America's Unwritten Constitution: The Precedents and Principles We Live By (32 page)

ENTER THE JUSTICES,
who ruled in the mid-1960s that the equal-protection clause of the Fourteenth Amendment required the enfranchisement of virtually all adult resident nonfelon citizens. Whenever a state denied the franchise to any person in this group while extending the franchise to others, the state had to justify this differential treatment with compelling policy arguments, and the Court swatted away most of the arguments that states tried to offer. Thus, in 1966,
Harper v. Virginia
held that a person could not be disfranchised, even in a state election, for failing to pay a poll tax. (The recently adopted Twenty-fourth Amendment explicitly prohibited poll-tax-based disfranchisement, but only in federal
elections.) Three years later, Warren himself delivered his final set of opinions, one of which,
Kramer v. Union Free School District
, invalidated a New York rule that limited voting in school-board elections to those who had children or real estate in the school district. Such a rule, said Warren, violated the equal-protection rights of the plaintiff Kramer, a bachelor who lived in his parents’ house.

By reading the equal-protection clause to encompass voting rights, the Warren Court severed this text from its enacting context and ignored the decisive understandings of the American people when they ratified these words. At its core, the clause safeguarded the rights of “persons” as contradistinguished from “citizens.” In other words, both this clause and its companion due-process clause affirmed a category of rights that even aliens deserved. Voting rights were miles away from this core concept. Indeed, voting rights were the precise obverse of this core, epitomizing the exact kind of rights that aliens cannot constitutionally claim.
⁵⁵

Nor were voting rights encompassed by the privileges-or-immunities clause as it was originally understood. The core rights here were seen as “civil” rights—in pointed contrast to “political” rights such as voting. The Constitution’s Article IV had used the same cluster of words—“privileges,” “immunities,” “citizens”—to define the rights of every American when venturing outside his home state to visit a host state. Article IV rights were obviously civil rights, not political rights. A citizen of state A, when visiting state B, could claim equality with state B’s citizens in matters of free speech, free exercise, property ownership, and so on, but could not expect to vote in B’s elections or exercise any closely related political right, such as jury service or office-holding, in B.

These seemingly technical distinctions had bubbled up to the surface of daily political discourse in the Civil War era thanks to the high-profile
Dred Scott
case. Chief Justice Taney’s notorious opinion had proclaimed that even free blacks could not be citizens. Dissenting justices countered that (1) at the Founding, blacks in many states had been openly recognized as citizens, and indeed had been among those who voted on the Constitution itself, and (2) even though free blacks in many states were not allowed to vote in the 1850s, citizenship must be distinguished from voting rights. Women, after all, were citizens—and as such could bring diversity suits in federal court—but women as a rule did not vote. Neither did children, yet
they, too, were citizens. Likewise, blacks were citizens even if they could not vote.
⁵⁶

The dissenters’ view was embraced by the Lincoln administration during the Civil War and enacted into law at war’s end in the Civil Rights Act of 1866. As its title made clear, this landmark law guaranteed civil rights as emphatically distinct from political rights. The act recognized the birthright citizenship of all persons born in America, black and white, male and female. But citizenship rights did not entail voting rights. The
Dred Scott
dissenters had been right all along on these points, explained the act’s sponsors.
⁵⁷

This was precisely the Republican Party line in presenting the Fourteenth Amendment to the American people. The amendment’s first section was designed to undergird the 1866 statute; indeed, the amendment’s opening sentence echoed the statute virtually verbatim. The amendment’s supporters insisted that section 1 (the section featuring the birthright-citizenship clause, the privileges-or-immunities clause, and the equal-protection clause) encompassed only civil rights, not political rights—a limit layered onto the very words of the section, given their echoes of Article IV and the “Civil Rights” statute. No prominent Republican said otherwise. The official congressional report designed to explain the amendment to ordinary Americans explicitly contradistinguished “civil” and “political” rights and reassured the nation that section 1 addressed only the former.
⁵⁸

Had the American people understood section 1 to encompass voting, they would likely have defeated the entire amendment. In 1866, the nation was not ready for a rule that every state, in the North as well as the South, must allow blacks to vote equally. When such a rule was proposed three years later in the Fifteenth Amendment, almost no one said this proposal was merely declaratory of a principle already implicit in the Fourteenth.
⁵⁹

Dissenting Warren Court justices made all these points and added one more: Section 2 of the Fourteenth Amendment spoke of “the right to vote,” and surely section 1 could have done the same had it been designed to cover voting rights. Notably, section 2 did not require that any given person be allowed to vote; it did not create an individual right to vote as such. It merely said that any state that denied the vote to certain persons had to pay an apportionment penalty in Congress and in the electoral college.

With this last point, the dissenters inadvertently pulled the rug out from
under their own feet—for section 2, it turns out, actually provides the missing foundation for the general “right to vote” championed by the Warren majority.

Section 2, in relevant part, reads as follows: “[W]hen the right to vote… is denied to any of the male inhabitants of [a] State, being twenty-one years of age, and [nonfelon] citizens of the United States,…the basis of [that State’s] representation [in the House and the electoral college] shall be reduced in…proportion.” This provision is triggered whenever an adult resident nonfelon citizen is denied the right to vote, regardless of the specific reason for disfranchisement. It matters not whether a person within this group of presumptive voters flunked a literacy test, failed to possess the requisite property, refused to pay a poll tax, or simply lived with his parents and had no school-age kids. Whenever disfranchisement of any sort occurs among this group of presumptive voters, a state must lose representation in proportion. For example, if 10 percent of a state’s presumptive electorate is denied the vote for any reason whatsoever, the state must lose 10 percent of its seats in the U.S. House, and must also lose a corresponding number of seats in the electoral college. So saith section 2.

