Speaker: -- highly relevant. We view the statute only as it bears on American citizens now residing on the mainland who are educated in Spanish language schools in Puerto Rico. And it's the only question presented by this case, and it is as a practical matter, probably the only application of Section 4 (e) that will ever arise. We first rely on Article 4, Section 3 of our Constitution which provides, “That Congress shall have power to make all needful rules and regulations respecting the territory belonging to the United States”. And the Treaty of Paris in 1898 by which Puerto Rico was ceded to the United States provides specifically at the civil rights and political status of the native inhabitants of Puerto Rico shall be determined by Congress. And this was implemented over and over again by granting citizenship in 1917 to the residents of that territory. The question here is whether Congress is now powerless to effectuate its policy with respect to Puerto Ricans who moved to the mainland by providing a shield against state laws which disqualify them from voting. And getting to this, I emphasize two points. The fact that Spanish yesterday and has for several decades been the language of instruction in Puerto Rican schools, is ultimately directly attributable to the Congress of the United States, which while it had direct control of the educational policy of Puerto Rico, did make a slight effort to impose English as a predominant language but abandoned that effort. And with the knowledge of the consequences, gave the control to locally elected officials knowing full well that those officials would continue to use Spanish as the language in schools. And in 1952, the agreement was made and so as of that date on, there was no question that Congress deliberately set upon the path of having Spanish to be the language spoken in the Puerto Rican public schools.
Earl Warren: General, on what -- about what time did the -- that Congress first recognized that the rights of Puerto Rico to conduct schools in Spanish?
Speaker: They were --
Earl Warren: Was that before their constitution or at the time of their constitution?
Speaker: It was when we had charge of it back in the -- after the Jones Act.
Earl Warren: Yes.
Speaker: We tried to get them to put in English of the predominant language. And the reports came back, I don't remember the exact date but the reports came back that would -- dissented in 1946 but the reports came back that it was not working. You couldn't establish a bilingual school system because the large percentage of the community, the home and everything spoke Spanish, and the only time the youngsters spoke English was in school. And so they've just abandoned it. They did make some people say, “I have hardly attempt”, but an attempt was made. And in 1946, it was just abandoned completely. And finally in 1952, we get to the point of the absolute freedom. The fact that we had control of this policy and the fact that we knew exactly what we were doing. And in addition, encouraged the Puerto Ricans to come over to the mainland was a responsibility that Congress recognized in considering whether or not it would adopt 4 (e). And the fact that Puerto Ricans have come to the mainland particularly to New York City and nearby areas in large numbers, is likewise attributable to Congress. They have even charged by the treaty of cession with determination of the civil and political rights of the people in Puerto Rico granted them their citizenship as far back in 1917. After that, this was when they encouraged them to come to the mainland. The upshot is that Congress is largely responsible for the present predicament of Puerto Ricans residing in the States who are educated and otherwise qualified to vote but who are denied the voice in the political process solely because they do not read and write English. It was therefore quite natural that Congress should feel a moral obligation to remedy a problem of its own making when the affected states declined to solve it themselves, and New York refused to it even though several bills were introduced in the last few years. The legislative history, I submit, is clear that Congress acted in this exact spirit. Now the effect of the legislation is simply this. Section 4 (e) does not overwrite the state literacy laws even for Puerto Ricans. Insofar as the State choose to limit their electorate to those who demonstrate by educational achievement the requisite intelligence and knowledge to participate in the electoral process. Section 4 (e) respects that. In a moment, we'll take up the one arguable point objection that it permits voting by persons, of course, he cannot read and write, cannot keep abreast of what's going on. Indeed Section 4 (e) does -- opposes no serious administrative problems and this is particularly true in New York State. This law, 4 (e), was tailored to the law of New York, which was the most directly affected state. No Spanish literacy test is required to be administered and New York doesn't have to workout a test or anything. The Spanish speaking Puerto Ricans are permitted to prove their literacy only by demonstrating but they've completed the sixth grade, which is the same grade incidentally in English, in the State of New York. Now, Section 4 (e) has an appreciable impact in only parts of four other states -- three other states; California, Connecticut, and Massachusetts. And there it does not produce any uninformed voters. Although 19 states have some kind of English literacy qualification for voting, only the four name have a Puerto Rican population exceeding 5000. When there is a substantial Spanish speaking population, there are also as one would expect Spanish language newspapers and radio, and television programs to inform that growth. For example, in New York, there are three old Spanish newspapers. There are three old Spanish radio stations. There are indeed Spanish speaking television programs. And although it's not directly involved in this case, we show that in California, there's one wholly Spanish daily newspaper, two other parts Spanish weeklies, 68 radio stations with some Spanish language programs including five wholly devoted to Spanish. And the political candidates in affidavits clearly in the record show that there had not any difficulty in getting a story over to Spanish-speaking people either in New York or Connecticut or indeed in Texas and California. Thus, as I see it, Section 4 (e) works only a slight impingement on state voting qualifications. It is not in exercise of federal power writing raw shot over local laws but rather a careful and reasonable accommodation that respects in every possible way, legitimate local preferences.
Byron R. White: Mr. Solicitor General, by the same token would the ballots have to be in both languages?
Speaker: No sir, the ballots would be in the same language. Their ballots have been in English. It's not been changed in the ballots at all.
Byron R. White: Even though now -- even though the people who used the English ballots can't read it.
Speaker: They can read the names.
Byron R. White: Well, how about --
Speaker: And they can --
Byron R. White: How about the constitutional amendments?
Speaker: Well, the constitutional amendments are only brief -- the whole amendment --
Byron R. White: I know they're brief alright but the people who -- if people could read those they could pass an English language literacy test.
Speaker: Well the -- the part Mr. Justice White is that the informed voter reads the constitutional amendment some place outside of the booth before he goes in it. And the Spanish speaking literate person would read it in Spanish. And if he decided that he was in favor of proposal number one, he would pull to leave it down, yes on one because one is the same in Spanish as it is in English, the figure 1.
Byron R. White: So you wouldn't think that if you're right in this case, that New York would have to have ballots printed in Spanish?
Speaker: I don't know of any place where they have dual ballot system. They -- for example in Puerto Rico, they do.
Byron R. White: How about in Mexico?
Speaker: I don't know sir. But I don't think it's necessary that the whole question of the intelligent voter is the study he makes before he goes into polling booth. And he has access to the Spanish speaking newspapers. And they would do the same thing as the English speaking newspapers. They will perfectly.
Byron R. White: I suppose that there had to be Spanish printed ballots why it really means of paper ballots not machine voting, wouldn't it?
Speaker: Well I -- I -- it pairs to me that Congress was very hesitant of putting any burden on the State. That would require the State to do something more for the Spanish speaking citizen than for the English speaking citizen. And it's up to the Spanish speaking citizen to get his information from Spanish speaking sources. And if the affidavit is all showing in the record that in areas where they have large Spanish speaking population, the candidates find a way of getting their story over by putting it to advertisement and et cetera in the newspapers. So I think as of today, I don't know about years ago, but as of today, the Spanish speaking citizen could be just as well advised as to English. They rely on their newspapers, I imagine, and they rely on their radio and television station just like so many of our voters do. In the -- on the question of the power of Congress, in the absence of prohibitory federal legislation, it is of course clear that the states may condition the right to vote upon reasonable literacy tests if they do not discriminate against the class. On the other hand, it is equally well settled that states do not have an absolute prerogative to regulate the franchise as they see fit. Their right to fix voting qualifications is subject to constitutional limitations. And it could be no question about it now when we look at Carrington and Rash, Louisiana State, Harper against Virginia, and more recently South Carolina against Katzenbach. The only question is whether assuming New York's rule is otherwise constitutional Congress nevertheless has power to qualify it in the prevailing circumstances of the people that have come from Puerto Rico. We find such power in both of the provisions. One, that Territorial Clause I mentioned a while ago and two, Section 5 of the Fourteenth Amendment. And we believe that the two should not be considered separately but we will prefer to view them as complimentary one from the other. There is no question that Puerto Rico was a territory in the full sense until at least 1952. And during that time that this Court has said the power of Congress was the broadest possible, indeed, it was plenary, I don't care whether you use the word plenary or not, but it certainly was full. And that during that happened in the century was done pursuant to the Territorial Clause including the establishment of the Spanish educational policy. Congress gave them to grant of citizenship and finally the grant of commonwealth status. Accordingly, it seems wholly appropriate now to invoke the same source of power, Congress to carry out a policy undertaken in the old territorial days of Puerto Rico by granting Puerto Ricans the immunity from discrimination in voting on account of their language. And that resolving the modern problem affect state laws in a modest ways no absolute obstacle. In this respect, it seems to us that territorial powers like the power to implement treaty obligations which clearly may override contrary state laws, nor is it a sound objection that Puerto Rico today are commonwealth, certainly it's a commonwealth. The Court need not resolve the exact status of Puerto Rico vis-à-vis commonwealth status. For present purposes, it is enough that Puerto Rico is not an independent nation and that Section 4 (e) does not in the least impinge on Puerto Rico's right of self-government. Surely, the subsisting force of a Territorial Clause with respect to Puerto Rico is sufficient to authorize this winding up of the Puerto Rican problem on the mainland. And now on Section 5 of the Fourteenth Amendment and I emphasize we would appreciate consideration of the two priorities together. We think that under Section 5 of the Fourteenth Amendment, Congress certainly had the power to pass 4 (e). And we point out in quite detail in our brief the legislative history of the Fourteenth Amendment, the early post civil war legislation of Congress and the decisions of this Court all indicate that Congress has power, sometimes a duty, to determine the content of equal protection, and that courts are bound to respect such determinations within proper limits. Even if independently they could not invalidate the inconsistent state laws. We submit this is a peculiarly appropriate application of that principle. Here, Congress is effectuating its policy and correcting a situation of its own creation. Here, Congress is protecting its formal words toward whom it has special responsibilities. Here, Congress is dealing with the subject matter, the electoral process which is certainly clearly within its area of special comments. We submit that Judge McGowan dissenting below and the three-judge court in the companion Monroe-Kelly case through Judge Kaufmann were correct. The constitutional challenge to 4 (e) of the Voting Rights Act of 1965 must be rejected. The majority opinion below and indeed the appellees in this Court insist that the Lassiter case is the absolute authority for the protection of the New York law. And I just went over the Lassiter case again and I found the word ‘English' in one spot, and that was in the footnote quoted in the statute. There was no question in Lassiter about whether or not the petitioner in that case could speak English. Let's assume that if the petitioner was born and raised in North Carolina that has a compulsory educational system, they could speak English. The Lassiter case merely passed on the question of a literacy test. And in New York, New York still has the same protection on literacy with or without 4 (e). If the person is born and raised in Puerto Rico in order to vote, that person must be as literate as the English speaking applicant. Both have to show at least a sixth-grade certificate in a recognized school one being Spanish and the other being English. I believe further as Judge Kaufman said in the Monroe County case that Congress set out to eliminate all vestiges of discrimination into voting process. Congress dealt appropriately with the problem in the South insofar as a Negro was concerned. And once advised of the problem in New York, Congress sought to complete the job and make certain that people who were citizens of the United States and who were brought up in Spanish speaking areas on the territory of the United States that they in turn should not be discriminated against solely because of the fact that they could not speak and write and understand English as such. If I could save the time for rebuttal.
Earl Warren: You may. General Rankin.
J. Lee Rankin: Mr. Chief Justice, may it please the Court. I will seek to try to avoid any repetition of the argument of the Solicitor General. But I would like to indicate to you the great interest of the City of New York in upholding this action of the Congress of the United States in 4 (e). We are dealing in this case with the power of Congress to act. That is the question subject to inquiry. We find ample power for Section 4 (e) in the Territorial Clause alone. We find ample power for Congress to act in Section 5 of the Fourteenth Amendment alone. We find ample power in combination of those two provisions to our Constitution. We also find power in the United Nation's Charter Article 55 and the adherence of the United States to that treaty. In examining this question, we think that the Court should turn to try to determine what Congress was doing, whether it had the power not whether it was justified in the Act that it undertook. The wisdom, the soundness of the judgment in passing 4 (e) is not a subject that this Court will examine.
Speaker: Does the legislative history indicate what power (Inaudible)
J. Lee Rankin: It seems to me, Mr. Justice that the Congress was relying upon Section 5 of the Fourteenth Amendment.
Speaker: (Inaudible)
J. Lee Rankin: Yes, Mr. Justice.
Earl Warren: Preamble stated, so stated isn't it?
J. Lee Rankin: Yes, Mr. Chief Justice. However, I don't think that this Court if it found that that particular clause of the Constitution did not sustain the Act, it would stop there under its decisions. It would always look to the entire framework of the Constitution to find out if Congress had the power any place within that framework to pass this law as a part of its legislative function. So the question is what Congress was doing within its powers? And I think that under the holdings of this Court, the Congress has -- and this Court has recognized, a peculiar power to try to ascertain the extent of the facts and the responsibilities that it should exercise in the legislative process. And turning to that, we must examine the problems that this country had, that Puerto Rico had, that New York and New York City had in connection with this particular matter. Those were the things that Congress was addressing itself to. First, Puerto Rico as a territory was the ward of this country. This Court has recognized as has the Congress and the executive of this Government that there is a peculiar responsibility to such wards. The United States tried with considerable care to develop the system of education that would incorporate the English language as a basic tool of communication for these people. And it found that it wouldn't work. It found in fact that it was interfering with the ability of these people to learn. And it was only after repeated attempts of that kind that the Congress of the United States recognized its failure and decided that the primary consideration for these people was to aid them in the learning that was necessary to be good citizens of Puerto Rico and later of the commonwealth in the development of this area of our country. And therefore, proceeding upon the knowledge that Congress had and the knowledge that it gained from the experience that it went through, yet finally in 1946 abandoned all efforts to try to make these people learn English as the basic tool of communication and learning. And that was a congressional act carefully undertaken in the light of very difficult experience and knowledge of failure. Now, it appears to us that Congress recognized a responsibility in passing 4 (e) in light of this experience and history of the country.
Potter Stewart: Was that the change of policy with respect to the language to be taught in the Puerto Rican schools, resolution of Congress or an act of Congress or something decided at the administrative level or what was it?
J. Lee Rankin: It seemed to me (Voice Overlap) that it was done pursuant to the abandonment of the efforts of determining who the secretary or the person in charge of education in Puerto Rico would be. And we had under the supervision of the United States tried to have that appointment made by the executive and the English language taught over a considerable term I think from 1916 on. And as I recall the history, we even got to the place where the Commissioner of Education gave up and resigned because of the complete failure of the program. And we found that we couldn't even get people to hold the office to try to teach these people and develop an adequate learning system and educational program if we try to force English upon them. And I assume although I can't document this, that they had to deal with everything around them in their life that was denominated and had Spanish names, Spanish experience, Spanish culture, and they try to convert that. As we all know, the process of translation back and forth is a difficult one for all us from one language to another while if you can think on the language. And if you can become skilled enough even in the foreign language to think in it, the process of learning is much easier. Now that --
Potter Stewart: Well I understand the problem, Mr. Ranklin.
