# Harper v. Virginia Board of Elections/Dissent Black

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Mr. Justice BLACK, dissenting.
In Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, decided December 6, 1937, a few weeks after I took my seat as a member of this Court, we unanimously upheld the right of the State of Georgia to make payment of its state poll tax a prerequisite to voting in state elections. We rejected at that time contentions that the state law violated the Equal Protection Clause of the Fourteenth Amendment because it put an unequal burden on different groups of people according to their age, sex, and ability to pay. In rejecting the contention that the law violated the Equal Protection Clause the Court noted at p. 281, 58 S.Ct. at p. 207:
'While possible by statutory declaration to levy a poll tax upon every inhabitant of whatsoever sex, age or condition, collection from all would be impossible for always there are many too poor to pay.'
Believing at that time that the Court had properly respected the limitation of its power under the Equal Protection Clause and was right in rejecting the equal protection argument, I joined the Court's judgment and opinion. Later, May 28, 1951, I joined the Court's judgment in Butler v. Thompson, 341 U.S. 937, 71 S.Ct. 1002, 95 L.Ed. 1365, upholding, over the dissent of Mr. Justice Douglas, the Virginia state poll tax law challenged here against the same equal protection challenges. Since the Breedlove and Butler cases were decided the Federal Constitution has not been amended in the only way it could constitutionally have been, that is, as provided in Article V of the Constitution. I would adhere to the holding of those cases. The Court, however, overrules Breedlove in part, but its opinion reveals that it does so not by using its limited power to interpret the original meaning of the Equal Protection Clause, but by giving that clause a new meaning which it believes represents a better governmental policy. From this action I dissent.
It should be pointed out at once that the Court's decision is to no extent based on a finding that the Virginia law as written or as applied is being used as a device or mechanism to deny Negro citizens of Virginia the right to vote on account of their color. Apparently the Court agrees with the District Court below and with my Brothers HARLAN and STEWART that this record would not support any finding that the Virginia poll tax law the Court invalidates has any such effect. If the record could support a finding that the law as written or applied has such an effect, the law would of course be unconstitutional as a violation of the Fourteenth and Fifteenth Amendments and also 42 U.S.C. § 1971(a). This follows from our holding in Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093, affirming 81 F.Supp. 872 (D.C.S.D.Ala.); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717; Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817. What the Court does hold is that the Equal Protection Clause necessarily bars all States from making payment of a state tax, any tax, a prerequisite to voting.
(1) I think the interpretation that this Court gave the Equal Protection Clause in Breedlove was correct. The mere fact that a law results in treating some groups differently from others does not, of course, automatically amount to a violation of the Equal Protection Clause. To bar a State from drawing any distinctions in the application of its laws would practically paralyze the regulatory power of legislative bodies. Consequently 'The constitutional command for a state to afford 'equal protection of the laws' sets a goal not attainable by the invention and application of a precise formula.' Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093. Voting laws are no exception to this principle. All voting laws treat some persons differently from others in some respects. Some bar a person from voting who is under 21 years of age; others bar those under 18. Some bar convicted felons or the insane, and some have attached a freehold or other property qualification for voting. The Breedlove case upheld a poll tax which was imposed on men but was not equally imposed on women and minors, and the Court today does not overrule that part of Breedlove which approved those discriminatory provisions. And in Lassiter v. Northampton Election Board, 360 U.S. 45, 79 S.Ct. 985, this Court held that state laws which disqualified the illiterate from voting did not violate the Equal Protection Clause. From these cases and all the others decided by this Court interpreting the Equal Protection Clause it is clear that some discriminatory voting qualifications can be imposed without violating the Equal Protection Clause.
