Warren E. Burger: -- in the first case on today's calendar, number 43 original, Oregon against Mitchell. Mr. Johnson you may proceed whenever you are ready.
Lee Johnson: May it please the Court. This is an original action, under Article III, Section 2 of the Constitution, 28 U.S.C., Section 1251 in which the State of Oregon is the plaintiff, the defendant is the Attorney General of the United States, John Mitchell who is not a resident of the State of Oregon. We are seeking a decree that Title III of the Voting Rights Act of 1970 is unconstitutional and enjoining defendant from enforcing this Title with respect to the plaintiff's state. The guts of that statute is simply in Section 302 which prohibit states from denying the Franchise to any person over the age of 18 who is otherwise qualified to vote.
Speaker: Residential and the recent case of that provision do not involve in the case?
Lee Johnson: We are not challenging that, Mr. Justice. The Oregon Constitution like that of 46 other states restricts the Franchise to those who are 21 years and older. I might add that in May 1970, the voters of Oregon overwhelmingly defeated a Constitutional Amendment which would have reduced the voting age to 19. There are some points, in the plaintiff's argument over which I think there is a little dispute and which I would like to dispose off at the outset. First that states have traditionally determined voter qualifications and that tradition was contemplated by the drafters of the Constitution in Article I, Section 2, dealing with the election of representatives and Article II, Section 1, dealing with the selection of Presidential electors, and was reaffirmed even after the passage of the Fourteenth Amendment, it was reaffirmed in the Seventeenth Amendment which deals with the election of Senators. Secondly, states certainly have a vital and legitimate interest in restricting the Franchise to responsible persons, and age is certainly a relevant criteria in determining the qualifications for voter responsibility. Thirdly, the implementation of an age classification inevitably leads to line drawing and reasonable men can certainly differ as to the precise location of that line. I think also, there are obviously outer limits, over which reasonable men would also not differ that the line was not reasonable. Fourthly, while legislative wisdom may prefer one line over another, no one can seriously argue that a minimum age of 18 or 19, or 20, or 21 is irrational, irrelevant or invidious. I think this Court could perceive a reasonable basis for any one of these choices. I think the -- the point was put very succinctly by Professor Herbert Wexler in a letter to the President which appears in the congressional record on this legislation, in which he stated and I quote, “Age is obviously not irrelevant to qualifications and since any age criterion involves the drawing of an arbitrary line, fixing the age at 21, most certainly this is not capricious.” I think that there will be considerable dispute over many issues that will follow in my argument and the Solicitor General will raise, but I think really the issue in this case boils down to one point, and it is simply this. It's whether Congress has the power to substitute its legislative preference in selecting that line for the preference of the voters of the State of Oregon. Of course, for Congress to exercise such a legislative mandate, it must look to one of the enumerated powers. The defendant concedes that the responsibility for determining voter qualifications is at least primarily vested in the states by the Constitution. The defendant rests its case on Section 5 of the Fourteenth Amendment. I think in order to understand Section 5, we must first examine Section 1 of that Amendment. And I think the point should be made at Section 1, standing alone is not an affirmative grant of power to Congress, but rather it's merely a prohibition against the states. And this is in contrast to the enumerated powers of Congress such as Interstate Commerce that are enumerated in Article I, Section 4 of the Constitution. Section 5 of the Fourteenth Amendment gives Congress the power to do all that is necessary and proper to enforce the prohibition of Section 1, but the test necessarily must be whether the power exercised by Congress is appropriate to the enforcement of what is prohibited by Section 1. in Title III, Congress and the defendant have attempted to obviate this test by bootstrap reasoning. First, in Section 301 of the Act, Congress declares that requiring a citizen to be 21 years of age in order to vote is a violation of the Equal Protection Prohibition. And therefore, it is necessary and proper to enforce the prohibition by preventing the states from denying the franchise to anyone who is over 18. Secondly, defendant now asserts, the judicial review of Congress' findings is confined to the single issue of whether the Court can perceive any rational basis therefore. We concede that the perceive a basis test is the appropriate test of legislation under the necessary and proper clause embodied in Section 5. We also concede that it's a proper role for Congress to seek and identify violations of the Equal Protection Prohibition. But there is still one defective link in defendant's chain of reasoning which destroys the connection. We submit that first, that the perceive a basis test is not the appropriate test for judicial review in determining the scope and the meaning of the Equal Protection Prohibition. This is a determination that must be made by this Court, exercising its independent judgment and review. Secondly, even if the perceive a basis test is applicable, there is no ground in this case for perceiving a basis that Title III is aimed at a Fourteenth Amendment objective. Now, the defendant relies on a single case, Katzenbach versus Morgan. I am sure the Court is familiar with the case, but to briefly reiterate the facts, there Congress enactment had prohibited the states from denying the vote on account of illiteracy to any person of Puerto Rican ancestry who had attended six years in an American school. The difficult problem in the case was the literacy tests on their face, certainly are not invidious or irrational. Nevertheless, the Court and we believe correctly upheld the Act, because it and I quote, “Maybe readily seen as plainly adapted to further the aims of Equal Protection.” The Court in its majority opinion followed two rationales in reaching this conclusion. First, that the enhanced political power would or maybe helpful in gaining non-discriminatory governmental services for Puerto Ricans, and for that reason the Court could perceive a basis that the legislation was necessary and proper to ensure Equal Protection of the laws for this particular ethnic minority group. Secondly, the Court could perceive a basis for Congress ascertaining that the New York Literacy test was being used as a direct device to deny the Franchise to Puerto Ricans, solely because of their national origin. Under both rationales, the Court, and again we believe rightly, defined Congress' powers to determine what is necessary and proper in the broadest terms and confined its review to whether it could perceive a basis for the congressional determination. But contrary to the defendant's argument, the Court merely confirmed what was obvious in that case, that the object of the legislation was plainly adopted to furthering the aims of the Fourteenth Amendment. As the Court itself said or recognized the practical, the sole practical effect of that Act in Katzenbach versus Morgan was to extend the franchise to large segments of the minority group which had heretofore been denied the right largely as a result of their national origin. And of course State action denying rights to the minorities because of their race, color, national origin are classic Fourteenth Amendment objectives. But contrary to defendant's argument, there is no suggestion in Katzenbach versus Morgan that the Court was saying that Congress had not only brought powers to fashion remedies, but that Congress could indeed determine what is prohibited by Sections 1, in other words, what is prohibited by the Equal Protection Clause and that that determination by Congress would be binding upon this Court. Defendant's interpretation can only be supported by taking isolated sentences from the opinion and reading those sentences totally out of context. Furthermore, there is no support in the precedence for defendant's interpretation. Defendant cites two cases involving interstate commerce, but those cases, the issue in those issues was not what is interstate commerce, but rather what is Congress' powers under the necessary and proper clause. In all of those cases the Court still reserved to itself the ultimate determination of the issue of what is Interstate Commerce. I'd like to suggest that if we follow defendant's rationale, it would mean that there will be hardly an area of State Legislation or State Law which Congress could not preempt. Because as this Court has many times recognized, legislatures must make choices and necessarily must make classifications or if you like, we can call them discriminations, but these classifications are inherent in the legislative process. Section 1 of the Fourteenth Amendment does not prohibit all classifications and never has, but only those which are irrelevant, invidious, or irrational. But if we are going to leave to Congress the prerogative to determine which classifications come within the equal protection, then Congress could declare almost all State legislation, declare the classifications therein as a violation of Equal Protection and thus be within their scope, so that they can preempt the states and render your state legislatures virtually unnecessary. But as a practical matter, the contraction of state power or state jurisdiction under defendant's rationale may not be as significant as the effect of that rationale would have upon the jurisdiction of this Court. In the first place, if we follow defendant's rationale and if Congress can determine what is violative of the Fourteenth Amendment, then by equal logic, Congress should be able to determine what is not violating of the amendment. I think the Court in its opinion, in Katzenbach versus Morgan clearly indicates that it was not buying the defendant's argument, because in Footnote 10, the Court indicates that, no, it is reserving to itself, to its independent judgment what is violative and what is not violative of the Fourteenth Amendment.