J. Lee Rankin: Yes.
Potter Stewart: It's an interesting chronicle but I was wondering, where can we find -- where -- who made that change of policy in 1946, was it our Congress, was it our executive, or was it made in Puerto Rico with our acquiescence or where can we find that either in the record or some of the briefs?
J. Lee Rankin: I think from the Government's brief, it describes the fact on page 16, the difficulties that the Congress had with the whole subject, and finally concluded that it should abandon the efforts to try to teach these people in English, and wouldn't allow them to go back to the Spanish and the Spanish culture as their basic tool. Then of course in 1917 with the Jones Act, the Congress had provided for these people to have citizenship and to be permitted to enter the United States like any other citizen. And it is true that it was after this time that the great influx of Puerto Ricans came into New York and particularly New York City. I think there were seven or 8000 in earlier period and later it become some 700 or 800,000. I want to stop for a moment where the Court make a claim that the problem is not that large. The problem is something like 8146, I think who registered under Section 4 (e) in this particular matter and is now involved. It may -- it probably is little larger than that because there is a possibility that others who could register did not as it is always the case. I think that factually in regard to Mr. Justice White's question, the treatment of Spanish speaking people within the New York area is one factor that the Congress seem to be well aware of in connection with the legislation and should be recognized, I think, in the examination of the question by this Court. The Spanish language papers make a very complete coverage of all political matters in the area. They are eager to cover all of the happenings of political action in the New York area and they do. They also cover all of the wire services, they translate them into Spanish. They set out the various provisions of speeches and constitutional amendments. Any other particular political action in Spanish, denominate them so that the Spanish people can find them on the ballot. And there is no question about these people being able to make an intelligent use of the ballot even though they are Spanish speaking. Therefore, I think that that factor is one that is important for this Court to consider in examining whether Congress have the power. And in exercising that power, whether it exercise it within the limits of what Congress may do in considering whether that such legislation is proper to preserve the franchise for this substantial group of people who have been and are the wards of this country in their living within New York City. Now, as I read Lassiter, this Court did not say that the States could pass any kind of limiting legislation upon the franchise as far as qualification of voters are concerned. This Court was addressing itself, as I see Lassiter, to the basic problem of whether or not the voter could exercise an intelligent use of the ballot. And this Court has addressed itself within the last few years to many problems in this field. But if it had not reach that point earlier, we certainly have reached the point today where we recognize that one of the greatest rights any citizen of the United States can have is the right to vote, to participate in a genuine, full, and complete vote on matters, issues, and persons in the electoral process. So in light of that and the gloss that it presents, I think that Lassiter can only be read with the idea and the concept that this Court was searching to find whether or not the States were infringing by the qualifications they imposed.
Potter Stewart: But you said at the very outset of your argument, General Rankin, the question here is quite a different one. This issue in this case is the power of Congress, the power of Congress to pass a specific piece of legislation. Quite a different issue from the one that you had before us in the Lassiter case, isn't it?
J. Lee Rankin: Yes, Mr. Justice. But I think it has this factor that of whether or not, this Court was recognizing that the States had an unlimited power to impose qualifications upon the right to vote. I --
Potter Stewart: Certainly, we all know that it's not unlimited.
J. Lee Rankin: Yes.
Potter Stewart: Carrington against Rash shows that but the -- but even assuming that the State did have an unlimited power in the absence of an act of -- an act of Congress. Here we have an act of Congress which obviously is in conflict with the New York statute and the question is that power of Congress under the Constitution which is quite a separate and distinct and different question from the question before us in the Lassiter case. Now, you said that the outset of your argument --
J. Lee Rankin: Yes.
Potter Stewart: -- and neither you nor I misunderstand these reports here.
J. Lee Rankin: No, that's my -- exactly correct, Mr. Justice. The only thing I was trying to start with was that Lassiter does not prevent the Congress from taking this action. And I assume that that would be conceded. Then it's a question of whether or not the Congress had the power to take this action under the provisions of the Constitution. And we find that, as I said, in the Territorial Clause and in Section 5 Article 14. Now, I think that Section 5, this Court has recognized, Congress has a peculiar right and opportunity to assess the -- of whether or not the provisions of the Fourteenth Amendment are being infringed upon.
Speaker: Well, were there any findings by Congress with respect to this Section or with respect (Inaudible)
J. Lee Rankin: No, Mr. Justice. Not that I recall.
Speaker: Then what in effect did Congress said (Inaudible)
J. Lee Rankin: Yes, Mr. Justice. And I think that they carefully examined the --
Speaker: (Inaudible) as to what Congress said?
J. Lee Rankin: There's no question in my mind that the ultimate question of whether Congress in saying that was exercising properly or within the range of its full powers, its authority under the Constitution is finally for this Court to determine. But I'm trying to deal with the standards that this Court would apply. And it would seem to me that in applying those standards, the Court would inquire, well did Congress just liberally take this action or did it examine the various factors that would be involved. And one of the factors that seem to me, that the Congress did examine carefully was whether or not there could be an intelligent exercise of the function of the elector under or by the Spanish speaking citizen, under the law as it was being passed in 4 (e). And whether that person, despite the fact that he was Spanish speaking, could be under the circumstances that Congress reviewed anew existed in New York, could be an intelligent voter in the process. And therefore, should have some action taken because of that and also because the gloss of the experience of the United States in connection with Puerto Rico over the years. And the further fact that we were responsible in a substantial measure for the fact that these people found themselves in the position that they were in about their educational process concerning the Spanish language. And in light of all of those things, whether or not, Congress in deciding under Section 5, that this law should be passed to implement and carry out the provisions of the Fourteenth Amendment.
Speaker: Fourteenth is equal protection, is it not?
J. Lee Rankin: That's right. Was justified at all in any way under the Constitution in taking such action, it seems to me that is the basic test. And Congress having taken that action, and in light of all of the circumstances, it seems to me then the Court addressed itself, is there any way that we can find under the whole Constitution, under this provision, that Congress was in fact justified or if it wasn't justified -- I don't think justified is even the proper measure. Could Congress, under the Constitution, make a determination that this was a proper exercise of Section 5 power to implement the Fourteenth Amendment under equal protection? And if there's any way that this Court can find that Congress had such a power even though this Court would decide, we certainly wouldn't do that. We would say that everyone in the United States before you can vote has to be able to speak English. That is not the test and this Court would --
Abe Fortas: Suppose -- suppose Puerto Rico were federated state of the union and everything else remains the same, that is to say that principal language of instruction for some reason with Spanish and Congress passed 4 (e) for the purpose of making sure that there was perhaps no discrimination against the citizens of that federated state of the union who might move to New York and satisfy the resident requirements there. What would your view be of the constitutional result?
J. Lee Rankin: Well, I think if you assume the history that Congress was dealing with here, that there'd be no question of its power to pass 4 (e) in regard to Puerto Ricans who were members of an independent or members of the state of the union. They could certainly take that action to provide adequately, assuming the standard is what are the qualifications that can be imposed upon a voter?
Abe Fortas: Well, is it your argument that the constitutionality of this 4 (e) is less because Puerto Rico is a -- is a commonwealth? That is to say --
Speaker: Puerto Rico (Inaudible)
Abe Fortas: If Puerto Rico were a federated state of the union, I suppose your position would be that the Equal Protection Clause would apply and perhaps also some other provisions of the Constitution might come into play.
J. Lee Rankin: Yes. I would say that as a commonwealth or when it was a territory that the obligation of the United States under the Constitution to them was even greater because at that point they were and our wards.
Abe Fortas: Well at that, I must confess a whole lot of argument baffles me. That is to say you're arguing that the -- if Puerto Rico were a territory, it's now a commonwealth. The word ‘territory' that by virtue of the Territorial Clause, the obligation of the Congress and power of the Congress with respect to citizens of the United States, resident -- Puerto Rico would be greater than its obligation and power with respect to citizens of the United States who reside in sister states. That must be your argument, is it?
J. Lee Rankin: Well, only in this respect that I think this Court has recognized in regard to its wards in the territories, that it -- the United States has had a special obligation to care for them because they didn't -- the people didn't know these territories, did not have the same kind of rights that people in the States have in the conduct of their own affairs. Now, as the common -- under the commonwealth, the relationship was changed and there is no question to what Puerto Rico has the absolute right depending upon the examination by the present commission of the full extent of what was done by that relationship. But generally, as to its internal affairs, that was what that arrangement in 1958, as I recall the date, was to try to accomplish, was to give it to control of its internal affairs so it could advance them and develop in the remarkable manner that it has. But it seems to me this Court has said a number of times that the United States does have a special obligation in regard to territories that he has taken over and has found people there as its wards, and that's the only distinction that I was trying to make.
Abe Fortas: I just want to ask you one more question. Suppose New York stated after the statute that said that people who come to New York State from Massachusetts can vote if they comply with qualifications A, B, and C. But if they come to New York State, from Illinois, then the qualifications are different. I stated quite clearly that it would be invalid for some constitutional reason, wouldn't you?
J. Lee Rankin: No question about that, Mr. Justice.
Abe Fortas: Now, it seems to me that one way to view the question here and I'd like to comment on this, is this. Suppose that there were a federated state of the union in which the language of instruction in the schools was Spanish. Is it within Congress' power to enact a law that is designed to put those people arguably on the same footing so far as voting in New York is concerned as people then were educated in other federated states of the union.
J. Lee Rankin: Mr. Justice, I think there's no question about Congress having such power. I think that it can proceed to legislate, to provide and take care of that kind of a situation. Now, it seems to me that this case is a much easier one then that because of the situation where you have a history of the language and you have a history of the Congress examining the question of whether or not these people could be intelligent voters despite the language difference. And of course as the Solicitor General said, it is the same standards, that is six years of schooling that is set forth for 4 (e).
Potter Stewart: There's no consideration of the 4 (e) in the committee of either house, was there?
J. Lee Rankin: That's my recollection, Mr. Justice. There was none.
Potter Stewart: There was something added.
J. Lee Rankin: That's right.
Potter Stewart: Something new that was added to it after --
J. Lee Rankin: Yes.
Potter Stewart: -- the considered of the basic legislation by the committee, wasn't it?
J. Lee Rankin: Yes.
Potter Stewart: Is this the only part of the Voting Act and Rights Act of 1965 that is grounded on anything other than the Fifteenth Amendment?
J. Lee Rankin: I haven't made a careful enough study of the -- that Act to know what the Government's brief does not indicate that any other part of it was grounded upon (Voice Overlap) --
Potter Stewart: Basically, it was Fifteenth Amendment legislation, was it not? That was the president's message. That was the -- and that was the consideration of the -- it was given consideration by the committees and the two houses on a -- upon the Fifteenth -- this is Fifteenth Amendment legislation, was it not?
J. Lee Rankin: Mr. Justice, my recollection in the newspaper counts that was all that I would thought.
Potter Stewart: As you know it was recently, the courts after they've decided --
J. Lee Rankin: Yes, South Carolina.
Potter Stewart: -- other more generalized provisions of the statute.
J. Lee Rankin: Yes. But I would not hesitate to stand before you and urge you to consider that legislation being constitutionally valid. If you could find any place within the Constitution, you know the Congress have decided only the Fifteenth Amendment.
Potter Stewart: I think on valid grounds.
J. Lee Rankin: And I'm sorry I can't be more precise about my answer but I think that you're entirely correct from my general recollection that I have examined carefully.
William J. Brennan, Jr.: Mr. Rankin, may I ask, insofar as your argument rests on the Territorial Clause, do we have a problem here in the fact that 4 (e) is not a regulation of anything within the borders of Puerto Rico but it's a regulation of voting within the State of New York. Is the Territorial Clause in any respect a limitation to the regulation of the internal affairs of the territories?
J. Lee Rankin: I find no such limitation in the clause and I don't find that this Court has ever said that it is --
William J. Brennan, Jr.: Have we -- have we ever been confronted with that precise question before?
J. Lee Rankin: No, not that I know of. I don't know whether the Philippine case could in anyway shed any light on that or not. If you recall in that case, the Court said that after it became independent, the persons who are then within the country had become aliens. But I don't believe that involved precisely.
William J. Brennan, Jr.: And with the Boyd case, wouldn't it?
J. Lee Rankin: Yes.
Speaker: Boyd was supposed to (Inaudible) Mr. Justice Brennan's question. Congress I should say were in the authority (Inaudible)
J. Lee Rankin: No, Mr. Justice, I --(Inaudible)
J. Lee Rankin: I think that this Court would examine whatever Congress undertook to do, give great consideration to whether there's any justification or any power on which the Congress could rely and would try to determine whether it was properly or it was trying to carry out some responsibility toward that territory. And I think against that, it would have to weigh whether it was just wiping out the proper area of the states to act to try to continue and develop as states of the union. I think it would be that kind of a problem but I don't say that you could just -- but I think that's quite a different case than this.
William J. Brennan, Jr.: But I think -- I think you also argued, am I right with your argument, independently of the Territorial Clause, there is a source of congressional authority for 4 (e) in Section 5 of the Fourteenth Amendment standing alone, is that it?
J. Lee Rankin: Yes, Mr. Justice.
William J. Brennan, Jr.: And is that do I correctly understand that that goes something like this that the purpose of the literacy requirements limited as they are to sixth grade education, is largely to give some assurance that a voter will intelligently approaches responsibility as to vote. And that if this may be as true of the Spanish speaking voter as of the English speaking voter, then Congress may denounce as discriminatory under the Equal Protection Clause whether or not this Court could independently, could say that the Clause independently did this. That Congress at least under Section 5 can denounce that as discriminatory if it finds that indeed the sixth grade Spanish-speaking education is in terms of assuring what kind of voter you get just as good as a sixth grade English speaking education, is that it?
J. Lee Rankin: Yes, Mr. Justice. And I arrived at that on the assumption that this Court has reached the place where it recognizes qualifications of voters in the light of the fact that the right to vote is so precious under our constitutional system, that such qualifications cannot be made unless they fairly contribute to an intelligent exercise of the ballot of the electoral process. And at any time that the States depart from that kind of a standard, it would not be recognized by this Court as a valid exercise of their function in fixing qualifications. That they are not free to just say, “We shall composed certain qualifications on the right to exercise the franchise.” That day has passed, if it ever existed. And we have reached the point where those qualifications are to reach the basic question of whether or not this person can exercise the franchise intelligently and properly so thus to advance the interest of the State and the Government generally.
