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

For the reasons set out in Part I of this opinion, I believe Congress can fix the âge of voters in national élections, such as congressional, sénatorial, vice-presidential p. 118and presidential élections, but cannot set the voting âge in state and local élections. For reasons expressed in separate opinions, my Brothers Dougla s , Brenn an , White , and Marshal l join me in concluding that Congress can enfranchise 18-year-old citizens in national élections, but dissent from the judgment that Congress cannot extend the franchise to 18-year-old citizens in state and local élections. For reasons expressed in separate opinions, my Brothers The Chief Justi ce , Harlan , Stewart , and Blackmun join me in concluding that Congress cannot interfère with the âge for voters set by the States for state and local élections. They, however, dissent from the judgment that Congress can control voter qualifications in fédéral élections. In summary, it is the judgment of the Court that the 18-year-old vote provisions of the Voting Rights Act Amendments of 1970 are constitutional and enforceable insofar as they pertain to fédéral élections and unconstitutional and unenforceable insofar as they pertain to state and local élections.

For the reasons set out in Part III of this opinion, I believe Congress can set residency requirements and provide for absentee balloting in élections for presidential and vice-presidential electors. For reasons expressed in separate opinions, my Brothers The Chief Justic e , Douglas , Brennan , Stewart , White , Mars hall , and Blackmun concur in this judgment. My Brother p. 119Harlan , for the reasons stated in his separate opinion, considers that the residency provisions of the statute are unconstitutional. Therefore the residency and absentee balloting provisions of the Act are upheld.

“The Times, Places and Manner of holding Elections for Senators and Représentatives, shall be p. 120prescribed in each State by the Législature thereof; but the Congress may at any time by Law make or alter such Régulations, except as to the Places of chusing Senators.” (Emphasis supplied.) Moreover, the power of Congress to make élection régulations in national élections is augmented by the Necessary and Proper Clause. See McCulloch v. Maryland, 4 Wheat. 316 (1819). In United States v. Classic, 313 U. S. 299 (1941), where the Court upheld congressional power to regulate party primaries, Mr. Justice Stone speaking

“[I]f the state législatures are suffered to regulate conclusively the élections of the démocratie branch, they may . . . finally annihilate that control of the general government, which the people p. 121for the Court construed the interrelation of these clauses of the Constitution, stating:

Article I, section 4, which provides that The p. 123Congress may at any time by law make or alter such régulations/ with the single exception stated. The phrase ‘such régulations’ plainly refers to régulations of the same general character that the législature of the State is authorized to prescribe with respect to congressional élections. In exercising this power, the Congress may supplément these state régulations or may substitute its own. . . . It ‘has a general supervisory power over the whole subject.’ ” Id., at 366-367.

In short, the Constitution allotted to the States the power to make laws regarding national élections, but provided that if Congress became dissatisfied with the state laws, Congress could alter them.5 A newly created national government could hardly hâve been expected to survive without the ultimate power to rule itself and to fill its offices under its own laws. The Voting Rights Act Amendments of 1970 now before this Court p. 124evidence dissatisfaction of Congress with the voting âge set by many of the States for national élections. I would hold, as hâve a long line of decisions in this Court, that Congress has ultimate supervisory power over congressional élections.6 Similarly, it is the prérogative of Congress to oversee the conduct of presidential and vice-presidential élections and to set the qualifications for voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential élections than it has over congressional élections.7

On the other hand, the Constitution was also intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments, except insofar as the Constitution itself commands otherwise. My Brother Harlan has persuasively demonstrated that the Framers of the Constitution intended the States to keep for themselves, p. 125as provided in the Tenth Amendment,8 the power to regulate élections. My major disagreement with my Brother Harlan is that, while I agréé as to the States’ power to regulate the élections of their own officiais, I believe, contrary to his view, that Congress has the final authority over fédéral élections. No function is more essential to the separate and independent existence of the States and their governments than the power to détermine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices. Pope v. Williams, 193 U. S. 621 (1904); Minor v. Happersett, 21 Wall. 162 (1875). Moreover, Art. I, § 2,9 is a clear indication that the Framers intended the States to détermine the qualifications of their own voters for state offices, because those qualifications were adopted for fédéral offices unless Congress directs otherwise under Art. I, § 4. It is a plain fact of history that the Framers never imagined that the national Congress would set the qualifications for voters in every élection from President to local constable or village alderman. It is obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local élections, except to the limited extent that the people through constitutional amendments hâve specifically narrowed the powers of the States. Amendments Fourteen, Fifteen, Nineteen, and Twenty-four, each of which has assumed that the States had general supervisory power

Above ail else, the framers of the Civil War Amendments intended to deny to the States the power to discriminate against persons on account of their race. Loving n . Virginia, 388 U. S. 1 (1967); Gomillion v. Lightfoot, 364 U. S. 339 (I960); Brown v. Board of Education, 347 U. S. 483 (1954) ; Slaughter-House Cases, 16 Wall. 36, 71-72 (1873). While this Court has recognized that the Equal Protection Clause of the Fourteenth Amendment in some instances protects against p. 127discriminations other than those on account of race,10 see Reynolds v. Sims, 377 U. S. 533 (1964); Hadley n . Junior College District, 397 U. S. 50 (1970); see also Kotch v. Board of River Port Pilots, 330 U. S. 552 (1947), and cases cited therein, it cannot be successfully argued that the Fourteenth Amendment was intended to strip the States of their power, carefully preserved in the original Constitution, to govern themselves. The Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional déniai of equal protection. Nor was the Enforcement Clause of the Fourteenth Amendment intended to permit Congress to prohibit every discrimination between groups of people. On the other hand, the Civil War Amendments were unquestionably designed to condemn and forbid every distinction, however trifling, on account of race.

To fulfill their goal of ending racial discrimination and to prevent direct or indirect state legislative encroachment on the rights guaranteed by the amendments, the Framers gave Congress power to enforce each of the Civil War Amendments. These enforcement powers are broad. In Jones v. Alfred H. Mayer Co., 392 U. S. 409, 439 ( 1968), the Court held that § 2 of the Thirteenth p. 128Amendment “clothed ‘Congress with power to pass ail laws necessary and proper for abolishing ail badges and incidents of slavery in the United States.’ ” In construing § 5 of the Fourteenth Amendment, the Court has stated:

As broad as the congressional enforcement power is, it is not unlimited. Specifically, there are at least three limitations upon Congress’ power to enforce the guarantees of the Civil War Amendments. First, Congress may not by législation repeal other provisions of the Constitution. Second, the power granted to Congress was not intended to strip the States of their power to govern themselves or to couvert our national government of enumerated powers into a central government of unrestrained authority over every inch of the whole Nation. Third, Congress may only “enforce” the provisions of the amendments and may do so only by “appropriate législation.” Congress has no power under the enforcement sections to undercut the amendments’ guarantees of personal equality and freedom from discrimination, see Katzenbach v. Morgan, 384 U. S. 641, 651 n. p. 12910 (1966), or to undermine those protections of the Bill of Rights which we hâve held the Fourteenth Amendment made applicable to the States.11

“If any provision of this Act or the application of any provision thereof to any person or circumstance is judicially determined to be invalid, the remainder of this Act or the application of such provision to other persons or circumstances shall not be affected by such détermination.” 84 Stat. 318. In this case, it is the judgment of the Court that Title III, lowering the voting âge to 18, is invalid as applied to voters in state and local élections. It is also the judgment of the Court that Title III is valid with respect to national élections. We would fail to follow the p. 131express will of Congress in interpreting its own statute if we refused to sever these two distinct aspects of Title III. Moreover, it is a longstanding canon of statutory construction that legislative enactments are to be enforced to the extent that they are not inconsistent with the Constitution, particularly where the valid portion of the statute does not dépend 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 the 18-year-old vote in national élections is in no way dépendent upon its enforcement in state and local élections.