A study of our cases shows that this Court has refused to use the general language of the Equal Protection Clause as though it provided a handly instrument to strike down state laws which the Court feels are based on bad governmental policy. The equal protection cases carefully analyzed boil down to the principle that distinctions drawn and even discriminations imposed by state laws do not violate the Equal Protection Clause so long as these distinctions and discriminations are not 'irrational,' 'irrelevant,' 'unreasonable,' 'arbitrary,' or 'invidious.' These vague and indefinite terms do not, of course, provide a precise formula or an automatic mechanism for deciding cases arising under the Equal Protection Clause. The restrictive connotations of these terms, however (which in other contexts have been used to expand the Court's power inordinately, see, e.g., cases cited in Ferguson v. Skrupa, 372 U.S. 726, at pp. 728-732, 83 S.Ct. 1028, at pp. 1030, 1032, 10 L.Ed.2d 93), are a plain recognition of the fact that under a proper interpretation of the Equal Protection Clause States are to have the broadest kind of leeway in areas where they have a general constitutional competence to act. In view of the purpose of the terms to restrain the courts from a wholesale invalidation of state laws under the Equal Protection Clause it would be difficult to say that the poll tax requirement is 'irrational' or 'arbitrary' or works 'invidious discriminations.' State poll tax legislation can 'reasonably,' 'rationally' and without an 'invidious' or evil purpose to injure anyone be found to rest on a number of state policies including (1) the State's desire to collect its revenue, and (2) its belief that voters who pay a poll tax will be interested in furthering the State's welfare when they vote. Certainly it is rational to believe that people may be more likely to pay taxes if payment is a prerequisite to voting. And if history can be a factor in determining the 'rationality' of discrimination in a state law (which we held it could in Kotch v. River Port Pilot Comm'rs, supra), then whatever may be our personal opinion, history is on the side of 'rationality' of the State's poll tax policy. Property qualifications existed in the Colonies and were continued by many States after the Constitution was adopted. Although I join the Court in disliking the policy of the poll tax, this is not in my judgment a justifiable reason for holding this poll tax law unconstitutional. Such a holding on my part would, in my judgment, be an exercise of power which the Constitution does not confer upon me.
(2) Another reason for my dissent from the Court's judgment and opinion is that it seems to be using the old 'natural-law-due-process formula' to justify striking down state laws as violations of the Equal Protection Clause. I have heretofore had many occasions to express my strong belief that there is no constitutional support whatever for this Court to use the Due Process Clause as though it provided a blank check to alter the meaning of the Constitution as written so as to add to it substantive constitutional changes which a majority of the Court at any given time believes are needed to meet present-day problems. Nor is there in my opinion any more constitutional support for this Court to use the Equal Protection Clause, as it has today, to write into the Constitution its notions of what it thinks is good governmental policy. If basic changes as to the respective powers of the state and national governments are needed, I prefer to let those changes be made by amendment as Article V of the Constitution provides. For a majority of this Court to undertake that task, whether purporting to do so under the Due Process or the Equal Protection Clause amounts, in my judgment, to an exercise of power the Constitution makers with foresight and wisdom refused to give the Judicial Branch of the Government. I have in no way departed from the view I expressed in Adamson v. People of State of California, 332 U.S. 46, 90, 67 S.Ct. 1672, 1695, decided June 23, 1947, that the 'natural-law-due-process formula' under which courts make the Constitution mean what they think it should at a given time 'has been used in the past, and can be used in the future, to license this Court, in considering regulatory legislation, to roam at large in the broad expanses of policy and morals and to trespass, all too freely, on the legislative domain of the States as well as the Federal Government.'
The Court denies that it is using the 'natural-law-due-process formula.' It says that its invalidation of the Virginia law 'is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.' I find no statement in the Court's opinion, however, which advances even a plausible argument as to why the alleged discriminations which might possibly be effected by Virginia's poll tax law are 'irrational,' 'unreasonable,' 'arbitrary,' or 'invidious' or have no relevance to a legitimate policy which the State wishes to adopt. The Court gives no reason at all to discredit the long-standing beliefs that making the payment of a tax a prerequisite to voting is an effective way of collecting revenue and that people who pay their taxes are likely to have a far greater interest in their government. The Court's failure to give any reasons to show that these purposes of the poll tax are 'irrational,' 'unreasonable,' 'arbitrary,' or 'invidious' is a pretty clear indication to me that none exist. I can only conclude that the primary, controlling, predominate, if not the exclusive reason for declaring the Virginia law unconstitutional is the Court's deep-seated hostility and antagonism, which I share, to making payment of a tax a prerequisite to voting.
The Court's justification for consulting its own notions rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be 'shackled to the political theory of a particular era,' and that to save the country from the original Constitution the Court must have constant power to renew it and keep it abreast of this Court's more enlightening theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a 'political theory' embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power but are far less qualified to choose a new constitutional political theory than the people of this country proceeding in the maner provided by Article V.
