,and not to the actual choice itself. Were it otherwise, suchstandards could all too easily serve as mere epithets designed tocloak the exclusion of a class of voters simply because of the waythey might vote.Cf. Evans v. Cornman, 398 U.S. at398 U. S.422-423. Such a state purpose is, of course,constitutionally impermissible.Carrington v. Rash, 380U.S. at380 U. S. 94. Wemust, therefore, examine with particular care the assertedconnection between age limitations and the admittedly laudablestate purpose to further intelligent and responsible voting.

We do not lack a starting point for this inquiry. Although thequestion has never been squarely presented, we have in the pastindicated that age is a factor not necessarily irrelevant toqualifications for voting.Lassiter

Page 400 U. S. 243

v. Northampton Election Board, 360 U.S. at360 U. S. 51;Kramer v. Union School District, 395 U.S. at395 U. S.625-626. But recognition that age is not in allcircumstances a "capricious or irrelevant factor,"Harper v.Virginia Board of Elections, 383 U.S. at383 U. S. 668,does not insure the validity of the particular limitation involvedhere.Evans v. Cornman, 38 U.S. at38 U. S.425-426. Every State in the Union has concluded foritself that citizens 21 years of age and over are capable ofresponsible and intelligent voting. Accepting this judgment, thereremains the question whether citizens 18 to 21 years of age mayfairly be said to be less able.

State practice itself in other areas casts doubt upon any suchproposition. Each of the 50 States has provided special mechanismsfor dealing with persons who are deemed insufficiently mature andintelligent to understand, and to conform their behavior to, thecriminal laws of the State. [Footnote4/21] Forty-nine of the States have concluded that, in thisregard, 18-year-olds are invariably to be dealt with according toprecisely the same standards prescribed for their elders. [Footnote 4/22] This at the very least isevidence of a nearly unanimous legislative judgment on the part ofthe States themselves that differences in maturity and intelligencebetween 18-year-olds and persons 21 years of age and over are tootrivial to warrant specialized treatment for any of the formerclass in the critically important matter of criminalresponsibility. [Footnote 4/23]Similarly,

Page 400 U. S. 244

every State permits 18-year-olds to marry, and 39 States do notrequire parental consent for such persons of one or both sexes.[Footnote 4/24] State statutorypractice in other areas follows along these lines, albeit not asconsistently. [Footnote 4/25]

Uniform state practice in the field of education points the sameway. No State in the Union requires attendance at school beyond theage of 18. Of course, many 18-year-olds continue their education to21 and beyond. But no 18-year-old who does not do so will bedisenfranchised thereby once he reaches the age of 21. [Footnote 4/26]

Page 400 U. S. 245

Whether or not a State could in any circumstances conditionexercise of the franchise upon educational achievements beyond thelevel reached by 18-year-olds today, there is no question but thatno State purports to do so. Accordingly, that 18-year-olds as aclass may be less educated than some of their elders [Footnote 4/27] cannot justify restrictionof the franchise, for the States themselves have determined thatthis incremental education is irrelevant to voting qualifications.And finally, we have been cited to no material whatsoever thatwould support the proposition that intelligence, as opposed toeducational attainment, increases between the ages of 18 and21.

One final point remains. No State seeking to uphold its denialof the franchise to 18-year-olds has adduced anything beyond themere difference in age. We have already indicated that therelevance of this difference is contradicted by nearly uniformstate practice in other areas. But perhaps more important is theuniform experience of those States -- Georgia since 1943, andKentucky since 1955 -- that have permitted 18-year-olds to vote.[Footnote 4/28] We have not beendirected to a word of testimony or other evidence that wouldindicate either that 18-year-olds in those States have voted anyless intelligently and responsibly than their elders, or that thereis any reasonable ground for belief that 18-year-olds in otherStates are less able than those in Georgia and Kentucky. On theother hand, every person who spoke to the issue in either the Houseor Senate was agreed that 18-year-olds

Page 400 U. S. 246

in both States were at least as interested, able, andresponsible in voting as were their elders. [Footnote 4/29]

In short, we are faced with an admitted restriction upon thefranchise, supported only by bare assertions and long practice, inthe face of strong indications that the States themselves do notcredit the factual propositions upon which the restriction isasserted to rest. But there is no reason for us to decide whether,in a proper case, we would be compelled to hold this restriction aviolation of the Equal Protection Clause. For, as our decisionshave long made clear, the question we face today is not one ofjudicial power under the Equal Protection Clause. The question isthe scope of congressional power under § 5 of the FourteenthAmendment. To that question we now turn.

B

As we have often indicated, questions of constitutional powerfrequently turn in the last analysis on questions of fact. This isparticularly the case when an assertion of state power ischallenged under the Equal Protection Clause of the FourteenthAmendment. For although equal protection require that all persons"under like circumstances and conditions" be treated alike,Hayes v. Missouri, 120 U.S. at120 U. S. 71,such a formulation merely raises, but does not answer the questionwhether a legislative classification has resulted in differenttreatment of persons who are in fact, "under like circumstances andconditions."

Legislatures, as well as courts, are bound by the provisions ofthe Fourteenth Amendment.Cooper v. Aaron,358 U. S.1,358 U. S. 18-20(1958). When a state legislative classification is subjected tojudicial challenge as violating the Equal Protection Clause, itcomes before the

Page 400 U. S. 247

courts cloaked by the presumption that the legislature has, asit should, acted within constitutional limitations.Kotch v.Board of River Port Pilots,330 U. S. 552,330 U. S. 556,330 U. S.563-564 (1947);see Kramer v. Union SchoolDistrict, 395 U.S. at395 U. S. 627-628. Accordingly,

"[a] statutory discrimination will not be set aside as thedenial of equal protection of the laws if any state of factsreasonably may be conceived to justify it."

Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. at294 U. S. 584.[Footnote 4/30]

But, as we have consistently held, this limitation on judicialreview of state legislative classifications is a limitationstemming not from the Fourteenth Amendment itself, but from thenature of judicial review. It is simply a "salutary principle ofjudicial decision,"Metropolitan Cas. Co. v. Brownell,supra, at294 U. S. 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. 261,332 U. S. 282(1947). The nature of the judicial process makes it aninappropriate forum for the determination

Page 400 U. S. 248

of complex factual questions of the kind so often involved inconstitutional adjudication. Courts, therefore, will overturn alegislative determination of a factual question only if thelegislature's finding is so clearly wrong that it may becharacterized as "arbitrary," "irrational," or "unreasonable."Communist Party v. Control Board,367 U. S.1,367 U. S. 94-95(1961);United States v. Carolene Products Co.,304 U. S. 144,304 U. S.152-154 (1938);Metropolitan Cas. Ins. Co. v.Brownell, 294 U.S. at294 U. S. 583-584.

Limitations stemming from the nature of the judicial process,however, have no application to Congress. Section 5 of theFourteenth Amendment provides that "[t]he Congress shall have powerto enforce, by appropriate legislation, the provisions of thisarticle." Should Congress, pursuant to that power, undertake aninvestigation in order to determine whether the factual basisnecessary to support a state legislative discrimination actuallyexists, it need not stop once it determines that some reasonablemen could believe the factual basis exists. Section 5 empowersCongress to make its own determination on the matter.SeeKatzenbach v. Morgan,384 U. S. 641,384 U. S.654-656 (1966). It should hardly be necessary to addthat, if the asserted factual basis necessary to support a givenstate discrimination does not exist, § 5 of the FourteenthAmendment vests Congress with power to remove the discrimination byappropriate means.Id. at384 U. S.656-657;Fay v. New York, 332 U.S. at332 U. S.282-283;Ex parte Virginia,100 U.S. 339,100 U. S.347-348 (1880).

The scope of our review in such matters has been established bya long line of consistent decisions. "It is not for the courts toreexamine the validity of these legislative findings and rejectthem."Communist Party v. Control Board, 367 U.S. at367 U. S. 94.

"[W]here we find that the legislators, in light of the facts andtestimony before them, have a rational basis for finding a chosenregulatory

Page 400 U. S. 249

scheme necessary . . . our investigation is at an end."

Katzenbach v. McClung,379 U.S. 294,379 U. S.303-304 (1964);Katzenbach v. Morgan, 384 U.S.at384 U. S. 653;see Galvan v. Press,347 U. S. 522,347 U. S. 529(1954). [Footnote 4/31]

This scheme is consistent with our prior decisions in relatedareas. The core of dispute over the constitutionality of Title IIIof the 1970 Amendments is a conflict between state and federallegislative determinations of the factual issues upon which dependsdecision of a federal constitutional question -- the legitimacy,under the Equal Protection Clause, of state discrimination againstpersons between the ages of 18 and 21. Our cases have repeatedlyemphasized that, when state and federal claims come into conflict,the primacy of federal power requires that the federal finding offact control.See England v. Louisiana State Board of MedicalExaminers,375 U. S. 411,375 U. S.415-417 (1964);Townsend v. Sain,372 U.S. 293,372 U. S.311-312 (1963);Tarble's Case,13 Wall. 397,80 U. S.406-407 (1872);cf. United States v. Darby,312 U. S. 100,312 U. S. 119(1941). The Supremacy Clause requires an identical result when theconflict is one of legislative, not judicial, findings.

Finally, it is no answer to say that Title III intrudes upon adomain reserved to the States -- the power to set qualificationsfor voting. It is no longer open to question that the FourteenthAmendment applies to this, as to any other, exercise of statepower.Kramer v.

Page 400 U. S. 250

Union School District, supra, and cases cited. As wesaid in answer to a similar contention almost a century ago,

"the Constitution now expressly gives authority forcongressional interference and compulsion in the cases embracedwithin the Fourteenth Amendment. It is but a limited authority,true, extending only to a single class of cases; but within itslimits it is complete."

Ex parte Virginia, 100 U.S. at100 U. S.347-348.

C

Our Brother HARLAN has set out in some detail the historicalevidence that persuades him that the framers of the FourteenthAmendment did not believe that the Equal Protection Clause, eitherthrough judicial action or through congressional enforcement under§ 5 of the Amendment, could operate to enfranchise Negroes inStates that denied them the vote.Ante at400 U. S.154-200. From this, he has concluded

"that the Fourteenth Amendment was never intended to restrictthe authority of the States to allocate their political power asthey see fit, and therefore that it does not authorize Congress toset voter qualifications in either state or federal elections."

Ante at400 U. S. 154.This conclusion, if accepted, would seem to require as a corollarythat, although States may not, under the Fifteenth Amendment,discriminate against Negro voters, they are free, so far as theFederal Constitution is concerned, to discriminate against Negro orunpopular candidates in any way they desire. Not surprisingly, ourBrother HARLAN's thesis is explicitly disavowed by all the Statesparty to the present litigation, [Footnote 4/32] and has been presented to us only in thebriefsamici

Page 400 U. S. 251

curiae of Virginia and, perhaps, Mississippi. [Footnote 4/33] We could not accept thisthesis even if it were supported by historical evidence farstronger than anything adduced here today. But, in our view, ourBrother HARLAN's historical analysis is flawed by his ascription of20th-century meanings to the words of 19th-century legislators. Inconsequence, his analysis imposes an artificial simplicity upon acomplex era, and presents, as universal, beliefs that were held bymerely one of several groups competing for political power. We canaccept neither his judicial conclusion nor his historical premisethat the original understanding of the Fourteenth Amendment left itwithin the power of the States to deny the vote to Negrocitizens.