In Title II of the Amendments Congress prohibited until August 6, 1975, the use of any test or device resembling a literacy test in any national, state, or local élection p. 132in any area of the United States where such test is not already proscribed by the Voting Rights Act of 1965. The State of Arizona maintains that Title II cannot be enforced to the extent that it is inconsistent with Arizona’s literacy test requirement, Ariz. Rev. Stat. Ann. §§ 16-101.A.4, 16-101.A.5 (1956). I would hold that the literacy test ban of the 1970 Amendments is constitutional under the Enforcement Clause of the Fifteenth Amendment and that it supersedes Arizona’s conflicting statutes under the Supremacy Clause of the Fédéral Constitution.

In enacting the literacy test ban of Title II Congress had before it a long history of the discriminatory use of literacy tests to disfranchise voters on account of their race. Congress could hâve found that as late as the summer of 1968, the percentage registration of nonwhite voters in seven Southern States was substantially below the percentage registration of white voters.13 Moreover, Congress had before it striking evidence to show that the provisions of the 1965 Act had had in the span of four years a remarkable impact on minority group voter registration.14 Congress also had evidence to show that voter registration in areas with large Spanish-American populations was consistently below the state and national averages. In Arizona, for example, only two counties out of eight with Spanish surname populations in excess of 15% showed a voter registration equal to the statewide average.15 Arizona also has a serious problem of déficient voter registration among Indians. p. 133Congressional concern over the use of a literacy test to disfranchise Puerto Ricans in New York State is already a matter of record in this Court. Katzenbach v. Morgan, supra. And as to the Nation as a whole, Congress had before it statistics which demonstrate that voter registration and voter participation are consistently greater in States without literacy tests.16

Our judgments today give the Fédéral Government the power the Framers conferred upon it, that is, the final control of the élections of its own officers. Our judgments also save for the States the power to control state and p. 135local élections which the Constitution originally reserved to them and which no subséquent amendment has taken from them.17 The generalities of the Equal Protection Clause of the Fourteenth Amendment were not designed or adopted to render the States impotent to set voter qualifications in élections for their own local officiais and agents in the absence of some spécifie constitutional limitations.

The first case in which this Court struck down a statute under the Equal Protection Clause of the Fourteenth Amendment was Strauder v. West Virginia, 100 U. S. 303, decided in the 1879 Term.1 In the 1961 Term we squarely held that the manner of apportionment of members of a state législature raised 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 one person could not be given twice or 10 times the voting power of another person in a statewide élection merely because he lived in a rural area or p. 137in the smallest rural county; 2 that the principle of equality applied to both Houses of a bicaméral législature; 3 that political parties receive protection under the Equal Protection Clause just as voters do.4

This case, so far as equal protection is concerned, is no whit different from a controversy over a state law that disqualifies women from certain types of employment, Goesaert v. Cleary, 335 U. S. 464, or that imposes a heavier punishment on one class of offender than on another whose crime is not intrinsically different. Skinner v. Oklahoma, 316 U. S. 535. The right to vote is, of course, different in one respect from the other rights in the économie, social, or political field which, as indicated in the Appendix to this opinion, are under the Equal Protection Clause. The right to vote is a civil right deeply embedded in the Constitution. Article I, § 2, provides that the House is composed of members “chosen . . . by the People” and the electors “shall hâve the Qualifications requisite for Electors of the most numerous Branch of the State Législature.” The Seventeenth Amendment States that Senators shall be “elected by the people.” The Fifteenth Amendment speaks of the “right of citizens of the United States to vote”—not only in fédéral p. 139112 Opinion of Dougla s , J.

In Carrington v. Rash, 380 U. S. 89, we held that Texas could not bar a person, otherwise qualified, from voting merely because he was a member of the armed services. Occupation, we held, when used to bar a person from voting, was that invidious discrimination which the Equal Protection Clause condemns. In Evans n . Cornman, 398 U. S. 419, we held that a State could not deny the vote to residents of a fédéral enclave when it treated them as residents for many other purposes. In Harper v. Virginia Board of Elections, 383 U. S., at 666, we held a State could not in harmony with the Equal Protection Clause keep a person from voting in state élections because of “the affluence of the voter or payment of any fee.” In Kramer v. Union School District, 395 U. S. 621, we held that a person could not be barred from voting in school board élections merely because he was a bachelor. So far as the Equal Protection Clause was concerned, we said that the line between those qualified to vote and those not qualified turns on whether those excluded hâve “a distinct and direct interest in the school meeting decisions.” Id., at 632. In Cipriano 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 revenue bonds of a municipal utility System violated equal protection as “the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike.” Id., at 705. And only on June 23, 1970, we held in Phoenix v. Kolodziejski, 399 U. S. 204, that p. 141it violâtes equal protection to restrict those who may vote on general obligation bonds to real property taxpayers. We looked to see if there was any “compelling state interest” in the voting restrictions. We held that “nonproperty owners” are not “substantially less interested in the issuance of these securities than are property owners,” id., at 212, and that presumptively “when ail citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise.” 6 Id., at 209. And as recently as November 9, 1970, we summarily affirmed a district court decision (310 F. Supp. 1172) on the basis of Kolodziejski. Parish School Board of St. Charles v. Stewart, post, p. 884, where Louisiana gave a vote on municipal bond issues only to “property taxpayers.”

Section 201 bars a State from denying the right to vote in any fédéral, state, or local élection because of “any p. 145112 Opinion of Doug la s , J.

Statutes Which Favored Certai n Busine sse s Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (exemption from state antitrust law for agricultural goods) ; Smith v. Cahoon, 283 U. S. 553 (act exempting certain motor vehicles from Insurance requirements) ; Mayflower p. 151112 Appendix to opinion of Doug la s , J.

Glona v. American Guarantee Co., 391 U. S. 73 (mother denied right to sue for wrongful death of illegitimate p. 152child) ; and Levy v. Louisiana, 391 U. S. 68 (illegitimate children denied recovery for wrongful death of mother).

Each of the States contests the power of Congress to enact the provisions of the Act involved in its suit.2 The Government places primary reliance on the power of Congress under § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment by appropriate p. 154législation. For reasons to follow, I am of the opinion that the Fourteenth Amendment was never intended to restrict the authority of the States to allocate their political power as they see fit and therefore that it does not authorize Congress to set voter qualifications, in either state or fédéral élections. I find no other source of congressional power to lower the voting âge as fixed by state laws, or to alter state laws on residency, registration, and absentee voting, with respect to either state or fédéral élections. The suspension of Arizona’s literacy requirement, however, can be deemed an appropriate means of enforcing the Fifteenth Amendment, and I would sustain it on that basis.

“Every Constitution embodies the principles of its framers. It is a transcript of their minds. If its meaning in any place is open to doubt, or if words are used which seem to hâve no fixed signification, we cannot err if we turn to the framers; and their authority increases in proportion to the evidence which they hâve left on the question.” Cong. Globe, 39th Cong., Ist Sess., 677 (1866) (Sen. Sumner). Believing this view to be undoubtedly Sound, I turn to the circumstances in which the Fourteenth Amendment was adopted for enlightenment on the intended reach of its provisions. This, for me, necessary undertaking has unavoidably led to an opinion of more than ordinary length. Except for those who are willing to close their eyes to constitutional history in making constitutional interprétations or who read such history with a preconceived détermination to attain a particular constitutional p. 155goal, I think that the history of the Fourteenth Amendment makes it clear beyond any reasonable doubt that no part of the législation now under review can be upheld as a legitimate exercise of congressional power under that Amendment.

The point of departure for considering the purpose and effect of the Fourteenth Amendment with respect to the suffrage should be, I think, the pre-existing provisions of the Constitution. Article I, § 2, provided that in determining the number of Représentatives to which a State was entitled, only three-fifths of the slave population should be counted.4 The section also provided that the qualifications of voters for such Représentatives should be the same as those established by the States for electors of the most numerous branch of their respective législatures. Article I, § 4, provided that, subject to congressional veto, the States might prescribe the times, places, and manner of holding élections for Représentatives. Article H, § 1, provided that the States might direct the manner of choosing electors for President and Vice President, except that Congress might fix a uniform time for the choice.5 Nothing in the original p. 156Constitution controlled the way States might allocate their political power except for the guarantee of a Republican Form of Government, which appears in Art. IV, § 4.6 No relevant changes in the constitutional structure were made until after the Civil War.