The people have not found it impossible to amend their Constitution to meet new conditions. The Equal Protection Clause itself is the product of the people's desire to use their constitutional power to amend the Constitution to meet new problems. Moreover, the people, in § 5 of the Fourteenth Amendment, designated the governmental tribunal they wanted to provide additional rules to enforce the guarantees of that Amendment. The branch of Government they chose was not the Judicial Branch but the Legislative. I have no doubt at all that Congress has the power under § 5 to pass legislation to abolish the poll tax in order to protect the citizens of this country if it believes that the poll tax is being used as a device to deny voters equal protection of the laws. See my concurring and dissenting opinion in South Carolina v. Katzenbach, 383 U.S. 355, 86 S.Ct. 803. But this legislative power which was granted to Congress by § 5 of the Fourteenth Amendment is limited to Congress. This Court had occasion to discuss this very subject in Ex parte Virginia, 100 U.S. 339, 345-346, 25 L.Ed. 676. There this Court said, referring to the fifth section of the Amendment:
'All of the amendments derive much of their force from this latter provision. It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.' (Emphasis partially supplied.)
Thus § 5 of the Fourteenth Amendment in accordance with our constitutional structure of government authorizes the Congress to pass definitive legislation to protect Fourteenth Amendment rights which it has done many times, e.g., 42 U.S.C. § 1971(a). For Congress to do this fits in precisely with the division of powers originally entrusted to the three branches of government Executive, Legislative, and Judicial. But for us to undertake in the guise of constitutional interpretation to decide the constitutional policy question of this case amounts, in my judgment, to a plain exercise of power which the Constitution has denied us but has specifically granted to Congress. I cannot join in holding that the Virginia state poll tax law violates the Equal Protection Clause.

## Notes

1 Article V of the Constitution provides:
'The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.'
2 See, e.g., Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480; Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163; Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110; State of Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744; Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264; Watson v. State of Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987.
3 'A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.' Metropolitan Casualty Ins. Co. of New York v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070 (Stone, J.).
4 The opinion of the Court, in footnote two, quotes language from a federal district court's opinion which implies that since a tax on speech would not be constitutionally allowed a tax which is a prerequisite to voting likewise cannot be allowed. But a tax or any other regulation which burdens and actually abridges the right to speak would, in my judgment, be a flagrant violation of the First Amendment's prohibition against abridgments of the freedom of speech which prohibition is made applicable to the States by the Fourteenth Amendment. Cf. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. There is no comparable specific constitutional provision absolutely barring the States from abridging the right to vote. Consequently States have from the beginning and do now qualify the right to vote because of age, prior felony convictions, illiteracy, and various other reasons. Of course the First and Fourteenth Amendments forbid any State from abridging a person's right to speak because he is under 21 years of age, has been convicted of a felony, or is illiterate.
5 See my dissenting opinion in Adamson v. People of State of California, 332 U.S. 46, 90, 67 S.Ct. 1672, 1695, 91 L.Ed. 1903.
6 See for illustration my dissenting opinion in Griswold v. State of Connecticut, 381 U.S. 479, 507, 85 S.Ct. 1678, 1694, 14 L.Ed.2d 510, and cases cited therein.
7 In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, the Court today purports to find precedent for using the Equal Protection Clause to keep the Constitution up to date. I did not vote to hold segregation in public schools unconstitutional on any such theory. I thought when Brown was written, and I think now, that Mr. Justice Harlan was correct in 1896 when he dissented from Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, which held that it was not a discrimination prohibited by the Equal Protection Clause for state law to segregate white and colored people in public facilities, there railroad cars. I did not join the opinion of the Court in Brown on any theory that segregation where practiced in the public schools denied equal protection in 1954 but did not similarly deny it in 1868 when the Fourteenth Amendment was adopted. In my judgment the holding in Brown against racial discrimination was compelled by the purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth Amendments completely to outlaw discrimination against people because of their race or color. See the Slaughter-House Cases, 16 Wall. 36, 71-72, 21 L.Ed. 394; Nixon v. Herndon, 273 U.S. 536, 541, 47 S.Ct. 446, 447, 71 L.Ed. 759.
Nor does Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, stand as precedent for the amendatory power which the Court exercises today. The Court in Malloy did not read into the Constitution its own notions of wise criminal procedure, but instead followed the doctrine of Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and made the Fifth Amendment's unequivocal protection against self-incrimination applicable to the States. I joined the opinion of the Court in Malloy on the basis of my dissent in Adamson v. People of State of California, supra, in which I stated, at p. 89, 67 S.Ct. at p. 1695:
'If the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States, or the Twining (Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97) rule applying none of them, I would choose the Palko selective process.'
8 But § 1 of the Fourteenth Amendment itself outlaws any state law which either as written or as applied discriminates against voters on account of race. Such a law can never be rational. 'States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right (to vote) set up in this case.' Nixon v. Herndon, 273 U.S. 536, 541, 47 S.Ct. 446, 447 (Holmes, J.).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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