It is clear that the language of the Fourteenth Amendment, whichforbids a State to "deny to any person within its jurisdiction theequal protection of the laws," applies on its face to allassertions of state power, however made. More than 40 years ago,this Court faced for the first time the question whether a Statecould deny Negroes the right to vote in primary elections. Writingfor a unanimous Court, Mr. Justice Holmes observed tartly that

"[w]e find it unnecessary to consider the Fifteenth Amendment,because it seems to us hard to imagine a more direct and obviousinfringement of the Fourteenth."

Nixon v. Herndon,273 U. S. 536,273 U. S.540-541 (1927);see Nixon v. Condon,286 U. S. 73,286 U. S. 83,286 U. S. 87-89(1932) (Cardozo, J.);Anderson v. Martin,375 U.S. 399 (1964);cf. Raymond v. Chicago Union TractionCo.,207 U. S. 20,207 U. S. 35-36(1907). If the broad language of the Equal Protection Clause wereto be read as nevertheless allowing the States to deny equalpolitical rights to any citizens they see fit to exclude from thepolitical process,

Page 400 U. S. 252

far more is involved than merely shifting the doctrinal basis ofsuch cases asNixon v. Herndon from the Fourteenth to theFifteenth Amendment. For the Fifteenth Amendment applies only tovoting, not to the holding of public office; in consequence, ourBrother HARLAN's view would appear to leave the States free toencourage citizens to cast their votes solely on the basis of race(a practice found to violate the Fourteenth Amendment inAnderson v. Martin, supra), or even presumably to denyNegro citizens the right to run for office at all. [Footnote 4/34] We cannot believe that theEqual Protection Clause would permit such discrimination.

In any event, it seems to us, the historical record will notbear the weight our Brother HARLAN has placed upon it. Hisexamination of the historical background of the FourteenthAmendment leads him to conclude that it is

"clear beyond any reasonable doubt that no part of thelegislation now under review can be upheld as a legitimate exerciseof congressional power under that Amendment,"

ante at400 U. S. 155,because the Amendment was not intended "to restrict the authorityof the States to allocate their political power as they see fit."Ante at400 U. S. 154.Our own reading of the historical background, on the other hand,results in a somewhat imperfect picture of an era of constitutionalconfusion, confusion that the Amendment did little to resolve. Asthe leading constitutional historian of the Civil War has observed,constitutional law was characterized during the war years by "anoticeable lack of legal precision" and by "[a] tendency towardirregularity . . . in legislation, and in legal interpretation." J.Randall, Constitutional Problems under Lincoln

Page 400 U. S. 253

515-516 (rev. ed.1951). Nor would the postwar period ofReconstruction be substantially different.

For several decades prior to the Civil War, constitutionalinterpretation had been a pressing concern of the Nation's leadingstatesmen and lawyers, whose attention focused especially on thenature of the relationship of the States to the Federal Government.The onset of the Civil War served only to raise new problems uponwhich the original Constitution offered, at best, only peripheralguidance. The greatest problem of all, perhaps, was the characterof the civil conflict -- whether it was to be treated as arebellion, as a war with a belligerent state, or as somecombination of the two. Another issue concerned the scope offederal power to emancipate the slaves; even President Lincolndoubted whether his Emancipation Proclamation would be operativewhen the war had ended and his special war powers had expired. Thisparticular issue was resolved by the Thirteenth Amendment, but thatAmendment only raised new issues, for some men doubted the validityof even a constitutional change upon such a fundamental matter asslavery, particularly while the status of the eleven ConfederateStates remained unsettled.See id. at 12-24, 59-73,342-404.

The end of the war did not bring an end to difficultconstitutional questions. Two perplexing problems remained. The onewas the relation of the former Confederate States to the FederalGovernment; the other was the relation of the former slaves to thewhite citizens of the Nation. Both were intimately related to thepolitics of the day, an understanding of which is essential, sincethe Fourteenth Amendment was presented to the Nation as theRepublican Party's solution for these problems.See J.James, The Framing of the Fourteenth Amendment 169-173 (1956)(hereafter James).

Page 400 U. S. 254

The starting point must be the key fact that, as of 1860, theRepublicans were very much the Nation's minority party. Lincoln hadwon the Presidency that year with less than 40% of the popularvote, while the Republicans had secured control of Congress onlywhen southern Democrats had left Washington following the secessionof their States. The compromise in the original Constitution, bywhich only three-fifths of the slaves in Southern States werecomputed in determining representation in the House ofRepresentatives and votes in the electoral college, also was amatter of critical importance in 1865; with slavery abolished,southern, and hence Democratic, power in the House and in theelectoral college would increase. The Republicans had calculatedthis matter rather carefully; as the Chicago Tribune haddemonstrated as early as the summer of 1865, the increased southerndelegation would need only 29 readily obtainable Democratic votesfrom the North in order to dominate the House.See James21-23. But Republicans had no intention of permitting such aDemocratic resurgence to occur; in their view, as one RepublicanSenator observed, Republicans would be "faithless" to their"trust," if they allowed "men who have thus proven themselvesfaithless" to recover "the very political power which they havehitherto used for the destruction of this Government." Cong.Globe,39th Cong., 1st Sess. (hereafter Globe) 2918 (1866) (remarks ofSen. Willey). Whether one looks upon such sentiments as a grasp forpartisan political power or as an idealistic determination that thegains of the Civil War not be surrendered, the central fact remainsthat Republicans found it essential to bar or at least to delay thereturn of all-white southern delegations to Congress. Temporarily,they proposed to do so by refusing to seat Congressmen from theseceded States. They usually justified their refusal onconstitutional grounds,

Page 400 U. S. 255

presenting a variety of theories as to how the formerConfederate States had forfeited their rights by secession.Seegenerally E. McKitrick, Andrew Johnson and Reconstruction93-119 (1960). But exclusion of southern representatives could notbe a permanent solution; a better solution seemed to be to elect atleast some Republican representatives from the South byenfranchising the only class that could be expected to voteRepublican in large numbers -- the freedmen.

According to the census of 1860, Negroes had constituted some4,200,000 of the total population of 12,200,000 in the 15 slaveStates. In two States -- Mississippi and South Carolina -- Negroeswere a substantial majority of the population, while, in severalother States, the population was at least 40% Negro. Thus, Negrosuffrage would probably result in a number of Negro, and presumablyRepublican, representatives from the South. The difficulty was withthe means of bringing Negro suffrage about. Some, including ChiefJustice Chase, looked back toward the Emancipation Proclamation andcontended that Negro suffrage could be achieved, at least in theSouth, by means of a presidential proclamation.See James5-7; 1 W. Fleming, Documentary History of Reconstruction 142(1906). Others thought congressional legislation the appropriatevehicle for granting the suffrage,see James 13, 553; VanAlstyne, The Fourteenth Amendment, The "Right" to Vote, and theUnderstanding of the Thirty-Ninth Congress, 1965 Supreme CourtReview 33, 49-51, while still others argued for a constitutionalamendment.See Cincinnati Daily Commercial, Sept.19, 1865,in James 11-12 (reporting speech of Cong. Bingham). Disagreementover means, however, was but a minor obstacle in the path of equalsuffrage; racial prejudice in the North was a far more significantone. Only five New England States and New York permitted anyNegroes to vote

Page 400 U. S. 256

as of 1866,see Van Alstyne,supra, at 70, andextension of the suffrage was rejected by voters in 17 of 19popular referenda held on the subject between 1865 and 1868.Moreover, Republicans suffered some severe election setbacks in1867 on account of their support of Negro suffrage.See W.Gillette, The Right to Vote 227, 32-38 (1969).

Meeting in the winter and spring of 1866 and facing elections inthe fall of the same year, the Republicans in Congress thus faced adifficult dilemma: they desperately needed Negro suffrage in orderto prevent total Democratic resurgence in the South, yet theyfeared that, by pressing for suffrage, they might create a reactionamong northern white voters that would lead to massive Democraticelectoral gains in the North. Their task was thus to frame a policythat would prevent total southern Democratic resurgence and thatsimultaneously would serve as a platform upon which Republicanscould go before their northern constituents in the fall. Whatultimately emerged as the policy and political platform of theRepublican Party was the Fourteenth Amendment. [Footnote 4/35]

As finally adopted, relevant portions of the FourteenthAmendment read as follows:

Sec. 1.

"No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; norshall any State deprive any person of life, liberty, or property,without due process of law; nor deny to any person within itsjurisdiction the equal protection of the laws. "

Page 400 U. S. 257

Sec. 2.

"Representatives shall be apportioned among the several Statesaccording to their respective numbers. . . . But when the right tovote at any election . . . is denied to any of the male inhabitantsof such State, being twenty-one years of age, and citizens of theUnited States, or in any way abridged, except for participation inrebellion, or other crime, the basis of representation thereinshall be reduced in the proportion which the number of such malecitizens shall bear to the whole number of male citizens twenty-oneyears of age in such State."

Sec. 5.

"The Congress shall have power to enforce, by appropriatelegislation, 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 anyState which did not permit Negroes to vote. Section 1 also began,however, as a provision aimed at securing equality of "politicalrights and privileges" -- a fact hardly surprising in view ofRepublican concern with the question. In their earliest versions inthe Joint Congressional Committee on Reconstruction, which framedthe Fourteenth Amendment, §§ 1 and 2 read as follows:

"[Sec. 1.] Congress shall have power to make all laws necessaryand proper to secure to all citizens of the United States, in everyState, the same political rights and privileges; and to all personsin every State equal protection in the enjoyment of life, libertyand property."

B. Kendrick, The Journal of the Joint Committee of Fifteen onReconstruction 51 (1914) (hereafter Kendrick).

"[Sec. 2.] Representatives and direct taxes shall be apportionedamong the several States, which

Page 400 U. S. 258

may be included within this Union, according to their respectivenumbers of persons, deducting therefrom all of any race or color,whose members or any of them are denied any of the civil orpolitical rights or privileges."

Id. at 43. The question that must now be pursued iswhether § 1 of the Amendment ever lost its original connection withthe suffrage question.

It became evident at an early date that the Joint Committee didnot wish to make congressional power over the suffrage moreexplicit than did the language of the original version of thefuture § 1. Six days after that section had been proposed by asubcommittee, the full committee refused to adopt an amendmentoffered by Senator Howard to make the section refer expressly to"political andelective rights and privileges,"id. at 55 (emphasis added), and refused as well tosubstitute for the language:

"Congress shall have power to make all laws necessary and properto secure to all citizens of the United States in each State thesame political rights and privileges; and to all persons in everyState equal protection in the enjoyment of life, liberty andproperty."

the following language offered by Congressman Boutwell:

"Congress shall have power to abolish any distinction in theexercise 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, toreturn the proposal to a special subcommittee, chaired byCongressman John A. Bingham, which at the next meeting of the fullcommittee reported back the following language:

"Congress shall have power to make all laws which shall benecessary and proper to secure all

Page 400 U. S. 259

persons in every state full protection in the enjoyment of life,liberty and property; and to all citizens of the United States inany State the same immunities and also equal political rights andprivileges."

Id. at 56. This language, it seems clear, did notchange the meaning of the section as originally proposed, but thenext 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 benecessary and proper to secure to the citizens of each state allprivileges and immunities of citizens in the several states (Art.4, Sec. 2); and to all persons in the several States equalprotection in the rights of life, liberty and property (5thAmendment)."

Id. at 61. This substitute was accepted by a committeevote of 7-6.