But in reality, section 2 has never in its history been enforced through an apportionment penalty. And here is the punch line: Since Congress has never penalized any state for disfranchisements, judges are justified in treating these disfranchisements as invalid, whether or not made on grounds of race or sex or age. In other words, if no proper section 2 loss of representation occurs, then the state simply may not disfranchise. The disfranchisement is invalid precisely because the state has not paid the proper price for this disfranchisement, as mandated by section 2.

The issue is a simple matter of remedy law. Section 2 says that no disfranchisement can occur without apportionment penalty. Thus, the apportionment penalty must be imposed—
or else the disfranchisement must end
. (If the disfranchisement ends, there is no need for the apportionment penalty, and the actual absence of such a penalty thereupon becomes wholly lawful.) Judges on their own cannot easily enforce the apportionment penalty, because judges do not control the census workers who are needed to elicit the requisite information about various state-by-state abridgments of voting rights; nor can judges redo the entire apportionment of Congress
without a great deal of help from Congress itself. (For example, if state A’s House delegation is to be reduced by 10 percent, should the House size simply decrease or should other states get added seats? If so, which states?) With the remedial option of judicially enforcing the apportionment penalty effectively foreclosed in court, judges must (or at least may, in their remedial discretion) instead directly set aside the disfranchisement and thereby bring the actual apportionment practice into alignment with section 2’s mandate. To repeat: Section 2 says that there shall be no disfranchisement without apportionment penalty. If no apportionment penalty is actually assessed, then there can be no disfranchisement imposed upon the group of presumptive voters textually specified by section 2: “male inhabitants of such State, being twenty-one years of age, and citizens of the United States [and not criminals].”

As we shall see in more detail in later chapters, the word “male” must now be read as “male or female,” thanks to the more recent Nineteenth Amendment, which banned all sex-discriminatory voting laws and thereby repealed the earlier word “male” in section 2. Likewise, after the Twenty-sixth Amendment (adopted shortly after the
Kramer
case), “twenty-one” must now mean “eighteen”—the new constitutional age line for the right to vote. Behold: a presumptive right to vote based on the Fourteenth Amendment itself, albeit not the clause the Warren Court pulled out of its hat.
⁶⁰

This interpretation kills two birds with one stone, responding to two separate objections made by those who scoff at the written Constitution. First, some mockers say that section 2 of the Fourteenth Amendment is a dead letter because its apportionment penalty has never been enforced via a reduction of a state’s House and electoral-college delegation. But in fact, section 2 lives—not through direct enforcement of the apportionment penalty, but through Warren Court right-to-vote case law. Second, other mockers (and sometimes even the same mockers) say that the Court’s right-to-vote case law lacks a sound textual basis. Not so. The words “right to vote” appear in section 2 and are not tethered there to any particular basis of disfranchisement, such as race. Section 2 affirms a general right to vote—as does the Warren Court’s case law. The answer to each mocking objection is to be found in the other mocking objection.

A DIFFERENT FOURTEENTH AMENDMENT ARGUMENT
was also available to the Warren Court justices, although they declined to use it. Recall that the best argument for robust national enforcement of democratic norms against states derives not merely from what the Fourteenth Amendment said, but also from what the amendment
did
. Its very enactment was rich with constitutional meaning and generated a new constitutional principle—or at least a new gloss on an older text. Specifically, the very process of adopting the amendment created a plausible enactment-based precedent for reading the republican-government clause extremely broadly to allow the national government to hold each state to the highest standard of democracy operating anywhere in America.

Granted, the 1860s enactment precedent could be read far more narrowly. The precedent could be understood to apply only in cases of catastrophic democratic breakdown of the sort experienced by the South in the 1850s and 1860s. But history seemed to be replaying itself in the early twentieth century: The South backslid disastrously after Reconstruction, disfranchising large masses of its citizenry and pursuing gross malapportionments that gave rural whites far more than their fair share of power, harkening back to the voting bonuses enjoyed by antebellum plantation belts. Surely it would have been poetic had twentieth-century justices explicitly revived the very “sleeping giant”—the republican-government clause—that had empowered the federal government to remedy deficient democracy in the nineteenth century.
⁶¹

In the 1860s, Congress had been the branch of government awakening the slumbering colossus. A narrow reading of this precedent might suggest that
only
Congress could properly enforce robust democracy norms against states. However, the text of the republican-government clause does not say this. Rather, it says simply that “the United States shall guarantee to every state in this Union a Republican Form of Government,” without specifying which branch of the federal government should enforce this guarantee. In any event, Congress in the 1960s was vigorously championing voting rights and explicitly encouraging the Court to do the same. The 1965 Voting Rights Act contained a provision expressly urging the Justice Department to bring lawsuits seeking the judicial invalidation of state poll-tax disfranchisements, especially whenever these disfranchisements excluded
blacks disproportionately, as they almost always did. (By the time of the 1966
Harper
case, only five states retained poll-tax-based voting rules, and all five were states in the former Confederacy with abysmal track records of race discrimination in the voting domain.) Thus, in championing a broad right to vote, the Warren Court was acting in partnership with Congress.
⁶²

In 1970, Congress enacted a statute entitling young adults to vote in state and federal elections. Under the leadership of Warren’s replacement, Chief Justice Warren Burger, the Court struck down the state-election part of this law as beyond the scope of congressional power. Most of the Warren Court holdovers voted to uphold the act in its entirety, but newer appointees took a stricter view of Congress’s power to extend the franchise. The American people responded by immediately enacting a constitutional amendment endorsing the original congressional position on young-adult voting. This amendment—the Twenty-sixth overall and the fifth to explicitly affirm “the right to vote”—vividly illustrates that, in the domain of voting rights, Warren Court jurists were generally in tune with the American people, not tuning them out as critics charged.
⁶³