Speaker: Well, we reserved it only one way, in one direction?
Lee Johnson: My only response to that Mr. Justice would be that I can't see how you can reserve it one way and I go both ways and I think that the fact that footnote is there --
Speaker: That's what the footnote says --
Lee Johnson: The question is whether -- I think really the question is whether the majority opinion goes as far as the government says it does, and I think one of the indications that it does not is that footnote.
Speaker: Well, I am not depending on the footnote because I was on the other side of it (Inaudible)
Hugo L. Black: May I ask you one question?
Lee Johnson: Yes, sir.
Hugo L. Black: Would your position be different, if rule of Federal Act provided was that voters voting for State Officers like Governor and so forth, or that if it provided, it affected only voters voting for President or members of Congress?
Lee Johnson: I think that the legislation would be on a stronger basis, if it was limited to only Federal officers because then possibly the government could rely on its general preservation of the federal election process as it grounds in not the Fourteenth Amendment to uphold the statute. So for that reason I would say that it would be a different. It would certainly be a different ballgame, but in this case, they have rested it solely upon the Fourteenth Amendment.
Hugo L. Black: You mean it applies to all voters, for State and Federal officers?
Lee Johnson: Right.
Warren E. Burger: Are the provisions severable or --
Lee Johnson: I think it is possible to make them severable, although the Act is not contained in severability clause, and I think if we do make them severable, the Court should maybe consider the very definite administrative difficulty that this would probably create, and maybe it would be better to refer it back to Congress because if the states are put in a position, they have to grant this Franchise to eighteen-year-olds in Federal elections, but not in State elections, this creates a tremendous administrative burden. So it seems to me there would be a real question of whether Congress actually intended that the statute to be severable. The second point I would like to make is that if Congress is to be the interpretor of the Fourteenth Amendment, then it likewise would have to be the interpretor of other sections of the Constitution. For example, Congress could not only determine what was necessary and proper, but could determine what in fact is Interstate Commerce. Congress could reserve for itself to determine what is in fact a constitutional tax. I point you to Article I, Section 8 of the Constitution which says that “Congress shall have the power to make all the laws which will be necessary and proper and all other powers vested by this Constitution and the Government of the United States or any department or officer thereof.” Under defendant's rationale, Congress could determine itself the limits of the power conferred upon itself, the limits of the power conferred upon the President, the limits of the power conferred upon this Court, and the limits of the powers of the Federal Government as against the State subject only to the test of whether this Court could perceive a basis. It seems to me that if we follow defendant's rationale, we're doing nothing less than repudiating the doctrine of judicial review. We submit that Katzenbach versus Morgan does not go that far, but merely holds that Congress has broad powers to fashion remedies to enforce the prohibitions of the Fourteenth Amendment. In the instant case, there is no equal protection objective that can be identified, unlike Katzenbach versus Morgan which enfranchised a minority ethnic group. The sole effect, the sole practical effect of Title III will be to enfranchise any person who is between the age of 18 and 21. There is no suggestion on the congressional debate and indeed there could be none that this will enfranchise a group which had heretofore been discriminated against because of their race, their color, their national origin or economic status or on any other basis that could be classified as invidious, irrelevant, or irrational. Now to some, including myself personally, it would be desirable to extend the franchise, but legislative desirability is not the test. The issue which this Court must decide and cannot cede to Congress to decide, is whether restricting the franchise to those who are 21 is so inherently unreasonable to be irrational or irrelevant. We submit that 21 years of age, the 21 years of age standard employed by Oregon, 46 other states, indeed which is infirmed in Section 2 of the Fourteenth Amendment which deals with re-apportionment, the only place in the United States Constitution where the 21-year standard is mentioned. But this is certainly an affirmance of what has gone for many years, that the 21-year age standard is a reasonable classification even if it might not be a desirable classification, it is a reasonable classification, the ball is far short of the prohibitions of the Fourteenth Amendment. We feel that the government advances the argument that there must be a compelling state interest and advances many arguments which are legislative reasons, not constitutional reasons, but legislative reasons for extending the franchise to 18-year olds. And the suggestion is made by the Government that great deference should be given to Congress because they are better at this line drawing exercise than a Court gives. We suggest, once you accept the proposition that a line has been drawn, there is an area in here to which reasonable men differ as to where that line should be drawn. But the decision there is not to be made by Congress because the Constitution contemplates that decision as to voter qualifications would be made by the State. And still the question must be made, must be the only question is whether the classification that is made by the states meets the Fourteenth Amendment standards of being invidious, irrational or irrelevant. For these reasons we pray that the Court will grant the relief to plaintiff.
Warren E. Burger: Thank you, Mr. Johnson. Mr. Wright you may proceed whenever you are ready.
Charles Alan Wright: Mr. Chief Justice, may it please the Court. The legal position of Texas is exactly the same as that of Oregon. I want to check insofar as possible to avoid duplicating the able arguments that Attorney General Johnson has made on behalf of Oregon with regards to Title III. Last week, reading one of the amicus briefs to which one of the most respected law firms of the United States has lent its name, I came across an argument in support of the statute that seemed to be quite interesting. It was said that even if, it is not a denial of equal protection to deny to vote to those between 18 and 21, that many in that age group think that it is, that this causes a sense of alienation and the Congress has power under Section 5 of Fourteenth Amendment to cure this feeling of alienation even if it is the product of only an apparent and not a real denial of equal protection. That argument seemed to me to highlight the unreality of this entire litigation. Were it not for the respect, as always do to the body that sits across the street, I suggest that the proper response to this Court would have been to dismiss out of hand, the attempt to support this legislation on the grounds that the legislation frivolous. Prior to 1965, I cannot suppose that anyone would have imagined that the Congress of the United States has the power to substitute its preference for that of the state with regard to the age of voters. Even under the broadest reading of Katzenbach v. Oregon it is still necessary, and the phrase that John Marshall has picked up there that the acts of Congress be consistent with letter and spirit of the Constitution and I submit that this legislation is not. This legislation flies in the face of the letter of the Constitution, that it does violence to a constitutional tradition that has gone on as long as the country has existed. There are many provisions for the Constitution of the United States that are not hastily read, but about which reasonably men readily differ, but I should have thought that the numerical provisions in the Constitution above all, are provisions that have one meaning, a meaning that does not change with passage of time, but when people of the United States in the Fourteenth Amendment referred twice, 21 years of age as being an appropriate age for people to vote, that they meant 21 years of age, they did not mean 18 or some other number, no matter how functionally, similar that number today maybe to what 21 was a century ago. It is, I suppose always a temptation to counsel to overstate the importance of this case. I do not wish to sound like George Pepper argument in Carter v. Carter Coal or like the distinguished Advocate (Inaudible) first income tax case, but I submit as seriously as I can that the issue in this case has nothing to do with whether 18-year-olds vote or not. That's an (Inaudible) is going to come whatever the decision of this Court in this case. The issue in this case is more fundamental than that. It is whether the historic concept of this country, a country, a federal union in which the Central Government and the states share powers and responsibilities allocated by a written Constitution, whether that concept is a failure, whether we now must take constitutional shortcuts in order to impose on the states a reform, to a majority of Congress seems desirable, but that 46 states have not yet seen fit to embrace. The most rigorous test for state voting qualifications under the Equal Protection Clause is that the states must be able to show a compelling state interest to justify the exclusion of a group from the electorate. Even measured against that test, it seems in my submission, that Texas and 45 other states come through with flying colors. The distinguished Solicitor General agrees, as I understand his brief, that there is a compelling state interest in seeing to it that the electorate is composed of persons who are well-informed, mature and responsible. The question then becomes how you go about implementing this compelling State interest. How you identify those persons who are qualified to exercise the privilege or suffrage from those who are not. Now here again I believe, if I understand them correctly, that the Solicitor General does not disagree with our position, that age is an appropriate means for making this determination. No one supposes that age is infallible, perhaps, not even very good criterion for this purpose. There is in Courtroom today, a 17-year-old citizen of my State who is better informed, more responsible, more mature than most 18, 21, 43-year olds that I know, yet neither Congress nor the State of Texas are willing to allow him to vote, because neither one of those have any calibers by which we can say, “Yes, this 17-year-old is ready to vote, this 17-year-old is not.” And so, the invariable practice of the American states, a practice that Congress does not undertake to supersede in this legislation, is that we are going to watch the age, we are going to indulge a presumption that when a person reaches a certain age, at that point he possesses in sufficient quantity, these qualities of education, responsibility, maturity that will let him become a part of political process. Perhaps, as a matter of preference, desirability, all the impressive data that was spoken of on the floor of Congress suggest that today, we can safely entrust to those who are 18 of this privilege and responsibility. But Texas and 45 other states have said, no. We have said that we would rather wait until a person is 21. We feel that when he reaches that age, that we can be reasonably confident that he has the needed qualities. For Congress to say that we are denying to our citizens the Equal Protection of the laws by doing this, for Congress to say that somehow this determination on the part of Texas is irrational or invidious or unnecessary for state purposes is simply to substitute Congress' determination of this factual question for the determination with the people of Texas have made for themselves, a determination that we think we were amply justified in making for ourselves in the light of this specific twice repeated language of Section 2 of the Fourteenth Amendment.
