Subtitle: Equal Protection – Doing Harm by Doing Good.
Recall from Parts I & II, and Article I § 2 of the Constitution, the states determine voter qualifications to the US Congress. From Parts III & IV, we saw that the late 1860s Congress differentiated between civil and political rights, and Congress did not regard the franchise as a civil right. Section 2 of the 14th Amendment prescribed the punishment for state discrimination against voting based on race. As opposed to civil rights, which everyone in America (citizen and non-citizen) has from the moment of conception, voting is a political right subject to Federal/State Constitutions and statutes.
Northern states were generally as loath as the southern to grant the ballot to African-Americans, both the newly freed and those who had never been slaves. As opposed to today’s Congress, the 39th & 40th Congresses met the nation’s challenges head-on. They didn’t punt difficult issues to an Administrative State or Scotus. In a display of incredible good judgment and concern for the future of our republic, Congress decided against the establishment, perhaps into future centuries, of a large mass of freedmen with civil rights, but lacking the political right to participate in state and federal elections:
Congress debated, yet declined to recommend abolishing educational and property-holding tests. In consequence, the states could constitutionally limit the political right to vote for state offices through poll taxes, and literacy and property-holding tests.
Recall from Section 2 of the 14th Amendment, that should a state abridge the political right of black males over twenty-one years of age to vote, Congress SHALL reduce the basis of the offending state’s Congressional representation in proportion to the number of black males denied the franchise. There is no discretion. Within the Constitution is the political solution to the political problems surrounding the political right to vote. Civil rights and political rights remained distinct. The Fifteenth Amendment empowered Congress to enforce the black franchise, but did not repeal Article 1 § 2 state authority to establish voter qualifications consistent with the Constitution.
Unfortunately, as more southern Democrats joined Congress, Congress did not do its duty in subsequent decades as the states established various subterfuges to deny the franchise to blacks. In response, Scotus eventually, and unconstitutionally, found relief in the 14th Amendment.
In Nixon v. Herndon (1927), a 1923 Texas law provided: “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.” This was an open and bold violation of the 15th Amendment, yet the district court properly dismissed the suit as a political question. Scotus thought otherwise. In striking down the law, a unanimous Scotus found that it was unnecessary to discuss whether the statute violated the Fifteenth Amendment, “because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth,” meaning Section 1 of the 14th Amendment.
This was a tremendous usurpation. Scotus relieved Congress of doing its duty; Scotus recast the political right to vote as civil right. From now on, Scotus increasingly supplanted the states in answering political questions involving literacy tests, and congressional redistricting. It did so by conflating civil and political rights.
Literacy Tests. As late as 1959, Scotus held that literacy tests that are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face, and in the absence of proof of discriminatory enforcement could not be said to deny the 14th Amendment’s Section 1 guarantee of equal protection.
Gerrymandering. The drawing of electoral district lines is a political act which is properly left to political bodies. Judicially decreed districts began with Gomillion v. Lightfoot, a 1960 Scotus decision that found an electoral district with boundaries created to disenfranchise blacks violated the 15th Amendment. Huh? While abhorrent, racial gerrymandering doesn’t violate the 15th Amendment. Both Section 2 of the 14th Amendment and the 15th Amendment use the terms ‘deny’ or ‘abridge’. If racial gerrymandering constitutes denial or abridgement of the political right to vote (it doesn’t), the Constitution commands Congress to punish errant states.
Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minority voting power, were also decided under the Equal Protection Clause.
Thanks to South Carolina v. Katzenbach (1966), Congress, in 1970 suspended literacy tests throughout the nation for a five-year period. Scotus unanimously sustained the action as a valid measure to enforce the Fifteenth Amendment. Literacy tests have nothing to do with race. Again, the remedy for denial or abridgement of the political right to vote is diminution of the offending state’s representation in Congress. Literacy tests do not violate the Constitution; Congressional prohibition of literacy tests violates Article 1 § 2.
Scotus usurped Congressional authority when it recast the political right to vote under Section 2 of the 14th Amendment into a civil right under Section 1. WHO may vote is a political question subject to political judgment. As such, the answer, whatever it is, belongs to the political branches (State and federal legislatures and governor/presidents).
These court decisions and others turned Article 1 § 2 upside down; Scotus and the DOJ determine voter qualifications to federal office, which in turn determine state level voter quals to state office. The 1965 Voting Rights Act features “special provisions” that applied to only certain jurisdictions. A core special provision is the Section 5 preclearance requirement, which prohibits certain jurisdictions from implementing any change affecting voting without obtaining preapproval from the U.S. Attorney General or the U.S. District Court for D.C. that the change does not discriminate against protected minorities. As Hugo Black dissented, “Certainly, if all the provisions of our Constitution which limit the power of the Federal Government and reserve other power to the States are to mean anything, they mean at least that the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them.”
The decades-long slide of Scotus from a respected, independent arbiter of the law into a social justice pit of feel-goodism began with its usurpation of Congress’ duty to punish states that deny or abridge minority voting rights. The 17th Amendment so enabled this usurpation and others, that today, Congress is incapable of doing its duty in other areas as well. From budgeting, to national defense against Sharia, to open borders, Congress sits on its hands while domestic and foreign threats grow.
We are the many; our oppressors are the few. Government is the playground of politicians, but the Constitution is ours. Be proactive. Restore the American Tradition. Join Convention of States.
Reference: The Constitution Annotated 2244 – 2252.