No record of the committee's debates has been preserved, andthus one can only guess whether Bingham's substitute was intendedto change the meaning of the original proposal. The breakdown ofthe committee vote suggests, however, that no change in meaning wasintended. The substitute was supported by men of all politicalviews, ranging from Senator Howard and Congressman Boutwell,radicals who had earlier sought to make the section's coverage ofsuffrage 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 thatBingham meant his substitute to do away with congressional power tolegislate for the preservation of equal rights of suffrage, onecan, with at least equal plausibility,

Page 400 U. S. 260

contend that Bingham sought to do no more than substitute forhis earlier specific language more general language which hadalready appeared elsewhere in the Constitution. [Footnote 4/36]

Bingham's proposed amendment to the Constitution, as modified,was next submitted to the House of Representatives, whereRepublicans joined Democrats in attacking it. RepublicanRepresentative Hale of New York, for example, thought the amendment"in effect a provision under which all State legislation, in itscodes of civil and criminal jurisprudence and procedure, affectingthe individual citizen, may be overridden," Globe 1063, whileRepresentative Davis, also a New York Republican, thought it wouldgive Congress power to establish "perfect political equalitybetween the colored and the white race of the South."Id.at 1085. Meanwhile, the New York Times, edited by conservativeRepublican Congressman Henry J. Raymond, wondered if the proposedAmendment was "simply a preliminary to the enactment of negrosuffrage." Feb.19, 1866. Even the Amendment's supporters recognizedthat it would confer extensive power upon the Federal Government;Representative Kelley, a Pennsylvania radical, who supported theAmendment, concluded, after a lengthy discussion of the right ofsuffrage, that "the proposed amendment . . . [was] intended tosecure it." Globe 1063. Its proponents, however, could not securethe necessary support for the Amendment in the House, and thus werecompelled to postpone the matter until a later date, when theyfailed to bring it again to the floor. Kendrick 215.

Meanwhile, the Joint Committee had returned to work and hadbegun to consider the direct antecedent of the FourteenthAmendment, a proposal by Robert Dale

Page 400 U. S. 261

Owen which Representative Stevens had placed before thecommittee. Its relevant provision were as follows:

"Section 1. No discrimination shall be made by any state, nor bythe United States, as to the civil rights of persons because ofrace, color, or previous condition of servitude."

"Sec. 2. From and after the fourth day of July, in the year onethousand eight hundred and seventy-six, no discrimination shall bemade by any state, nor by the United States, as to the enjoyment byclasses 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 eighthundred and seventy-six, no class of persons, as to the right ofany of whom to suffrage discrimination shall be made by any state,because of race, color, or previous condition of servitude, shallbe included in the basis of representation."

"* * * *"

"Sec. 5. Congress shall have power to enforce by appropriatelegislation, the provisions of this article."

Id. at 884. Congressman Bingham had not, however, givenup on his own favorite proposal, and he immediately moved to addthe following new section to the Amendment:

"Sec. 5. No state shall make or enforce any law which shallabridge the privileges or immunities of citizens of the UnitedStates; nor shall any state deprive any person of life, liberty orproperty without due process of law, nor deny to any person withinits jurisdiction the equal protection of the laws."

Id. at 87.

His motion was adopted on a 10-to-2 party-line vote, but itsadoption was only the beginning of some intricate and inexplicablemaneuvering. Four days later, Senator

Page 400 U. S. 262

Williams, an Oregon radical, moved to delete Bingham's section,and his motion was carried by a vote of 7 to 5, with radicalsHoward and Boutwell and Democrats Grider and Johnson voting for themotion 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 Congresswith only slight modifications, but postponed the submission untilafter one further meeting to be held three days hence.Id.at 98-100.

At this meeting, the proposed Fourteenth Amendment wassubstantially rewritten. First, the committee, by a vote of 12 to2, deleted § 2, which had barred States from making racialdiscriminations in the enjoyment of the right of suffrage after1876, and conformed § 3 so as to insure that it would remain ineffect after 1876. After making numerous other changes, thecommittee then concluded its deliberations by replacing Owen's banin § 1 on discrimination "as to civil rights" with Bingham's nowfamiliar language. Here, the vote was 10 to 3, with the majorityagain 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 wrotean article recalling a contemporary conversation with Stevens.Stevens had reportedly explained that the committee's originaldecisions had "got noised abroad," and that, as a result, severalstate delegations had held caucuses which decided that the explicitreferences to "negro suffrage, in any shape, ought to be excludedfrom the platform. . . ." Quoted inid. at 302. Thus, theprovision for suffrage after 1876 had to be eliminated, but Stevensdid not explain why Bingham's version of § 1 was thensubstituted

Page 400 U. S. 263

for Owen's version. Perhaps the changes in § 1 of the Amendmentwere thought by the committee to be mere linguistic improvementswhich did not substantially modify Owen's meaning and which did notextend its coverage to political, as distinguished from civil,rights. But, at the very least, the committee must have realizedthat it was substituting for Owen's rather specific languageBingham's far more elastic language -- language that, as onescholar has noted, is far more "capable of growth" and "receptiveto 'latitudinarian' construction." Bickel, The OriginalUnderstanding and the Segregation Decision, 69 Harv.L.Rev. 1, 61,63 (1955). It is, moreover, at least equally plausible that thecommittee meant to substitute for Owen's narrow provision dealingsolely with civil rights a broader provision that had originatedand been understood only two months earlier as protecting equalityin the right of suffrage as well as equality of civil rights.

The purpose of § 1 in relation to the suffrage emerges out ofthe debates on the floor of Congress with an equal obscurity. Inthe search for meaning, one must begin, of course, with thestatements of leading men in Congress, such as Bingham and Howard.Bingham, for one, stated without apparent equivocation that "[t]heamendment does not give . . . the power to Congress of regulatingsuffrage in the several States." Globe 2542. Similarly, SenatorHoward, after noting that the Amendment would accord to Negroes thesame protection in their fundamental rights as the law gave towhites, explicitly cautioned that "the first section of theproposed amendment does not give to either of these classes theright of voting." Globe 2766. [Footnote 4/37] But such statements are not

Page 400 U. S. 264

as unambiguous as they initially appear to be. Thus, Howard,with that "lack of legal precision" typical of the period, statedthat the right of suffrage was not one of the privileges andimmunities protected by the Constitution, Globe 2766, immediatelyafter he had read into the record an excerpt from the case ofCorfield v. Coryell, 6 F. Cas. 546 (No. 3230) (CCED Pa.1825), an excerpt which listed the elective franchise as among theprivileges and immunities. Globe 2765. Bingham was equallyambiguous, for he too thought that the elective franchise was aconstitutionally protected privilege and immunity. Globe 2542.Indeed, at one point in the debates, Bingham made what is for us acompletely incongruous statement:

"To be sure we all agree, and the great body of the people ofthis country agree, and the committee thus far in reportingmeasures of reconstruction agree, that the exercise of the electivefranchise, though it be one of the privileges of a citizen of theRepublic, is exclusively under the control of the States."

Globe 2542. Bingham seemed to say in one breath, first, that thefranchise was a constitutionally protected privilege in support ofwhich Congress under § 5 of the Fourteenth Amendment couldlegislate and then, in the next breath, that the franchise wasexclusively under the control of the States.

Bingham's words make little sense to modern ears; yet, when theywere uttered, his words must have made some sense, at least toBingham and probably to many of his listeners. The search for theirmeaning probably

Page 400 U. S. 265

ought to begin with Art. IV, § 2 -- the Privileges andImmunities Clause of the original Constitution. In the minds ofmembers of the 39th Congress, the leading case to construe thatclause wasCorfield v. Corell, supra, which had listedamong a citizen's privileges and immunities "the electivefranchise, as regulated and established by the laws or constitutionof the state in which it is to be exercised." 6 F. Cas. at 552.Here again is the same apparent ambiguity that later occurred inBingham's thought -- that the franchise is a federally protectedright, but only to the extent it is regulated and established bystate law. The ambiguity was, however, only apparent, and not real,for the Privileges and Immunities Clause of the originalConstitution served a peculiar function; it did not create absoluterights, but only placed a noncitizen of a State "upon a perfectequality with its own citizens" as to those fundamental rightsalready created by state law.Scott v.Sandford, 19 How. 393,60 U. S. 407(1857).Accord, id. at60 U. S. 584(dissenting opinion). The Privileges and Immunities Clause, thatis, was a sort of equal protection clause adopted for the benefitof out-of-state citizens; [Footnote4/38] it required, for example, that, if a State gave its owncitizens a right to enter into a lawful business, it could notarbitrarily deny the same right to out-of-state citizens solelybecause they came from out of State.SeeWard v.Maryland, 12 Wall. 418,79 U. S. 430(1871). Thus, what Bingham may have meant in indicating that thefranchise was included within the scope of the Privileges andImmunities Clause of the Fourteenth Amendment while remainingentirely under the control of the States was that, although theStates would be free in general to confer the franchise uponwhomever they chose, Congress would have power

Page 400 U. S. 266

to bar them from racial or other arbitrary discriminations inmaking their choices. In short, the Privileges and ImmunitiesClause might for Bingham have meant the same as the EqualProtection Clause; as he later explained in a campaign speech, § 1was nothing but "a simple, strong, plain declaration that equallaws and equal and exact justice shall hereafter be secured withinevery State of this Union. . . ." Cincinnati Daily Commercial, Aug.27, 1866, quoted in James 160.

One way, then, to reconcile the seemingly incongruous statementsof Bingham is to read him as understanding that, while theFourteenth Amendment did not take from the States nor grant toCongress plenary power to regulate the suffrage, it did giveCongress power to invalidate discriminatory state legislation. Inhis words, the Amendment took

"from no State any right which hitherto pertained to the severalStates of the Union, but it impose[d] a limitation upon the Statesto correct their abuses of power."

Ibid. Others had a similar understanding. Thus, forCharles Sumner,

"Equality ofpolitical rights . . . [did] not involvenecessarily what is sometimes called the 'regulation' of thesuffrage by the National Government, although this would be best .. . , [but] simply require[d] the abolition of any discriminationamong citizens, inconsistent with Equal Rights."

C. Sumner, Are We a Nation? 34 (1867). Or, as Stevens explainedin presenting the Amendment to the House, it merely allowed"Congress to correct the unjust legislation of the States, so farthat the law which operates upon one man shall operateequally upon all." Globe 2459 (emphasis in original).Clearest of all, perhaps was Thomas M. Cooley in the 1871 editionof his Constitutional Limitations, where he wrote:

"This amendment of the Constitution does not concentrate powerin the general government for

Page 400 U. S. 267

any purpose of police government within the States; its objectis to preclude legislation by any State which shall 'abridge theprivileges or immunities of citizens of the United States,' or'deprive any person of life, liberty, or property without dueprocess of law,' or 'deny to any person within its jurisdiction theequal protection of the laws;' and Congress is empowered to passall laws necessary to render such unconstitutional Statelegislation ineffectual."

T. Cooley, Constitutional Limitations 294 (2d ed. 1871).

There is also other evidence that, at least some members ofCongress and of the electorate believed that § 1 of the FourteenthAmendment gave Congress power to invalidate discriminatory stateregulations of the suffrage. Thus, Congressman Rogers, a Democratwho had served on the Joint Committee, agreed with Bingham andHoward that "[t]he right to vote is a privilege," Globe 2538, whileCongressman Boyer, another Democrat, feared that § 1 was "intendedto secure ultimately, and to some extent indirectly, the politicalequality of the negro race." Globe 2467. A third Democrat,Congressman Niblack, thought the section sufficiently ambiguous towarn that he might, although in fact, he never did, offer thefollowing addition to it:

"Provided, That nothing contained in this article shallbe so construed as to authorize Congress to regulate or control theelective franchise within any State, or to abridge or restrict thepower of any State to regulate or control the same within its ownjurisdiction, except as in the third section hereofprescribed."