Byron R. White: Professor Wright, I take it though you will be making the same argument if the Section 2 were not in the Fourteenth Amendment?
Charles Alan Wright: I would be making the argument with much less confidence that it would prevail, Justice White.
Byron R. White: Now, let's assume it is there and say that the state had the voting age of 45 and Congress had come along and said all people who are 21 may vote, you would still make the same argument?
Charles Alan Wright: I hope I would not.
Byron R. White: Well, Congress would still be substituting its judgment for --
Charles Alan Wright: It's seems to me sir, if I may, that the time is an example you suggest when the difference is not merely one of degree not merely one of preference, but a difference is so extreme and conned that the State action might probably would be regardless capricious and not identified with the compelling state interest, we think --
Byron R. White: You would simply say that the courts would find that to be a denial of Equal Protection, if the Congress took it simply and informed the courts of its opinion?
Charles Alan Wright: I think that the Court would find out the denial of Equal Protection is even uninformed by Congress.
Byron R. White: But do you think that even absent Section 2 that this legislation the Congress has passed is beyond its power?
Charles Alan Wright: Even absent at Section 2, I would think so, yes sir.
Byron R. White: Even though quite an argument can be made that 18-year-olds are as capable as 21-year-olds today?
Charles Alan Wright: Yes sir. If I may expand on that answer a moment, Justice White, it seems to me is the opposite of the argument that you suggest is important. It is not that you can argue that 18-year-olds are as capable as 21, but that on the other hand, one can argue that to require that voters be 21 is not so different from 18 as to be an irrational judgment.
Byron R. White: Yes, but where does that lead Section 5 of the Fourteenth Amendment? If reasonable men to differ about -- between 18 and 21 and Congress comes along and says 18, you would say that's inappropriate legislation?
Charles Alan Wright: Yes sir.
William J. Brennan, Jr.: Professor Wright, what do you think of the government's suggestion that the history shows of those references as to age 21 and Section 2 had a particular purpose that they were written in light of the effort to assure the franchise to emancipated slaves who otherwise had the then existing voter qualities?
Charles Alan Wright: Justice Brennan, I think that everyone who has studied Section 2 of the Fourteenth Amendment knows that it was a cleverly contrived, compromise. It was pretended not only to put a premium on Negro voting of the South and not the North, it was intended also to make sure that aliens in New York, and women in Massachusetts were counted in apportionment of Congress, though they were denied to vote at the time, but I have not understood that there was any history indicating that the choice of the age 21 in that provision was any part of this elaborate political compromise. And as I read history, age 21 is there because the draftsman of the Fourteenth Amendment of the states that ratified it, regarded 21 as the appropriate age at which one become a part of the electorate. The Solicitor General has suggested that perhaps the references to 21 in Section 2 maybe regarded as descriptive rather than prescriptive. It is a suggestion that we find it difficult it to follow. The Section says, and this is not merely describing, it is prescribing, that if you start denying the right to vote to persons who over 21-years of age who otherwise meet the tests we say here, you are going to lose that proportion of your congressional delegation that the number you exclude bears to the whole number of persons over 21. Now that, in my submission is prescriptive language, that it is never been enforced, does not mean that it could not be enforced or that it was not intended to be enforced or that it should not be read today as having legal significance. It would be –
William J. Brennan, Jr.: Are you not suggesting that there is at least some ambiguity at this time?
Charles Alan Wright: Yes sir, I guess with regard to age 21 I am saying that there is no ambiguity but either ones may read this. I would not suggest that the Constitution of the United States is not an instrument but has a capacity for growth. Obviously the power of the Central Government under the Commerce Clause and others is much greater now than it was at an earlier time and anyone who bares the scares of Maryland free words can't be unaware of that, but I do submit, that it is one thing to allow Congress a very great discretion, and considerable free play and decide what regulatory measures are needed in order to foster the economy, to promote commerce among the several states. But that it would be quite another thing, to give Congress that same kind of a free-hand in regulating the political make-up of the states, and particularly in the relation to the Federal Government, that this is the one area that until now has been left to the states. We have still been a body politic, a constituent part of the Federal Union, free to govern ourselves at least in terms of determining how we will govern ourselves, though we must of course yield to Federal Legislation and regulatory sphere. It is this that the judgment of Texas is endangered by the statute that is now in front of us. The resort to imaginary (Inaudible) is always a risky form of legal reasoning, and I prefer not to use it, and yet as we have suggested in our brief, if this act is constitutional, it is hard to visualize any other act of Congress with regard to voting qualifications that could not be justified as easily, and there are good many things that go beyond the area of voting qualifications. The Congress might decide where necessary in order to enforce the grants of due process of law and of equal protection. In Texas' view, the reason nobody ever suspected until this past spring that this power isn't Congress under the constitution is because the power under the Constitution is not in Congress, because the internal control that the State has with regard to its own government by the Constitution is specifically left to the states and with regard to our particular issue here, the choice of the age 21 is one that the Constitution of the United States specifically says, Texas may make, and it is for those reasons that Texas prays for a judgment declaring Title III to be unconstitutional.
Warren E. Burger: Thank you Professor Wright. Mr. Solicitor General.