William J. Brennan, Jr.: Now, more -- most recently, if I may ask you this last question, in a week or two, we decided the Guest case in which the Court said something of the scope of Section 5 power as giving the Congress power to do things that perhaps Section 1 of the Fourteenth Amendment of its own terms, of its own force, was not reached. Do you find any assistance for your argument in what we didn't get here?
J. Lee Rankin: Well, it seems to me of recognition that there is more to Section 5 than is found in Section 1. And that the Congress and the country in adopting the Amendment intended that there'd be more. And I think that adds to the -- what you can find to support the action of Congress. I just like briefly to say that I think in Article 55 of the United Nation Charter, there is further ground in the treaty power of the United States to support this action of the Congress in trying to carry out the obligations that the United States took upon itself in connection with that entire program under that charter. And furthermore in our representing to the United Nations in order to induce it to accept the fact that Puerto Rico had different status than mandated or other special colonial or that type of relationships when we represented to them that Puerto Rico was a commonwealth and that we would conduct our relationships in accordance with that standard and that agreement. And therefore, the United Nations proceeded to decide that it was not in a character of other country's territories that were subject to its other provisions. And under that treaty power, the United States did take this action. It presented it to the United Nations and upon that ground, the United Nations acted and we think it recognized an obligation there to try to carry out the fact that it had agreed under Article 5 not to discriminate against people because of the language they used. Therefore, may I suggest to the Court that there is ample ground on the three provisions of the Constitution that I've suggested. The Court will look at the entire Constitution with all of the amendments, find the power that Congress had the power that the only issue here and it is one more step in our trying to help people of this country to participate in the electoral process where their greatest rights lie. Thank you.
Earl Warren: Attorney General Colon.
Rafael Hernandez Colon: May it please the Court. Let me present my respectful greetings to this Honorable Court as I appear before you for the first time. The facts in these cases are undisputed and they have been adequately presented to the Court by it two distinguish solicitors that have preceded me. Therefore, I will not belabor the facts but I will go directly to the matters which bring the Commonwealth of Puerto Rico before you today. The relationship between Puerto Rico and the United States dates back to the closing of the 19th century when Spain ceded the Ireland to the United States as a result of the Spanish-American War. A territorial government was established by Congress in 1900 in the exercise of its territorial powers under the powers it derived from the Treaty of Paris. In the insular cases, this Court characterized Puerto Rico as an unincorporated territory belonging to but not a part of the United States and as such, under the plenary powers of Congress to legislate for the Ireland on turmoil by the provisions of the Constitution generally applicable to the state and Federal Government as a body in union. In 1917, the Congress passed an organic act which granted Puerto Rico a wider measure of self-government and which granted American citizenship to the citizens of Puerto Rico. As a result of this legal relationship, an increasing number of Puerto Ricans began to migrate into the United States. This migration has continued to the present when there are almost 900,000 Puerto Ricans who are settled in the 50 states of the union with concentration in New York City. When the United States first assumed its responsibilities over Puerto Rico, it attempted to establish English as a language of instruction in Puerto Rican schools. Cultural realities soon forced an abandonment of this policy and Spanish was increasingly used as the educational medium. As a result, the Puerto Ricans who migrated into the United States brought with them a Spanish cultural and educational background. All of these prevailed throughout the period which extended up to 1952 during which the Congress retained plenary powers over Puerto Rico and during which the Commissioner of Education who set the policy regarding the language of instruction was a presidential appointee. In 1952, the former legal relationship of Puerto Rico as dependent territory to the United States came to an end. The Congress enabled the Puerto Rican people to ordain and establish their own government through a written constitution which gave Puerto Rico exclusive control over its local affairs among which was the education of its people. The newly governed relationship that evolved has become known as a compact of association between Puerto Rico and the United States, the nature of this status is not one of the matters that are in issue before the Court today. This new status permitted the United States to secure exemption from the United Nations' supervision over Puerto Rico as colonial territory and pursuant to Article 73 (e) of Chapter 11 of the United Nations Charter, it was necessary to assure the United Nations among other things that Puerto Ricans were not subjected to having any dominant language imposed upon them as a condition to enjoin the basic rights of citizenship. Under the cultural autonomy guaranteed by the new status, Puerto Ricans have been educated completely in the Spanish language and English has been taught as a second language. The net result of this policy has been that Puerto Ricans with only grade school or some even with high school education are not functional literates in the English language though they are so in the Spanish language. The new status had preserved the common American citizenship for the Puerto Ricans and the freedom of movement to and from the States. The migratory pattern has continued and a circular movement of persons from Puerto Rico to the States and back to Puerto Rico is an ever present characteristic of the Puerto Rican-American Association. Presently there are about 730,000 Puerto Ricans living in New York City. About 400,000 -- 480,000 are of voting age. Less than one-third of these or approximately 150,000 are registered to vote. There are no exact figures as to how -- how many of the unregistered 330,000 are literate in the Spanish language but it is perhaps relevant to point out in this connection that the literacy rate in Puerto Rico is 83%. It is the policy of the Commonwealth of Puerto Rico to help migrant Puerto Ricans integrate into the mainstream of American life. It maintains a program of instruction for those on the island, for contemplating to move to the States. It has established offices in major cities to assist both the migrants and their new host in their adjustment process. It carries on intensive programs in mainland city to urge Puerto Rican migrants to go to night school to improve skills and learn English or in order that they may play a more meaningful role in the communities they have chosen to join. Nevertheless, there is no device more effective in procuring the integration of their people to a community on the free, unrestricted and universal use of the franchise. The power of the vote more than anything else is the key to better living conditions, to better jobs, to better treatment at the hands of officials, and to better opportunities to enjoy life as a whole. But as pointed out above, out of 480,000 Puerto Ricans of voting age in New York, only 150,000 are registered to vote. The remaining 330,000 may be unregistered for a number of reasons, but the principal reason that we know of is that New York law requires a literacy test in English and that it provides that only an education in the English language is presumptive of literacy. It does not matter to New York State that the Puerto Rican is a natural born citizen that he has been educated in American flag schools in Spanish, that he knows civic and government, that he reads Spanish language newspapers and periodicals in New York which informed him fully about issues and candidates, that he listens to Spanish language programs of news and information in radio and television. When it comes to voting, the Puerto Rican cannot show his education in American flag schools as evidence of literacy even though his English speaking brother may show his education in place of taking the literacy test.
Byron R. White: Mr. Attorney General, what is an American flag school?
Rafael Hernandez Colon: A school that is conducted anywhere where the American flag flies with jurisdiction over the particular area where the flag might fly.
Byron R. White: Where --
Rafael Hernandez Colon: For instance, Guam. For instance, the Canal Zone. For instance, Puerto Rico.
Byron R. White: All -- are all Puerto Rican schools American flag schools?
Rafael Hernandez Colon: Yes, they're all American flag schools because the American flag flies over Puerto Rico.
William J. Brennan, Jr.: That is not a matter of American money support, is it?
Rafael Hernandez Colon: Not necessarily.
William J. Brennan, Jr.: For example your school system is supported locally, isn't it?
Rafael Hernandez Colon: Yes, it is supported locally though we get the grants from the Federal Government also.
William J. Brennan, Jr.: Under the general grant made?
Rafael Hernandez Colon: Yes, Your Honor.
William J. Brennan, Jr.: Which you double quote?
Rafael Hernandez Colon: Yes, Your Honor. Section 4 (e) of the Voting Rights Act of 1965 merely removes this unwarranted discrimination to which I just referred myself. It does not nullify illiteracy requirement of New York City. It simply allows American citizens educated in Spanish, in schools where the American flag flies to also show their education as evidence of literacy thus removing the discriminatory inequality to which they were subjected to by New York law as against their fellow citi -- fellow American citizens who were educated in the English language. Section 4 (e) corrects the deep feeling of injustice of the Puerto Rican voters in New York who could see no reason why their education was not as good as that of their English speaking brothers for voting purposes. It puts the graduates of Puerto Rican schools on an equal footing with graduates from other American schools as far as literacy is made a requirement for the exercise of the franchise. The Fourteenth Amendment calls for the Equal Protection of the laws and Section 5 empowers the Congress to make back directive effective through appropriate legislation. Historically, both the Congress and the federal judiciary have been called upon to enforce the amendment by decision or by legislation. In this case, it was the Congress who took the initiative to relieve the Puerto Ricans of the unequal burden put upon them by the laws of New York; that decision of Congress is entitled to all due respect from the judiciary we just customarily granted the legislative branch wide latitude in making these judgments. In this case, the Congress assessed a number of factors especially suited to a legislative and political judgment. Let me state what they were. The relationship of Puerto Rico to the United States, the international commitments of the United States, the grant of American citizenship to the Puerto Rican people, the substantial migration of Puerto Ricans into the United States, the cultural autonomy of Puerto Rico fostered by Congress, the struggle of the migrant Puerto Ricans in the United States to integrate into their mainstream of American social economic and political life, and most important of all, the reasonableness of the requirement of English literacy as it bears upon the intelligent use of the franchise in the linguistic environment of New York City. Having weighed all these factors, Congress concluded that it was necessary to correct the legislation of New York in order to strike out the inequality which resulted for the literate American citizen educated in an American flag school in Spanish. This judgment is fair and reasonable. And the result in legislation is entirely within the bounds of the fifth section of the Fourteenth Amendment. This construction of the Constitution which the Court is called upon to make today would permit the Congress the necessary latitude to deal with justice towards the people with whom the country is associated in a bond of friendship, mutual respect, and good will. As technological progress brings all the people well closer and ideological differences tend to divide them. This Court should keep its eye as it always has in the needs of this nation for an adequate legal framework with which to face the challenges of tomorrow and with which to adapt to a complex future.
Earl Warren: Mr. Navins or Avins whatever.
Alfred Avins: Avins, Your Honor. If Your Honors please, I do not intend to argue today the reasonableness of the New York statute. I leave this to the Attorney General of New York and to the first assistant and the learned Assistant Attorney General who will argue after me. I intend to spend my time first on the power over the territories briefly and then to go into what I feel are the very large questions about the Fourteenth Amendment very basic and broad questions which I believe that this statute raises. In view of the fact that they were shortly be frank, I will go into the power over the territories first because I intend to talk about that only very briefly before I go into the Fourteenth Amendment on which the statute is purportedly based. Now, I start out with the proposition that there is a distinction between local or state or municipal sovereignty, I prefer to call it municipal sovereignty and national sovereignty. The United States have had territories since 1789 or before that, the Northwest Territories which have been considered to be in wardship of the Federal Government. Under the power of the Territorial Clause, it is my contention that Congress exercises only what we call municipal sovereignty, a sovereignty which is substituted for state sovereignty. In fact the identical sovereignty, which the states exercised as distinguished from national sovereignty under other powers of the Federal Government which Congress has exercised to both the territories and the states. And that any power under national sovereignty must be found elsewhere other than in the Territories Clause. Now, the Department of Justice has argued and made much of that I believe that in other instances, Congress has exercised extraterritorial power of the territories. I concede that point but so have the States. Under the Full Faith and Credit Clause, state law sometimes has extraterritorial effect. Hughes against Fetter is a recent and fairly good example of this, I would think. And my contention is that Congress has power over the territory in giving extraterritorial effect in the identical circumstances that a state law would have extraterritorial effect. And at the same type of a state law would be upheld as it would be upheld under the Territorial Clause -- Territorial Clause in respect to its act of territorial effect. If this were otherwise, it would follow that when a territory which was always considered to be in temporary wardship became a state, it would follow that a citizen of the State would lose rights that he had previously enjoyed under a statute under the Congress' power to govern the territories. Be specific. Let us assume that Puerto Rico became a state. Thereafter, Congress could not pass the statute because it's under the Territories Clause, because in respect to that, it would have no more power. Accordingly, citizens of Puerto Rico who moved to New York would lose rights. And I think it anomalous to think that under a Territories Clause, persons who move from one state -- persons who are citizens of a territory gain statehood status go down in their rights rather than up. I think it were always deemed the citizens of territories certainly had no greater rights than citizens of States, whatever left the rights, whatever the question of whether they have left the rights or not which I don't think it's necessary to go into. They certainly had no greater rights. Now, I look at the question this way. What would happen if the State of Louisiana passed the law saying that all citizens of Louisiana educated in the French language who moved to the State of New York or to some other state which had an English language literacy test, would be entitled to vote provided they have the same level of education. Now, I think it's crystal clear that if one state passed such a law, it would not be enforceable in another state under the Full Faith and Credit Clause because I do not think that a state can give its own law extraterritorial effect. Therefore, I conclude, that if that is so, the identical point follows in respect to a law of Congress under the Territories Clause. Accordingly, the point I therefore make is, that Congress could not as he said it and didn't say it was but could not, have passed the statute under the Territories Clause. And for this reason, even if it were permissible to consider this statute merely under the Territories Clause, a point which I do not, even if it was permissible to do so, the statute would not be valid under the Territories Clause. For the reason, that is an excess of Congress' power to pass because it is not an exercise of municipal legislation. It is not an exercise of legislation similar to a statute for example which says that a gas in a -- an automobile who had an accident in Puerto Rico who was guilty of contributory negligence could not recover against the host. New York of course, would probably require to enforce that under full faith and credit. And that I can see that the Supremacy Clause simply carries over the notion of a Full Faith and Credit Clause in respect to this matter to which it is the identical type of clause in respect to this matter.
Earl Warren: We'll recess now. -- the argument.
Alfred Avins: Thank you, Your Honor. At this time Your Honor, I intend to devote the remaining period of my time to the general question of the meaning of the Fourteenth Amendment and its application in this case, and what I respectfully conceived to be this Court's duty and Congress' duty in respect to the Fourteenth Amendment taken broadly and without regard to the question of reasonableness.
Earl Warren: You discussed the Treaty -- Treaty Clause to all?