At the close of that war, there were some four million freed slaves in the South, none of whom were permitted to vote. The white population of the Confederacy had been overwhelmingly sympathetic with the rébellion. Since there was only a comparative handful of persons in these States who were neither former slaves nor Confederate sympathizers, the place where the political power should be lodged was a most vexing question. In a sériés of proclamations in the summer of 1865, President Andrew Johnson had laid the groundwork for the States to be controlled by the white populations which had held power before the war, eliminating only the leading rebels and those unwilling to sign a loyalty oath.7 The Radicals, on the other hand, were ardently in favor of Negro suffrage as essential to prevent résurgent rébellion, requisite to protect the freedmen, and necessary to ensure continued Radical control of the government. This ardor cooled as it ran into northern racial préjudice. At that time, only six States—Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and New York—permitted Negroes to vote, and New York imposed spécial property and residency requirements on Negro voters.8 In referenda late that year, enfranchising p. 157proposais were roundly beaten in Connecticut, Wisconsin, Minnesota, the Territory of Colorado, and the District of Columbia. Gillette, supra, n. 3, at 25-26. Such popular rebuffs led the Radicals to pull in their horns and hope for a protracted process of reconstruction during which the North could be educated to the advisability of Negro suffrage, at least for the South. In the meantime, of course, it would be essential to bar Southern représentation in Congress lest a combination of southerners and Democrats obtain control of the government and frustrate Radical goals.

“whenever the elective franchise shall be denied or abridged in any State on account of race or color, ail persons of such race or color shall be excluded from the basis of représentation.” Globe 351. The resuit, if the Southern States did not provide for Negro suffrage, would be a decrease in Southern p. 159representation in Congress and the électoral college by some 24 seats from their 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 combination of Democrats, moderate Republicans, and extreme Radicals combined to defeat the measure, with the Radicals basing their opposition largely on the fear that the proviso would be read to authorize racial voter qualifications and thus prevent Congress from enfranchising the freedmen under powers assertedly granted by other clauses of the Constitution. See, e. g., Globe 673-687 (Sen. Sumner).

14 In this connection, Professer Fairman’s admonition of 20 years ago is even more forceful than it was when he wrote: “We know so much more about the constitutional law of the Fourteenth Amendment than the men who adopted it that we should p. 163many congressmen it simply never occurred to them that the States’ longstanding plenary control over voter qualifications would be affected without explicit language to that effect. And since no speaker during the debates on the Fourteenth Amendment pursued the contention that § 1 would be construed to include the franchise, those who took the opposite view rarely explained how they arrived at their conclusions.

15 See, e. g., Globe 599 (Sen. Trumbull) ; Globe 1117 (Cong. Wilson of lowa, quoting Kent’s Commentaries and Bouvier’s Law Dictionary) ; Globe 1152 (Cong. Thayer). There were some, however, who considered the distinction either nonexistent or too uncertain to be p. 164the expérience under the similar language of Art. IV, § 2, which had never been held to guarantee the right to vote. The remarks of Senator Howard of Michigan, who as spokesman for the Joint Committee explained in greater detail than most why the Amendment did not reach the suffrage, contain something of each view. See Globe 2766, quoted infra, at 187; nn. 56 and 57, infra; cf. Blake v. McClung, 172 U. S. 239, 256 (1898) (dictum).

19 While the history indicates that the supporters of the Fourteenth Amendment would hâve been surprised at the suggestion that the Amendment brought qualifications for state office under fédéral supervision, officeholding was not the focus of attention during the considération of the Amendment. Moreover, state p. 168needed, one would hâve thought it provided by the second section of the same Amendment, which specifically contemplated that the right to vote would be denied or abridged by the States on racial or other grounds. As a unanimous Court once asked, “Why this, if it was not in the power of the [state] législature to deny the right of suffrage to some male inhabitants?” Minor v. Happersett, 21 Wall. 162, 174 (1875).

24 See generally Kendrick 18-22. For reasons to be developed below, infra, at 197, the report of the Joint Committee, H. R. Rep. No. 30, 39th Cong., lst Sess. (1866), is less useful as an indication of the understanding of the Committee and the Congress than as an indication of the understanding of the ratifying States. p. 171enfranchising proposais in favor of plans which would postpone enfranchisement, leave it to congressional discrétion, or abandon it altogether. Second, the abandonment of Negro suffrage as a goal exactly corresponded with the adoption of provisions to reduce représentation for discriminatory restrictions on the ballot.

The subcommittee also proposed that whichever provision on the basis of représentation was adopted, the Congress should be empowered to legislate to secure ail citizens “the same political rights and privilèges” and also “equal protection in the enjoyment of life, liberty and property.” Kendrick 51. After the Committee reported H. R. 51, it turned to considération of this proposai. At a meeting attended by only 10 members, a motion to strike out the clause authorizing Congress to legislate for equal political rights and privilèges lost by a vote of six to four. Kendrick 57. At a subsé- quent meeting, however, Bingham had the subcommittee proposai replaced with another which did not mention political rights and privilèges, but was otherwise quite similar. Kendrick 61; see the opinion of Mr . Justic e Brennan , Mr . Justice White , and Mr . Justic e p. 172Marshall , post, at 258-259, for the text of the two provisions. The Committee reported the substitute as H. R. 63. In the House so much concern was expressed over the centralization of power the amendment would work—a few said it would even authorize Congress to regulate the suffrage—that the matter was dropped. Post, at 260.

28 While any guess as to the motives of Bingham and the other members of the committee is sheer spéculation, it is not necessarily true that they believed they were replacing spécifie language with p. 174demonstrated by the speeches in the debates on the floor.29

In the climate of the times, Stevens could hardly hâve been understood as referring to anything other than the failure of the measure to make some provision for the enfranchisement of the freedmen. However, lest any mistake be made, he recounted the history of the Committee’s prior effort in the field of représentation and p. 176suffrage, H. R. 51, which “would surely hâve secured the enfranchisement of every 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 the protection of the colored race perhaps for âges.” Ibid.

Later, in discussion of § 3, which at that time would hâve dis[Footnote J^O on page 180] p. 180vania,41 Banks of Massachusetts,42 and Eckley of Ohio.43

43 “If South Carolina persists in withholding the ballot from the colored man, then let her take the alternative we offer, of confining her to the white basis of représentation . . . .” Globe 2535. p. 181Spalding of Ohio,44 Longyear of Michigan,45 and Shellabarger of Ohio.46 The remaining Republican members of the Joint Committee—Washburne of Illinois, Morrill of Vermont, Conkling of New York, and Blow of Missouri—did not participate in the debates over the Amendment.

Stevens then arose briefly in rebuttal. He attacked Bingham for saying in another portion of his speech that the disqualification provisions of § 3 were unenforceable. He did not contradict—or even refer to—Bingham’s p. 186interprétation of §§ 1 and 2. Globe 2544. The vote was taken and the resolution passed immediately thereafter. Globe 2545.

Howard’s forthright attempt to prevent misunderstanding was completely successful insofar as the Senate was concerned; at least, no one has yet discovered a remark during the Senate debates on the proposed Fourteenth Amendment which indicates any contrary p. 188impression.56 For some, however, time has muddied the clarity with which he spoke.57

61 “I am sorry to hâve to put that clause [§ 2] into our Constitution, as I am sorry for the necessity which calls upon us to put the preceding clause into the Constitution. I wish there was no community and no State in the United States that was not p. 190souri,62 and Yates of Illinois.63 The remarks of Senator Sherman of Ohio, whose support for the amendment was lukewarm, see Globe 2986, seem to hâve been based on the common interprétation.64

In any event, even disregarding its analytical difficulties, the argument is based on blatant factual shortcomings. AH but one of the speakers on whose statements p. 194primary reliance is placed stated, either during the debates on the Fourteenth Amendment or subsequently, that the Amendment did not enfranchise the freedmen.70

Newspapers expressed the same view of the reach of the Amendment. Even while deliberations were underway, prédictions that Congress would corne up with a plan involving enfranchisement of the freedmen had gradually ceased. James 91. When the Amendment was released to the press, Andrew Johnson was reported as seeing in it 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 Amendment reflected an abandonment of the Radical push for Negro suffrage and acceptance of Johnson’s position that control over suffrage rested exclusively with the States. May 1, 1866, reported in James 119. The Nation, a Radical organ, p. 199attributed 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 120. The Chicago Tribune, another Radical organ, complained that § 1 was objectionable as “surplusage,” May 5, 1866, quoted in James 123, and later in the same month criticized the measure for “postponing, and not settling” the matter of equal political rights for Negroes. May 31, 1866, quoted in James 146. As deliberations continued, the reporting went on in the same vein. The New York Times reported that with élections approaching, “No one now talks or dreams of forcing Negro suffrage upon the Southern States.” June 6, 1866. The Cincinnati Daily Commercial and the Boston Daily Journal for June 7, 1866, commented on the Radicals’ abandonment of Negro suffrage. James 145.