Erwin N. Griswold: Mr. Chief Justice and may it please the Court. The cases now being argued, numbers 43 and 44 original Oregon and Texas against John N. Mitchell, Attorney General, are being argued first I suppose because they have the lower docket numbers. They involve only the question of age, under the 18-year old vote provision in the Voting Right Amendments Act of 1970. And I am representing the respondent in those cases. The two following cases are, United States against Arizona and United States against Idaho, numbers 46 and 47 original. They also involve the age provision, but in addition two other provisions, one relating to literacy test and the other relating to residency requirements. In those cases, I am representing the plaintiffs. Since we were appearing for the plaintiffs there, our briefs had to be filed before our brief in this case was due. The consequence is that our principal brief has been filed in the Arizona and Idaho case, numbers 46 and 47 original. After the factual statement in that brief, there is a general discussion on pages 23 to 39. Then it deals with the literacy and residency matters, and finally it deals with voting age at pages 63 to 76. The general portion of that brief are Arizona brief and the final portion relating to age are in effect are opening brief in this case. Then the briefs filed by Oregon and Texas are in effect, they are answering briefs and the brief which we have filed for the defendant in this case is in effect our reply brief on the voting age. I have taken this time to explain that situation because I think it is a little confusing, if one just picks up the papers. The chronology and the sides of the parties in the several cases and the varying issues made this I think inevitable. There is another preliminary matter which I should lay before the Court before I proceed further. I appear in these cases for the defendant John N. Mitchell, Attorney General of the United States. In the two following cases, I appear for the plaintiff, The United States. The matter about which I speak relates only to the voting age issue which is in all four cases. It does not relate at all to the literacy or residency matters which are involved only in the Arizona and Idaho cases, which will be heard after these cases are completed. The Voting Rights Amendment Act of 1970, originated in the House of Representatives, simply as a proposal to extend the Voting Rights Act of 1965 which by its terms expired in 1970. And to add a provision, making it in effect no longer as invidious as it had been, by extending the abolition of literacy requirements, nationwide. In the House, provisions with respect to residency were added. The Bill was passed by the House and went to the Senate. In the Senate, amendments were proposed to provide for 18-year old voting. There was extensive consideration and debate in the Senate as to whether this should be done by act of Congress, whether it could be done by act of Congress or whether it should be done by constitutional amendment. When it was pending before the Senate, officers of the Department of Justice appeared before the congressional committees. I may say there are three volumes of hearings with respect to this Bill. One, the house hearings deals only with the literacy and residency, and then there are two volumes of Senate hearings before different sub-committees, in the summer of 1969 and in February 1970 where these matters were extensively considered. Deputy Attorney General Kleindienst appeared before one of the Senate committees and presented the view of the President that the change should be made, but that it should be done by Constitutional Amendment. This appears at pages 78-80 of the Senate committee hearings for February 17, 1970. And on March 10, 1970, Assistant Attorney General Rehnquist presented to the same committee a substantial statement against the constitutional validity of making the change by statute. This appears beginning at page 233 of the hearings and the Court will of course want to give consideration to these views. Finally, when the legislation had been passed by Congress as a statutory provision and not a Constitutional Amendment and the President signed it on June 22, 1970, the President made a statement of which I shall read the first two paragraphs. This is the President's statement, “On Wednesday, Congress completed action on a Bill extending and amending the Voting Rights Act of 1965, and sent it to me for signature. As passed, the Bill contained a "rider" which I believe to be unconstitutional, a provision lowering the voting age to 18 in Federal, State, and local elections. Although I strongly favor the 18-year old vote, I believe along with most of the Nation's leading constitutional scholars that Congress has no power to enact it by simple statute, but rather it requires a Constitutional Amendment. Despite my misgivings about the constitutionality of this one provision, I have today signed the Bill. I have directed the Attorney General to cooperate fully and expediting a swift court test of the constitutionality of the 18-year old provision.” There is more on the statement, but that is the relevant portion. The Attorney General is the party defendant in the two cases now before the Court. He signed the complaint for the United States in the two cases which are to follow, the Arizona and the Idaho cases. He has signed the briefs in all four cases. However, because of his relationship to the President, he felt that he should not present the argument in this Court. So I am here and I and my associates have endeavored to support the statute as vigorously as we are able. As I have indicated, these two cases, Oregon and Texas, involved the validity of the voting age provision only. It's interesting to note I think that Oregon has a literacy provision, but it has not chosen to contest this. Similarly, Texas has residency provisions, but has not chosen to contest them. Thus, we are dealing here only with the voting age provision which maybe the most difficult of the three provisions to support. The constitutional validity of this act of Congress --
Potter Stewart: Before you launch on that Mr. Solicitor General, is it implicit on what you said so far that you think the voting age provision maybe severable from the rest of the legislation?
Erwin N. Griswold: I don't believe I have made any reference to that one way or another. I think that there is a severability provision in the original Voting Rights Act of 1965. The Act of 1970 is inform an amendment of that Act. Whether that severability provision which in the amended act will appear only in Title I is applicable to all three Titles or not, is a nice question. I would suppose that they were severable simply as a matter of my own personal judgment because they are --
Potter Stewart: Separate.
Erwin N. Griswold: They are separate ideas, neither one of which is in any particular way dependent upon the existence or non existence of the other. I think if you have got, when we come to the residency problems in the cases which follow, we will find that there really are three different ones there and should the Court find that one of those is valid but others aren't, there might be some intricate questions of detail, but I think I would take the position, though it has not been covered in our brief that the statutory provisions are severed.
Potter Stewart: The legislative history that you related, might thereon -- that United States versus Jackson as you may remember, the Court relied somewhat on the legislative history of the death penalty provision – what they called it.
Erwin N. Griswold: And as Mr. Justice as I recall it there is a general severability provision back in Title I somewhere that could be cited if the Court felt that they ought to be held to be severable. I don't know that severability is focused on in the legislative history, it is perfectly plain that the several things were discrete --
Potter Stewart: That's what I meant.
Erwin N. Griswold: -- were not interdependent.
Warren E. Burger: Was there any -- is there anything in the legislative history that suggests that any attention was given at the time of this last action of the county?
Erwin N. Griswold: I do not think so Mr. Chief Justice. I will ask my associates to check through and advice me if I am wrong about that. There was just no focus on severability. The constitutional validity of this act of Congress, fixing the voting age at 18 years on a nationwide basis, acting under Section 5 of the Fourteenth Amendment and I find, may I please the Court, that last week I constantly referred to Section 4 of the Fourteenth Amendment and that was wrong, it's still Section 5. The Constitution of this provision is firmly based I think on a series of fairly recent decisions of this Court. No one of them deals with this issue by itself, but taking together they seem to me to found a very substantial argument that this statute is a valid exercise of the power, expressly given to Congress by Section 5 of the Fourteenth Amendment. This can best be shown I think by taking up these cases one-by-one and using them as building blocks to the ultimate conclusion. There are roots in the past of course, but the first of the cases I wish to mention now is Lassiter against Northampton County Board of Elections in 360 U.S. That case upheld in the absence of any acts of Congress, the validity of the Virginia literacy's test as a proper exercise of state power under Article I, Section 2 of the Constitution. And in reaching that result, the Court said at Page 51 of 360 U.S. “The right of suffrage is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.” Now I suppose that analytically that sentence is a truism, but it does indicate that the Court considers that Congress had constitutional powers under which it could impose restrictions. It states the proposition for which I stand here and it is I believe completely established by this Court's subsequent decisions. The next case to which I would call your attention is Carrington against Rash in 380 U.S., decided in 1965. There the Court had before it, a Texas statute, which provided that a serviceman could vote only in the county where he resided at the time, he entered in the service. If he entered in the service from another state, he could never vote in Texas, as long as he was in service, no matter how firmly he had established a residence in Texas. And the Court held that statute invalid under the Equal Protection Clause of the Fourteenth Amendment. Now that is simply Section 1, the basic Equal Protection Clause, there was no act of Congress involved, and the important thing to note is that the result would reach under the Equal Protection Clause alone. There was not a trace of racial discrimination in the Carrington case. There was none of what was referred to in one of the opening arguments as classic Fourteenth Amendment objectives. There is no suggestion of a foundation of power in the Thirteen or the Fifteenth Amendments. It is a voting case, and it arose under the Equal Protection Clause of the Fourteenth Amendment alone, thus establishing that that clause is of its own force applicable to discriminations in voting.
Warren E. Burger: Would you say Mr. Solicitor General that this, in the Carrington case, did indeed create two classes, otherwise the same in all respects, but one entitled to vote, and one not entitled to vote?
Erwin N. Griswold: The Texas statue did Mr. Chief Justice, yes, and the Court held that that classification violated the Equal Protection Clause, although there was nothing racial, religious, ethnic, nothing of the traditional historic basis of the Equal Protection Clause involved in it.
Warren E. Burger: Would this apply to him if he were 22-year old Master Sergeant or a Brigadier General?