Alfred Avins: No, Your Honor. In my estimation, the reason I'm not discussing that is because I conceive that the Treaty Clause gives Congress no independent power. And that if the treaty is outside of the general scope of Congress' power elsewhere, Congress cannot increase its power by making a treaty with the foreign country. I believe that Your Honors observe this fact in Reid against Covert and therefore, I do not believe in accordance with long settled precedent and I think in accordance with the general nature of the Government that the treaty power is not a grant of substantive power above and beyond that which Congress is allowed in those foreign affairs which would have by statute. Therefore, I will not argue -- and in addition, as I believe I've mentioned before, I will not argue the question of reasonableness of the New York statute leaving it to the Attorney General of New York. I might note preliminarily that the Department of Justices' briefs has a great many statistics on Puerto Rico. I believe that the habit of using statistics in briefs started with Muller against Oregon by the late Mr. Justice Brandeis that of an attorney. And I think has increased to the point in which appendices and now all statistics and no constitution. As Your Honors know, I have made a distinct departure from that. My appendix contains all constitution in those statistics. And I leave to the Attorney General of New York and to the Department of Justice the question of, how many immigrants there was average annual rainfall in Puerto Rico and also with some other statistics which in my estimation are wholly irrelevant. The general question, as I conceive it, is what was the scope of the Fourteenth Amendment, in questions of this character? Before I go into that, I intend to got start out which I consider to be a useful starting point with the Dred Scott case which was cited by Judge McGowan below but in a somewhat different context that I am going to discuss. I might say that I consider these questions fundamental and as broad as the hills and not nearly as narrow as I believe my learned opponents contend. First of all, what were the questions decided in the Dred Scott case. One, the Missouri compromises unconstitutional because in violation of the Fifth Amendment. Two, that Negroes were not citizens under Article 4 Section 2 of the old Interstate Privileges and Immunities Clause. Both of these decisions were contrary to what I call egregious historical facts notwithstanding the fact that of the present time it is believe that they were supposed to be in accordance with history. Now, the two things the Radical Republicans cited to show that these decisions were contrary to egregious historical facts were one, as to the Fifth Amendment the fact of the Northwest Ordinance which it could not be presumed Congress intended to repeal by the Fifth Amendment is almost contemporaneous. And two, in respect to Article 4 Section 2, the fact that in June 25th, 1778 South Carolina delegation moved to insert the word ‘white' in the premises of Privileges and Immunities Clause and this was defeated by a vote of eight to two with one state divided. Now, the radicals charged and repeatedly throughout the congressional of debates that the Dred Scott decision was not in fact a judicial decision. That it was a political decision designed to support the Buchanan version of a great society and slave holding ideology. And that it was designed to one, commit the extension of slavery into the territories; and two, most important in respect to Article 4 Section 2, which is necessary to an understanding of the Fourteenth Amendment, was designed to keep free Negroes who were believed to be the natural leaders of slavery out of sovereign states. And I think the horror incident which Your Honors may remember in 1844 is a good example of the dread which the sovereign states have for having freed Negroes declared citizens under Article 4 Section 2. Now, what was the radical reaction to this?It was, in blunt terms that the Tory court, were making political speeches to support the Buchanan and Pierce administration. Now, when the Radical swept into power, the political tide turned, of course. And the political supports of this Court as an institution were withdrawn and decisions how to stand on the question of whether they were on the bedrock of the Constitution. And I think history supports my position that what the Tory -- or the position of the Radical but what the Tory court did was to mortgage the political future of the Court with the then current ideology, which when swept away, swept away the only assets that this Court had to with the prestige among lawyers of all political factions based on decisions, based on the law. And once those mortgages were foreclosed, the Court was left without assets. Of the political nature, of course, Congress retained its power over the person, the executive over the sword that this Court has nothing but power over the law. And I think the Radicals in their speech has pointed out, that as long as this Court -- that as long as the political branches of the Government support this Court's position that the question of whether it makes decisions based on the law, current ideology is irrelevant, but that it needs us -- withdrawn by a change in ideological occurrence, the result is that decisions are swept away. And the Court -- the decisions are then exposed to the gaze of whether they are based on the law. And the fact that the Tory court did in fact shore -- shear itself with the power to do anything is I think exemplified an ex parte Merryman where the Lincoln administration tore up Mr. Justice Taney's writs and used as it a confetti and in ex parte McCardle where the radical congress simply barred this Court from many review. A very legitimate one is protecting the South against the excess of reconstruction. Now, I want to say to Your Honors very respectfully that I see analogies to that case today. And I want to say that in this case, there are egregious historical facts which support the position that I take that the Fourteenth Amendment covers only what were known in 1866 as civil rights and not political rights at all. These facts are contained in approximately 100 pages of legislative history appendix which I have filed with Your Honors. And I will say that I think it would be necessary for the Department of Justice to burn the congressional gloss if they would convince anybody that the original understanding was in accordance with this statute. Now, I believe what is ultimately at stake is the ratification of the Fourteenth Amendment itself which is Your Honor may know rests on the historical compromises of 1876 and '94 in which the South generally agreed not to contest ratification in return for a construction which was strictly in accordance with the original understanding which is very narrow. I think Erie Railroad Company against Tompkins and the opinion of the late Mr. Justice Brandeis is a prototype of what happens, because in that case, the flowering of Swift against Tyson, as I see it in response to the needs of big business after the civil war, and I think I may say the excesses under that decision was such as to lay the groundwork for an examination of the original understanding, and of course, the tail going with the head the Fifteenth Amendment ratification rests with the Fourteenth. Now, I feel entirely justified in saying that this statute cuts a deep gash in the original understanding of the Fourteenth Amendment. And it is back from where I want to go to and that to which I want to spend my time, of course. And I would like to make my position as clear as I can in respect to this question of original understanding. I do not view the Fourteenth Amendment as an accordion which expands or contracts in respect of who's playing the tune. I view it in respect as a fixed document. And my position is that the beginning, middle, and end of all constitutional inquiry is the original understanding of the framers and of the legislative debates are clear. They are conclusive. Cases in the Court are superfluous and those contraries are erroneous. And for this reason, I intend to go to the original understanding and to that alone. Now, I would start out by saying that trying to vote the statute on the Equal Protection Clause is like trying to carry the Washington Monument in the wheelbarrow. Your Honors cannot make it fit because the Equal Protection Clause is much too narrow. It would -- in my estimation, it would require a plastic surgery on the Equal Protection Clause to sustain the statute then I --
Byron R. White: Then -- I gather then, you would think that reapportionment cases are Washington Monument in that sense.
Alfred Avins: Well I'm not -- I think Your Honor that they are equal to the Washington Monument. How much, I'm not entirely certain.
Byron R. White: Then Carrington and Rash at least were very comparable.
Alfred Avins: I'm sorry I didn't quite understand, Your Honor.
Byron R. White: Then Carrington against Rash to be very comparable, I suppose.
Alfred Avins: Well I -- I take the position of the original standing of the Fourteenth Amendment had nothing whatever to do with what were known in 1866 as political rights.
Byron R. White: And so Carrington against Rash couldn't be supported under the original --
Alfred Avins: Under the original understanding, that is correct Your Honor.
Byron R. White: Nor the reapportionment cases.
Alfred Avins: Nor those, there are others.
Byron R. White: Nor Classic?
Alfred Avins: Pardon, sir?
Byron R. White: Nor Classic?
Alfred Avins: Well as far as that case is concerned Your Honor, as I understand it, it was an amount of more than one power that was also I believe that power under the -- the power to control Article 1, I believe, Section 2, federal power over the times, places and manners of holding election. And therefore, I'm not sure that that's not an entirely different inquiry. But I'm now going to the basic question of what --
Byron R. White: Both of those cases.
Alfred Avins: Yes Your Honor, let me -- if I may -- if I may raise one point which I don't -- which the Department of Justice raised in its brief but in a different way. The Department of Justice cited in support of those cases the Enforcement Act of 1870. Now, I did not notice this any place but I want to make one point about that. As reported out and passed in the houses, it was reported out from the Judiciary Committee of the House shared by Congressman John A. Bingham of Ohio who drafted the first section of Fourteenth Amendment often the declaration of citizenship. It would made -- it was made a criminal offense for state officials to fail to collect poll taxes from Negroes. The only other offense is I think was Section 2 was the failure of -- I'm sorry, the failure to register; failure to register or to collect poll taxes. It was broadened in by Senator Stewart in the Senate from the judiciary committee on the grounds of sovereign state by bringing up other prerequisites. But originally the very act possibly to enforce the Fourteenth and Fifteenth Amendments, made it a criminal offense for the State -- for the state officials, election officials to fail to collect poll taxes from the --
Byron R. White: Well what about other rights besides political rights that the Fourteenth Amendment excludes. How about economic rights?
Alfred Avins: Well Your Honor, I -- I want to get into that in terms of the original meaning of equal protection. And then -- and I do fully intend to get into this question.
Byron R. White: Alright.
Alfred Avins: There are -- the Due Process Clause I don't think anybody considers to be relevant. I've seen nothing that anybody can see the irrelevance so I deal with the Privileges and Immunities Clause and which granted privilege and immunities of citizens of the United States to citizens only and equal protection which is granted to all persons, a distinction which I think is very significant. Now, I start out by detailing what I believe the original understanding of the word ‘protection'. Now this is the keyword. Not equal, it doesn't mean equal rights, equal benefits, equal privileges, it means equal protection. It doesn't mean the equal protect -- it doesn't mean the protection of equal law that means the equal protection of the laws. Just a pair of alligator is different from an alligator pair. The word ‘protection' comes from the original draft of Bingham speech and Bingham's draft, giving Congress the power to enforce the privileges and immunities of citizens of the United States derived from Article 4 Section 2 and Equal Protection of life, liberty and property. And Bingham speeches, I think read carefully show that it meant protection of the right to life which is every person even an alien baby is entitled so you couldn't take the life of a baby. Protection of liberty which I think every person is entitled to and protection of property. And Bingham speeches show it meant property acquired lawfully and obtained lawfully personal property, as in the cases like Roth against Slaughter which he has cited in his original speeches. So Your Honors originally, protection, the Equal Protection Clause was designed not only for aliens, for travelers, for resident aliens, for everybody. That's why the word ‘person' is there. And of course I might say this that under the original concept of the Equal Protection Clause, no reasonable classification is necessary because every -- I think one can conceive that every person is entitled to the same protection of life, liberty, and property which every other person is entitled to. In other words, what I'm suggesting is that the Equal Protection Clause has nothing whatever to do with this case as far as its original understanding is concerned. That is to say it is confined exactly, it was merely a redraft, Your Honors may recall that the Bingham draft was postponed in the House. It was postponed because the majo -- many of the Republicans, Hutchinson and Hale and other Republican congresses felt it gave Congress too much power. So it was postponed and redrafted to be a negative limitation on the State similar to the limitation which the old sec -- limitations of Article 1 Section 10 were. Therefore, in my estimation the Equal Protection Clause has nothing whatever to do at all with this case of any kind. I take that broad ground. I realized the broader ground than perhaps it's been put forth in recent years. But I think it's the correct ground when one goes back to be with you on the stand. Now, let me give some illustrations. In 1870, the Enforcement Act was passed, just passed largely to protect Chinese in California who were not permitted to be witnesses in cases. And the right to be a witness was a protection because of course, if a person could not be a witness, it means -- and some of these speeches show that he could be robbed with impunity. And therefore, it was necessary to protect him in this right. This is part, I think, of the word ‘protection'. I therefore deem that reasonable classification has nothing to do with the Equal Protection Clause at all. Now, I turn to what I considered to be the more important clause, to which the Privileges and Immunities Clause. Where did it come from? What was it meant to do? Now, the reason for the Privileges and Immunities Clause was the defect in the -- according to Bingham with the defect in the original Constitution that Congress had no power to enforce Article 4 Section 2, that the necessary improper clause that not give it any power to enforce Article 4 Section 2. Its derogation comes from two different sources, although originally drafted to give Congress that is the concepts, I'm sorry, I shouldn't give the derogation. Derogation comes straight from Article 4 Section 2. And Bingham speeches indicate very clearly that he believed there was an ellipsis in Article 4 Section 2, unlike the democrats who felt was just designed to prevent a discrimination against out of state residents. He believe that the word of citi -- of the United States should be inserted off to the words ‘privileges', that is so what should the citizens of each state shall be entitled to all privileges and immunities of citizens. And after that of the United States in the several states in of the United States being the ellipsis. The question therefore boils down to what was Bingham's concept of privileges, where did they get it from. What did they believe it contain because even if it contained something different by the old framers, the questions what went into the Fourteenth Amendment are also one of Radicals believe it contends. I think it's very clear that the Radicals believe that the Privileges and Immunities Clause which is of course broader than the Equal Protection Clause since they were only right for citizens, well how to be a citizen derive any protection from the Privileges and Immunities Clause, protecting what were known an 1866 as civil rights, that is to say not political rights but rather civil rights as we know in 1866. Now, I think I am supported by many -- by a multitude in this number of citations which I have in my appendices and which I shall not unless Your Honors are particularly interested to meet legislative appendices which I have filed with this Court. But I want to call Your Honors' attention for example to a footnote which I added, to the report of the joint committee on reconstruction of 1866, which I think shows very clearly that the Fourteenth Amendment was reported out to protect only civil rights. Civil rights at that time were believed to be what are known as today as natural rights, or that is to what -- I'm sorry what were known then as natural rights today's concept of natural rights might be a good deal of difference. But they were intended to protect what were known at that time as natural rights. And they were derived from two sources one, the decision of this that Justice Washington on the circuit in 1823 in Corfield against Coryell, which I assume is Your Honors are all familiar with then I shall go through, and two, protections existing already in the Constitution itself, that is all the privileges and immunities were deemed to be those protections which existed in the Constitution, protection against bills of attainder, and so forth, and many protections. I don't want to get into this discussion between if there's a (Inaudible) and there's a famine about whether all the bills of rights or just part where -- but I think at least some of it whether it's the Privileges and Immunities Clause. I don't think any of them went to Due Process Clause. But I think it all went to Privileges and Immunities Clause and for this authority I cite a statement by Senator Pomeroy in 1870 that aliens have no right to petition the United States Senate. It was a privilege of citizens alone, one of the many aspects I think which shed light as far as the original understanding of the framers are concerned. Now, at that what were considered to be civil rights the right to work, the right to travel, the right to raise a family, the right to do business, to buy and sell and own property, that is what were considered an -- and have security therefore, the right to bring a suit, lawsuit, or the things that were considered in 1866 to be civil rights. Among the things excluded for what we known as conventional rights. And I might say again I'm supported in this if Your Honors may know of the colloquy that Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee in 1872, hired with Senator George Edmund, member of the Judiciary Committee in which he said that this was confined to civil rights and does not include the right to go to school, does not include the right to vote, does not include any conventional rights, it just included what were known as basic or natural rights. Now, I suppose the question must be asked, why not -- why then put this back into Article 4 Section -- if it's Article 4 Section 2, why put it in the Fourteenth Amendment. The short answer was that as part of the guarantees, post civil war guarantees, Cong -- the radical congress demanded that the South give it the power to enforce in full these rights. Now, that brings me to the fifth section which I