Globe 2465. Republicans also alluded on occasion to their beliefthat the Amendment might give Congress power to preventdiscrimination in regard to the suffrage. Radical

Page 400 U. S. 268

Senator Stewart, for example, while unhappy that the Amendmentdid not directly confer suffrage, nevertheless could "support thisplan" because it did

"not preclude Congress from adopting other means by a two-thirdsvote, [Footnote 4/39] whenexperience shall have demonstrated, as it certainly will, thenecessity for a change of policy. In fact it furnishes a conclusiveargument in favor of universal amnesty and impartial suffrage."

Globe 2964. Likewise, the more conservative Congressman Raymondof New York supported the first section because he thought Congressshould have the power to legislate on behalf of equal rights "incourts and elsewhere," Globe 2513, after the radical CongressmanWilson of Iowa had informed him that, "if we give a reasonableconstruction to the termelsewhere,' we may include in that thejury box and the ballot box." Globe 2505. Congressman Stevens,meanwhile, was informing Congress that, "if this amendmentprevails, you must legislate to carry out many parts of it," Globe2544, and was looking forward to "further legislation; in enablingacts or other provisions," Globe 3148, while even the JointCommittee submitted the Amendment to the Nation "in the hope thatits imperfections may be cured, and its deficiencies supplied, bylegislative wisdom. . . ." Report of the Joint Committee onReconstruction, H.R.Rep. No. 30, 39th Cong., 1st Sess., xxi (1866).Nor did the radical Republican press disagree; as the Lansing StateRepublican argued in its editorial columns, even "[i]f impartialsuffrage, 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

Page 400 U. S.269

amendment," which would be followed by "equal rights to all.. . ." July 11, 1866. And, of course, once the Amendment had beenratified, Republicans in Congress began to make speeches in favorof legislation which would implement the Amendment by guaranteeingequal suffrage.See, e.g., Cong.Globe, 40th Cong., 2dSess., 1966-1967 (1868) (remarks of Cong. Stevens); 3d Sess., 1008(1869) (remarks of Sen. Sumner).

Of course, few of the above statements taken from congressionaldebates, campaign speeches, and the press were made with suchclarity and precision that we can know with certainty that itsframers intended the Fourteenth Amendment to function as we thinkthey did. But clarity and precision are not to be expected in anage when men are confronting new problems for which old concepts donot provide ready solutions. As we have seen, the 1860's were suchan age, and the men who formulated the Fourteenth Amendment werefacing an especially perplexing problem -- that of creating federalmechanisms to insure the fairness of state action without, in theprocess, destroying the reserved powers of the States. It would,indeed, be surprising if the men who first faced this difficultproblem were possessed of such foresight that they could debate itssolution with complete clarity and consistency and with uniformityof views. There is, in short, every reason to believe thatdifferent men reconciled in different and often imprecise ways theFourteenth Amendment's broad guarantee of equal rights and thestatements of some of its framers that it did not give Congresspower to legislate upon the suffrage.

Some men, for example, might have reconciled the broad guaranteeand the narrow language by concluding that Negroes were not yetready to exercise the franchise, and hence that a State would notact arbitrarily

Page 400 U. S. 270

in denying it to them while granting it to whites. As thedebates make clear, proponents of the Amendment did not understandthe Equal Protection Clause to forbid States to distinguish amongpersons where justification for distinctions appeared.See,e.g., Globe 1064 (Congressman Stevens). At the time theFourteenth Amendment was adopted, the overwhelming majority ofNegro residents of the United States were former slaves living inthe Southern States. Most of them were illiterate and uneducated.Except for those few who had been kidnaped by slave traders afterreaching adulthood, they had no prior experience with theresponsibilities of citizenship. Given this state of affairs, itwould hardly be surprising if some of the framers of the FourteenthAmendment felt that the Equal Protection Clause would not forbidthe States from classifying Negroes as a group to be denied theright to vote. Equal protection has never been thought to requireidentical treatment of all persons in all respects.Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. at294 U. S.583-584, and cases cited. It requires only that theState provide adequate justification for treating one groupdifferently from another.Levy v. Louisiana,391 U. S.68 (1968). Entirely aside from any concepts of racialinequality that may have been held by some members of Congress atthat time, it seems clear that many members had seriousreservations about the ability of the majority of Negroes, aftercenturies of slavery, to cast an intelligent and responsible vote.See, for example, the debates over a proposal toenfranchise Negroes in the District of Columbia in Cong.Globe, 38thCong., 1st Sess., 2140-2141, 2239-2243, 2248 (1864). Of course, wewould not now hold that even the situation existing in 1866 wouldjustify wholesale exclusion of Negroes from the franchise: ourdecisions have consistently held that a particular group may not bedenied the right to vote merely

Page 400 U. S. 271

because many, or even most, of its members could properly beexcluded.Carrington v. Rash, 380 U.S. at380 U. S. 93-96;Kramer v. Union School District, 395 U.S. at395 U. S.632-633;Evans v. Cornman, 398 U.S. at398 U. S.424-426;cf. Tussman & TenBroek, The EqualProtection of the Laws, 37 Calif.L.Rev. 341, 351-352 (1949). Butmere administrative convenience was once thought to be sufficientjustification for an overly broad legislative classification, solong at least as the resultant discrimination could be justified asto a majority of the class affected.Terrace v. Thompson,263 U. S. 197,263 U. S.218-222 (1923);cf. Kotch v. Board of River PortPilots,330 U. S. 552(1947). Rejection of this approach has been the result of ajudicial development that could hardly have been known to theframers of the Amendment.Cf. Baxstrom v. Herold,383 U. S. 107,383 U. S.114-115 (1966).

Of course, many Americans in the 1860's rejected imputationsthat Negroes were unready for the franchise, and thus concludedthat distinctions between the races in regard to the franchisewould constitute denials of equal protection. Congressman Stevens,for one, had no doubt that to allow a State to deny the franchiseto Negroes would be to allow it "to discriminate among the sameclass." Globe 2460. And Negroes, of course, indignantly rejectedsuch imputations, arguing that "[w]e are not all so illiterate asyou suppose" and that

"even if we were, our instincts have proved better than that'educated class,' whose 'little learning' prompted them to attemptthe 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 forthe exercise of the franchise, there may have been some who did notunderstand the subtle distinctions of constitutional lawyers suchas Bingham, and who thus

Page 400 U. S. 272

accepted at face value assurances that the Fourteenth Amendmentgave Congress no power over the suffrage. As a result, at leastthree identifiable groups may have existed within the Republicanmajorities that enacted and ratified the Amendment -- those whothought that Congress would have power to insure to Negroes thesame right to suffrage as the States gave to whites, those whothought that Congress would not have such power, since Negroes andwhites constituted distinct and dissimilar classes for votingpurposes, and those who thought Congress would possess no power atall over the suffrage. Perhaps all three such groups did not existin 1866 in Congress and in the Nation at large, but surely theevidence is not clear "beyond any reasonable doubt" that the onlyexistent group was the last one, consisting of men who, despite thebroad language of § 1 and the hints by speakers of itsapplicability to the suffrage, simply assumed without developingany analytical framework in support of their assumption that thesection would not be so applied.

The evidence, in sum, plausibly suggests that the men who framedthe Fourteenth Amendment possessed differing views as to the limitsof its applicability but that they papered over their differencesbecause those differences were not always fully apparent andbecause they could not foresee with precision how their amendmentwould operate in the future. Moreover, political considerationsmilitated against clarification of issues and in favor ofcompromise. Much of the North, as already noted, opposed Negrosuffrage, and many Republicans in Congress had to seek reelectionfrom constituencies where racial prejudice remained rampant.Republicans in the forthcoming elections thus found it convenientto speak differently before different constituencies; as theRepublican state chairman of Ohio wrote, in northern counties ofthe State,

"some of our Speakers have openly

Page 400 U. S. 273

advocated impartial suffrage, while in other places it wasthought necessary, not only to repudiate it, but to oppose it."

Letter from B.R. Cowan to S. P. Chase, Oct. 12, 1866, quoted inJames 168. Similarly, Senator Wilson of Massachusetts, when accusedshortly after the 1866 elections of misrepresenting the issues ofthe campaign in Delaware by saying nothing of Negro suffrage,replied that, since he had been "in a State where not much progresshad been made, I acted somewhat on the scriptural principle ofgivingmilk to babes.'" Cong.Globe, 39th Cong., 2d Sess., 42.Apparently Congressman Ashley of Ohio acted upon similarprinciples, for when he was asked after the House had initiallyapproved the Amendment whether Congress had "power to confer theright of suffrage upon negroes in the States," heresponded,

"Well, sir, I do not intend to put myself on record against theright of Congress to do that. I am not prepared now to argue thepoint with my colleague; but I will say to him that, when the timecomes for the American Congress to take action on the question, Iwill be ready to speak. I will not say now whether I would vote foror against such a proposition."

Globe 2882.

Thus, precise legal analysis and clarity of thought were bothintellectually difficult and politically unwise. What Republicansneeded, in the words of Wendell Phillips, the former abolitionistleader, was "a party trick to tide over the elections and savetime," after which they could

"float back into Congress, able to pass an act that shall givethe ballot to the negro and initiate an amendment to theConstitution which shall secure it to him."

Speech of Wendell Phillips, July 4, 1866, quoted in A. Harris, AReview of the Political Conflict in America 437 (1876). Similarly,the New York Times, edited by Congressman Henry J. Raymond, aconservative Republican who

Page 400 U. S. 274

ultimately would support the Amendment, observed that

"all the excitement that had been raised about constitutionalamendments . . . has been simply dust thrown in the eyes of thepublic 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 anAmendment 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 andimmunities of citizenship," Globe 3039, while Congressman Boyer,another Democrat, found the first section "objectionable also inits phraseology, being open to ambiguity and admitting ofconflicting constructions." Globe 2467. Republicans, too, wereaware of the Amendment's vagueness. Thus, when he presented theAmendment to the Senate, Senator Howard noted that "[i]t would be acurious question to solve what are the privileges and immunities ofcitizens," and proposed not to consider the question at length,since "[i]t would be a somewhat barren discussion." Instead, likethe pre-Civil War Supreme Court, [Footnote 4/40] he

"very modestly declined to go into a definition of them, leavingquestions arising under the clause to be discussed and adjudicatedwhen 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 sectionof the Fourteenth Amendment as an explicit abandonment of theradical goal of equal suffrage for Negroes. Rather, the evidencesuggests an alternative hypothesis: that the Amendment was framedby men who possessed differing views on the great question ofthe

Page 400 U. S. 275

suffrage and who, partly in order to formulate some program ofgovernment and partly out of political expediency, papered overtheir differences with the broad, elastic language of § 1 and leftto future interpreters of their Amendment the task of resolving inaccordance with future vision and future needs the issues that theyleft unresolved. Such a hypothesis strikes us as far moreconsistent with the turbulent character of the times than oneresting upon a belief that the broad language of the EqualProtection Clause contained a hidden limitation upon its operationthat would prevent it from applying to state action regulatingrights that could be characterized as "political." [Footnote 4/41]

Nor is such a hypothesis inconsistent with the subsequentenactment of the Fifteenth, Nineteenth, and Twenty-fourthAmendments. Those who submitted the Fifteenth Amendment to theStates for ratification could well have desired that anyprohibition against racial discrimination in voting stand upon afirmer foundation than mere legislative action capable of repeal[Footnote 4/42] or the vagariesof judicial decision. [Footnote4/43] Or they could merely have concluded that, whatever mightbe the case with other rights, the right to vote was too importantto allow disenfranchisement of any person for no better reason

Page 400 U. S. 276

than that others of the same race might not be qualified. Atleast some of the supporters of the Nineteenth Amendment believedthat sex discrimination in voting was itself proscribed by theFourteenth Amendment's guarantee of equal protection. 57 Cong.Rec.3053 (1919). And finally, the Twenty-fourth Amendment was notproposed to the States until this Court had held, inBreedlovev. Suttles,302 U. S. 277(1937), [Footnote 4/44] thatstate laws requiring payment of a poll tax as a prerequisite tovoting did notipso facto violate the Equal ProtectionClause. Accordingly, we see no reason that the mere enactment ofthese amendments can be thought to imply that their proponentsbelieved the Fourteenth Amendment did not apply to stateallocations of political power. At a dubious best, these amendmentsmay be read as implying that their proponents felt particular stateallocations of power a proper exercise of power under the EqualProtection Clause.