Erwin N. Griswold: This would apply equally, yes. Now of course the reapportionment cases could also be cited in support of the applicability of the Equal Protection Clause alone to voting, but the next case that I want to refer to in the series I am putting before you is South Carolina against Katzenbach. I am doing this in chronological order, because it seems to me that's natural. That case involved the Voting Rights Act of 1965. The statue drew support from the Thirteenth and the Fifteenth Amendments, and what was important about the case was the scope it gave to the Enforcement Causes of those amendments. Section 2 of the Thirteenth, and Section 2 of the Fifteenth Amendment, and these are identical with the power to enforce given to Congress by Section 5 of the Fourteenth Amendment, and under those provisions the Court held that what Congress had provided in the Voting Rights Act of 1965, the abolition of literacy test, was a constitutional provision and I point out that this is almost immediately following this Court's decision in the Lassiter case where the Court had held that the mere existence of literacy provision did not violate the Equal Protection Clause provision of Section 1. The significant difference between the situation here and in the Lassiter case is simply that Congress had undertaken to exercise its power under the Enforcement Clauses. It's quite clear, as I have indicated, that it was not merely the Enforcement Clause of the Fourteenth Amendment, but also of the Fifteenth and residually I think of the Thirteenth, but here is a situation where Congress acting under its power to enforce provisions of the Constitution, made invalid state statutory provisions which had only recently been held to be constitutional under the provisions of the Fourteenth and Fifteenth Amendments themselves. Now a few days later in Harper against the Virginia Board of Elections in 383 US, that case proceeded solely under the Equal Protection Clause of the Fourteenth Amendment. Now the Court held invalid the Poll Tax provisions which had long been enforced in Virginia. Of course, the situation had racial overtones, but it is again a case involving voting where the Court proceeded solely on the basis of the Equal Protection Clause. Perhaps the Court could have proceeded under the Fifteenth Amendment, but it did not do so. Of course, the statute and decision were broader than any matter of merely racial discrimination. They barred white voters who had not paid the poll tax, and proceeding simply on a racial basis would not have achieved the result which was achieved in that case. Now the next in the line of cases is I suppose the one of greatest importance here, but I do want to suggest that Katzenbach against Morgan does not standout all alone. It is part of a stream, a part of a development which has been occurring. Katzenbach and Morgan is in 384 U.S. decided four years ago. It upheld the constitutional validity of Section 4 (e) of the Voting Rights Act of 1965. That was another instance of action by Congress to enforce the Fourteenth Amendment, taken pursuant to the power granted to Congress by Section 5 of the Fourteenth Amendment. As the Court will recall, it provided that persons who had received an education in American flag schools where the language was other than English through the sixth grade could not be barred from voting on the ground that they were not literate in the equal -- in the English language. There was nothing to indicate, and never had been anything to indicate that the New York Statutory Provision requiring literacy in the English language was invalid under the Fourteenth Amendment by itself, but Congress made it invalid by Section 4 (e), exercising it’s enforcing power and this Court upheld the power of Congress to do so. The Court proceeded solely under Section 5 of the Fourteenth Amendment. Other basis for the basis for the exercise of power by Congress were advanced, but this Court did not rely on them. The case did have ethnic overtones, but the Carrington decision had already shown that this was not a necessary element to establish the power of Congress.
Speaker: What bearing, if any, do you think the Fifteenth Amendment has on this case?
Erwin N. Griswold: I think it may have some bearing, except that it was not in any way relied upon by the Court in this decision.
Speaker: I know that, I know that.
Erwin N. Griswold: Moreover, I do not suppose there was any evidence in the record that all of the persons effected by any means were persons who would come within the provisions of the Fifteenth Amendment, preventing interference with the right to vote because of race, as at least as that word race was used in the Fifteenth Amendment. So I think I would conclude that the Fifteenth Amendment, though a part of the background, really has nothing to do with it, and was not so regarded by the Court
Speaker: I notice that in your view the Court decision said nothing about the -- as you said the history of the Fourteenth Amendment in this respect?
Erwin N. Griswold: Mr. Justice, we have said that because we can’t find anything very conclusive. You can pick out passages as you so often can in legislative history would support one side rather strongly. You can pick out other passages which seem to be almost equally strong the other way. The legislative history is reviewed in the concurring opinion of Judge McKenin in the Court of Appeals which we have printed in full in the appendix to our brief in this case. And Judge McKenin comes to the same conclusion, pointing out, among others things, that after the Fourteenth Amendment was adopted, Congress went ahead and proposed the Fifteenth Amendment indicating that it did not have the view that the Fourteenth Amendment alone solved the problems in that area. It has sometimes been said that Katzenbach against Morgan provides a startling accession to the power of Congress. It’s clearly true that the full potentiality of Section 5 of the Fourteenth Amendment was long unappreciated. Indeed, Congress did undertake to exercise powers under Section 5, shortly after the amendment was adopted, but the immediately ensuing decisions of this Court were not such as to encourage further experimentation. Perhaps, it was a sleeping giant, but there it is, and it has been there for more than a century. As a matter of fact, it was not such an innovation, that is the bringing of it to life. The Eighteenth Amendment had a similar enforcement clause. In Katzenbach against Morgan, the Court cited James Everard Breweries against Day. You will recall that the Eighteenth Amendment forbade the use of alcoholic liquor for beverage purposes that this language quoted from the Eighteenth Amendment for beverage purposes. In the statute involved in the James Everard Breweries, Congress enacted a statute under it’s power to enforce the Eighteenth Amendment, which forbade the use of malt liquors for medicinal purposes. Now the amendment gave Congress no power over the use of liquor for medicinal purposes, acceptance so far is the power to enforce the Eighteenth Amendment was involved. And in the James Everard Breweries case, the Court upheld the constitutional validity, and discussed the scope of the enforcing clause, saying that it was comparable to the powers given to Congress by the Necessary and Proper Clause, which too I think were in a sense a sleeping giant, not until they were utilized by Congress and shall I say, encouraged by the famous language of Chief Justice Marshall with respect to the scope of the Necessary and Proper Clause, was it fully realized how far Congress could go under that. Similarly, Congress has no explicit power under the Constitution to regulate intrastate commerce, but the Shreveport case found that power in the Necessary and Proper Clause when it is necessary to make Congress’s power over interstate commerce effective. More recent instance of the same exercise of power is found in United States against Derby, and in many decisions under the Fair Labor Standards Act and the National Labor Relations Act. And then more recently in association with South Carolina against Katzenbach, there is the case of Katzenbach against McClung, decided 5 years ago. Likewise, arising under the commerce clause and upholding the exercise of the power of Congress to provide equal accommodations in local restaurants as an exercise of necessary and proper power to regulate interstate commerce. One other case here to which I would like to make reference, Williams against Rhodes, decided just 2 years ago, is an election case where the Court proceeded solely under the Equal Protection Clause to strike down provisions of State Voting Laws which it found discriminatory. This decision along with Carrington and Rash are enough it seems to me to answer the suggestion that Article I, Section 2 of the Constitution provides the states with exclusive power in this area.
Potter Stewart: Am I right in thinking that Katzenbach against South Carolina was decided under the Fifteenth Amendment??
Erwin N. Griswold: Yes, Mr. Justice, it was decided under the -- I think it can be said, under the Thirteenth, Fourteenth and Fifteenth Amendment, but certainly under the Fifteenth Amendment. Now there are two more recent cases. Kramer against Union School District, decided last year in 395 U.S. involved a New York statutory provision under which a childless person who did not either own real property or rent real property was not allowed to vote in local school elections.
William O. Douglas: And there was the Phoenix case, and I see you don't even cite that?
Erwin N. Griswold: Which one?
William O. Douglas: The Phoenix case decided lat June.
Warren E. Burger: The City of of Phoenix?
William O. Douglas: City of Phoenix.
Erwin N. Griswold: Well, yes, the city -- those were bond election cases as I recall it, and there are -- I don't think I have undertaken to cite every case that has some bearing on it. I think that I would regard as cumulative, and would take whatever support I can get from it. It is cited on Page 33 of our brief in the Arizona Idaho case.
Hugo L. Black: Would your argument be the same if you did not have the Section 5 of the Fourteenth Amendment?