86 In fact, however, I do not understand how the doctrine of deference to rational constitutional interprétation by Congress, espoused by the majority in Katzenbach v. Morgan, 384 U. S. 641 (1966), is consistent with this statement of Chief Justice Marshall or p. 205constitutional System itself. Congress is subject to none of the institutional restraints imposed on judicial decisionmaking ; it is controlled only by the political process. In Article V, the Framers expressed the view that the political restraints on Congress alone were an insufficient control over the process of constitution making. The concurrence of two-thirds of each House and of three-fourths of the States was needed for the political check to be adéquate. To allow a simple majority of Congress to hâve final say on matters of constitutional interprétation is therefore fundamentally out of keeping with the constitutional structure. Nor is that structure adequately protected by a requirement that the judiciary be able to perceive a basis for the congressional interpré- tation, the only restriction laid down in Katzenbach v. Morgan, 384 U. S. 641 (1966).

The same considérations apply, and with almost equal force, to Congress’ displacement of state decisions with its own ideas of wise policy. The sole distinction between Congress and the Court in this regard is that Congress, being an elective body, presumptively has popular authority for the value judgment it makes. But since the state législature has a like authority, this distinction between Congress and the judiciary falls short of justifying a congressional veto on the state judgment. The perspectives and values of national legislators on the issue of voting qualifications are likely to differ from those of state legislators, but I see no reason p. 208a priori to prefer those of the national figures, whose collective decision, applying nationwide, is necessarily less able to take account of peculiar local conditions. Whether one agréés with this judgment or not, it is the one expressed by the Framers in leaving voter qualifications to the States. The Supremacy Clause does not, as my colleagues seem to argue, represent a judgment that fédéral decisions are superior to those of the States whenever the two may differ.

Since I cannot agréé that the Fourteenth Amendment empowered Congress, or the fédéral judiciary, to control voter qualifications, I turn to other asserted sources of congressional power. My Brother Black would find that such power exists with respect to fédéral élections by p. 210virtue of Art. I, § 4, and seemingly other considérations that he finds implicit in fédéral authority.

The history of the Fourteenth Amendment may well foreclose the possibility that § 5 empowers Congress to enfranchise a class of citizens so that they may protect themselves against discrimination forbidden by the first section, but it is unnecessary for me to explore that question. For I think it fair to say that the suggestion that members of the âge group between 18 and 21 are threatened with unconstitutional discrimination, or that any hypothetical discrimination is likely to be afïected by lowering the voting âge, is little short of fanciful. I see no justification for stretching to find any such possibility p. 213when ail the evidence indicates that Congress—led on by recent decisions of this Court—thought simply that 18-year-olds were fairly entitled to the vote and that Congress could give it to them by législation.90

Mr . Just ice Brennan , Mr . Just ice White , and Mr . Justice Marsh all do not anchor the right of Interstate travel to any spécifie constitutional provision. Post, at 237-238. Past decisions to which they refer hâve relied on the two Privilèges and Immunities Clauses, just discussed, the Due Process Clause of the Fifth Amendment, and the Commerce Clause. See Shapiro n . Thompson, 394 U. S., at 630 n. 8; id., at 663-671 (dissenting opinion). The Fifth Amendment is wholly inapplicable to state laws ; and surely the Commerce Clause cannot be seriously relied on to sustain the Act here challenged. With no spécifie clause of the Constitution p. 216empowering Congress to enact § 202, I fail to see how that nebulous judicial construct, the right to travel, can do so.

In taking this position, I feel fortified by the évident malaise among the members of the Court with those decisions. Despite them, a majority of the Court holds that this congressional attempt to lower the voting âge by simple législation is unconstitutional, insofar as it relates to state élections. Despite them, four members of the Court take the same view of this législation with respect to fédéral élections as well; and the fifth member of the Court who considers the législation constitutionally infirm as regards state élections relies not at ail on any of those decisions in reaching the opposite conclusion in fédéral élections. And of the eight members of the Court who vote to uphold the residential provision of the p. 219statute, only four appear to rely upon any of those decisions in reaching that resuit.

(c) No citizen of the United States who is otherwise qualified to vote in any élection for President and Vice President shall be denied the right to vote for electors for President and Vice President, or for President and Vice President, in such élection because of the failure of such citizen to comply with any durational residency p. 221requirement of such State or political subdivision; nor shall any citizen of the United States be denied the right to vote for electors for President and Vice President, or for President and Vice President, in such élection because of the failure of such citizen to be physically présent in such State or political subdivision at the time of such élection, if such citizen shall hâve complied with the requirements prescribed by the law of such State or political subdivision providing for the casting of absentee ballots in such élection.

(e) If any citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any élection for President and Vice President has begun résidence in such State or political subdivision after the thirtieth day next preceding such élection and, for that reason, does not satisfy the registration requirements of such State or political subdivision he shall be allowed to vote for the choice of electors for President and Vice p. 222President, or for President and Vice President, in such élection, (1) in person in the State or political subdivision in which he resided immediately prior to his removal if he had satisfied, as of the date of his change of résidence, the requirements to vote in that State or political subdivision, or (2) by absentee ballot in the State or political subdivision in which he resided immediately prior to his removal if he satisfies, but for his nonresident status and the reason for his absence, the requirements for absentee voting in that State or political subdivision.

Sec . 301. (a) The Congress finds and déclarés that the imposition and application of the requirement that a p. 223citizen be twenty-one years of âge as a precondition to voting in any primary or in any élection—

Art. 7, § 2. No person shall be entitled to vote at any general élection, or for any office that now is, or hereafter may be, elective by the people, or upon any question p. 224which may be submitted to a vote of the people, unless such person be a citizen of the United States of the âge of twenty-one years or over, and shall hâve resided in the State one year immediately preceding such élection, provided that qualifications for voters at a general élection for the purpose of electing presidential electors shall be as prescribed by law. The word “citizen” shall include persons of the male and female sex.

Sec. 34-401. Qualifications of voters.—Every person over the âge of twenty-one (21) years, possessing the qualifications following, shall be entitled to vote at ail élections: He shall be a citizen of the United States and shall hâve resided in this state six (6) months immediately preceding the élection at which he offers to vote, p. 226and in the county thirty (30) days: provided, that no person shall be permitted to vote at any county seat élection who has not resided in the county six (6) months, and in the precinct ninety (90) days, where he offers to vote; nor shall any person be permitted to vote at any élection for the division of the county, or striking off from any county any part thereof, who has not the qualifications provided for in section 3, article 18, of the constitution; nor shall any person be denied the right to vote at any school district élection, nor to hold any school district office on account of sex.

34-413. Voting by new residents.—(1) The applicant, upon receiving the ballot for presidential and vice-presidential electors shall mark forthwith the ballot in the p. 227presence of the county auditor, but in a manner that the official cannot know how the ballot is marked. He shall then fold the ballot in the county auditor’s presence so as to conceal the markings, and deposit and seal it in an envelope furnished by the county auditor.