Nor do we find persuasive our Brother HARLAN's argument that § 2of the Fourteenth Amendment was intended as an exclusive remedy forstate restrictions on the franchise, and that, therefore, any suchrestrictions are permissible under § 1. As Congressman Binghamemphatically told the House, when the same argument was made byCongressman Bromwell,

"there has not been such a construction, in my opinion, of a lawwhich imposes only a penalty, for centuries, if ever, in anycountry where the common law obtains. The construction insistedupon by the gentleman amounts to this, that a law which inflicts apenalty or works a forfeiture for doing an act, by implicationauthorizes the act to be done for doing which the penalty isinflicted. There

Page 400 U. S. 277

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 Statesshall disobey the Constitution . . . , as a penalty, such Stateshall lose political power in this House. . . ."

"* * * *"

"You place upon your statute-book a law punishing the crime ofmurder with death. You do not thereby, by implication, say thatanybody may, of right, commit murder. You but pass a penal law. Youdo not prohibit murder in the Constitution; you guaranty life inthe Constitution. You do not prohibit the abuse of power by themajority in the Constitution in express terms, but you guaranty theequal right of all free male citizens of full age to electRepresentatives; and by the proviso you inflict a penalty upon aState which denies or abridges that right on account of race orcolor. In doing that, we are not to be told that we confer a powerto override the express guarantees of the Constitution. We proposethe penalty in aid of the guarantee, not in avoidance of it."

Globe 431-432.See Van Alstyne,supra, at488.

It may be conceivable that § 2 was intended to be the soleremedy available when a State deprived its citizens of their rightto vote, but it is at least equally plausible that congressionallegislation pursuant to §§ 1 and 5 was thought by the framers ofthe Amendment to be another potential remedy. Section 2, in such ascheme, is hardly superfluous: it was of critical importance inassuring that, should the Southern States deny the franchise toNegroes, the Congress called upon to remedy that discriminationwould not be controlled by the beneficiaries of discriminationthemselves. And it could, of course, have been expected to provideat least a limited remedy

Page 400 U. S. 278

in the event that both Congress and the courts took no actionunder § 1. Neither logic nor historical evidence compellinglysuggests that § 2 was intended to be more than a remedysupplementary, and, in some conceivable circumstances,indispensable, to other congressional and judicial remediesavailable under §§ 1 and 5.See generally Van Alstyne,supra.

The historical record left by the framers of the FourteenthAmendment, because it is a product of differing and conflictingpolitical pressures and conceptions of federalism, is thus toovague and imprecise to provide us with sure guidance in decidingthe pending cases. We must therefore conclude that its framersunderstood their Amendment to be a broadly worded injunctioncapable of being interpreted by future generations in accordancewith the vision and needs of those generations. We would be remissin our duty if, in an attempt to find certainty amidst uncertainty,we were to misread the historical record and cease to interpret theAmendment as this Court has always interpreted it.

D

There remains only the question whether Congress couldrationally have concluded that denial of the franchise to citizensbetween the ages of 18 and 21 was unnecessary to promote anylegitimate interests of the States in assuring intelligent andresponsible voting. There is no need to set out the legislativehistory of Title III at any great length here. [Footnote 4/45] Proposals to lower the voting ageto 18 had been before Congress at several times since 1942.[Footnote 4/46] The SenateSubcommittee on Constitutional

Page 400 U. S. 279

Amendments conducted extensive hearings on the matter in 1968and again in 1970, [Footnote4/47] and the question was discussed at some length on thefloor of both the House and the Senate.

Congress was aware, of course, of the facts and state practicesalready discussed. [Footnote4/48] It was aware of the opinion of many historians thatchoice of the age of 21 as the age of maturity was an outgrowth ofmedieval requirements of time for military training and developmentof a physique adequate to bear heavy armor. [Footnote 4/49] It knew that, whereas only six percentof 18-year-olds in 1900 had completed high school, 81 percent havedone so today. [Footnote 4/50]Congress was aware that 18-year-olds today make up a notinsubstantial proportion of the adult workforce; [Footnote 4/51] and it was entitled to draw uponits experience in supervising the federal establishment todetermine the competence and responsibility with which 18-year-oldsperform their assigned tasks. As Congress recognized, its judgmentthat 18-year-olds are capable of voting is consistent with itspractice of entrusting them with the heavy responsibilities ofmilitary service.See § 301(a)(1) of the Amendments.[Footnote 4/52] Finally, Congresswas presented

Page 400 U. S. 280

with evidence that the age of social and biological maturity inmodern society has been consistently decreasing. Dr. Margaret Mead,an anthropologist, testified that, in the past century, the "age ofphysical maturity has been dropping and has dropped over 3 years."[Footnote 4/53] Many Senators andRepresentatives, including several involved in national campaigns,testified from personal experience that 18-year-olds of todayappeared at least as mature and intelligent as 21-year-olds in theCongressmen's youth. [Footnote4/54]

Finally, and perhaps most important, Congress had before itinformation 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 whospoke to the issue agreed that, as Senator Talmadge stated,

"young people [in these States] have made the sophisticateddecisions and have assumed the mature responsibilities of voting.Their performance has exceeded the greatest hopes and expectations.[Footnote 4/55]"

In sum, Congress had ample evidence upon which it could havebased the conclusion that exclusion of citizens 18 to 21 years ofage from the franchise is wholly unnecessary to promote anylegitimate interest the States may have in assuring intelligent andresponsible voting.See Katzenbach v. Morgan, 384 U.S. at384 U. S.653-656. If discrimination is unnecessary to promote anylegitimate state interest, it is plainly unconstitutional

Page 400 U. S. 281

under the Equal Protection Clause, and Congress has ample powerto forbid it under § 5 of the Fourteenth Amendment. We would uphold§ 302 of the 1970 Amendments as a legitimate exercise ofcongressional power.

[Footnote 4/1]

Section 202(a) of the Amendments embodies a congressionalfinding that

"the imposition and application of the durational residencyrequirement as a precondition to voting for the offices ofPresident and Vice President, and the lack of sufficientopportunities for absentee registration and absentee balloting inpresidential elections -- "

"* * * *"

"(2) denies or abridges the inherent constitutional right ofcitizens to enjoy their free movement across State lines;"

"* * * *"

"(6) does not bear a reasonable relationship to any compellingState interest in the conduct of presidential elections."

[Footnote 4/2]

Section 301(a) of the Amendments provides:

"The Congress finds and declares that the imposition andapplication of the requirement that a citizen be twenty-one yearsof age as a precondition to voting in any primary or in anyelection -- "

"(1) denies and abridges the inherent constitutional rights ofcitizens eighteen years of age but not yet twenty-one years of ageto vote -- a particularly unfair treatment of such citizens in viewof the national defense responsibilities imposed upon suchcitizens;"

"(2) has the effect of denying to citizens eighteen years of agebut not yet twenty-one years of age the due process and equalprotection of the laws that are guaranteed to them under thefourteenth amendment of the Constitution; and"

"(3) does not bear a reasonable relationship to any compellingState interest."

[Footnote 4/3]

Arizona Constitution, Art. 7, § 2, limits the franchise to those21 years of age and older. Ariz.Rev.Stat.Ann. § 16-101 (Supp. 1970)requires voters to be able to read the Federal Constitution (inEnglish), and to write their names.

[Footnote 4/4]

Idaho Constitution, Art. 6, § 2, requires all voters to be 21years of age or older, and requires 60 days' residence within theState as a precondition to voting in presidential elections. IdahoCode § 34-408 (1963) further requires that 60-day residents havebeen citizens of another State prior to their removal to Idaho.Provisions for absentee balloting are contained inid. §§34-1101 to 34-1125.

[Footnote 4/5]

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 orregistration for voting (1) demonstrate the ability to read, write,understand, or interpret any matter, (2) demonstrate anyeducational achievement or his knowledge of any particular subject,(3) possess good moral character, or (4) prove his qualificationsby the voucher of registered voters or members of any otherclass."

[Footnote 4/6]

Gaston County was a suit by the county under § 4(a) ofthe 1965 Act, 42 U.S.C. § 1973b(a) (1964 ed., Supp. V), toreinstate the county's literacy test. The county would have beenentitled to do so upon demonstration that, for the preceding fiveyears, no "test or device" had been there used for the purpose orwith the effect of abridging the right to vote on account of raceor color.

[Footnote 4/7]

Wo there reserved only the question of the application of the1965 Act to suspend literacy tests "in the face of raciallydisparate educational or literacy achievementsfor which agovernment bore no responsibility." 395 U.S. at395 U. S. 293n. 8 (emphasis supplied).

[Footnote 4/8]

Hearings on Amendments to the Voting Rights Act of 1965 beforethe Subcommittee on Constitutional Rights of the Senate Committeeon the Judiciary, 91st Cong., 1st and 2d Sess., 675 (1969-1970)(hereafter Senate Hearings). Schooling of Indians has for some timebeen the responsibility of the Federal Government.See WarrenTrading Post Co. v. Arizona Tax Commission,380 U.S. 685,380 U. S.690-691 (1965).

[Footnote 4/9]

E.g., Senate Hearings 185-187; Hearings on the VotingRights Act Extension before Subcommittee No. 5 of the HouseCommittee on the Judiciary, 91st Cong., 1st Sess., ser. 3, pp.55-57, 223-225 (1969) (hereafter House Hearings).

[Footnote 4/10]

For example, 1960 census data indicate that from 1955 to 1960,4,388 blacks moved from Southern States to Arizona, 74,804 toCalifornia, and 74,821 to New York. Table 100 in 1 1960 Census ofPopulation, pts. 4, 6, and 34.

[Footnote 4/11]

Senate Hearings 399;see id. at 400-407.

[Footnote 4/12]

Senate Hearings 678. Tribal Chairman Nakai viewed Arizona'sliteracy test as the primary cause of this disparity.

[Footnote 4/13]

The States are permitted, should they desire, to adopt practicesless restrictive than those prescribed by the 1970 Amendments. §202(g).

[Footnote 4/14]

See400U.S. 112fn4/4|>n. 4,supra.

[Footnote 4/15]

See the opinion of MR. JUSTICE DOUGLAS,anteat400 U. S.148-150.

[Footnote 4/16]

See Shapiro v. Thompson, 394 U.S. at394 U. S. 630and n. 8;United States v. Guest, 383 U.S. at383 U. S.757-758.

[Footnote 4/17]

Senate Hearings 282.

[Footnote 4/18]

116 Cong.Rec. 6991.

[Footnote 4/19]

Ibid. Idaho Code §§ 31101, 31102, 31103 appear to allowapplication to be made at any time.Id. § 31121 allowsapplication up to five days before the election for persons inUnited States service. The ballot may be returned any time prior tonoon on election day,id. § 31105 (Supp. 1969). Finally,effective January 1, 1971, applications may be made up to 5 p.m.the day before the election.Id. § 31002 (Supp. 1970). Insuch circumstances, the argument of administrative impossibilityfrom the viewpoint of Idaho seems almost chimerical.