Erwin N. Griswold: Oh, no, Mr. Justice, I don't think we would have any ground to stand on at all, if we didn't have Section 5. Just as in Katzenbach against Morgan, the English language literary requirement was by common consent, not a violation of the Fourteenth Amendment standing alone, but when Congress acting under Section 5 made it – when Congress acting Section 5 decided that it must be made invalid in order adequately to enforce the Fourteenth Amendment, this Court upheld. I've just referred to the Kramer case. I don't really suppose that for our purposes that adds anything to Carrington and Rash. It is simply another case holding that the Fourteenth Amendment is applicable to the -- Equal Protection Clause of the Fourteenth Amendment is applicable to what might be called detailed discriminations in voting rights. I say detailed discriminations, to distinguish it from ethnic, religious, no Negroes can vote, provisions of that kind. And then most recently, and in some ways it seems to me of the greatest importance, I am sure that when we were working on the case last spring in my office, we did not realize its significance with respect to this problem, but is the decision last June in Evans against Cornman, 398 U.S. That case involved a statute of the State of Maryland under which residence of federal enclaves in Maryland, in this particular instance, the National Institute of Health, were not allowed to vote. There was a good deal of uncertainty in history, and not merely the history of this particular area, but also the whole history of the treatment by this Court and of the government of federally owned property within the states. It was found for example that residence of this enclave got certain benefits, and were subject to certain burdens, on the other hand, they did not pay taxes to the state of the -- did not pay real estate taxes to the State of Maryland, and insofar as they were renters, they did not pay indirectly to the State of Maryland. On the other hand, they sent their children to Maryland schools. If they wanted to adopt a child, they did it in Maryland Courts. If they wanted a divorce, they did it in Maryland Courts, and questions about that had not in recent years been raised. Now in Evans and Cornman, like Kramer and like Carrington and Rash, were solely and simply Equal Protection cases. They are cases saying that specialized discrimination with respect to voting are barred by the Equal Protection Clause alone. In Evans and Cornman, I note, was as it appears in the book say, unanimous decision, at least no dissenting votes were stated and so we have two lines of cases. One, a series of cases holding that state control of voting rights is subject to the Equal Protection Clause, even though there is no racial or ethnic or religious basis of discrimination, even though it doesn't come within the classic historical foundation of the Fourteenth Amendment. The leading cases on this are Carrington against Rash, Kramer against the Union Free School District, and Evans and Cornman. And then we have a second line of cases, that the Enforcement Clauses of the Fourteenth and the Fifteenth Amendments give Congress powers analogous to the Necessary and Proper Clauses, and on that I would cite three cases, Katzenbach against McClung, which involved the Necessary and Proper Clause itself with respect to the Commerce power. South Carolina against Katzenbach, which involves the enforcing clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments, and Katzenbach against Morgan on which the Court relied, and I think could only have relied to achieve the result on the Fourteenth Amendment alone, and not on the Fifteenth Amendment Enforcing Clause.
Hugo L. Black: May I ask you Mr. Solicitor General, if you have given any consideration to the Section 2 of the Fourteenth Amendment?
Erwin N. Griswold: Yes, Mr. Justice.
Hugo L. Black: (Voice Overlap) referring to 21 years of age, in your brief I haven't looked at it?
Erwin N. Griswold: Yes, we have in our brief at two places, but particularly I would call your attention to Pages 74 to 75 at the very close of our brief. There is also some reference to it in the introductory portion on Page 35, I believe, and there is further reference to it in our brief in this case, which as I have indicated is in fact our reply brief.
Speaker: Would you disagree that apart from the Fourteenth Amendment, the Constitution places voter qualifications holding the hands of the states?
Erwin N. Griswold: Well, I would say that it does?
Speaker: Would you disagree with that statement?
Erwin N. Griswold: I think not Mr. Justice, though I think maybe I would have almost to read it line by line. There is that rather puzzling provision in the very same clause as Article I, Section 2, which says that the state shall establish voting qualifications, but that Congress can make or change provisions with respect to the time, manner, and place of holding elections. What manner means, I don't know. Manner, I should think at least would mean, it must be a secret ballot, and should a state make a provision that Negroes will vote in the morning and White people in the afternoon, which I don't suppose would violate the Fifteenth Amendment, I can conceive that Congress would have power under that provision to make that invalid.
Speaker: I haven't seen that argued though -- these arguments in any of the briefs, the manner clause?
Erwin N. Griswold: There is some suggestion in the cases and in the briefs that Presidential elections are peculiarly Federal, that the right to vote in them is an inherent right of federal citizenship, and that Congress would have power perhaps under the Necessary and Proper Clause to make provisions with respect to voting in Federal elections, and that does become somewhat relevant in the cases which we will argue, except for what I would called fringe situations. I think I would agree with you that but for the Fourteenth Amendment, in the cases I have already cited and specifically Section 5 of the Fourteenth Amendment, the qualifications to vote would be exclusively a state matter.
Speaker: Well, all the Fourteenth, Fifteenth, Seventeenth Amendments also?
Erwin N. Griswold: Yes, of course, the Fifteenth and Seventeenth or Nineteenth -- Seventeenth and Nineteenth Amendments have limited the power of the states of the original Constitution or of the Constitution through the Civil War, I would agree.
Speaker: With hindsight all those amendments were (Inaudible)
Erwin N. Griswold: With hindsight on the basis of my argument, the Fifteenth Amendment could have been done by statute, except that Congress could have repealed the statute. Similarly the Nineteenth Amendment could have been done by statute, except that Congress could have repealed the statute. Both of those are now, and I think fortunately are firmly fixed in the Constitution, and are not merely a matter of statutory provision. Whereas, the provision with respect to literacy, it maybe much wiser to have them, so that they can be modified at some later time by statutory enactment, and it may well be true with respect to the voting age. We may find for some reason or other, that Eighteen doesn't work out, and the Congress may find it appropriate to repeal that statute, and the states will then have that much greater leeway.
Potter Stewart: I thought that is the contention of at least some parties or friends of the Court in this case, that having enacted the statute it cannot now be repealed, relying on the Footnote 10 in the Morgan opinion, and relying on cases like Reitman against Mulkey and so on?
Erwin N. Griswold: There is the Footnote 10 in the Katzenbach against Morgan opinion, and I fully agree that Congress could not by statute repeal or make ineffective restrictions which are found in the Equal Protection Clause itself. But I would have no doubt that Congress having undertaken to enforce the Equal Protection Clause by a statute passed under Section 5, achieving a result which is greater than that which is caused by the Equal Protection Clause itself, as in Morgan, as here, would have power to repeal that statute by which it had undertaken to enforce the --
Potter Stewart: This is within the Equal Protection Clause, so where did it come from?
Erwin N. Griswold: It comes from Section 5, and the necessary and proper concept which is included in Section 5 which as United States against Darby, as Katzenbach against McClung, as Everard Brewery shows, enables Congress to go beyond that which is formally prohibited by the Constitution itself. It seems to me that's the consequence of this Court, not merely -- it's widely suggested that Katzenbach against Morgan is some sport that suddenly rose out, nobody expected it, but actually it has a very sound foundation in our constitutional history in various areas, and it goes back I suppose to the, shall I say the discovery of the Necessary and Proper Clause by Chief Justice Marshall, or at least the adumbration of the Necessary and Proper Clause by Chief Justice Marshall. Now where is the discrimination here? Doesn't a line have to be drawn some place? Of course, a line has to be drawn. The question is, whether Congress can draw the line? Persons who are 18 to 20 years old are a class, a group. It's obvious enough that they have interest which are not always represented by older citizens. You can't brush this off simply by saying, well 18 to 20-year olds are just the typical of everybody else in the community. On that basis you could have a statute passed by a state which would say that only citizens whose names begin with G will be entitled to vote, they're fair sample, and it will be a lot cheaper to conduct elections on that basis, and so we'll proceed that way, and that obviously would be invalid. But why 18? Well, I was troubled by this for quite a while, but I finally resolved it in my own mind, in a way which at least came to me to be fairly clear. Now suppose a state said that no one under 40 could vote, or that no one over 65 could vote. If one looks only at Article I, Section 2, a state could do that. Perhaps this Court could strike it down under the Equal Protection Clause, but on that basis the Court would have eventually to draw the line, the state next year would come up and pass, nobody under 39, and then nobody under 38, but can there be any doubt that Congress could pass a statute under Section 5 of the Fourteenth Amendment, to enforce the Equal Protection, Clause which would invalidate statute such as I have suggested.