believe has been argued at some length in this case. My position as to the fifth section is I think quite simple. The power to enforce does not include the power to amend. The power to enforce does not include the power to define. The power to enforce is simply the power to enforce what is in the other section. In fact, there were some arguments by the democrats, the power to enforce had nothing to do with its first section at all because it was the third section, a really controversial section, which Congress demanded the power to enforce as Spevack confederates out of public office. Now, my contention is that since in 1866 and 1868, states were free under the Fourteenth Amendment to make up such qualifications for voting the date it shows, that they have the identical freedom today. That is to say that Constitution -- principles of the Constitution remains fixed until amended in the manner, the precise manner which is set out in Article 5. This is what I think is the basic issue in respect to this statute and in respect to this case. That is to say that the historical intent remains fixed. I think I can draw an analogy in this way with a favorite little story by Radical Republicans in 1850, the 1850s about a Vermont judge. They were fond of citing his decision. He was asked to return a slave under the fugitive slave law. He demanded proof of ownership which is entitled to under a fugitive slave law. He was given a bail of sale by the owner but made out by the prior owner. He said to the judge that he would only recognize the bill of sale from his maker. And so I say, it was the same thing in respect to the Constitution that the powers must be found under the grounds of the makers. That is the only place, not of present congressional statute. Now, in my estimation the statute is such noble theory that it should be patented in the patent office except that I do not know that it would meet this Court's test of utility. But I certainly think that this is the first time that Congress has ever tried to amend the Fourteenth Amendment under the guise of enforcing especially in respect of political rights. I might say this. I believe in the legislative history appendix which I've submitted, which I wrote the State of Virginia, my also -- my article in Stanford Law Review, and in the appendix which I submitted here. I pointed out very clearly that during the debates on the Fifteenth Amendment, repeating attempts were made to ban states using qualifications based on literacy, property, religion. I might say in respect to religion there was a very raw example because Roman Catholic was forbidden to hold office in the State of New Hampshire, very raw example. One is quite often cited with respect to an English language literacy test, we don't have to look very far. The State of Massachusetts as well as Connecticut had an English language literacy test and its purpose was not as benign as the New York statute is here. Its purpose was to keep out Irish democratic immigrants away from the polling booth. It was a no nothing product. It was kindly talk about during the reconstruction period and yet it was maintained during this entire period. Rhode Island had a better trick. They require that all naturalized citizens own land in Rhode Islands. And as one demo -- Senator Bland said of Missouri, there wasn't very much man in the State of Rhode Island for anybody to own. The Rhode Island -- Senator Anthony of Rhode Island said that he wouldn't let the Fourth -- he wouldn't vote for the Fourteenth Amendment. The Rhode Island legislature wouldn't ratify unless Congress took out the property qualifications. That is a ban on property qualifications. So they did. And in respect to -- in respect to other, the nativity qualification of the West Coast Republicans were dead set against letting any Chinese vote. That's why the nativity was taken out. According to Senator Aaron Sargent, a California Republican, I'm now citing the majority republicans, I'm not citing the democrats for these propositions. And so the original draft, the Wilson draft of the Fifteenth Amendment was waddled away. Now, there was a proposed draft in the Fifteenth Amendment to give everybody an equal vote. It was the original Bingham draft. And it was defeated very resoundingly. Now, if Bingham had put in the Fourteenth Amendment -- the Fourteenth Amendment that everybody is entitled to an equal vote or an equal vote without -- based on a reasonable classification why should he make the same amendment in the Fifteenth two years later superfluous. I think it defies common sense to say that the original -- original framers who would make all of this enactment absolutely which would absolutely be nonsense in comparison with what they actually did thereafter. That is to say the original debates of 1866 are reinforced by everything that the framers did from one end to the other. And it is on this that I rest as to the original meaning of the Fourteenth Amendment. The Department of Justice has submitted four little items on which you understand. I believe one of them is a little tidbit from Senator Howard which is I think so broad and vague as virtually meaningless. I have a material from Senator Howard which I shouldn't read to Your Honors because it's in the appendices that I've filed which shows very clearly repeatedly he said the Fourteenth Amendment had nothing to do with the franchise. In -- they also have a couple of statements by democrats and some of the States saying what a horrible thing this is going to be. I think they're clearly political speeches and I think we can ignore them. It is not -- the Justice Department's brief does not cite but I think I want to go into for a moment because it's probably familiar to you Your Honor an article by Mr. Ben Allstar in the Law Review Journal -- I'm sorry, the Supreme Court reviewed last year. Unfortunately, Mr. Ben Allstar has had unhappy habit of putting a material that he finds favorable. I've put in a material in these appendices which are both favorable and a little bit which I deemed to be unfavorable to with Boswell speech, that is Congressman Boswell, right before the enactment of the Fifteenth Amendment. There were -- I'm sorry and Senator Edmund. I want to take up these two people because they're the only people who are unfavorable to my position. I think really except for the democrats. As for Boswell, I think I can explain this very easily though he -- this admitted to by -- he never practiced law until long after he left the Senate and House. So he really wasn't a lawyer. As to Edmunds, though he said originally that the Privileges and Immunities Clause, not the Equal Protection Clause, but Privileges and Immunities Clause did grant Congress some power over the right to vote to with the right to prevent discrimination against Negroes. Thereafter, he changed his position in 1872 concurred with the rest in saying that Privileges and Immunities Clause had nothing to do with the right to vote. And therefore, I take the broad grounds that there is really no substantial material in the debates, it's not a question of weighing them. There is no substantial material in the debates which is contrary to the position that the original understanding had nothing whatever to do with anything other than what was known as a civil right in 1866 and 1868. And therefore, I prompt my feet firmly on the original understanding -- on the original understanding of these amendments. Now, I might say that several of the gentlemen who have preceded me have indicated that they belie --
Byron R. White: What is your whole view of why they chose this particular form or words to get across this idea?
Alfred Avins: Which words, the protection of privileges and immunities.
Byron R. White: Equal protection of the law.
Alfred Avins: Equal protection of the laws.Because it seems to me that what was originally intended was clearly protection. That is to say if one goes back to the mischief, it is not difficult to realize why the word protection was used. Let me give Your Honor an example. A single example I think will suffice both of the use of the word person in the Equal Protection Clause and the use of the word protection. In 1850, the Supreme Court of California decided that under the law of California, Chinese were assimilated to Indians and were not permitted to testify in Court. In 1860, I think it was Mr. Justice Field later in this Court who held that under the law, if a white man beat up a China man and robbed him in California and the only witnesses were Chinese, the white man had to go free. Now, Senator Conness said this is becoming a very serious problem because Southern born confederates became highly men in California. He used another term, I don't remember, and then he said they were just plainly highly men. And what they would do, they go around robbing Chinese and then of course they could never be brought to book because the only witnesses were Chinese and they were excluded as witnesses. Your Honors you may remember, that under the old slave codes, Negroes could not be witnesses where whites were parties whether four against White. This is one of the objects of the Equal Protection Clause. Of course these things are all forgotten because these laws have been -- are obsolete -- I mean not been in existence for 100 years and so of course the original mischief have been forgotten. But at that time, this was the original -- these were the original mischief that it was not the same protection. Before --
Byron R. White: But if I take it you think the Equal Protection Clause that were only placed with the words that no states would deny any Christian his civil rights that you'd be expressing the meaning that you were -- that you think Congress intended.
Alfred Avins: I'm afraid to say that it's narrow even than that. That is to say that Privileges and Immunities Clause could be substituted for civil rights and in fact the Civil Rights Act though there's a lot of discussion of debate about where enforcing the Thirteenth Amendment, I think it's very clear and Senator Lot Morrill of 1872 made it quite clear that the civil rights, that the Act of '66 really rested on Article 4 Section 2. The big quarrels whether Congress could enforce Article 4 Section 2. That is to say if Negroes were freed, were they therefore ipso facto were entitled to Article -- benefits of Article 4 Section 2. This -- that's why you have a declaration of citizenship in the -- first sentence of the Civil Rights Act of 1866. Now, the word civil rights was taken out of the Act which Your Honor you may remember because there was a lot of discussion on the subject to whether voting was a civil right and Senator -- Congressman Wilson, the later Senator Wilson, Congressman Wilson of Ireland, Chairman of Judiciary Committee said “No” and then Bingham said “Yes” and what it said, well maybe or maybe it's too broad or Columbus Delano of Ohio said, “This is pretty broad, who knows what's going to be interpreted at.” So Wilson finally said, “Alright, we're going to take the word ‘civil rights' right out in just list the ‘right'.” But my contention of the Privileges and Immunities Clause, you could replace Privileges and Immunities Clause with the word ‘civil rights' which is I say included one, the right in Corfield against Coryell and two, rights derived from the Constitution itself. As to the Equal Protection Clause, that's narrow still. Not all civil rights are protected by the Equal Protection Clause just those which give protection to life, liberty, or property. It's a very narrow. It's a very little clause. I might say that the whole first section was utterly uncontroversial. The second section wasn't very controversial, with the big fight on the third section on whether ex-confederates should be disabled from holding the office but nobody cared about the first section being to surplusage, it was just a little unimportant clause. It's just very basic.
Byron R. White: But the privileges and immunities were -- the clause was replaced by civil rights. What would the Equal Protection Clause according to your interpretation protect in addition to that?
Alfred Avins: It would protect persons. First of all, it would protect aliens. It would take travels. In Bingham, as an early as Bingham speech against the admission of Oregon in the 35th Congress second session, I think it was about page 900 something in 1859, he indicates very clear that even strangers are entitled to some protection. And he repeated this recurring theme like a broken record over and over through the debate. Even strangers get something. In fact, the word ‘persons' have been so broadly interpreted that I might say this, that in President Johnson's veto in the Civil Rights Act of 1866, he makes a point that he conceived the word ‘persons' to include corporations. So that -- but I think it was considered on all sides that they've included aliens. That's the reason for in effect duplicating some of the rights in the Privileges and Immunities Clause and the Equal Protection and the Due Process. Namely, aliens get something because there was the State, it was believed that the State would not protect aliens either even of these basic rights. And I think the State of California is an excellent example. The history of the State of California is an excellent example, the pre-antebellum history of the State of California is an excellent example, and perhaps the post-antebellum to some extent whatever was on the democratic administration. And it was this constant discussion about democratic legislature discriminating against Chinese refusing them protection, refusing them permission to testify even the State is refusing them and some state they couldn't be parties, they couldn't sue the law. If the man hits you on the nose, it's tough luck, you couldn't sue in court. So if you go back to the original mischief, there is a very good reason for these clauses. And my contention is that -- I might say that I consider as a contention of -- a moment where it comes to say contention of the legality, that is to say that it's a requirement of legality that a constitution be interpreted in accordance with the original understanding and not like it. They once said in the Alabama lawyer of light check that it has got to be -- it means exactly the same as it meant in 1866, of course, scientific changes simply mean that you substitute one scientific methods for another as an airplane that is same as a train for purposes of general principles. But the general principles remain the same although it was known in 1866, people go to schools were known -- these are -- all these things were known. That is my point. And now I might say that I -- some of the gentlemen on the other side have said that voting -- they think voting is very fundamental. I don't know that voting is as fundamental as my learned opponent's belief. I think the right to drive a car for example is more fundamental than the right to vote because in those places of the country you'd never even get to the polls without a car. And I might say that I think if we took a survey in the country is to whether people would rather hitchhike imposed of pay $1.50 that they'd certainly be glad to pay $1.50 rather than to hitchhike in the polls. Besides which I might say that I think New York City would tax even walking through the polls that it found a way to tax walking and collecting. I think that the -- I don't think that the right to vote is as fundamental for example as the privilege of not being barred from getting in trial, which was certainly involved in 1866 because you had Negroes who were forbidden to engage in certain occupations and some of the black coast. Or to have a home, same thing as it was fit in, in some of the black coast. Or for example the Black Code laws which made the criminal offense punished by -- I thinking in Virginia five years in penitentiary teaching Negroes to read and write. To prevent again -- enforcement, prevent slavery votes. And I might say personally that for example I voted -- I take personally that all of the candidates I voted for in the last general action lost, I don't feel personally affected at all although of course, I'm over 26. I also say as far as this particular statute is concerned that I don't see the slightest degree of difference in principle between Congress saying that Puerto Ricans educating Spanish in Puerto Rico may vote in New York and the Puerto Ricans who are taught to drive in the left-hand side of the road, Puerto Rico may drive in New York on the left-hand side of the road. I think they're exactly the same. True there's an argument about inconvenience. I think there's an argument about inconvenience that goes both ways. It's inconvenient to print materials in Spanish. It's also inconvenient to dodge opposing traffic that I would say of the person who'd lived in Manhattan, and I think, and in New York, it was resourceful enough to find a parking space in Manhattan as resourceful enough to be able to dodge in opposing traffic.
Speaker: I don't think they drive in the left-hand side of the street, do they?
Alfred Avins: I agree with Your Honor, they don't. They do it in the United Kingdom. But I'm suggesting that one, Congress has the power under the territories to teach or to permit Puerto Ricans to learn how to drive on the left-hand side of the road. And two, under the very argument, that the under territories argument would then have the power to let the -- say that Puerto Ricans come in to New York may drive on the left-hand side of the road because what's what they've learned at home. So I think it's entirely similar.
Earl Warren: Well, if they did that, they wouldn't live along and that it haven't determine in Court, would they?
Alfred Avins: Well I don't know about that Your Honor. As I said before, I -- having driven in New York City, I'm not sure that New York isn't really quite resourceful about driving. Now, I might say that in my estimation if this Court has the power to set standards of reasonableness, it means that in fact didn't affect this Court with this setting voting qualifications, likewise if Congress had the power to set reasonableness, it just shifts the power from one to the other, for the reason that in my view, one man reasonableness is another man's (Inaudible) I think if we pull every person in this room as to what would be reasonable voting qualifications and I find some very diverse ideas on the subject. I pass it and left up to me alone. I might be able to limit the suffrage to -- only to people are two doctrines involved, one American and one English, and then I could unanimously left myself press it, where I think there would people who will dissent from that statute. So I think that everybody has his own idea of what is reasonable. Though I think in conclusion that a part of the Government's structure is like a proper automobile, these brakes as well as gas pedal and I think that the original function of this Court was to break the popular branches of the Government and not to serve as an impetus to forward movement. And I think though it maybe a lot of fun to drive a car with three gas pedals and no break. I think sooner or later, we go off to the constitutional road and have a crack out. And what I'm seriously concerned about, I submit to Your Honors, is that unless original understanding is followed, original understanding of the Fourteenth and I don't think that my contention about the original understanding has been refuted in the least by either of the three of my learned opponents. That the result would be ultimately, the result would be ultimately that we'd be going off the constitutional road. Cannot say that we need to give the original understanding at present time a high requiem mask but I think perhaps extreme motion, made shortly to be an order if this case this Court hold that Congress have the power to ignore it, the very clear understanding that occurred in this case. And if Your Honors have no further questions, I'd like to save the remainder of my time for any rebuttal which may appear to be necessary.
Earl Warren: But I don't think you have any rebuttal. You used the time for you to make your argument. The other side has a rebuttal.