[Footnote 4/20]

Idaho, in addition, claims that its interest in settingqualifications for voters in its own elections serves, withoutmore, as a compelling state interest sufficient to justify thechallenged exclusion. But there is no state interest in the mereexercise of power; the power must be exercised for some reason. Theonly reason asserted by Idaho for the exercise of its power is thatalready mentioned -- promotion of intelligent and responsiblevoting.

[Footnote 4/21]

116 Cong.Rec. 6970 (Library of Congress, Legislative ReferenceService survey).

[Footnote 4/22]

Ibid.

[Footnote 4/23]

Nor does the California statute, Cal.Welf. & Inst'ns Code §602 (1966), necessarily evidence a contrary conclusion. Californiapermits its juvenile court to waive jurisdiction of persons overthe age of 16 to the regular criminal courts, and state practiceappears to be that very few if any felony defendants over the ageof 18 are ever tried as juveniles. R. Boches & J. Goldfarb,California Juvenile Court Practice 336 (1968). This may wellindicate that the California statute reflects merely a legislativeconclusion that the slight burden of waiver hearings is outweighedby the possibility, however light, that a very few individualsbetween the ages of 18 and 21 might, in fact, be more appropriatelytreated as juveniles.

[Footnote 4/24]

116 Cong.Rec. 6970.

[Footnote 4/25]

For example, in California any woman 18 years old may marrywithout parental consent, and any man of that age may marry withthe consent of one parent. Cal.Civ.Code § 4101 (1970). Any marriedperson who has attained the age of 18 is treated in precisely thesame way as all persons of the age of 21 and over with regard toall provisions of the Civil Code, Probate Code, and Code of CivilProcedure, as well as for the purposes of making contracts orentering into any agreement regarding property or his estate.Cal.Civ.Code § 25 (Supp. 1970). The State Labor Department treatsmales 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 civilprocess in the State. Cal.Civ.Proc.Code § 410 (Supp. 1970).

[Footnote 4/26]

Some States, of course, do attempt to condition exercise of thefranchise upon the ability to pass a literacy test. Presumably some18-year-old illiterates will be literate at 21. But in light of thefact that 81 percent of the disenfranchised class are high schoolgraduates, it would seem that the number of 18-year-old illiterateswho are literate three years later is vanishingly small.See Hearings on S.J.Res. 147 and Others before theSubcommittee on Constitutional Amendments of the Senate Committeeon the Judiciary, 91st Cong., 2d Sess., 133 (1970) (Sen.Goldwater). Of course, for reasons that apply as well to18-year-olds as to others, we have today upheld a nationwidesuspension of all literacy tests.Ante at 118. But in anyevent, that some 18-year-olds may be illiterate is hardlysufficient reason for disenfranchising the entire class.SeeKramer v. Union School District, 395 U.S. at395 U. S.632-633.

[Footnote 4/27]

Eighteen-year-olds as a class are better educated than some oftheir 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 65to 74. Bureau of the Census, Educational Attainment, table 1(Current Population Reports, Series P-20, No. 182) (1969).

[Footnote 4/28]

Hawaii and Alaska have, since their admission to the Union in1959, allowed the vote to 19-year-olds (Alaska) and 20-year-olds(Hawaii).

[Footnote 4/29]

See, e.g., 116 Cong.Rec. 6433-6434 (Sen. Cook),6929-6930 (Sens. Talmadge and Ervin); Senate Hearing 343 (Gov.Maddox).

[Footnote 4/30]

The state of facts necessary to justify a legislativediscrimination will of course vary with the nature of thediscrimination involved. When we have been faced with statutesinvolving nothing more than state regulation of business practices,we have often found mere administrative convenience sufficient tojustify the discrimination.E.g., Williamson v. Lee OpticalCo.,348 U. S. 483,348 U. S. 487,348 U. S.488-489 (1955). But when a discrimination has the effectof denying or inhibiting the exercise of fundamental constitutionalrights, we have required that it be not merely convenient, butnecessary.Kramer v. Union School District, 395 U.S. at395 U. S. 627;Carrington v. Rash, 380 U.S. at380 U. S. 96;see United States v. O'Brien,391 U.S. 367,391 U. S. 377(1968);United States v. Jackson,390 U.S. 570,390 U. S.582-583 (1968). And we have required as well that it benecessary to promote not merely a constitutionally permissiblestate interest, but a state interest of substantial importance.Kramer v. Union School District, supra; Carrington v. Rash,supra; Shelton v. Tucker,364 U. S. 479,364 U. S.487-490 (1960);see United States v. O'Brien,supra.

[Footnote 4/31]

As we emphasized inKatzenbach v. Morgan, supra, "§ 5does not grant Congress power to . . . enactstatutes so as ineffect to dilute equal protection and due process decisions of thisCourt.'" 384 U.S. at384 U. S. 651n. 10. As indicated above, a decision of this Court striking down astate statute expresses, among other things, our conclusion thatthe legislative findings upon which the statute is based are so farwrong as to be unreasonable. Unless Congress were to unearth newevidence in its investigation, its identical findings on theidentical issue would be no more reasonable than those of the statelegislature.

[Footnote 4/32]

Brief for the State of Oregon 10-13; Brief for the State ofTexas 10-12; Brief for the State of Arizona 19; Brief for the Stateof Idaho 22, 28 30.

[Footnote 4/33]

Briefamicus curiae for the Commonwealth of Virginia13-22;see Briefamicus curiae for the State ofMississippi 7-11.

[Footnote 4/34]

Indeed, since the First Amendment is applicable to the Statesonly through the Fourteenth, our Brother HARLAN's view would appearto allow a State to exclude any unpopular group from the politicalprocess solely upon the basis of its political opinions.

[Footnote 4/35]

Republicans explicitly looked upon the Fourteenth Amendment as apolitical platform.See 2 F. Fessenden, Life and PublicServices of William Pitt Fessenden 62 (1907); B. Kendrick, TheJournal of the Joint Committee of Fifteen on Reconstruction 302(1914).See also infra at400 U. S.262.

[Footnote 4/36]

The language appears earlier in Art. IV, § 2.

[Footnote 4/37]

As the statements of Bingham and Howard in the text indicate,the framers of the Amendment were not always clear whether theyunderstood it merely as a grant of power to Congress or whetherthey thought, in addition, that it would confer power upon thecourts, which the courts would use to achieve equality of rights.Since § 5 is clear in its grant of power to Congress and we haveconsistently held that the Amendment grants power to the courts,this issue is of academic interest only.

[Footnote 4/38]

According toPaul v.Virginia, 8 Wall. 168,75 U. S. 180(1869), the Privileges and Immunities Clause in Art. 4, § 2,secured to citizens "in other States the equal protection of theirlaws."

[Footnote 4/39]

Senator Stewart's statement regarding the two-thirds requirementappears to refer to § 3 of the Fourteenth Amendment, which requiressuch a majority for legislation granting amnesty to formerConfederate leaders.

[Footnote 4/40]

This Court has taken such an approach inConner v.Elliott, 18 How. 591 (1856).

[Footnote 4/41]

Ironically, the same distinction between "political" and otherrights was drawn by this Court inPlessy v. Ferguson,163 U. S. 537,163 U. S.545-546 (1896). But the Court there concluded, directlycontrary to our Brother HARLAN's position, that the FourteenthAmendment applied to "political" rights and to those rightsonly.

[Footnote 4/42]

As Thaddeus Stevens had pointed out in urging passage of theFourteenth Amendment despite the fact that, he felt, some of itsguarantees could be enforced by mere legislative enactment, "a lawis repealable by a majority." Globe 2459.

[Footnote 4/43]

Radical disenchantment with decisions of this Court had led,prior to the Fifteenth Amendment, to the Act of March 27, 1868, 15Stat. 44, withdrawing our appellate jurisdiction over certainhabeas corpus cases.SeeEx parteMcCardle, 7 Wall. 506,74 U. S. 508,74 U. S.514-515 (1869).

[Footnote 4/44]

Breedlove has been overruled byHarper v. VirginiaBoard of Elections,383 U. S. 663,383 U. S. 669(1966).

[Footnote 4/45]

For a full collection of the relevant materials,seeNote, Legislative History of Title III of the Voting Rights Act of1970, 8 Harv.J.Legis. 123 (1970).

[Footnote 4/46]

See 88 Cong.Rec. 8312, 8316 (1942).

[Footnote 4/47]

Hearings on S.J.Res. 8, 14, and 78 before the Subcommittee onConstitutional Amendments of the Senate Committee on the Judiciary,90th Cong., 2d Sess. (1968); Hearings on S.J.Res. 147 and Othersbefore the Subcommittee on Constitutional Amendments of the SenateCommittee on the Judiciary, 91st Cong., 2d Sess. (1970) (hereafter1970 Hearings).

[Footnote 4/48]

Supra at400 U. S.242-246.

[Footnote 4/49]

See 116 Cong.Rec. 6955; James, The Age of Majority, 4Am.J.Legal Hist. 22 (1960); Report of the Committee on the Age ofMajority Presented to the English Parliament 21 (1967).

[Footnote 4/50]

116 Cong.Rec. 6435.

[Footnote 4/51]

16 Department of Labor, Bureau of Labor Statistics, Employmentand Earnings, table A-3 (June 1970).

[Footnote 4/52]

See also Senate Hearings 323 (Sen. Kennedy), 116Cong.Rec. 5950-5951 (Sen. Mansfield); 6433 (Sen. Cook).Seegenerally Note,supra,400U.S. 112fn4/45|>n. 45, at 134-148.

[Footnote 4/53]

1970 Hearings at 223. Dr. W. Walter Menninger, a psychiatrist,and Dr. S. I. Hayakawa agreed.Id. at 23, 36.

[Footnote 4/54]

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).

[Footnote 4/55]

116 Cong.Rec. 6929.

MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICEBLACKMUN join, concurring in part and dissenting in part.

In these cases, we deal with the constitutional validity ofthree provisions of the Voting Rights Act Amendments of 1970.Congress undertook in these provisions: (a) to abolish for afive-year period all literacy tests and similar voting eligibilityrequirements imposed by any State in the Union (§ 201); (b) toremove the restrictions imposed by state durational residencyrequirements upon voters in presidential elections (§ 202); and (c)to reduce the voting age to a minimum of 18 years for all voters inall elections throughout the Nation (§ 302). The Court todayupholds § 201's nationwide literacy test ban and § 202'selimination of state durational residency restrictions inpresidential elections. Section 302's extension of the franchise to18-year-old voters is (by virtue of the opinion of MR. JUSTICEBLACK announcing the judgments of the Court) upheld as applied tofederal elections. I agree with the Court in sustaining thecongressional ban on state literacy tests, for substantially thesame reasons relied upon by MR. JUSTICE BLACK. I also agree thatthe action of Congress in removing the restrictions of stateresidency requirements in presidential elections isconstitutionally valid, but I base this judgment upon grounds quitedifferent from those relied upon by MR. JUSTICE BLACK. And,finally, I disagree with the Court's conclusion that Congress couldconstitutionally reduce the voting

Page 400 U. S. 282

age to 18 for federal elections, since I am convinced thatCongress was wholly without constitutional power to alter -- forthe purpose of any election -- the voting age qualifications nowdetermined by the several States.

Before turning to a discussion of my views, it seems appropriateto state that we are not called upon in these cases to evaluate orappraise the wisdom of abolishing literacy tests, of altering stateresidency requirements, or of reducing the voting age to 18.Whatever we may think as citizens, our single duty as judges is todetermine whether the legislation before us was within theconstitutional power of Congress to enact. I find it necessary tostate so elementary a proposition only because certain of theseparate opinions filed today contain many pages devoted to ademonstration of how beneficent are the goals of this legislation,particularly the extension of the electoral franchise to young menand women of 18. A casual reader could easily get the impressionthat what we are being asked in these cases is whether or not wethink allowing people 18 years old to vote is a good idea. Nothingcould be wider of the mark. My Brothers to the contrary, there isno question here as to the "judgment" of Congress; there arequestions only of Congress' constitutional power.