These cases draw into question the power and judgment of Congress in enacting Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 314. The State of Arizona challenges the power of Congress to impose a nationwide ban, until August 6, 1975, on the use of literacy and certain other tests to limit the franchise in any élection. The State of Idaho takes issue with the asserted congressional power to find that the imposition of a durational résidence requirement to deny the right to vote in élections for President and Vice President imposes a burden upon the right of free p. 230interstate migration that is not necessary to further a compelling state interest.1 Finally, the States of Oregon, Texas, Arizona, and Idaho would hâve us strike down as unreasonable and beyond congressional power the findings, embodied in § 301 (a) of the Amendments, that denying the vote to otherwise qualified persons 18 to 21 years of âge, while granting it to those 21 years of âge and older, violâtes the Equal Protection Clause and is, in any event, not reasonably related to any compelling state interest.2 In Nos. 43, Orig., and 44, Orig., Oregon and Texas hâve invoked our original jurisdiction under Art. III, § 2, of the Constitution to restrain the Attorney General of the United States, a citizen of New York, from enforcing the 18-year-old voting provisions of the Amend- p. 231112 Opinion of Bre nna n , Whit e , and Marsh al l , JJ.

The Voting Rights Act of 1965, 79 Stat. 438, 42 U. S. C. § 1973 et seq. (1964 ed., Supp. V), proscribed the use of any “test or device,” 5 including literacy tests, in States p. 232or their political subdivisions that fell within a coverage formula set forth in § 4 (b) of the 1965 Act. 42 U. S. C. §§ 1973b (a), (b) (1964 ed., Supp. V). Although we had previously concluded that literacy tests, fairly administered, violate neither the Fourteenth nor the Fifteenth Amendment, Lassiter v. Northampton Election Board, 360 U. S. 45 (1959), we nevertheless upheld their sélective proscription by Congress. South Carolina v. Katzenbach, 383 U. S. 301 (1966). Canvassing the “voluminous” legislative history of the 1965 Act, we found ample basis for a legislative conclusion that such a proscription was necessary to combat the “insidious and pervasive evil” of racial discrimination with regard to voting. Id., at 308-315. Accordingly, we held the proscription to be well within the power of Congress granted by § 2 of the Fifteenth Amendment. Id., at 327-334. Three years later, in Gaston County v. United States, 395 U. S. 285 (1969), we sustained application of the ban on literacy tests to a county where there was no evidence that the test itself was discriminatory or that—at least since 1962 6—it had been administered in a discriminatory manner. Notwithstanding this fact, we noted that the record did contain substantial evidence that in years past, “Gaston County [had] systematically deprived its black citizens of the educational opportunities it granted to its white citizens.” Id., at 297. Since this “in turn deprived them of an equal chance to pass the literacy test,” id., at 291, even impartial administration of an impartial test would inevitably resuit in just the discrimination that Congress

6 Gaston County was a suit by the county under § 4 (a) of the 1965 Act, 42 U. S. C. § 1973b (a) (1964 ed., Supp. V), to reinstate the county’s literacy test. The county would hâve been entitled to do so upon démonstration that, for the preceding five years, no “test or device” had been there used for the purpose or with the effect of abridging the right to vote on account of race or color. p. 233and the Fifteenth Amendment had sought to proscribe. Id., at 296-297; see South Carolina v. Katzenbach, 383 U. S., at 308, 333-334.

We need not question Arizona’s assertions as to the nondiscriminatory character, past and présent, of its educational System. Congressional power to remedy the evils resulting from state-sponsored racial discrimination does not end when the subject of that discrimination removes himself from the jurisdiction in which the in jury occurred. “The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Baldwin v. G. A. F. Seelig, Inc., 294 U. S. p. 234511, 523 (1935); see Edwards v. California, 314 U. S. 160, 173-176 (1941). In upholding the suspension of literacy tests as applied to Gaston County under the 1965 Act, we could see “no legal significance” in the possibility that adult residents of the county might hâve received their éducation “in other counties or States also maintaining segregated and unequal school Systems.” Gaston County v. United States, 395 U. S., at 293 n. 9.7

Whether or not the Constitution vests Congress with particular power to set qualifications for voting in strictly fédéral élections,15 we believe there is an adéquate constitutional basis for § 202 in § 5 of the Fourteenth Amendment. For more than a century, this Court has recognized the constitutional right of ail citizens to unhindered Interstate travel and seulement. Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J.); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869) ; Edwards v. California, 314 U. S. 160 (1941); United States v. Guest, 383 U. S. 745, 757-758 (1966); Shapiro v. Thompson, 394 U. S. 618, 629-631, 634 (1969). From whatever constitutional provision this right may be said to flow,16 both its existence p. 238and its fundamental importance to our Fédéral Union hâve long been established beyond question.

In the présent case, Congress has explicitly found both that the imposition of durational résidence requirements abridges the right of free Interstate migration and that such requirements are not reasonably related to any compelling state interests. 1970 Amendments, §§ 202 (a)(2), (6). The latter finding was made with full cognizance of the possibility of fraud and administrative difîiculty. Senator Goldwater, testifying at Senate hearings on the bill, pointed out that 40 States presently allow registration until 30 days or less prior to the élection.17 Idaho itself allows registration by those desiring to vote as new residents in presidential élections within 10 days of balloting. Idaho Code § 34-409 (1963). And Idaho’s assertion of the administrative unfeasibility p. 239of maintaining separate registration lists for fully qualified voters and for those qualified only for presidential balloting is difficult to crédit in light of the fact that the Idaho Constitution, Art. 6, § 2, itself sets separate qualifications for voting in general and in presidential élections. The provisions for absentee voting, as Senator Goldwater pointed out on the floor of the Senate, were likewise “drawn from the proven practice of the States themselves.” 18 Thirty-seven States allow application within a week of the élection, and 40 permit the marked ballot to be returned on élection day.19 Finally, Idaho has provided no evidence beyond the mere assertion that the scheme of § 202 is inadéquate to protect against fraud. But the only kind of fraud asserted is the possibility of dual voting, and Idaho has provided no explanation why the 30-day period between the closing of new registrations and the date of élection would not provide, in light of modem communications, adéquate time to insure against such frauds. Accordingly, we find ample justification for the congressional conclusion that § 202 is a reasonable means for eliminating an unnecessary burden on the right of Interstate migration. United States v. Guest, supra.

The final question presented by these cases is the propriety of Title III of the 1970 Amendments, which p. 240forbids the States from disenfranchising persons over the âge of 18 because of their âge. Congress was of the view that this prohibition, embodied in § 302 of the Amendments, was necessary among other reasons in order to enforce the Equal Protection Clause of the Fourteenth Amendment. See §§301 (a)(2), (b). The States involved in the présent litigation question the assertion of congressional power to make that judgment.

The right to vote has long been recognized as a “fundamental political right, because preservative of ail rights.” Yick Wo n . Hopkins, 118 U. S. 356, 370 (1886) ; see Reynolds v. Sims, 377 U. S. 533, 562 (1964) ; Williams v. Rhodes, 393 U. S. 23, 31 (1968). “Any unjustified discrimination in determining who may participate in political affairs . . . undermines the legitimacy of représentative government.” Kramer v. Union School District, 395 U. S., at 626. Consequently, when exclusions from the franchise are challenged as violating the Equal Protection Clause, judicial scrutiny is not confined to the question whether the exclusion may reasonably be thought to further a permissible interest of the State. p. 242Cf. Metropolitan Cas. Ins. Co. v. Brownell, 294 U. S. 580, 583-584 (1935). “A more exacting standard obtains.” Kramer v. Union School District, 395 U. S., at 633. In such cases, “the Court must détermine whether the exclusions are necessary to promote a compelling state interest.” Id., at 627; Cipriano v. City of Houma, 395 U. S. 701, 704 (1969).

29 See, e. g., 116 Cong. Rec. 6433-6434 (Sen. Cook), 6929-6930 (Sens. Talmadge and Ervin); Senate Hearings 343 (Gov. Maddox). p. 247112 Opinion of Bre nnan , White , and Mars hal l , JJ.

The scope of our review in such matters has been established by a long line of consistent decisions. “It is not for the courts to re-examine the validity of these legislative findings and reject them.” Communist Party v. Control Board, 367 U. S., at 94. “[W]here we find that the legislators, in light of the facts and testimony before them, hâve a rational basis for finding a chosen p. 249regulatory scheme necessary . . . our investigation is at an end.” Katzenbach v. McClung, 379 U. S. 294, 303-304 (1964); Katzenbach v. Morgan, 384 U. S., at 653; see Galvan v. Press, 347 U. S. 522, 529 (1954).31

34 Indeed, since the First Amendment is applicable to the States only through the Fourteenth, our Brother Harl an ’s view would appear to allow a State to exclude any unpopular group from the political process solely upon the basis of its political opinions. p. 253coin 515-516 (rev. ed. 1951). Nor would the postwar period of Reconstruction be substantially different.