Alfred Avins: Oh I see Your Honor. Well, in that case, all I can say is that well I think -- I think perhaps that I, if I have made myself clear as to this particular point, I might go on to the question, one question which I don't think the Attorney General of New York casts of it which I just left in my brief but perhaps I'll make a point or two about that. And that is the discrimination which involved in this statute between American citizens who are born in New York and educated in a foreign language outside of New York and American citizens who are born in/or at point American citizens born in Puerto Rico or educated in Spanish in Puerto Rico. Now, to me it seems that the federal statute itself is irrational. That is to say if we are getting into a rational distinction but I'm not getting into a discretion where the New York distinction is rational but I think the federal distinction is irrational. That is to say the point that I'm making is this. It is entirely possible under the Fourteenth Amendment which makes all persons born to be United States citizens, the moment of birth for a citizen of the United States abate to be taken to a non-American flag school educated with foreign language. It's not only you can see but I'm sure it happens in a number of cases and in fact I may say that I have a second cousin whose child is in fact being educated in Chile, the only American citizen born in the United States. So therefore, it only can happen but has happened at least in one instance. Now supposing that person comes back, educating Chile, able to read and write Spanish just as well as any Puerto Rican in the United States is concerned. Comes back to New York, offers to vote, can read the Spanish newspapers just as well as any New York any person educated in Puerto Rico can read the Spanish language in his papers. What happens, sorry, time has made a distinction. Is this a distinction that has any rational basis to it at all? They're both American citizens. They're both now citizens of New York because under the Fourteenth Amendment, all persons or all -- all American citizens are citizens of the State in which they reside. Therefore my point is, that being citizens of the State which they reside they are now New Yorkers and there is absolutely no rational distinction to say a New Yorker educated in Puerto Rico shall be entitled to vote and a New Yorker educated in Chile shall not, though I know --
Potter Stewart: Well that's an argument in favor of the appellant in the next case, isn't it? The Cardona case.
Alfred Avins: No, I think it's an argument against the appellant in that case and I think it's an argument against the appellant's here. My contention, perhaps I haven't made myself clear about that Your Honor. My contention is this. That if you are going to let persons literate, not English language in New York vote, you got to let them all vote. Why let only that people vote who are educated in American flag schools?
Potter Stewart: That's what Mr. Cardona or Mrs. Cardona told us.
Alfred Avins: Well I --
Potter Stewart: I mean if Cardona prevails in the next case, well then your niece from Chile could vote in New York.
Alfred Avins: Well yes, that -- except that the federal statute. You see that this is -- my -- I'm not saying that it's irrational to let know it. Again, I apparently haven't made myself clear. I'm not saying that it's irrational, not to make a distinction between people who speak English and speak -- people who speak Spanish. To let my -- to let the child of my cousin vote in New York, to not let the child who can vote in New York reading only know in Spanish would be perfectly rational providing with dividing line the Spanish-English.
Abe Fortas: Would you think it is irrational to make a distinction between persons who are educated in American language -- in American flag schools and non-American flag schools. That's irrational.
Alfred Avins: Right. Right and the reason for it is this. Now, I know it was argued for long that a person educated Puerto Rico learns something about civics, about the National Government et cetera. But certainly learns nothing about the New York the issues in the New York City municipal election. If I may take a specific case, who should be bar -- president to the bars? This is not a question that that -- does this one learns civics in Puerto Rico, what the local issues with the source are in the bars.
William O. Douglas: Well that would be too of a person coming from my hometown in the State of Washington and then move into New York, he would have been educated of --
Alfred Avins: Yes, but you see of course that -- that is the question of a reasonableness of the distinction between -- in terms of English language. The person coming from the State of Washington assuming he's literate with the English language would be able to read all of this material about what's going on in the (Inaudible). My contention is --
William O. Douglas: Assuming it's the resident's requirement that takes care of the -- of your point now I mean --
Alfred Avins: Yes, although of course -- of course a person moving to Washington may stay in New York for 20 years and keep himself totally uninformed of what's going on. That is -- the residents doesn't guarantee that the person will know what's going on. He may be -- he may just be as ignorant of local affairs as anybody in the world.
William O. Douglas: But the --
Alfred Avins: He doesn't --
William O. Douglas: -- New York Times is not necessary that the bible for everybody in New York City, is it?
Alfred Avins: No it's not. There are, I think six of well they keep -- the number of newspapers keeps condensing every couple of years I'm trying to keep up with it. Soon there will be a monopoly so I --
William O. Douglas: Spanish publications I gather.
Alfred Avins: There are some Spanish newspapers, Your Honor. Of course they are not in Kingston, they are up state New York City. What about the Spanish language voter who is tries to vote in the -- and the third ward NASNI. They're no -- there's no Spanish newspaper there or radio station doesn't cover the issues in the third ward NASNI.
William O. Douglas: I suppose there campaign speeches, are there?
Alfred Avins: Yes there are in English. There are many -- two Spanish language, voters in the third ward NASNI. Now of course the candidate speaks English. It's true. Why has the -- I might -- let me get into this. I guess I'm sort of backing into this issue by the tail. I suppose I might is -- I ought to get into this in one way or another. Let me look at something that was submitted in the record below. The Department of Justice has affidavits from candidates in Spanish districts, predominantly Spanish. He has a kit. He has an affidavit by Herman Badillo who's margined it through this based on votes registered in all probability registered on this particular Act that I might say, with all due respect to Mr. Badillo, I have never heard of a man who thought to people voting him didn't understand the issues. But the part that I'm making you see is this. True, dominantly Spanish areas, there will be Spanish theory. But one of the cases was in Rochester. What about Rochester? What about Austin? There are other cities besides New York City and New York State even though many New Yorkers don't think so. What about all these other localities. A person speaking only Spanish is free to move there, free to live there, and under the statute free to vote there. How is he going to know what's going on in the Fourth Ward NASNI and nobody's going to print this in Spanish to each two voters nor can he get a translator, the translator all the campaign that should have comes out two days before the election. As a practical matter, it's purely impossible to tell a voter in the Fourth Ward NASNI to a Spanish language voters, what is going on the Fourth Ward NASNI. They're all in this little upstate New York cities. All have run municipal elections, not to mention Connecticut. Of course the law applies to Connecticut. There were Spanish language voters in Connecticut. There are only 5000. There are no Spanish language newspapers. The problem is that all of the potentials have been concentrated in New York City as if New York City were not on the hub of the universe but the only place for the universe.
Abe Fortas: Does Connecticut have a -- an English literacy requirement?
Alfred Avins: Yes, it does, Your Honor. And it's in the record in this case.
Abe Fortas: How about California?
Alfred Avins: I don't know Your Honor, I'm not -- I wasn't -- I'm not familiar. There are other states beside and Puerto Ricans live in other states, I mean they live at Puerto Rico. Live in other states beside and the record shows here that some of them are residents Connecticut, 50, 60, whatever the case may be. And of course if this Court upholds the statutes, they got uphold with all the states. Your Honor can't say the statute's constitutional after the 71st Election District of New York, maybe Your Honor can but I can't see that the statute is constitutional as the 71st Election District of New York and unconstitutional at the 69th Election District or the 42nd or the 12th in Albany and it's constitutional as to one that's not as to another and the Constitution of the statute depends upon the circulation in how much the issues are, how much is discussed. To me, it would be judicial chaos.
William O. Douglas: I remember when I was in India there was always campaign used, they campaigned in English like there are 17 different languages.
Alfred Avins: Yes, there is Telugu and Tamil, Hindi --
William O. Douglas: After the lecture was campaign speeches over the crowd would break up and it's this English thing to be translated by --
Alfred Avins: Into the local -- into the local language.
William O. Douglas: And to all other languages.
Alfred Avins: That is -- yes.
William O. Douglas: It's all the word would go by a word of mouth.
Alfred Avins: Yes, that is true Your Honors. But the point is -- the point that I'm making first of all, of course, the Indian languages are reached. Now for example, Tamil is spoken in Madras State. You find every few people speaking Gujarati in Madras State. I'm glad Your Honor raised the question in India because I expect to be publishing a book in India, labor law next year. Gujarati, there are cases that if Your Honors if I'll file as supplemental brief Your Honor once, pointing out cases which hold that it's illegal to transfer an employee from Bombay to Madras who speaks only the native language, it's illegal because it wouldn't understand what was going on that -- on in Madras.
William O. Douglas: Well, I'll wait for your book.
Alfred Avins: Thank you, Your Honor.
Earl Warren: Suppose that Puerto Rico and a law like New York to the effect that no one could vote in Puerto Rico unless he understood that he could read Spanish language, would Congress have any power to say that as they did in 4 (e) that they would have a right to vote if they had adequate education in this country.
Alfred Avins: Do you mean under the Territories Clause or under the Fourteenth Amendment.
Earl Warren: No, ask you been ever have a right to do it.
Alfred Avins: Oh well, Your Honor my position is this. Under the Territories Clause, Congress is just a super legislature of Puerto Rico. I do not want to get into the -- into what I concede to be a difference of opinion between the learned Solicitor General and the Attorney General of Puerto Rico's precise distribution of power between Congress and the territory of Puerto Rico. But assuming that it was just a territory pure and simple comes nothing but a super legislature for Puerto Rico.
Earl Warren: No, we're not asking about any quarrel between the people of Puerto Rico. I ask you the plain question. Suppose Puerto Rico and a law like New York's to the effect that no one could vote there unless he could read and understand Spanish. Would Congress then have the right to say that other Americans who spoke only English could vote over there?
Alfred Avins: Your Honor, my conception of the territories power is that Congress is absolute and plenary to power to legislate for the territories. Therefore, it necessarily follows my -- except of course with the bill of rights and certain other general limitations could possible of a bill of attainder of course, the territories any more than other place. But my suggestion to Your Honor -- my answer to Your Honors question is that it has absolute power over the territories subject to general limitations in the Constitution and can act as if it were the legislature of Puerto Rico. Therefore of course, it could abolish any action by the Puerto Rican legislature which I conceive to bear the same relation to Congress as a city council of New York bears the state legislature of New York. The Puerto Rican legislature does not exercise sovereignty, any kind of sovereignty. It's a delegated power which of course Congress can always revoke by passing an inconsistent statute.
Earl Warren: Then your answer is yes.
Alfred Avins: My answer is yes but for very special reason which wouldn't apply the other way.
Earl Warren: That's true.
Abe Fortas: We'll make the assumption that New Mexico, absurd assumption for purposes of testing the theory. And New Mexico adopted such statute saying that only persons who are literate in Spanish could vote but Congress have the power to override that.
Alfred Avins: Not -- no. My contention is absolutely no power or whatever. I go even further. I make it -- I'll make a -- I'll make a suggestion which I think is probably more absurd than that if the State of Hawaii decided that all Caucasians were flabby lot and that no person ought to be entitled to vote in Hawaii unless he could do 20 push-ups and apply this uniformly to everybody that Hawaii would be perfectly some constitutional ground however much I think -- I think is going to absolutely absurd to require. That is I'm talking about the question of power.
Abe Fortas: And that Congress could not --
Alfred Avins: Couldn't do a thing about it, of course, the Fifteenth Amendment feels (Voice Overlap).
Abe Fortas: It's because of your theory about the right to vote being a right that is not protected except by the strict language of the Fifteenth Amendment.
Alfred Avins: Or the Nineteenth, yes, that is the order of course. That is those special amendments which have directed their attention to this. That is -- those special amendments and I might say this one that I think would be even more raw, would be a discrimination based on religion. And yet, the provision composed Fifteenth Amendment to ban discriminations based on religion would knock that.
Abe Fortas: So you think that a state could confine the right to vote to Catholics or Jews, or Protestants or whatever it might be.
Alfred Avins: Yes, as long as I think it --
Abe Fortas: The Congress did not and that Congress could not override that.
Alfred Avins: As long as I would think it need to do so.
Abe Fortas: And that this Court would not have power to declare that --
Alfred Avins: As long as I would -- as personally wrong as I would think --
Abe Fortas: I understand that but I'm asking you, do you think that Congress would have power to override it against to that note?
Alfred Avins: That's correct.
Abe Fortas: And this Court could not properly declare that unconstitutional.
Alfred Avins: I quite -- that is my position Your Honor. My position is that it's a question simply of power. That is my -- if I may make -- that is the -- Congress cannot chop up the Fourteenth Amendment and make a toss green salad out of it because it doesn't like the original recipe. If it doesn't like the original recipe, it's got to get a new recipe. The way you get a new recipe is Article 5. You amend the Constitution. There have been amendments proposed and some enacted a number probably more in recent years than any other time. And there may be amendments that I would be much in favor of but I would be much against that Congress exercising a power in unconstitutional manner which it might be very desirable to exercise in a constitutional manner. It's a question it seems to me of legality.
Byron R. White: I take it you then also reject the State -- the Congress' power in a Due Process Clause or you would be accepting --
Alfred Avins: Accepting respectfully the --
Byron R. White: You would reject in validating a state law in the grounds that the means that chose to accomplish it and really had no rational basis at all. There's no rational connection between the ends and the means. You would say that as an improper application of Due Process Clause?
Alfred Avins: Well it -- no Your Honor. My position is this. It's the question of original understanding, you see.
Byron R. White: Well, what about the original understanding?
Alfred Avins: I think the case is --
Byron R. White: Due process.
Alfred Avins: Well, if the Congress of Bingham served that the original understanding of the Due Process Clause. They just asked the question by Congressman Rogers, Andrew Jackson Rogers was the young democrat from New Jersey, considered as a white young democrat. And he replied that the gentleman can go and read the decisions that's been cited by the Court and he can read decisions. Therefore, I would do exactly what he -- Congressman Bingham suggests. I will read all the decisions on due process before the civil war.
Byron R. White: Well so if you -- so what's your answer if you decided that there was absolutely no connection or whatsoever between four arm strength and the voting and therefore no connection between doing push-ups in voting.
Alfred Avins: Well my arg --
Byron R. White: Well you still wouldn't say that that law of Hawaii violated the Due Process Clause.
Alfred Avins: No, it wouldn't because the original understanding of course in respect to voting is of entirely outside the (Voice Overlap) --
Byron R. White: In all of the cases that have been validated municipal legislation on the due process -- on this basis under the Due Process Clause are wrong.
Alfred Avins: No, I don't understand Your Honor's question, you mean the legislation or the right to vote? I thought Your Honor was talking about the right to vote. As to the right to vote it's not -- it has nothing to do with the Fourteenth Amendment. As in respect to the question of whether particular item of legislation violates due process, the concepts, the general basic concepts in my contention is one goes back to the pre-civil war cases, distills the general basic concepts of due process before at that time. They are carried into the due Fourteenth Amendment Due Process Clause by Bingham's intent which I consider to be very clear from his statement made in the 39th Congress. And then that is the content of the Due Process Clause, the general principles of course. Now, what they are for example, I think that was in the New York case in 1856, we supported the proposition if there was a concept to substantive due process. In fact there have been numerable cases on due process. I have an article on --
Byron R. White: But even if there was, you would say it wouldn't apply to voting under the Fourteenth Amendment?