II concur in Part II of MR. JUSTICE BLACK's opinion, which holdsthat the literacy test ban of § 201 of the 1970 Amendments isconstitutional under the Enforcement Clause of the FifteenthAmendment. Our decisions establish that the Fifteenth Amendment

"nullifies sophisticated, as well as simple-minded, modes ofdiscrimination. It hits onerous procedural requirements whicheffectively handicap exercise of the franchise by the colored race,although the abstract right to vote may remain unrestricted as torace."

Lane v. Wilson,307 U. S. 268,307 U. S.275;

Page 400 U. S. 283

cf. Gomillion v. Lightfoot,364 U.S. 339. Because literacy and illiteracy are seeminglyneutral with respect to race, creed, color, and sex, we upheld aliteracy requirement against a claim that it was invalid on itsface under the Fifteenth Amendment.Lassiter v. NorthamptonElection Board,360 U. S. 45. ButinGaston County v. United States,395 U.S. 285, we made it clear that Congress has ampleauthority under § 2 of the Fifteenth Amendment to determine thatliteracy requirements work unfairly against Negroes in practicebecause they handicap those Negroes who have been deprived of theeducational opportunities available to white citizens. We construedthe 1965 Voting Rights Act in light of the report of the SenateJudiciary Committee which said,

"[T]he educational differences between whites and Negroes in theareas to be covered by the prohibitions -- differences which arereflected in the record before the committee -- would mean thatequal application of the tests would abridge 15th amendmentrights."

S.Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 16.See alsoSouth Carolina v. Katzenbach,383 U.S. 301,383 U. S.308-315.

Congress has now undertaken to extend the ban on literacy teststo the whole Nation. I see no constitutional impediment to itsdoing so. Nationwide application reduces the danger that federalintervention will be perceived as unreasonable discriminationagainst particular States or particular regions of the country.This, in turn, increases the likelihood of voluntary compliancewith the letter and spirit of federal law. Nationwide applicationfacilitates the free movement of citizens from one State toanother, since it eliminates the prospect that a change inresidence will mean the loss of a federally protected right.Nationwide application avoids the often difficult task of drawing aline between those States where a problem is pressing enough towarrant federal intervention and those where it is not. Such a

Page 400 U. S. 284

line may well appear discriminatory to those who thinkthemselves on the wrong side of it. Moreover the application of theline to particular States can entail a substantial burden onadministrative and judicial machinery and a diversion ofenforcement resources. Finally, nationwide application may bereasonably thought appropriate when Congress acts against an evilsuch as racial discrimination which in varying degrees manifestsitself in every part of the country. A remedy for racialdiscrimination which applies in all the States underlines anawareness that the problem is a national one, and reflects anational commitment to its solution.

Because the justification for extending the ban on literacytests to the entire Nation need not turn on whether literacy testsunfairly discriminate against Negroes in every State in the Union,Congress was not required to make state-by-state findingsconcerning either the equality of educational opportunity or actualimpact of literacy requirements on the Negro citizen's access tothe ballot box. In the interests of uniformity, Congress may paintwith a much broader brush than may this Court, which must confineitself to the judicial function of deciding individual cases andcontroversies upon individual records.Cf. Lassiter v.Northampton Election Board, supra. The findings that Congressmade when it enacted the Voting Rights Act of 1965 would havesupported a nationwide ban on literacy tests. Instead, at thattime, "Congress chose to limit its attention to the geographicareas where immediate action seemed necessary."South Carolinav. Katzenbach, 383 U.S. at383 U. S. 328.Experience gained under the 1965 Act has now led Congress toconclude that it should go the whole distance. This approach to theproblem is a rational one; consequently, it is within theconstitutional power of Congress under § 2 of the FifteenthAmendment.

Page 400 U. S. 285

IISection 202 added by the Voting Rights Act Amendments of 1970 isa comprehensive provision aimed at insuring that a citizen will notbe deprived of the opportunity to vote for the offices of Presidentand Vice President because of a change of residence. Those who takeup a new residence more than 30 days before a presidential electionare guaranteed the right to register and vote in the State to whichthey have moved notwithstanding any durational residencyrequirement imposed by state law, provided, of course, that theyare otherwise qualified to vote. Those who take up a new residenceless than 30 days before a presidential election are guaranteed theright to vote, either in person or by absentee ballot, in the Statefrom which they have moved, provided that they satisfied, as of thedate of their change of residence, the requirements to vote in thatState.

A

Congress, in my view, has the power under the Constitution toeradicate political and civil disabilities that arise by operationof state law following a change in residence from one State toanother. Freedom to travel from State to State -- freedom to enterand abide in any State in the Union -- is a privilege of UnitedStates citizenship.Shapiro v. Thompson,394 U.S. 618;United States v. Guest,383 U.S. 745,383 U. S.757-760;Truax v. Raich,239 U. S.33,239 U. S. 39;Twining v. New Jersey,211 U. S. 78,211 U. S. 97;Crandall v.Nevada, 6 Wall. 35. Section 1 of the FourteenthAmendment provides:

"All persons born or naturalized in the United States andsubject to the jurisdiction thereof, are citizens of the UnitedStates and of the State wherein they reside. No State shall make orenforce any law which shall abridge the privileges or

Page 400 U. S. 286

immunities of citizens of the United States. . . ."

In discussing the privileges of citizens of the United Stateswithin the meaning of § 1, Mr. Justice Miller wrote for the Courtin theSlaughter-House Cases:

"One of these privileges is conferred by the very article underconsideration. It is that a citizen of the United States can, ofhis own volition, become a citizen of any State of the Union by abona fide residence therein, with the same rights as othercitizens of that State."

83 U. S. 16 Wall.36,83 U. S. 80.

Although § 5 of the Fourteenth Amendment confers on Congress the"power to enforce, by appropriate legislation, the provisions ofthis article," this Court has sustained the power of Congress toprotect and facilitate the exercise of privileges of United Statescitizenship without reference to § 5.United States v.Guest, 383 U.S. at383 U. S.757-760;United States v. Classic,313 U.S. 299;Burroughs v. United States,290 U. S. 534.These cases and others establish that Congress brings to theprotection and facilitation of the exercise of privileges of UnitedStates citizenship all of its power under the Necessary and ProperClause. Consequently, as against the reserved power of the States,it is enough that the end to which Congress has acted be onelegitimately within its power and that there be a rational basisfor the measures chosen to achieve that end.McCullochv. Maryland, 4 Wheat. 316,17 U. S.421.

In the light of these considerations, § 202 presents nodifficulty. Congress could rationally conclude that the impositionof durational residency requirements unreasonably burdens andsanctions the privilege of taking up residence in another State.The objective of § 202 is clearly a legitimate one. Federal actionis required if the privilege to change residence is not to beundercut by parochial local sanctions. No State could undertake

Page 400 U. S. 287

to guarantee this privilege to its citizens. At most, a singleState could take steps to resolve that its own laws would notunreasonably discriminate against the newly arrived resident. Eventhis resolve might not remain firm in the face of discriminationsperceived as unfair against those of its own citizens who moved toother States. Thus, the problem could not be wholly solved by asingle State, or even by several States, since every State of newresidence and every State of prior residence would have a necessaryrole to play. In the absence of a unanimous interstate compact, theproblem could only be solved by Congress. Quite clearly, then,Congress has acted to protect a constitutional privilege that findsits protection in the Federal Government and is national incharacter.Slaughter-House Cases, 16 Wall. at83 U. S. 79.

B

But even though general constitutional power clearly exists,Congress may not overstep the letter or spirit of anyconstitutional restriction in the exercise of that power. Forexample, Congress clearly has power to regulate interstatecommerce, but it may not, in the exercise of that power, impingeupon the guarantees of the Bill of Rights. I have concluded that,while § 202 applies only to presidential elections, nothing in theConstitution prevents Congress from protecting those who have movedfrom one State to another from disenfranchisement in any federalelection, whether congressional or presidential.

The Constitution withholds from Congress any general authorityto change by legislation the qualifications for voters in federalelections. The meaning of the applicable constitutional provisionsis perfectly plain. Article I, § 2, and the Seventeenth Amendmentprescribe the qualifications for voters in elections to chooseSenators and Representatives: they "shall have theQualifications

Page 400 U. S. 288

requisite for Electors of the most numerous Branch of the StateLegislature." The Constitution thus adopts as the federal standardthe standard which each State has chosen for itself.Ex parteYarbrough,110 U. S. 651,110 U. S. 663;Wiley v. Sinkler,179 U. S. 58,179 U. S. 64.Accordingly, a state law that purported to establish distinctqualifications for congressional elections would be invalid asrepugnant to Art. I, § 2, and the Seventeenth Amendment. By thesame token, it cannot be gainsaid that federal legislation that hadno objective other than to alter the qualifications to vote incongressional elections would be invalid for the same reasons. Whatthe Constitution has fixed may not be changed except byconstitutional amendment.

Contrary to the submission of my Brother BLACK, Art. I, § 4,does not create in the Federal Legislature the power to alter theconstitutionally established qualifications to vote incongressional elections. That section provides that thelegislatures in each State shall prescribe the "Times, Places andManner of holding Elections for Senators and Representatives," butreserves in Congress the power to "make or alter such Regulations,except as to the Places of chusing Senators." The "manner" ofholding elections can hardly be read to mean the qualifications forvoters, when it is remembered that § 2 of the same Art. Iexplicitly speaks of the "qualifications" for voters in electionsto choose Representatives. It is plain, in short, that, when theFramers meant qualifications, they said "qualifications." That worddoes not appear in Art. I, § 4. Moreover, § 4 does not giveCongress the power to do anything that a State might not have done,and, as pointed out above, no State may establish distinctqualifications for congressional elections. The States, of course,are free to pass such laws as are necessary to assure fairelections. Congressional power under § 4 is equally broad withrespect to congressional

Page 400 U. S. 289

elections.United States v. Classic,313 U.S. 299. But the States are not free to prescribequalifications for voters in federal elections which differ fromthose prescribed for the most numerous branch of the statelegislature. And the power of Congress to do so cannot, therefore,be found in Art. I, § 4.

This view is confirmed by extrinsic evidence of the intent ofthe Framers of the Constitution. An early draft of the Constitutionprovided that the States should fix the qualifications of voters incongressional elections subject to the proviso that thesequalifications might "at any Time be altered and superseded by theLegislature of the United States." [Footnote 5/1] The records of the Committee on Detailshow that it was decided to strike the provision granting toCongress the authority to set voting qualifications and to add inits stead a clause making the qualifications "the same from Time toTime as those of the Electors, in the several States, of the mostnumerous Branch of their own Legislatures." [Footnote 5/2] The proposed draft reported by theCommittee on Detail to the Convention included the following:

"The qualifications of the electors shall be the same, from timeto time, as those of the electors in the several States, of themost numerous branch of their own legislatures."

Art. IV, § 1.

"The times and places and manner of holding the elections of themembers of each House shall be prescribed by the Legislature ofeach State; but their provisions concerning them may, at any time,be altered by the Legislature of the United States. [Footnote 5/3]"

Art. VI, § 1.

