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5

Reapportionment

BAKER v. Carr (1962), the unprecedented reapportionment decision, said Paul Kauper, opened a “new chapter of judicial adventurism.” ¹ When the issue was once again presented in Reynolds v. Sims, Justice Harlan wrote a dissent that to my mind is irrefutable. The majority of the Court made no pretense of meeting his historical demonstration; it remained for William Van Alstyne to essay a rebuttal. Harlan’s reliance on the legislative history to establish the “original understanding,” Van Alstyne writes, pertains solely to “exclusive state power over suffrage qualifications” and has no bearing on “the separate issue of malapportionment”; “there was almost no mention of the subject.” ² That fact alone gives one pause: how can a revolution in Northern apportionment be based on nonmention?

The dominant purpose of the 39th Congress was to maintain Republican hegemony by reducing Southern representation; and only secondarily did they think to secure the “person and property” of the Negro from oppression.³ There were repeated disclaimers of any intention to interfere with State sovereignty beyond those objectives. Moreover, while Negro suffrage was predominantly a Southern problem, reapportionment would invade long-established State practices with respect to white voters in the North.⁴ But Van Alstyne argues that to read malapportionment in the equal protection clause “is to say only that among the enfranchised [white] elite,” qualified by the State to vote, “no invidious distinction shall be permitted. The States may be as capricious as they please in withholding the ballot but not in perpetuating elites within the elite.” ⁵ That is a tremendous “only.” Republicans who shrank from interfering with State control of Negro suffrage in the South would scarcely have dared to impose on the North a radical reconstruction of white apportionment patterns.⁶ Certainly there was no disclosure that such intrusion was contemplated;⁷ there is in fact striking evidence that malapportionment was an accepted practice. Speaking with respect to reduced representation, Blaine of Maine said,

if you cut off the blacks from being enumerated in the basis of representation in the southern States the white population of those States will immediately distribute Representatives within their own territory on the basis of white population. Therefore the most densely populated negro districts will not be allowed to offset the most densely populated white districts . . . Do you suppose that the upland districts of Georgia and South Carolina, inhabited largely by whites, will, in the event of adoption of this amendment, allow the distribution of Representatives to be made on the basis of the whole population? By no means. They will at once insist on the white basis within the State.⁸

Not a hint that this would be unlawful, but, rather, clear recognition that States were free to apportion representation to suit themselves. Although, as Van Alstyne notices, this would leave “areas populated by non-voters without representation (and not merely without a vote in the choice of ‘their’ representatives),” ⁹ Bingham replied, “no possible amendment . . . will answer the purpose unless it is followed by further legislation.” ¹⁰ Bingham thus confirms Blaine’s recital of the plenary State power over apportionment and implies that the “representation” (§2) proposal was not designed to meet this situation. Van Alstyne’s comment that “Blaine’s remarks were directed only to the apportionment of congressional rather than state representation” implausibly suggests that the States would be readier to surrender control over their own internal patterns—a suggestion that is incompatible with the pervasive attachment to State sovereignty.

Blaine’s remarks did not reflect a fleeting improvisation, but responded to established practice. Earlier he had stated: “As an abstract proposition no one will deny that population is the true basis of representation; for women, children and other nonvoting classes may have as vital an interest in the legislation . . . as those who actually cast the ballot.” But, he noted, recognizing existing practice, as had Federalist No. 54 and James Wilson long before,¹¹ “the ratio of voters to population differs very widely in different sections, from a minimum of nineteen per cent to a maximum of fifty-eight per cent.” ¹² Even that uncompromising abolitionist Charles Sumner was reconciled to such practices because they reflected “custom and popular faith,” and could not be changed “unless supported by the permanent feelings and conditions of the people.” ¹³ Then, too, in the congressional debate of June 1868 (that is, prior to ratification of the Fourteenth Amendment), on the readmission of the rebel States, Farnsworth pointed out that the Florida apportionment provision gave “to the sparsely populated portions of the State the control of the Legislature.” But Ben Butler responded that the Senate Judiciary Committee “have found the [Florida] constitution republican and proper,” as did the Senate, the House Committee on Reconstruction,¹⁴ and the House itself, thus reaffirming that such malapportionment did not violate the guarantee of a “republican form of government,” nor the equal protection clause which was the work of Butler and his fellows. The Blaine, Sumner, and Butler statements constitute hard evidence which is not overcome by mere speculation.¹⁵ Since, moreover, most of the States were malapportioned, it is a strained assumption that by ratification they surrendered a right they had excercised from the outset, and of which surrender they were totally unapprised.¹⁶