Alfred Avins: Pardon.
Byron R. White: Even if there were, you would say it wouldn't apply to voting.
Alfred Avins: No, it wouldn't because it's very clear --
Byron R. White: The voting is out no matter what you're talking about due process, privileges and immunities, or even --
Alfred Avins: Or equal protection, yes that is my contention. I might say that of course due process applies to all persons which is another good reason. Bingham the said against letting aliens vote and nothing that he did say, in fact, in the admission of Oregon, one of those two reasons for voting against the admission of Oregon, he made a long speech on the subject where he said, this is a recent new innovation which he was dead set against was contrary to the Constitution and aliens were permitted to vote in Oregon. He said it's a recent innovation which maintained Illinois and one or two of the Western States to induce him against the commerce to permit aliens to vote. He said he was dead set against it and therefore it's inconceivable that he attended to permit aliens to vote, contrary to his own long well-settled convictions. And therefore since the Due Process Clause protects aliens as well as citizens, it -- to me it's inconceivable that the Due Process Clause would protect the right to vote for the reason that otherwise the aliens would be entitled a right to vote. Because of course, as far as protection of life, liberty, and property, you couldn't take that without due process from aliens anyway. I think every alien would be entitled if he came to this country. He would be entitled to not have life, liberty, or property taking to confront him without due process of law. So you see that the Fourteenth Amendment in fact it brought back to its historical understanding and fits very neatly. That is it -- it's -- makes sense. You don't need to try and figure out some of these odd -- oddities. What would have you? Give everybody the protection as a person 99 years old entitled to go to a first grade school, so that you'd got to have reasonable classification. You have to have all sorts of qualifications. But if you go back to the original understanding, I think you do not need to have any qualifications. Now, I know you -- I think I have a bit more time and I just want to say a word since Your Honor originally asked me and I thought -- I thought having this obvious but as I have a few minutes say one or two words, just about the question of treaty. I do not consider that Congress' power under the Treaty Clause and I think this is well settled, to add to any substantive power Congress has in the Constitution. Now, I think I have set forth as earliest decisions in Mr. Chief Justice Marshall that -- and I think perhaps it's worth reading the little snibb -- squib from Carter and Grant that the -- I'm sorry, Pollard and Hagan in 3 Howard. Now, the king of Spain -- it can't be admitted to the king of Spain could by treaty or otherwise impart of the United States any of his royal prerogatives. Much less cannot be admitted they have the capacity to receive the power to exercise them. Every nation acquiring territory by treaty or otherwise withholds its subject to the constitution and laws of its own government and not according to those that the government's ceding. Therefore, the Treaty with Spain Treaty of Paris gives the United States no power over the territories and wouldn't have otherwise. My contention is it would have the same power by statutes. And therefore, I say, that the statute gains no additional efficacy by the United Nations Charter or by world rule of law conventions or by treaties or by statements by the UN Secretary General or resolutions or anything. It's either constitutional within Congress' power or it's not. And it seems to me that the issue is clear cut. The statute invades or reserve power of the States. Thank you Your Honor, that's all I have to say.
Earl Warren: Mrs. Coon.
Jean M. Coon: May it please the Court. Because of the scheduled argument of Cardona against Power immediately following the argument of this appeal, the presentation of our argument hereby the amicus curiae in this case is in somewhat reversed order from the argument as presented in our brief because issues which are similar to the issues in Cardona if not reached in this argument can be handled by the counsel for the appellees in that case. I think it would be somewhat significant at this point to discuss a few statistics with this Court. The record in this case contains affidavits by various people estimating the numbers of Puerto Ricans in New York State or in the City of New York who are affected by 4 (e). But these affidavits are no more than estimates. The record in this case contains only one factual basis for these figures. And that is the 1960 Census Report, the last authoritative counting of Puerto Ricans in New York State. That census report showed that in 1960 there were 642,600 and some Puerto Ricans in the entire State of New York of whom 194,000 were mainland born and may be presumed literate in English if adults. In the City of New York in 1960, there were 612,000 Puerto Ricans, 182,000 of whom were mainland born. The percentages which the census figures developed for the State, as a whole, showed that approximately 50% of the total Puerto Rican population in New York State were of voting age. And that approximately 60% of the Puerto Ricans of that age group had attained an education either in Spanish or English of seventh grade or higher, but at least seventh grade. Thus, if we take these figures for the State as a whole and apply them to what we know as to the total population of the City of New York, we would find that in 1960, there were approximately 300,000 Puerto Ricans of voting age in the City of New York. And adopting this 60% figure which the census figures apply to the State as a whole in the attainment of a seventh grade education, we would find that in 1960, it could be estimated that had 4 (e) then been enacted and could Puerto Ricans vote by proof of literacy either in English or Spanish, that approximately 200,000 Puerto Ricans would have been eligible to vote in New York City at that time. Now, how many Puerto Ricans actually were registered in the City of New York in 1960? In 19 -- approximately 1960, the City of New York, the migration division of the Commonwealth of Puerto Rico, various civic organizations put on a massive campaign to specially register the Puerto Rican population of the City of New York in compliance with New York State English literacy requirement. In November 2nd of 1960, the New York Times reported that this effort have resulted in the registration of 230,000 Puerto Rican and Hispanic residents of the City of New York complying with the English literacy requirements of New York State. In 1961, New York mayoralty election, it was reported that 200,000 Puerto Ricans registered and voted for mayor in the city of New York. And the conclusion which can be drawn from this that the majority of Puerto Rican residents of the City of New York can comply with New York's English literacy requirement is reinforced by the fact that last November with New York City complying with Section 4 (e), only 8,107 Puerto Ricans registered in the City of New York and that this figure would include new immigrants to the city who might equally be able to comply with New York's English literacy requirement. These studies which were conducted in the middle of 1950's by the New York City Board of Education demonstrated that students coming into the New York City public school system directly from Puerto Rico and the early elementary grade did have a reading knowledge of the English language in addition to a speaking knowledge. That while English is no longer the major language of instruction in the school within Puerto Rico, English is taught as an additional language from the first grade on in the schools in Puerto Rico. Puerto Ricans do not come to the mainland totally devoid of any knowledge of English either spoken or written. Now, let us look to the genesis of the two statutes which are involved here. New York's English literacy requirement was put into its laws at a time when there were only 7000 Puerto Ricans in the City of New York. It was not put into law to prevent Puerto Ricans from participating in the elective franchise in New York significantly at the time this became part of New York's law English was the major language of instruction in Puerto Rico. And it could have had no bearing upon Puerto Ricans. It was put into the law as a part of New York's solution to what had become as a result of information discovered in World War I of the horrible situation of draftees who could not take oral orders in English of the hundredths of thousandths of persons of draft age in the United States who were not literate in any language. It was put into a -- the law in answer to the problem which had arisen of industrial safety because the many immigrants who could -- who had joined the labor force in the State were not able to understand safety regulations in English, and was put into the law as part of a package which involved also the intensified adult education programs in English. It was proposed at that time that adult education programs be provided in the places of employment of these immigrants so that the English language and the advantages to them which would come from learning this would be brought to them. They would not be asked to go to the schools. There was additional training proposed and put into the law for adult or for non-adult, children who had pass beyond the maximum requirements for remaining in school, the groups between 16 and 21 for additional after working hour instruction. So that New York statute was not put into our laws as a part and parcel of any discriminatory program. It was put into our laws in order to promote industrial safety promote education, promote intelligent participation in the Government of the State, and to encourage the learning of English on immigration population which come into New York. Significantly at this point even in 1960, 47% of the population of the City of New York was either foreign born or the children of foreign born persons. New York State still has a very large immigrant or first generation American population.
Potter Stewart: Since 1960?
Jean M. Coon: Since in 1960. Now, for Section 4 (e) which is --
Earl Warren: Would you -- would you mind stating again very briefly what the Court was -- the exact purpose was of the New York Act?
Jean M. Coon: The New York Act's exact purpose was to promote the participation, the intelligent participation by immigrant groups in American life, both political and economic. It was part of a package, proposed package legislation which involved increased adult education in English and Government which involved reaching out to these large immigrant groups and trying to bring them in to intelligent participation in the State of New York.
Abe Fortas: As of what date is this?
Jean M. Coon: This was as of 1919, 1920, 1921. It was a --
Abe Fortas: And at that time there was accompanying this English literacy provision, provision for adult education?
Jean M. Coon: Yes, there was, Your Honor. This was incidentally, it was bipartisan, it was put into effect at the time when the legislature was Republican and the governor was Al Smith, a well-known liberal democrat and himself a child of an immigrant parent. The --
Earl Warren: I was wondering what you would with some of the -- some of the exceptions to the -- to the Act.Let me put it in this language. Suppose a Puerto Rican who didn't understand the English language was in the army and then -- then came out and went into a veterans hospital. How would that purpose be affected if his wife and his parents and his children were -- were permitted under your statute to vote because of his status? How does that conform to this purpose that you speak of?
Jean M. Coon: Well, first this is -- this is part of the argument of course that's been raised in Cardona.
Earl Warren: I beg your pardon.
Jean M. Coon: It's part of the argument that has been raised in the Cardona case.
Earl Warren: Well I know it's part of the argument but you are defending the Act here.
Jean M. Coon: I think of course as to the veteran himself.
Earl Warren: I beg your pardon.
Jean M. Coon: As to the veteran himself. This goes to the fact that in order to be inducted into the army, he must initially have been literate in English. The army -- the United States -- armed forces provided that for inductions the army from Puerto Rico must take -- they take first a Spanish language test and then if they pass that, they must then take an English language test. I must demonstrate literacy in English to be inducted. As to the families, I think --
Abe Fortas: I beg your pardon. Does that include more than an oral test?
Jean M. Coon: Yes sir, it's a written test.
Abe Fortas: It's a written test.
Jean M. Coon: It's a written English test. Additionally, I think as to the families, this becomes -- let us say one more of the incidences where special legislation has been enacted for the benefit of armed forces veterans. The fact that you exclude a group for a legitimate reason does not make the regulation itself unreasonable. The -- as to the -- for example, New York provides where you're physically handicapped, you may pick an affidavit that except for the physical handicap, you can read and write English. In other words, a man who is not able physically able to write has lost a hand may say that may file an affidavit to the effect that he could write when he had the hand or would be able to write. A blind man may say, no, he hasn't learned Braille, but before he went blind, he could have read English.
Earl Warren: I think that's clearly understandable but how about his wife, how about his parents, how about his children?
Jean M. Coon: Well, as to the -- as to the -- those were physically disabled --
Earl Warren: No, I'm not talking about that. I'm talking about the soldier who is in the hospital, how about all those relatives of his, does that show that they were --
Jean M. Coon: I think as to the wife --
Earl Warren: I beg your pardon.
Jean M. Coon: -- I think as -- I think I don't -- I'm not sure if it goes to the parents. I think it goes as to the wife and children. And it carries along with it many of the same things which we have done in similar situations to veterans or to members of the armed forces, that rights that they have carry on to their families even though there is no rational relationship between it. It is simply a carrying over to the families of veterans some of the rights which we have given to the veterans. So for example then Congress has done this in the -- in connection with purchasing materials, the families of armed servicemen can purchase in the post exchanges, not just the servicemen themselves. I think -- incidentally, I think it's very interesting that an immigrant from a foreign country who comes into Puerto Rico as an immigrant of Puerto Rico and becomes a naturalized American citizen in Puerto Rico cannot be naturalized there unless he can prove literacy in English. Congress provides --
Abe Fortas: I think that's federal law.
Jean M. Coon: That's federal law.
Earl Warren: Yes. How about your grandfather clause?
Jean M. Coon: Our grandfather clause I think was -- is not a true grandfather clause in the first place because the true definition of a grandfather clause is a clause which gives to the grandchildren the rights possessed by the grandparents. In this case, New York -- what New York was doing here is saying as to those who are now voters in 1921, those who are voters in 1921 will not be disenfranchised by this provision. You must remember also that a good chair of New York State has non-personnel registration at that time. In other words, a person who had registered for the first time prior to 1921 in a good portion of New York State would not at that time have been required to reregister at any time in the future. What we're doing I think had New York -- there's a possibility that had New York after 1921 said in her statute that everybody will have to reregister and demonstrate literacy in English. That might have been a constitutional question as to whether the State would have the poli -- the power to disenfranchise those who already were voters. What New York was -- as to future voters, as to those who will become voters after this Act takes effect, after this Constitutional amendment takes effect, and then you will have to demonstrate literacy in English. I do not believe this is a true grandfather clause to any extent.
Earl Warren: Yes. Why is your grandfather clause so limited by definition?
Jean M. Coon: This I think is what has been usually referred to as a grandfather clause as one which refers to the past. I do not think that it is -- it is a grandfather -- or has most of the statutes which have been called grandfather clauses are ones which have referred to giving the descendant's rights of the ancestor.
Earl Warren: In other context, isn't it commonly called the grandfather clause to permit someone to continue as he has because he was continuing -- he was doing business at the time that the law was established.
Jean M. Coon: Loosely this may be a term that is used. I don't --
Earl Warren: I beg your pardon.
Jean M. Coon: Loosely this may be the term that is used. I don't think it's an accurate term and I think in any event that it is a question of the -- of a law not depriving somebody of a right they already have. I think you raise constitutional the questions when you deprive people of rights which they have. For instance, in the professional licensing provisions where they have -- where somebody has been practicing a profession and then the State comes along and licenses the profession, frequently they will provide that those who are now practicing they continue because you raised a question as to whether or not the State may deprive somebody of what is almost a property right at this point, when they've already exercised that right. And that is what New York's statute does. It merely preserved the rights which existed. It does not confer future rights on anyone. For example, somebody who was in 1921, over 21 years of age and could have registered but had not, that person would not have -- would still have had to prove English literacy in order to register after 1921. The provisions of the -- as to the territorial powers of Congress, I want to make only one observation. While the power of Congress as to legis -- as to the territories is plenary, it is not limited by the relation to the congressional -- the relationship which the Federal Government has to the States. And a Congress may act as to the territories in ways which it may not act as to the States. That therefore, we must remember that 4 (e) does not legislate as to the territory of Puerto Rico. It confers no rights upon residents of Puerto Rico. It confers no governmental powers upon the Commonwealth of Puerto Rico. It acts only as to the States in limiting the Acts that the States may take in setting what would be otherwise legitimate voter qualifications. Because at the time the people affected or the people are affected, they are not citizens of Puerto Rico. They would at that point be citizens of the State in which they reside and that there is no further legitimate territorial interest. One of the counsel today spoke of this as the 4 (e) as winding up the problem of Puerto Rico. I submit to this Court that Section 4 (e) winds up nothing as to Puerto Rico or the problems of Puerto Ricans coming to the mainland. As long as Puerto Ricans come into the mainland have -- get lower incomes when employed have a higher rate of unemployment and are subjected to more inadequate housing than are even non-whites in New York City. And we must remember that 96% of the Puerto Ricans come into New York State are white, that the problem is greater than voting. The problem is a question of their language handicap which they have in competing economically on the mainland. Because in elementary education or even a high school education in Spanish, in Puerto Rico opens few doors in the mainland economy that we believe that New York statute would be reasonable even if we take it only as to Puerto Ricans. Because it is one more incentive to learn English so that they may participate, compete successfully economically on the mainland.