Page 400 U. S. 290

On August 7, Gouverneur Morris moved to strike the last clauseof the proposed Art. IV, § 1, and either to provide a freeholdlimitation on suffrage or to add a clause permitting Congress toalter the electoral qualifications. [Footnote 5/4] This motion was opposed by OliverEllsworth, George Mason, James Madison, and Benjamin Franklin.Ellsworth protested that the proposal favored aristocracy. If thelegislature could alter qualifications, it could disqualify a greatproportion of the electorate. [Footnote5/5] Mason voiced a similar objection. "A power to alter thequalifications would be a dangerous power in the hands of theLegislature." [Footnote 5/6] To thesame effect, Madison said:

"The right of suffrage is certainly one of the fundamentalarticles of republican Government, and ought not to be left to beregulated by the Legislature. [Footnote5/7]"

The proposed motion was defeated by a seven-to-one vote,[Footnote 5/8] and no substantivechange in Art. I, § 2, was proposed or made thereafter.

Thus, Alexander Hamilton accurately reported the intent of theConvention when he wrote in The Federalist No. 60 that theauthority of the national government

"would be expressly restricted to the regulation of thetimes, theplaces, and themanner ofelections. The qualifications of the persons who may choose or bechosen, as has been remarked upon other occasions, are defined andfixed in the Constitution, and are unalterable by the legislature[i.e., Congress]."

(Emphasis in original.)

Different provisions of the Constitution govern the selection ofthe President and the Vice President. Article

Page 400 U. S. 291

II and the Twelfth Amendment provide for election by electors.Article II specifies that each State shall appoint electors "insuch Manner as the Legislature thereof may direct." Because theConstitution does not require the popular election of members ofthe electoral college, it does not specify the qualifications thatvoters must have when the selection of electors is by popularelection. This is left to the States in the exercise of their powerto "direct" the manner of choosing presidential electors.Williams v. Rhodes,393 U. S. 23,393 U. S. 29.When electors are chosen by popular election, the FederalGovernment has the power to assure that such elections are orderlyand free from corruption.Burroughs v. United States,290 U. S. 534.But, inBurroughs, the Court noted of the Act underreview:

"Neither in purpose nor in effect does it interfere with thepower of a state to appoint electors or the manner in which theirappointment shall be made."

290 U.S. at290 U. S. 544.The Court quoted with approval the following passage fromExparte Yarbrough,110 U. S. 651:

"[T]he importance to the general government of having the actualelection -- the voting for those members -- free from force andfraud is not diminished by the circumstance that the qualificationof the voter is determined by the law of the State where hevotes."

290 U.S. at290 U. S. 546.And inUnited States v. Classic,313 U.S. 299, the Court was careful to point out that it isthe "right ofqualified voters within a state to casttheir ballots and have them counted" which is a privilege of UnitedStates citizenship amenable to congressional protection.Id. at313 U. S. 315(emphasis added).See also Corfield v. Coryell, 6 F. Cas.546, 552 (No. 3230) (CCED Pa.).

The issue, then, is whether, despite the intentional withholdingfrom the Federal Government of a general authority to establishqualifications to vote in either congressional or presidentialelections, there exists congressional

Page 400 U. S. 292

power to do so when Congress acts with the objective ofprotecting a citizen's privilege to move his residence from oneState to another. Although the matter is not entirely free fromdoubt, I am persuaded that the constitutional provisions discussedabove are not sufficient to prevent Congress from protecting aperson who exercises his constitutional right to enter and abide inany State in the Union from losing his opportunity to vote, whenCongress may protect the right of interstate travel from other lessfundamental disabilities. The power of the States with regard tothe franchise is subject to the power of the Federal Government tovindicate the unconditional personal rights secured to the citizenby the Federal Constitution.Williams v. Rhodes, supra; cf.Shapiro v. Thompson, supra. The power that Congress hasexercised in enacting § 202 is not a general power to prescribequalifications for voters in either federal or state elections. Itis confined to federal action against a particular problem clearlywithin the purview of congressional authority. Finally, the powerto facilitate the citizen's exercise of his constitutionalprivilege to change residence is one that cannot be left forexercise by the individual States without seriously diminishing thelevel of protection available. As I have sought to show above,federal action is required if this privilege is to be effectivelymaintained. We should strive to avoid an interpretation of theConstitution that would withhold from Congress the power tolegislate for the protection of those constitutional rights thatthe States are unable effectively to secure. For all these reasons,I conclude that it was within the power of Congress to enact § 202.[Footnote 5/9]

Page 400 U. S. 293

IIISection 302 added by the Voting Rights Act.Amendments of 1970undertakes to enfranchise in all federal, state, and localelections those citizens 18 years of age or older who are nowdenied the right to vote by state law because they have not reachedthe age of 21. Although it was found necessary to amend theConstitution in order to confer a federal right to vote uponNegroes [Footnote 5/10] and uponfemales, [Footnote 5/11] theGovernment asserts that a federal right to vote can be conferredupon people between 18 and 21 years of age simply by this Act ofCongress. Our decision inKatzenbach v. Morgan,384 U. S. 641, itis said, established the power of Congress, under § 5 of theFourteenth Amendment, to nullify state laws requiring voters to be21 years of age or older if Congress could rationally haveconcluded that such laws are not supported by a "compelling stateinterest."

In my view, neither theMorgan case, nor any other caseupon which the Government relies, establishes such congressionalpower, even assuming that all those cases [Footnote 5/12] were rightly decided. MR. JUSTICE BLACKis surely

Page 400 U. S. 294

correct when he writes,

"It is a plain fact of history that the Framers never imaginedthat the national Congress would set the qualifications for votersin every election from President to local constable or villagealderman. It is obvious that the whole Constitution reserves to theStates the power to set voter qualifications in state and localelections, except to the limited extent that the people throughconstitutional amendments have specifically narrowed the powers ofthe States."

Ante at400 U. S. 125.For the reasons that I have set out in400 U.S. it is equally plain to me that the Constitution justas completely withholds from Congress the power to alter bylegislation qualifications for voters in federal elections, in viewof the explicit provisions of Article I, Article II, and theSeventeenth Amendment.

To be sure, recent decisions have established that state actionregulating suffrage is not immune from the impact of the EqualProtection Clause. [Footnote5/13] But we have been careful in those decisions to note theundoubted power of a State to establish a qualification for votingbased on age.See, e.g., Kramer v. Union School District,395 U. S. 621,395 U. S. 625;Lassiter v. Northampton Election Board, 360 U.S. at360 U. S. 51.Indeed, none of the opinions filed today suggests that the Stateshave anything but a constitutionally unimpeachable interest inestablishing some age qualification as such. Yet to test the powerto establish an age qualification by the "compelling interest"standard is really to deny a State any choice at all, because noState could demonstrate a "compelling interest" in drawing the linewith respect to age at one point, rather than another. Obviously,the power to establish an age qualification must carry with it thepower to choose

Page 400 U. S. 295

21 as a reasonable voting age, as the vast majority of theStates have done. [Footnote5/14]

Katzenbach v. Morgan, supra, does not hold thatCongress has the power to determine what are and what are not"compelling state interests" for equal protection purposes. InMorgan, the Court considered the power of Congress toenact a statute whose principal effect was to enfranchise PuertoRicans who had moved to New York after receiving their education inSpanish language Puerto Rican schools and who were denied the rightto vote in New York because they were unable to read or writeEnglish. The Court upheld the statute on two grounds: that Congresscould conclude that enhancing the political power of the PuertoRican community by conferring the right to vote was an appropriatemeans of remedying discriminatory treatment in public services, andthat Congress could conclude that the New York statute was taintedby the impermissible purpose of denying the right to vote to PuertoRicans,

Page 400 U. S. 296

an undoubted invidious discrimination under the Equal ProtectionClause. Both of these decisional grounds were far-reaching. TheCourt's opinion made clear that Congress could impose on the Statesa remedy for the denial of equal protection that elaborated uponthe direct command of the Constitution, and that it could overridestate laws on the ground that they were in fact, used asinstruments of invidious discrimination even though a court in anindividual lawsuit might not have reached that factual conclusion.Cf. Swain v. Alabama,380 U. S. 202.

But it is necessary to go much further to sustain § 302. Thestate laws that it invalidates do not invidiously discriminateagainst any discrete and insular minority. Unlike the statuteconsidered in Morgan, § 302 is valid only if Congress has the powernot only to provide the means of eradicating situations that amountto a violation of the Equal Protection Clause, but also todetermine as a matter of substantive constitutional law whatsituations fall within the ambit of the clause, and what stateinterests are "compelling." I concurred in MR. JUSTICE HARLAN'sdissent inMorgan. That case, as I now read it, gavecongressional power under § 5 the furthest possible legitimatereach. Yet to sustain the constitutionality of § 302 would requirean enormous extension of that decision's rationale. I cannot butconclude that § 302 was beyond the constitutional power of Congressto enact.

[Footnote 5/1]

2 M. Farrand, Records of the Federal Convention of 1787, p. 153(1911).

[Footnote 5/2]

Id. at 164.

[Footnote 5/3]

Id. at 178-179.

[Footnote 5/4]

Id. at 201, 207.

[Footnote 5/5]

Id. at 201.

[Footnote 5/6]

Id. at 202.

[Footnote 5/7]

Id. at 203.

[Footnote 5/8]

Id. at 206.

[Footnote 5/9]

Whether a particular State's durational residency requirementfor voters may violate the Equal Protection Clause of theFourteenth Amendment presents questions that are, for me, quitedifferent from those attending the constitutionality of § 202.See Howe v. Brown, 319 F.Supp. 862 (ND Ohio 1970);Cocanower v.Marston, 318 F.Supp. 402 (Ariz.1970);Burg v.Canniffe, 315 F.Supp. 380 (Mass.1970);Blumstein v. Ellington, ___F.Supp. ___ (MD Tenn.1970);Hadnott v.Amos, 320 F.Supp. 107 (MD Ala.1970);Bufford v.Holton, 319 F.Supp. 843 (ED Va.1970);Lester v. Board ofElections, 319 F.Supp. 505 (DC 1970).

[Footnote 5/10]

U.S.Const., Amdt. XV.

[Footnote 5/11]

U.S.Const., Amdt. XIX;See alsoMinor v.Happersett, 21 Wall. 162.

[Footnote 5/12]

Carrington v. Rash,380 U. S. 89(1965);Louisiana v. United States,380 U.S. 145 (1965);Harper v. Virginia Board ofElections,383 U. S. 663(1966);Katzenbach v. Morgan,384 U.S. 641 (1966);Kramer v. Union School District,395 U. S. 621(1969);Cipriano v. City of Houma,395 U.S. 701 (1969);Evans v. Cornman,398 U.S. 419 (1970);Phoenix v. Kolodziejski,399 U. S. 204(1970).

[Footnote 5/13]

See, e.g., cases citedsupra,400U.S. 112fn5/12|>n. 12.

[Footnote 5/14]

If the Government is correct in its submission that a particularage requirement must meet the "compelling interest" standard, then,of course, a substantial question would exist whether a 21-year-oldvoter qualification is constitutional even in the absence ofcongressional action, as my Brothers point out.Ante at400 U. S.241-246. Yet it is inconceivable to me that this Courtwould ever hold that the denial of the vote to those between theages of 18 and 21 constitutes such an invidious discrimination asto be a denial of the equal protection of the laws. Theestablishment of an age qualification is not state action aimed atany discrete and insular minority.Cf. United States v.Carolene Products Co.,304 U. S. 144,304 U. S. 152n. 4. Moreover, so long as a State does not set the voting agehigher than 21, the reasonableness of its choice is confirmed bythe very Fourteenth Amendment upon which the Government relies.Section 2 of that Amendment provides for sanctions when the rightto vote "is denied to any of the male inhabitants of such State,being twenty-one years of age, and citizens of the UnitedStates. . . ." (Emphasis added.)