Temporarily, they proposed to do so by refusing to seat Congressmen from the seceded States. They usually justified their refusai on constitutional grounds, p. 255presenting a variety of théories as to how the former Confederate States had forfeited their rights by sécession. See generally E. McKitrick, Andrew Johnson and Reconstruction 93-119 (1960). But exclusion of Southern représentatives could not be a permanent solution; a better solution seemed to be to elect at least some Republican représentatives from the South by enfranchising the only class that could be expected to vote Republican in large numbers—the freedmen.

“[Sec. 2.] Représentatives and direct taxes shall be apportioned among the several States, which p. 258may be included within this Union, according to their respective numbers of persons, deducting therefrom ail of any race or color, whose members or any of them are denied any of the civil or political rights or privilèges.” Id., at 43. The question that must now be pursued is whether § 1 of the Amendment ever lost its original connection with the suffrage question.

“Congress shall hâve power to make ail laws which shall be necessary and proper to secure ail p. 259persons in every state full protection in the enjoyment of life, liberty and property; and to ail citizens of the United States in any State the same immunities and also equal political rights and privilèges.” Id., at 56. This language, it seems clear, did not change the meaning of the section as originally proposed, but the next change in language, proposed several days later by Bingham, arguably did. Bingham moved the following substitute :

Meanwhile, the Joint Committee had returned to work and had begun to consider the direct antécédent of the Fourteenth Amendment, a proposai by Robert Dale p. 261Owen which Représentative Stevens had placed before the committee. Its relevant provisions were as follows:

At this meeting, the proposed Fourteenth Amendment was substantially rewritten. First, the committee, by a vote of 12 to 2, deleted § 2, which had barred States from making racial discriminations in the enjoyment of the right of suffrage after 1876, and conformed § 3, so as to insure that it would remain in effect after 1876. After making numerous other changes, the committee then concluded its deliberations by replacing Owen’s ban in § 1 on discrimination “as to civil rights” with Bingham’s now familiar language. Here the vote was 10 to 3, with the majority again containing a full spectrum of political views. Id., at 100-106. The reasons for the rewriting are not entirely clear. The only known explanation was given by Owen in 1875, when he wrote an article recalling a contemporary conversation with Stevens. Stevens had reportedly explained that the committee’s original decisions had “got noised abroad,” and that, as a resuit, several state délégations had held caucuses which decided that the explicit references to “negro suffrage, in any shape, ought to be excluded from the platform . . . .” Quoted in id., at 302. Thus, the provision for suffrage after 1876 had to be eliminated, but Stevens did not explain why Bingham’s version of § 1 was then substituted p. 263for Owen’s version. Perhaps the changes in § 1 of the Amendment were thought by the committee to be mere linguistic improvements which did not substantially modify Owen’s meaning and which did not extend its coverage to political as distinguished from civil rights. But, at the very least the committee must hâve realized that it was substituting for Owen’s rather spécifie language Bingham’s far more elastic language—language that, as one scholar has noted, is far more “capable of growth” and “réceptive to Tatitudinarian’ construction.” Bickel, The Original Understanding and the Ségrégation Decision, 69 Harv. L. Rev. 1, 61, 63 (1955). It is, moreover, at least equally plausible that the committee meant to substitute for Owen’s narrow provision dealing solely with civil rights a broader provision that had originated and been understood only two months earlier as protecting equality in the right of suffrage as well as equality of civil rights.

Bingham’s words make little sense to modéra ears; yet, when they were uttered, his words must hâve made some sense, at least to Bingham and probably to many of his listeners. The search for their meaning probably p. 265ought to begin with Art. IV, § 2—the Privilèges and Immunities Clause of the original Constitution. In the minds of members of the 39th Congress, the leading case to construe that clause was Corfield v. Coryell, supra, which had listed among a citizen’s privilèges and immunities “the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.” 6 F. Cas., at 552. Here again is the same apparent ambiguity that later occurred in Bingham’s thought—that the franchise is a federally protected right, but only to the extent it is regulated and established by state law. The ambiguity was, however, only apparent and not real, for the Privilèges and Immunities Clause of the original Constitution served a peculiar function; it did not create absolute rights but only placed a noncitizen of a State “upon a perfect equality with its own citizens” as to those fundamental rights already created by state law. Scott n . Sandjord, 19 How. 393, 407 (1857). Accord, id., at 584 (dissenting opinion). The Privilèges and Immunities Clause, that is, was a sort of equal protection clause adopted for the benefit of out-of-state citizens; 38 it required, for example, that if a State gave its own citizens a right to enter into a lawful business, it could not arbitrarily deny the same right to out-of-state citizens solely because they came from out of State. See Ward v. Maryland, 12 Wall. 418, 430 (1871). Thus, what Bingham may hâve meant in indicating that the franchise was included within the scope of the Privilèges and Immunities Clause of the Fourteenth Amendment while remaining entirely under the control of the States was that, although the States would be free in general to confer the franchise upon whomever they chose, Congress would hâve power p. 266to bar them from racial or other arbitrary discriminations in making their choices. In short, the Privilèges and Immunities Clause might for Bingham hâve meant the same as the Equal Protection Clause; as he later explained in a campaign speech, § 1 was nothing but “a simple, strong, plain déclaration that equal laws and equal and exact justice shall hereafter be secured within every State of this Union . . . .” Cincinnati Daily Commercial, Aug. 27, 1866, quoted in James 160.

“This amendment of the Constitution does not concentrate power in the general government for p. 267112 Opinion of Bre nnan , Whit e , and Mars hal l , JJ.

cal Senator Stewart, for example, while unhappy that the Amendment did not directly confer suffrage, nevertheless could “support this plan” because it did “not preclude Congress from adopting other means by a two-thirds vote,39 when expérience shall hâve demonstrated, as it certainly will, the necessity for a change of policy. In fact it furnishes a conclusive argument in favor of universal amnesty and impartial suffrage.” Globe 2964. Likewise, the more conservative Congressman Raymond of New York supported the first section because he thought Congress should hâve the power to legislate on behalf of equal rights “in courts and elsewhere,” Globe 2513, after the radical Congressman Wilson of lowa had informed him that, “if we give a reasonable construction to the term ‘elsewhere/ we may include in that the jury-box and the ballot-box.” Globe 2505. Congressman Stevens, meanwhile, was informing Congress that “if this amendment prevails you must legislate to carry out many parts of it,” Globe 2544, and was looking forward to “further législation; in enabling acts or other provisions,” Globe 3148, while even the Joint Committee submitted the Amendment to the Nation “in the hope that its imperfections may be cured, and its deficiencies supplied, by legislative wisdom . . . .” Report of the Joint Committee on Reconstruction, H. R. Rep. No. 30, 39th Cong., lst Sess., xxi (1866). Nor did the radical Republican press disagree ; as the Lansing State Republican argued in its éditorial columns, even “[i]f impartial suffrage, the real vital question of the whole struggle . . . [was] postponed through the mulish obstinacy of Andrew Johnson,” “freedom” would “triumph by the adoption of the p. 269proposed amendment,” which would be followed by “equal rights to ail . . . July 11, 1866. And, of course, once the Amendment had been ratified, Republicans in Congress began to make speeches in favor of législation which would implement the Amendment by guaranteeing equal suffrage. See, e. g., Cong. Globe, 40th Cong., 2d Sess., 1966-1967 (1868) (remarks of Cong. Stevens); 3d Sess., 1008 (1869) (remarks of Sen. Sumner).

