The Caucasian. (Clinton, N.C.) 188?-1913, 1900-02-08
Hon Marion Butier United States

E1OH. hdIlOn 1uitcu
Senate, Washington. D. c.
Dear Senator:-Yours, enclosing CO.
by Of proposed suffrage amendment in
North Carolina, received. You request
my opinion as lawyer in answer TO
the following questions:
lis section Of the proposed amend
ment constitutional?
2. If the Supreme Ccurt should de-
clare section 5 unconstitutional, would
the court hold that the whole amend
ment falls with it or that section
would fail and leave the remaining
sections to stand as part Of the or
ganic law Of the State?
In answer to the first question, | will
say that upon reading the proposed
amendment my first impression was
that section was clearly unconstitu-
tional, and that since | have examined
the leading works upon constitutional
construction, and the leading decisions
cf the Supreme Court applicable there
20 and find that the overwhelming
weight CT authority sustainS that view.
The amendment provides an educa-
tional qualification fer all voters, and
then attempts in section 5 to except
certain class from this educational
qualification by providing that all citi-
Zens who could vote on January 1st,
1867. or prior thereto, or whose fathers
CT grandfathers could vote then, should
be allowed to vote, even though unable
to read and write, and, therefore, not
possessing the qualifications required
of other voters.
II this amendment should be adopt
ed by your State and it should come
before the United States Supreme Court
to be tested, as | suppose it would, the
court would unhesitatingly say that all
| Of it's sections, except section 5, were
clearly constitutional. But in passing
upon that section (known as the
grandfather clause") the court would
| inquire what class CT citizens could
| vote in 1867 and what class could not
whose grandfathers could vote then
! and whose grandfathers could not. The
! answer to this question would bring
sharply to the attention of the court the
! fact that all that class of citizens who
were in servitnde and who therefore
ccIld not vote in 1867 are discrimina-
ted against by being excluded from the
special privilege of section 5. Now
would the court say that this would bt
a violation of the 18th amendment tC
the United States constitution? The
18th amendment is as follows:
The right of citizens of the United
States to vote shall not be denied Cl
abridged by the United States Or BY
any State on account of race, color Of
previous condition Of servitude.'
There is to my mind no question
about what the decision of the ccur
would be. If section of the proposed
amendment in your State is not in VIC
latiCn of the 10Th amendment Of th'
United States constitution, then j
would seem that it would be impossible
to violate that amendment. The effec
of section 5 is just the same as if tn
proposed amendment in your State hat
read: Every citizen shall be entities
to vote without being required to sub
nit to any educational test, excep
those who were slaves or who are tn
descendants Of slaves, and no per-
who was a slave or who is the descen
dent of slave shall be allowed t
vote unless he can read or write" VIII
anyone contend that such provisio
would be constitutional? Yet hoy
would such an amendment differ fror
the proposed amendment in you
: State? In form clly; certainly not i
{ effect.
T That the constitutionality Of la
{ is to be determined, not by its form
J but by the effect Of its operation, is
principle so we'll established that
may be said to be an axiom of coEst
tutional law. Hence the legal maxim
Nothing can be done indirectly whic
cannot b. done directly" In as muc
8 as there is not a case in the Unite
: States reports that is not an authorit
e in support of the above, do not deel
+ it necessary to burden this letter wit
!, citations Of authority.