Abe Fortas: Well, do you think you wouldn't -- are you saying that in the incentive that if the State limits voting rights in order to provide then incentive for some laudable purpose such as economic improvement that that is a violent reason for the limitation of the franchise?
Jean M. Coon: I would say this that it is that the removal -- they do the Congress the removal of the English literacy test by the proponents of the Section 4 (e) in the Senate suggested that the removal of the English literacy test in New York would add an incentive to Puerto Ricans to learn English. I think it is the contrary that it reduces the incentives to learn English. I do not believe that you could impose a voter qualification form or you could limit a right for the purpose of giving someone an incentive. But I think that where you are here would be removing one more incentive to learn English which if the -- if it is such a tremendous right would encourage people to learn English and this would help them in competing economically in New York. I think this is one of the big problems that New York has been faced with. It is the problem of dealing with it -- with this tremendous Puerto Rican population or 8% of the population of the City of New York is either from Puerto Rico or the children of Puerto Rican parentage. And that the -- the city and the State have gone out and try to reach these people. Additional money has been given by the State to school systems to provide additional aid in immigrant groups in non-English speaking groups to teach them English. Someone once pointed out in some of the literature on the subject that the great immigrant populations which we had the end of the last century the beginning of this were not given the same effort -- the same effort was not put in by State in local governments to assimilate them as it's being done today in the case of the Puerto Ricans.
Abe Fortas: The general addressing yourself -- addressing yourself to the theoretical considerations here. Suppose the State of New Mexico passed the law saying that only persons who were lectured in Spanish could vote, would it be your position that Congress would not have the power to override that and that this Court would not have the power to declare it as unconstitutional.
Jean M. Coon: I would have two answers to that based upon different assumptions. Assuming that in the State of New Mexico by far the majority of the material available by which a voter could exercise an independent opinion was available only in Spanish that the Government of the State of New Mexico was conducted in Spanish and that by far the greater language of understanding in New Mexico was Spanish, then I would say that New Mexico's law was valid and that Congress would have no power to override it and that it would be a reasonable classification under the Fourteenth Amendment to require literacy in Spanish in New Mexico. However, where the converse true, where the Government of New Mexico as it is conducted in English was the multitude of opinion published in New Mexico published in English was by far the greater proportion of the language of the people of New Mexico English, then I would say that to establish a classification such as you suggest that only those who are literate in Spanish may vote is itself unreasonable because it has no reasonable relationship to the intelligent exercise of the franchise.
Abe Fortas: I wouldn't be very clear about this but a flow from that in your opinion that the Congress would have power on your second hypothesis to enact something like 4 (e).
Jean M. Coon: I would say it would be under the Fourteenth Amendment because it would be an unreasonable classification.
Abe Fortas: And therefore, Congress has the power to override it.
Jean M. Coon: Yes.
Abe Fortas: It's not merely a matter of the law itself being unconstitutional.
Jean M. Coon: No, I think it's an -- it's an unreasonable classification under the law and that is why --
Potter Stewart: It would be -- it would be a correction, a legislative correction by the national legislative body on acting under Section 5 of the Fourteenth Amendment to correct an invidious discrimination imposed by state law, is that right? Well, under the hypothesis, your second hypothesis, is that it?
Jean M. Coon: Yes.
William J. Brennan, Jr.: Well, Mrs. Coon, may I ask, do I correctly infer from what you've said then that there is an area of congressional determination of what constitutes invidious discrimination?
Jean M. Coon: I would say that Congress may experiment in suggesting what Congress feels is an area of discrimination in violation of what is the Equal Protection Clause or of the denial of Privileges and Immunities. But I think it is only for this Court to determine in the ultimate result whether Congress is right or not. For instance --
William J. Brennan, Jr.: Well that's -- that's to say, we start with the premise, I gather, that Congress makes a determination of a given requirement to adhere the English literacy requirement constitutes invidious discrimination against those who have only Spanish speaking education. Do we start with that premise rule?
Jean M. Coon: Well I don't know that -- of course the preamble of 4 (e) here is that we don't know what Congress started with because there's no legislative history.
William J. Brennan, Jr.: This is just what I'm trying to get into. I don't quite follow that Congress has this power to determine what is an invidious discrimination. I have trouble of knowing how we can second guess that determination.
Jean M. Coon: Well I think I point out the distinction probably between this case and the rest of the Voting Rights Act which arose -- which this Court discussed in the South Carolina case. This Court pointed out that in that -- the rest of the Voting Rights Act, the long amount of testimony before the committees of Congress. The evidence that what Congress was doing was fashioning a remedy to take care of what this Court described as a pervasive evil. None of this evidence exists here. There was no committee (Voice Overlap) --
William J. Brennan, Jr.: Well, does that suggest the presumption against the -- against the determination that this does constitute as invidious discrimination?
Jean M. Coon: Well, I think that farther confusion here is the fact is -- that the Justice Department itself has based this argument most in the territorial powers and ignored the determination of Congress or the statement of Congress that was under the Fourteenth Amendment. But I think -- I don't think that Congress can create a new violation that Congress may say what it thinks a violation would be. But it's for this Court to determine whether or not it actually constitutes a violation.
William J. Brennan, Jr.: By what -- by what standard do we -- do we review that congressional determination?
Jean M. Coon: I think reviewed by the same standard that this Court has applied in many other cases in the past where it is reviewed certain acts -- acts of the State themselves to determine whether or not they violate these provisions in the Constitution. I think that in order to uphold 4 (e) under the Fourteenth Amendment, this Court must review New York States provisions as to English literacy and say that they are unreasonable and in violation of Fourteenth Amendment. Because if they do not violate the Fourteenth Amendment --
William J. Brennan, Jr.: Have we ever done this before?
Jean M. Coon: Congress has never done this before.
William J. Brennan, Jr.: Well it has done some things like this in other area, doesn't it?
Jean M. Coon: Congress has done it under the Fifteenth Amendment. Congress has an enacted legislation under the Fourteenth which merely reenacted things -- those things which the courts had already determined where privileges and immunities of citizenship under the original provisions of the Constitution.
William J. Brennan, Jr.: Then you're suggesting that this case does pose problems I'm afraid they have not seen. That is assuming this is an equal protection problem. Assuming that Congress has made the determination of invidious discrimination, now this confronts us with how far we may review the congressional decision.
Jean M. Coon: I rather point out to this Court something that you said in the South Carolina case that -- which dealt with the Fifteenth Amendment rights. That this Court has held that when Congress has attacked evils which were not included in the Fifteenth Amendment that the Court has held them to be -- those acts of Congress to be unconstitutional. I think that the same thing applies here in these Fourteenth Amendment cases that where Congress has -- or if it oversteps the power of acting as to those things which are included in the Fourteenth Amendment, then this Court has the power to say to Congress, “You are wrong. You cannot create new violations but only fashion remedies as to those things which are --
William J. Brennan, Jr.: Well, I think I can understand this if you had to reach the conclusion that this creates no equal protection problem at all, that's one thing. But once you start with a premise that I thought was a premise to your argument that it may be and the Congress has an authority to determine what is an invidious discrimination. Now, once you get to that, and that I think is a lot more difficult.
Jean M. Coon: Well, I think that if Your Honors please that our brief carries in a very definite degree that this is not an equal protection problem posed by this situation.
Earl Warren: Mr. Solicitor General.
Speaker: Mr. Chief Justice, may it please the Court. I feel obliged to point as I did in the beginning that we are not trying to have the New York literacy test declared unconstitutional. They still will keep their literacy test and 4 (e) allows for the exact same test, the only difference is the language points. And secondly, on the question of the Fourteenth Amendment and what Congress was thinking about, in our brief on pages 14 and 15, we point out the sponsors in the bill Senators Kennedy and Javits and in the House of Representatives Ryan and Gilbert, in which they set forth the same thing we're talking about in our brief about the fact that Congress itself sustained the education in Spanish, sustained it over a period of years. He gave them citizenship and then brought them over to the mainland and urged them on. So Congress did consider the treaty point as well as the Fourteenth Amendment point. Secondly, this is not the only provision of the Voting Rights Bill on the Fourteenth Amendment. The provision as to the poll tax if you remember was also on the Fourteenth Amendment. On the question of the abandonment of English in the schools of Puerto Rico was the Commissioner appointed by our Government that originally decided that it couldn't be done any longer and so it was actually our Government that took responsibility for it. I think that the one point that's significant in the opposition here today is that they make no basis of justification for the requirement that the literacy test be held in English. I've heard no argument or whatsoever about it except the State of New York which says that this will be a stimulus to get the Puerto Ricans to learn English. That's a very interesting proposition because it would appear to me that getting the right to vote and being able to participate in the municipal elections might bring about a little more employment and a little more schooling and the few other items -- I completely lost on that. Finally, to make our position clear, it is our position that under the Fourteenth Amendment and despite what has been said here that the only rights we have under the Fourteenth Amendment are the civil rights that were recognized in 1866 is almost unbelievable argument to be made today. And I was also most interested since some have been doing delving in these debates that the Equal Protection Clause was for the purpose of protecting Chinese people in San Francisco. And I don't believe I remember a single one of the cases that interpreted the Fourteenth Amendment from Slaughterhouse through Plessy against Ferguson that had anything to say about the Chinese in San Francisco to the contrary this Court says over and over again what the purpose of the Equal Protection Clause was for was to protect the newly freed slaves. We say that Congress with its power recognized under Section 5 of the Fourteenth Amendment, then drew upon its knowledge of what it had happened as a result of the action of Congress in regard to Puerto Rico and realized that there were over 700,000 American citizens in New York in its vicinity. And a large proportion of them unable to speak English but literate otherwise were being denied the right to vote and with the least friction against the State fashioned the provision that would not in any way injure the State of New York or its right to require that its voters be literate and to pass 4 (e) and it to be applied. I believe that the question of the right of Congress to legislate in this area has been so often passed upon by this Court that we do not have to worry about that point. And secondly, that what they did was reasonable, was required and therefore that the judgment of the court below should be reversed --
William J. Brennan, Jr.: Mr. Solicitor General, may I ask you what I have been talking to Mrs. Coons about?
Speaker: Yes sir.
William J. Brennan, Jr.: Insofar if it does at all in light of the -- of the rather skimpy record, congressional record we have behind 4 (e), but insofar as that rests on a congressional determination that this worked invidious discrimination against Puerto Ricans from New York, how far are we concluded by that congressional conclusion?
Speaker: Well, the real problem is the statements have come out in the debates which sort of went to the conscience of Congress. I don't think they should be completely ignored. But it's my understanding under at least two opinions in the Guest case that the fifth -- Section 5 of the Fourteenth Amendment gives Congress sufficient authorization to find what they themselves determine to be a violation of the first section.
William J. Brennan, Jr.: And what -- is it your point that once that determination is made --
Speaker: No sir, I don't take that position at all. I think this Court eventually passes upon the authority of Congress to act.
Byron R. White: Are you (Voice Overlap) well I suppose that Congress said that “We're here enforcing the Equal Protection Clause and we decree that no state may impose any age qualifications in voting.” That's an invidious discrimination between the old and the young.
Speaker: Well I think then you'd have to find out as to whether or not it was. But I -- the ultimate part (Voice Overlap) the constitutionality of an act of Congress as far back as Chief Justice Marshall is in this Court. This Court has to pass on the constitutionality and as a matter of fact, Congress recognized that when they made a specific provision of the -- for the three-judge court to try originally in the constitutionality of this bill.
Byron R. White: Well what cases has this Court ever set to Congress though? Your determination, this law is invalid because your determination, what have not to a violation of the Equal Protection Clause is not valid. Civil rights cases I suppose is it not -- is supposed to --
Speaker: Well, civil rights cases went off a little long --
Byron R. White: And another aspect that generally it was of that thing.
Speaker: I don't know sir. I don't know of one. I'm not saying there aren't.
Hugo L. Black: Does the Government raised any contention of any kind under the Fifteenth Amendment?
Speaker: No sir, Fourteenth Amendment and the Treaty of Paris.
Hugo L. Black: It's not been based on discrimination on account of color.
Speaker: No sir it's the -- the provision itself is in the early part of our brief. The Congress hereby declares that to secure the rights under the Fourteenth Amendment of persons who don't agree said nothing about race at all.
Hugo L. Black: Is there anything in the record from which it could be inferred that this was done in discrimination against people on account of their color.
Speaker: No sir, not on the basis of their color. And although the figures were made by Mrs. Coons about some percentage of Puerto Ricans who come to New York are white, I understood that every Puerto Rican was white. There's no difference. It's my understanding.
Potter Stewart: Well, there must be some Negroes on that.
Speaker: They are not classified as Negroes. They just don't recognize color as a basis of distinction.
Potter Stewart: Are there anybody -- is there anybody there of Asiatic ancestry?
Speaker: Well I should assume so.
Potter Stewart: Well I should too and they wouldn't -- they would be of the yellow races.
Speaker: Well I just say Mr. --
Potter Stewart: Or they're -- or what if there were any American-Indian.
Speaker: -- Justice Stewart, reciting the record I've dealt with them and they tell you right --
Potter Stewart: Well --
Speaker: -- I'm either American or Puerto Rican but don't call me a Negro.
Potter Stewart: Well, that may be true but in fact, I suppose there may be some American-Indians whether Americans.
Speaker: I wouldn't doubt it.
Potter Stewart: And they may as a matter of practice and that they're more is asked, they don't call me an American-Indian, call me a Puerto Rican.
Speaker: Pleasant work. The other point I'd like to make. May it please the Court, is on the question of the enlistment and the draft and the test in the army, the Attorney General of Puerto Rico advises me that they take the Spanish test and then they take the English test but if they fail the English test, they are not discarded, they are put in a special classification solely on the grounds that they speak Spanish over it.
William J. Brennan, Jr.: You mean if they are inducted. They are inducted, is that it?
Speaker: Yes, they are inducted.
Potter Stewart: I didn't understand that.
Speaker: They are inducted. It's the --
Potter Stewart: To the army.
Speaker: Yes, sir.
Potter Stewart: Alright.
Speaker: Under a special classification. No further questions --
Earl Warren: Very well.