Warren E. Burger: What do you have to say about Professor Wright's response to that? You recall his response to that point, that I think someone suggested, 45 is the limit, and so that was a different -- quite a different matter when you made that large change?
Erwin N. Griswold: Well, what I am suggesting is Mr. Justice, Mr. Chief Justice is, that Congress could under Section 5 undoubtedly invalidate such a provision, but once you accept that, is it not clear that Congress has power to fix the line, as an inescapable element of its power to enforce the Fourteenth Amendment? Otherwise, the Court would have to be passing on a succession of the statutes, and finally fixing the line itself, and this is peculiarly the kind of line which it seems to me that Congress is better qualified to fix, than this Court is.
Speaker: Excuse me, go ahead Mr. Chief Justice.
Warren E. Burger: What would you say about the statute passed by Congress that made the voting age ten? If say, if they can draw the line for the state?
Erwin N. Griswold: On that Mr. Chief Justice, I am tempted to fall back on Justice Holmes' dictum with respect to the power to tax is the power to destroy, but the power to tax is not the power to destroy, while this Court sits. If you'd made it 5, I would act with considerable confidence on them. Ten probably so, 12, 13, 14, if Congress actually that is its judgment, that that is what it should do, which I find it hard to contemplate their doing. Undoubtedly, there is a point beyond which Congress could not go, because it would not be a bona fide legitimate exercise of the power to enforce the anti-discrimination provision --
Warren E. Burger: You really link arms with Professor Wright in your response there?
Erwin N. Griswold: Except that I think the Congress has power to do it, at least down to the age of 18, and I don't run into the problem which you raise, which is a problem, until Congress has gone a good yield further than it has now.
Byron R. White: Mr. Solicitor General, suppose last the last term, some 18-year olds that challenged the 21-year old requirements in some states, and we had decided that the 21-year old residence or 21-year voting requirement, age requirement, did not violate the Equal Protection Clause, that a state may limit the vote to those who are 21. Then Congress passes this law, and the law is challenged, and we -- may we or must we under Katzenbach say that -- could we say, although we adhere to our view of last term that the 21-year old age requirement does not violate the Equal Protection Clause, we nevertheless sustain this act of Congress?
Erwin N. Griswold: Yes, Mr. Justice, I think that you would be required to do that under your decisions, that's exactly what happened with respect to literacy.
Byron R. White: Now what would be appropriate then in the congressional legislation in that respect? Is this just a assertion by Congress that the court was wrong?
Erwin N. Griswold: No Mr. Justice, the language of that the Court has used is perceive a basis, and I don't think this a matter of building a record like in a court case where you have to have evidence to support each finding of the Court. But there would have to be either findings by Congress, or legislative history which would provide material from which this Court could perceive a basis for what Congress has done.
Byron R. White: Well, would we -- then we changing our mind from last time?
Erwin N. Griswold: No, Mr. Justice, you would be saying that though this is not a violation of Equal Protection as prescribed by Section 1 of the Constitution, it is the kind of thing that Congress can do if in its judgment it thinks it is necessary in order to enforce the Equal Protection Clause. Just as the power to regulate intrastate commerce, never given by the Constitution to Congress, is frequently upheld by this Court as an inherent -- as a proper exercise of power under the necessary Improper Clause to enforce the power of Congress to regulate --
Byron R. White: Because of its impact on a state commerce, but here if the Equal Protection Clause doesn't require 18-year olds to be given the vote, how -- what could be -- how could you perceive a basis for congressional enforcement of something that the Equal Protection Clause doesn't require at all?
Erwin N. Griswold: Mr. Justice, I don't want to overstate it. I think it is a very close question. I think it is much more delicate, shall I say here, than in the commerce situation, because there you can -- at least we have a long tradition that the intrastate commerce has an effect on interstate commerce, but I think that that bridge was really passed in Katzenbach against Morgan, where there was no suggestion that the discrimination against foreign language schools was invalid under the Equal Protection Clause. No one had ever held that it was invalid, indeed in the case immediately following, although it's complicated by the fact that the statute was passed by Congress, the question arose with simply as an attack on the New York Court on the New York Statute, and this Court found it invalid not under the Equal Protection Clause, but under Section 5 of the Equal Protection Clause, pursuant to the power of Congress to enforce.
Byron R. White: And what was it sort of a (Inaudible)
Erwin N. Griswold: No Mr. Justice, I don't think for example, that the decision by itself without any act of Congress would be applicable to children's rule who had to stay in Hawaii, and studied only in Hawaiian language schools, or to children who in this country for one reason or another had studied only in German language or some other language schools. It does apply to Spanish language schools, and thus might be applicable perhaps in parts of Texas, if there were such schools. They are not state schools in Texas which are not in English, but there might be private schools.
Warren E. Burger: Mr. Solicitor General, you haven't commented yet I think, and I don't recall what you said in your brief about the essence of the second sentence in Section 2 of the Fourteenth Amendment, relating to the penalty, in effect the sanction on the states for denying the vote to citizens under 21 --
Erwin N. Griswold: Well, Mr. Chief justice, I suppose that Section 2 of the Fourteenth Amendment is the most abortive provision which still remains in the amendment. It would seem a little odd to me that the only effect that has ever had in American history, would be to qualify or negative the power expressly given to Congress by Section 5 of the Fourteenth Amendment. But I don't think that there is anything in Section 2, which in anyway qualifies the power given to Congress by Section 5.
Warren E. Burger: You think, it would have a tendency to deter the states from having this abnormal voting age you discussed earlier, 40 or 45, will it have any deterred effect?
Erwin N. Griswold: Yes, I suppose that it might as a practical matter had a deterrent effect from having an age above 21, although it hasn't been enforced as to its other aspects, and whether as a practical or political matter, it could be enforced in that sense by reducing representation in Congress if states went above 21, I don't know, but I don't think that there is anything in Section 2 which has any bearing on ages less than 21. That's too strong. It obviously has some bearing, it's stated age 21, it certainly reflected the understanding of the time that that was the current voting age. I do not think that it can be said that Article I, Section 2 prescribes 21 as the voting age for any purpose. For example, suppose a state did pass a statute such as I have said, nobody under 40 can vote, under Article 2 they might lose their representation, but there is nothing in Article 2 which would say that persons between 21 and 40 can vote, because of Article 2, nothing whatever, because Article 2 says 21, that wouldn't prevent a state from saying you can't vote unless you are 40. The only think that would prevent a state from doing that, would be the Equal Protection Clause itself of Section 1.
Warren E. Burger: Well, doesn't this forward some kind of a backstop to it though, an alternative remedy?
Erwin N. Griswold: I would say background, but don't know about backstop.
Warren E. Burger: Well, what about situation where a state is so active, and it were demonstrated by the evidence that this deprived, let's say one half, for our convenience, one half of all the voters otherwise and previously eligible to vote, and Congress took no action. Would an individual in suits like the reapportionment cases be able to get the courts to do something about that?
Erwin N. Griswold: To issue of writ of mandamus to compel Congress, to reduce the representation in the House of Representatives?
Warren E. Burger: That's the question.
Erwin N. Griswold: It takes me aback a little and I know to say that this has never been done. I suppose that's one of the reason why --
Warren E. Burger: I suppose partly because no states have ever undertaken to fix an age, 40?
Erwin N. Griswold: No but states did on a wholesale basis, keep people from voting, contrary to the provisions of Section 2 of Article 14, for 50-75 years in this country and nothing was done about it.
Warren E. Burger: But not on an age basis that we are --
Erwin N. Griswold: Not on an age basis, but on as far as Section 2 is concerned, that it was equally applicable to that elimination.