Some men, for example, might hâve reconciled the broad guarantee and the narrow language by concluding that Negroes were not yet ready to exercise the franchise and hence that a State would not act arbitrarily p. 270in denying it to thein while granting it to whites. As the debates make clear, proponents of the Amendment did not understand the Equal Protection Clause to forbid States to distinguish among persons where justification for distinctions appeared. See, e. g., Globe 1064 (Congressman Stevens). At the time the Fourteenth Amendment was adopted, the overwhelming majority of Negro residents of the United States were former slaves living in the Southern States. Most of them were illiterate and uneducated. Except for those few who had been kidnaped by slave traders after reaching adulthood, they had no prior expérience with the responsibilities of citizenship. Given this state of affairs, it would hardly be surprising if some of the framers of the Fourteenth Amendment felt that the Equal Protection Clause would not forbid the States from classifying Negroes as a group to be denied the right to vote. Equal protection has never been thought to require identical treatment of ail persons in ail respects. Metropolitan Cas. Ins. Co. v. Brownell, 294 U. S., at 583-584, and cases cited. It requires only that the State provide adéquate justification for treating one group differently from another. Levy N. Louisiana, 391 U. S. 68 (1968). Entirely aside from any concepts of racial inequality that may hâve been held by some members of Congress at that time, it seems clear that many members had serious réservations about the ability of the majority of Negroes, after centuries of slavery, to cast an intelligent and responsible vote. See, for example, the debates over a proposai to enfranchise Negroes in the District of Columbia in Cong. Globe, 38th Cong., Ist Sess., 2140-2141, 2239-2243, 2248 (1864). Of course, we would not now hold that even the situation existing in 1866 would justify Wholesale exclusion of Negroes from the franchise: our decisions hâve consistently held that a particular group may not be denied the right to vote merely p. 271because many, or even most, of its members could properly be excluded. Carrington v. Rash, 380 U. S., at 93—96; Kramer v. Union School District, 395 U. S., at 632-633; Evans v. Cornman, 398 U. S., at 424-426; cf. Tussman & TenBroek, The Equal Protection of the Laws, 37 Calif. L. Rev. 341, 351—352 (1949). But mere administrative convenience was once thought to be suffirent justification for an overly broad legislative classification, so long at least as the résultant discrimination could be justified as to a majority of the class afïected. Terrace v. Thompson, 263 U. S. 197, 218-222 (1923); cf. Kotch v. Board of River Port Pilots, 330 U. S. 552 (1947). Rejection of this approach has been the resuit of a judicial development that could hardly hâve been known to the framers of the Amendment. Cf. Baxstrom v. Herold, 383 U. S. 107, 114-115 (1966).

Among the men who refused to regard Negroes as ill prepared for the exercise of the franchise, there may hâve been some who did not understand the subtle distinctions of constitutional lawyers such as Bingham and who thus p. 272accepted at face value assurances that the Fourteenth Amendment gave Congress no power over the suffrage. As a resuit, at least three identifiable groups may hâve existed within the Republican majorities that enacted and ratified the Amendment—those who thought that Congress would hâve power to insure to Negroes the same right to suffrage as the States gave to whites, those who thought that Congress would not hâve such power since Negroes and whites constituted distinct and dissimilar classes for voting purposes, and those who thought Congress would possess no power at ail over the suffrage. Perhaps ail three such groups did not exist in 1866 in Congress and in the Nation at large, but surely the evidence is not clear “beyond any reasonable doubt” that the only existent group was the last one, consisting of men who, despite the broad language of § 1 and the hints by speakers of its applicability to the suffrage, simply assumed without developing any analytical framework in support of their assumption that the section would not be so applied.

The evidence, in sum, plausibly suggests that the men who framed the Fourteenth Amendment possessed differing views as to the limits of its applicability but that they papered over their différences because those différences were not always fully apparent and because they could not foresee with précision how their amendment would operate in the future. Moreover, political considérations militated against clarification of issues and in favor of compromise. Much of the North, as already noted, opposed Negro suffrage, and many Republicans in Congress had to seek re-election from constituencies where racial préjudice remained rampant. Republicans in the forthcoming élections thus found it convenient to speak differently before different constituencies; as the Republican state chairman of Ohio wrote, in northern counties of the State “some of our Speakers hâve openly p. 273advocated impartial suffrage, while in other places it was thought necessary, not only to repudiate it but to oppose it.” Letter from B. R. Cowan to S. P. Chase, Oct. 12, 1866, quoted in James 168. Similarly, Senator Wilson of Massachusetts, when accused shortly after the 1866 élections of misrepresenting the issues of the campaign in Delaware by saying nothing of Negro suffrage, replied that since he had been “in a State where not much progress had been made, I acted somewhat on the scriptural principle of giving hnilk to babes.’ ” Cong. Globe, 39th Cong., 2d Sess., 42. Apparently Congressman Ashley of Ohio acted upon similar principles, for when he was asked after the House had initially approved the Amendment whether Congress had “power to confer the right of suffrage upon negroes in the States,” he responded,

Thus, précisé legal analysis and clarity of thought were both intellectually difficult and politically unwise. What Republicans needed, in the words of Wendell Phillips, the former abolitionist leader, was “a party trick to tide over the élections and save time,” after which they could “float back into Congress, able to pass an act that shall give the ballot to the negro and initiate an amendment to the Constitution which shall secure it to him.” Speech of Wendell Phillips, July 4, 1866, quoted in A. Harris, A Review of the Political Conflict in America 437 (1876). Similarly, the New York Times, edited by Congressman Henry J. Raymond, a conservative Republican who p. 274ultimately would support the Amendment, observed that “ail the excitement that had been raised about constitutional amendments . . . has been simply dust thrown in the eyes of the public to cover the approach to the grand fundamental, indispensable principle of universal negro suffrage . . . .” April 27, 1866, quoted in Harris, supra, at 433.

Thus, the historical evidence does not point to a single, clear-cut conclusion that contemporaries viewed the first section of the Fourteenth Amendment as an explicit abandonment of the radical goal of equal suffrage for Negroes. Rather the evidence suggests an alternative hypothesis: that the Amendment was framed by men who possessed differing views on the great question of the p. 275suffrage and who, partly in order to formulate some program of government and partly out of political expediency, papered over their différences with the broad, elastic language of § 1 and left to future interpreters of their Amendment the task of resolving in accordance with future vision and future needs the issues that they left unresolved. Such a hypothesis strikes us as far more consistent with the turbulent character of the times than one resting upon a belief that the broad language of the Equal Protection Clause contained a hidden limitation upon its operation that would prevent it from applying to state action regulating rights that could be characterized as ‘‘political.”41

Nor is such a hypothesis inconsistent with the subséquent enactment of the Fifteenth, Nineteenth, and Twenty-fourth Amendments. Those who submitted the Fifteenth Amendment to the States for ratification could well hâve desired that any prohibition against racial discrimination in voting stand upon a firmer foundation than mere legislative action capable of repeal42 or the vagaries of judicial decision.43 Or they could merely hâve concluded that, whatever might be the case with other rights, the right to vote was too important to allow disenfranchisement of any person for no better reason p. 276than that others of the same race might not be qualified. At least some of the supporters of the Nineteenth Amendment believed that sex discrimination in voting was itself proscribed by the Fourteenth Amendment’s guarantee of equal protection. 57 Cong. Rec. 3053 (1919). And finally, the Twenty-fourth Amendment was not proposed to the States until this Court had held, in Breedlove v. Suttles, 302 U. S. 277 (1937),44 that state laws requiring payment of a poil tax as a prerequisite to voting did not ipso facto violate the Equal Protection Clause. Accordingly, we see no reason that the mere enactment of these amendments can be thought to imply that their proponents believed the Fourteenth Amendment did not apply to state allocations of political power. At a dubious best, these amendments may be read as implying that their proponents felt particular state allocations of power a proper exercise of power under the Equal Protection Clause.

It may be conceivable that § 2 was intended to be the sole remedy available when a State deprived its citizens of their right to vote, but it is at least equally plausible that congressional législation pursuant to §§ 1 and 5 was thought by the framers of the Amendment to be another potential remedy. Section 2, in such a scheme, is hardly superfluous: it was of critical importance in assuring that, should the Southern States deny the franchise to Negroes, the Congress called upon to remedy that discrimination would not be controlled by the bénéficiâmes of discrimination themselves. And it could, of course, hâve been expected to provide at least a limited remedy p. 278in the event that both Congress and the courts took no action under § 1. Neither logic nor historical evidence compellingly suggests that § 2 was intended to be more than a remedy supplementary, and in some conceivable circumstances indispensable, to other congressional and judicial remedies available under §§ 1 and 5. See generally Van Alstyne, supra.

In these cases we deal with the constitutional validity of three provisions of the Voting Rights Act Amendments of 1970. Congress undertook in these provisions: (a) to abolish for a five-year period ail literacy tests and similar voting eligibility requirements imposed by any State in the Union (§ 201) ; (b) to remove the restrictions imposed by state durational residency requirements upon voters in presidential élections (§ 202); and (c) to reduce the voting âge to a minimum of 18 years for ail voters in ail élections throughout the Nation (§302). The Court today upholds § 201’s nationwide literacy test ban and § 202’s élimination of state durational residency restrictions in presidential élections. Section 302’s extension of the franchise to 18-year-old voters is (by virtue of the opinion of Mr . Just ice Black announcing the judgments of the Court) upheld as applied to fédéral élections. I agréé with the Court in sustaining the congressional ban on state literacy tests, for substantially the same reasons relied upon by Mr . Just ice Black . I also agréé that the action of Congress in removing the restrictions of state residency requirements in presidential élections is constitutionally valid, but I base this judgment upon grounds quite different from those relied upon by Mr . Justic e Black . And, finally, I disagree with the Court’s conclusion that Congress could constitutionally reduce the voting p. 282âge to 18 for fédéral élections, since I am convinced that Congress was wholly without constitutional power to alter—for the purpose of any élections—the voting âge qualifications now determined by the several States. Before turning to a discussion of my views, it seems appropriate to state that we are not called upon in these cases to evaluate or appraise the wisdom of abolishing literacy tests, of altering state residency requirements, or of reducing the voting âge to 18. Whatever we may think as citizens, our single duty as judges is to détermine whether the législation before us was within the constitutional power of Congress to enact. I find it necessary to state so elementary a proposition only because certain of the separate opinions filed today contain many pages devoted to a démonstration of how beneficent are the goals of this législation, particularly the extension of the électoral franchise to young men and women of 18. A casual reader could easily get the impression that what we are being asked in these cases is whether or not we think allowing people 18 years old to vote is a good idea. Nothing could be wider of the mark. My Brothers to the contrary, there is no question here as to the “judgment” of Congress; there are questions only of Congress’ constitutional power. I

I concur in Part II of Mr . Just ice Black ’s opinion, which holds that the literacy test ban of § 201 of the 1970 Amendments is constitutional under the Enforcement Clause of the Fifteenth Amendment. Our decisions establish that the Fifteenth Amendment “nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procédural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” Lane v. Wilson, 307 U. S. 268, 275; p. 283cf. Gomillion v. Lightfoot, 364 U. S. 339. Because literacy and illiteracy are seemingly neutral with respect to race, creed, color, and sex, we upheld a literacy requirement against a claim that it was invalid on its face under the Fifteenth Amendment. Lassiter v. Northampton Election Board, 360 U. S. 45. But in Gaston County v. United States, 395 U. S. 285, we made it clear that Congress has ample authority under § 2 of the Fifteenth Amendment to détermine that literacy requirements work unfairly against Negroes in practice because they handicap those Negroes who hâve been deprived of the educational opportunities available to white citizens. We construed the 1965 Voting Rights Act in light of the report of the Senate Judiciary Committee which said, “[T]he educational différences between whites and Negroes in the areas to be covered by the prohibitions—différences which are reflected in the record before the committee—would mean that equal application of the tests would abridge 15th amendment rights.” S. Rep. No. 162, pt. 3, 89th Cong., Ist Sess., 16. See also South Carolina v. Katzenbach, 383 U. S. 301, 308-315.

Congress, in my view, has the power under the Constitution to eradicate political and civil disabilities that arise by operation of state law following a change in résidence from one State to another. Freedom to travel from State to State—freedom to enter and abide in any State in the Union—is a privilège of United States citizenship. Shapiro v. Thompson, 394 U. S. 618; United States v. Guest, 383 U. S. 745, 757-760; Truax v. Raich, 239 U. S. 33, 39; Twining v. New Jersey, 211 U. S. 78, 97; Crandall v. Nevada, 6 Wall. 35. Section 1 of the Fourteenth Amendment provides: “Ail persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they résidé. No State shall make or enforce any law which shall abridge the privilèges or p. 286immunities of citizens of the United States . . . .” In discussing the privilèges of citizens of the United States within the meaning of § 1, Mr. Justice Miller wrote for the Court in the Slaughter-Honse Cases:

In the light of these considérations, § 202 présents no difficulty. Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the privilège of taking up résidence in another State. The objective of § 202 is clearly a legitimate one. Fédéral action is required if the privilège to change résidence is not to be undercut by parochial local sanctions. No State could undertake p. 287112 Opinion of Ste war t , J.

The Constitution withholds from Congress any general authority to change by législation the qualifications for voters in fédéral élections. The meaning of the applicable constitutional provisions is perfectly plain. Article I, § 2, and the Seventeenth Amendment prescribe the qualifications for voters in élections to choose Senators and Représentatives: they “shall hâve the Qualifications p. 288requisite for Electors of the most numerous Branch of the State Législature.” The Constitution thus adopts as the fédéral standard the standard which each State has chosen for itself. Ex parte Yarbrough, 110 U. S. 651, 663; Wiley v. Sinkler, 179 U. S. 58, 64. Accordingly, a state law that purported to establish distinct qualifications for congressional élections would be invalid as répugnant to Art. I, § 2, and the Seventeenth Amendment. By the same token, it cannot be gainsaid that fédéral législation that had no objective other than to alter the qualifications to vote in congressional élections would be invalid for the same reasons. What the Constitution has fixed may not be changed except by constitutional amendment.

Contrary to the submission of my Brother Black , Art. I, § 4, does not create in the Fédéral Législature the power to alter the constitutionally established qualifications to vote in congressional élections. That section provides that the législatures in each State shall prescribe the “Times, Places and Manner of holding Elections for Senators and Représentatives,” but reserves in Congress the power to “make or alter such Régulations, except as to the Places of chusing Senators.” The “manner” of holding élections can hardly be read to mean the qualifications for voters, when it is remembered that § 2 of the same Art. I explicitly speaks of the “qualifications” for voters in élections to choose Représentatives. It is plain, in short, that when the Framers meant qualifications they said “qualifications.” That word does not appear in Art. I, § 4. Moreover, § 4 does not give Congress the power to do anything that a State might not hâve done, and, as pointed out above, no State may establish distinct qualifications for congressional élections. The States, of course, are free to pass such laws as are necessary to assure fair élections. Congressional power under § 4 is equally broad with respect to p. 289congressional élections. United States v. Classic, 313 U. S. 299. But the States are not free to prescribe qualifications for voters in fédéral élections which differ from those prescribed for the most numerous branch of the state législature. And the power of Congress to do so cannot, therefore, be found in Art. I, § 4.

The issue, then, is whether, despite the intentional withholding from the Fédéral Government of a general authority to establish qualifications to vote in either congressional or presidential élections, there exists p. 292congressional power to do so when Congress acts with the objective of protecting a citizen’s privilège to move his résidence from one State to another. Although the matter is not entirely free from doubt, I am persuaded that the constitutional provisions discussed above are not sufficient to prevent Congress from protecting a person who exercises his constitutional right to enter and abide in any State in the Union from losing his opportunity to vote, when Congress may protect the right of Interstate travel from other less fundamental disabilities. The power of the States with regard to the franchise is subject to the power of the Fédéral Government to vindicate the unconditional personal rights secured to the citizen by the Fédéral Constitution. Williams v. Rhodes, supra; cf. Shapiro v. Thompson, supra. The power that Congress has exercised in enacting § 202 is not a general power to prescribe qualifications for voters in either fédéral or state élections. It is confined to fédéral action against a particular problem clearly within the purview of congressional authority. Finally, the power to facilitate the citizen’s exercise of his constitutional privilège to change résidence is one that cannot be left for exercise by the individual States without seriously diminishing the level of protection available. As I hâve sought to show above, fédéral action is required if this privilège is to be effectively maintained. We should strive to avoid an interprétation of the Constitution that would withhold from Congress the power to legislate for the protection of those constitutional rights that the States are unable effectively to secure. For ail these reasons, I conclude that it was within the power of Congress to enact § 202.9