Speaker: Do you think it might offer a inference? In fact, as it occurs, 21 years of age which you refer to as current voting age, was exercised properly by the states, and that it did not effect the age?
Erwin N. Griswold: 21 years was a --
Speaker: That's what it says, 21 years of age.
Erwin N. Griswold: Well, I think that the provisions of Section 2 of the Fourteenth Amendment provides an inference from which there is some tendency that conclude that 21 was contemplated as the voting age.
Speaker: With respect to 21 as fixed by the states, was within their power, would it --
Erwin N. Griswold: That it was within their power, yes, I have no doubt. I don't suppose anybody has ever questioned these that these didn't effect.
Speaker: Well, I suppose these cases question that was it in the power of the state --
Erwin N. Griswold: Twenty one, no one --
Speaker: -- age qualification would be --
Erwin N. Griswold: No one has ever questioned that 21 as fixed by the states is a perfectly valid provision under the Equal Protection Clause, unless and until, Congress undertakes to exercise the power expressly given to Congress by Section 5 of the Fourteenth Amendment to enforce the Equal Protection Clause.
Speaker: Well now suppose you would agree, I am not arguing this now and you know, but I suppose you would agree that there are some powers of fixed qualifications that the states have that that provision of the amendment wouldn't justify to taking away from them?
Erwin N. Griswold: Yes, Mr. Justice, I think that's true, and I am sure that was contemplated when it was written, but I find it very hard to find very clear and convincing instances of things which the states can do, which Congress cannot change with respect to voting by action under Section 5 of the Fourteenth Amendment.
Speaker: That's a pretty drastic --
Erwin N. Griswold: I think it must be recognized that the power of Congress under Section 5 of the Fourteenth Amendment as recognized by this Court in Katzenbach against Morgan is a very broad power.
Speaker: Which would give the right to fix the ages of the voters which vote for constable and inferior offices like that?
Erwin N. Griswold: Yes, Mr. Justice, if Congress chooses to exercise the power to that extent, and I can imagine situations where that would be very important.
Warren E. Burger: Would your response to that Mr. Solicitor General be the same if Congress had fixed 20 years and 3 months?
Erwin N. Griswold: Yes, Mr. Justice, I can imagine a Bill being passed by the House, and being passed by the Senate, and going to conference and in conference it's like 27½% depletion. We got that, because that was a compromise in conference, and this Bill might well have turned up 19½, instead of 18. Actually, both Houses of the Congress did adapt the Bill at age 18, and I think it's not irrelevant that the key vote in the Senate really on the issue, whether it should be done by statute or by constitutional amendment, was 64 to 17. There was a very strong sentiment in the Senate that it should be done by statute. When it went back to the House, as the House accepted the Senate Amendment, and there was no division there.
Speaker: I suppose that Mr. Solicitor General, your view as to Katzenbach, Katzenbach against Morgan, was not only the Equal Protection Clause, but also Due Process Clause of the Fourteenth Amendment?
Erwin N. Griswold: Of the Fourteenth Amendment, yes, I have no doubt and Mr. Justice, that if Congress finds that some action of a state to be a denial of due process that it could pass a statute within considerable limits. The Chief Justice has forced me back to ten years, and I prefer to stand on five. I think there are places beyond which the power under Section 5 would not extend to voting, and I suppose at some point this Court would have to decide whether a statute undertaking to enforce the Due Process Clause was so unrelated to that objective that it was not just within famous language of Chief Justice Marshall, as an appropriate exercise of a necessary and proper power.
Warren E. Burger: In the testimony of Dr. Margaret Mead, which I scanned, but did not read closely, was there any cross-examination of her or other witnesses suggesting a difference in the age of maturity and different latitudes as a rational factor for people to take into account, if you recall, perhaps you don't --?
Erwin N. Griswold: No, I do not recall Mr. Justice.
Warren E. Burger: Would that conceivably be a rational basis where we could perceive under the language of Morgan?
Erwin N. Griswold: Conceivably rational, but I should think highly undesirable. It seems to me that if we are going to have a Federal Law with respect to this, it ought to be nationwide, and that would apply to the southern tip of the Florida, and Point Barrow, Alaska, as far as I am concerned as a legislator, and I can find no difference in the constitutional position.
Warren E. Burger: Thank you, Mr. Solicitor General. I think Professor Wright, we are now going to ask you to split your rebuttal in two parts, unless you prefer to do it.
Charles Alan Wright: Mr. Chief Justice, it has been agreed that I would make the rebuttal for both arguments in Texas. I believe I can do it before the lunch recess if that was --
Warren E. Burger: Very well.
Charles Alan Wright: I would, seeing the clock to make my points, if I grab the mic. First, with regard to the question that Justice Harlan and Justice Stewart asked about separability, I believe that Section 205 of the statute provides sufficient answer. It is a Separability Clause, part of the 1970 Legislation itself. It appears at sort of funny place, you generally expect to find Separability Clauses at the end of the statute, but this is because Title III was added as a rider in the Senate. It was the final section. As it passed to House, it does speak general to Act, so that the Age Provisions of Title III can be separated from the literacy and durational residency provisions of the other portions of the Act. I would not wish my argument to have been understood at all, as suggesting that the Fourteenth Amendment, and specifically Protection Clause Fourteenth Amendment do not reach the question of voting qualifications. I recognize the force of the historical argument that Justice Harlan has mustered on several occasions, but my own conclusion has been with the whole history of the 39th Congress and various legislation, and constitutional amendments have produced is sufficiently inconclusive, but interpreting those provisions of the Constitution, it is better simply to look at the constitutional language, than to try and discern the intent of of the framers. My recollection is that when Harper v. Board of Elections was argued here, that one of the members of the Court inquired if Virginia could deny the franchise to persons who had red hair, and the answer, Solicitor's position and thing argued was, that the Equal Protection Clause was totally inequitable, the answer was yes. Now, I do not envy counsel who was in a position where he had to give that answer, plainly a discrimination that invidious is one that it could be very odd if the Equal Protection Clause didn't reach. And so cases such as evidenced in Cornman in which my friend Solicitor General finds very comfort do not trouble me at all. They seem -- may have wholly consistent with position we take here, that voting qualifications may be a matter within the can of the Equal Protection Clause, but this particular qualification that we are defending in this case is not long that either this Court or the Congress can rationally say false or afoul of the the Equal Protection Clause of the Fourteenth Amendment. The principal burden of my argument in chief, was that to sustain the statute would be to replace a system of Constitutional Federalism, with a system of Congressional Federalism, and I undertook to suggest you that this seems peculiarly inappropriate, with regard to the political arrangements of the states that Congress should be allowed to decide for itself the extent of its power to order the political arrangements in Texas and other states. Many years ago George Brayton wrote an article on the Chicago Law Review, called Empire to the Federal System. And it seems to me that that is one of the highest functions of this Court, but when disputes arise between Congress and the states as to the respect of powers, we can't ask Congress to decide, whether it is safe or out? We come here, because this Court in a tradition of Marbury v. Madison, must make that decision. I think that it would not be only Constitutional Federalism could be jeopardized by a decision against us here, but we would also run a great risk of replacing Constitutional Liberty with Congressional Liberty, because I have the difficulty that Justice Harlan indicated from the bench, with regard to Footnote 10 in the Morgan opinion, and it is hard to see what Congress might not do if Congress is to be given as broader scope as is argued under Section 5 of Fourteenth Amendment. It is true as the Solicitor General says that Section 2 of the Fourteenth Amendment is all -- probably as little used, as ineffective a provision as appears in the Constitution, but it is there, and I do not think that constitutional provisions wither away by (Inaudible), or the words that were adopted by the country in Section 2 of the Fourteenth Amendment, are less important today, simply because they have not been invoked in other occasions in which they might have been appropriate. Thank you very much, Mr. Chief Justice.
Warren E. Burger: Thank you Professor Wright. I think we will recess.