When Van Alstyne dismissed Harlan’s reading of the §2 phrase “or in any way abridged” because “once the congressional history” of this phrase is “canvassed . . . it becomes clear that the phrase had nothing at all to do with malapportionment,” he scuttled his whole case. For, by the same token, the history of the equal protection clause likewise “had nothing at all to do with malapportionment.” “There is,” he states, “no evidence that §2 was applicable to abridgment of the right to vote resulting from malapportionment of state legislatures.” “It is even likely,” he avers, “that had the subject been discussed there might have been a disavowal of an intention to apply the Equal Protection Clause to malapportionment.” But “hypothetical answers to hypothetical questions . . . would be a most dubious basis for expounding the content of ‘equal protection’ one hundred years later.” ¹⁷ There is no need to speculate because Blaine and others plainly recognized malapportionment as an existing practice that was left untouched. I, too, prefer to eschew speculation, particularly when it is unnecessary. One who would bring an unmentioned departure from settled practice within the perimeter of the Amendment has the burden of proof, made heavier here by (1) the fact that Negro suffrage, on which the Court rested its case for reapportionment, was unmistakably excluded; (2) the plainly expressed attachment of the framers to State sovereignty and their intention to intrude no further than the limits of the Civil Rights Act; and (3) the presumption that a diminution of powers reserved to the States by the Tenth Amendment will be clearly stated.¹⁸

In one form or another, Van Alstyne would put asunder what the Warren Court hath joined; he would jettison the Court’s “one man, one vote” postulate. Granting arguendo State power “with respect to outright denials of the right to vote,” he asks, “is it equally so with respect to partial disfranchisement through malapportionment?” ¹⁹ The simple answer is that the greater includes the less.²⁰ If a State may altogether deny the vote, it may dilute it. It was in these terms that Chief Justice Warren rationalized reapportionment: the Constitution, he held, protects the right to “vote,” the “right to have one’s vote counted.” And “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” ²¹ His premise—that the Constitution, that is, the Fourteenth Amendment, protects the right to vote—is contradicted by historical facts. But his logic is impeccable and may be stated inversely: given a right to deny suffrage, it follows that there is a right to dilute it.

Republican Form of Government

One of the “other” powers invoked by radical extremists was the guarantee of a “republican form of government.” ²² Senator Sumner, its leading advocate, could do no better than to find it “obscure” and to write in 1865 that “the time has come to fix meaning to those words.” ²³ They were not wrapped in obscurity by the Founders. In the Federal Convention, Edmund Randolph stated that “a republican government must be the basis of a national union; and no state in it ought to have it in their power to change its government into a monarchy.” ²⁴ This was echoed by Madison in Federalist No. 43: “the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations . . . [the members of the Union have] the right to insist that the forms of government under which the compact was entered should be substantially maintained.” The guarantee “supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States they are guaranteed by the federal Constitution.” ²⁵ Although Federalist No. 52 stated that the “definition of the right of suffrage is very justly regarded as a fundamental act of republican government,” it concluded that the right must be left to the States because “the different qualifications in the different States [could not be reduced] to one uniform rule.” ²⁶ Finally, Federalist No. 54, alluding to the allocation of representation according to the number of inhabitants, added, “the right of choosing their allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate . . . In every State, a certain proportion of inhabitants are deprived of this right by the Constitution of the State.” ²⁷

Fessenden therefore stood on solid ground when he rebutted Sumner’s reliance on the guarantee, saying, “in the very instrument in which the fathers provided that the United States should guaranty to every State a republican form of government they recognized the existence of slavery unmistakably . . . Did they then consider that the obligation to guaranty a republican form of government extended thus far, giving Congress the right to interfere in Virginia to examine her constitution?” When Sumner argued that the guarantee places Congress under a duty to “see that every man votes who ought to vote,” said Fessenden, “he goes considerably further than those who made the Constitution ever intended to go.” If a State “should choose to have a monarchy, or the controlling portion of the people should choose to have an oligarchy, it then becomes the duty of Congress to interfere.” ²⁸ Such was the view of the Fathers, and it was reiterated by other leaders in the 39th Congress. Meeting a query whether a State would “cease to be republican” if it excluded a race from the franchise, Conkling responded that this “has always been permitted with universal acquiescence by the courts and the nation.” ²⁹ On the admission of Tennessee without provision for Negro enfranchisement, Bingham said in July 1866 that if this was in violation of the guarantee, then Tennessee was in the company of many Northern States. His critics were defeated by a vote of 125 to 12.³⁰ In the Senate, Trumbull stated, “most of us are here under republican forms of government, just like this in Tennessee.” ³¹

One of the dissentients, William Higby of California—whom Van Alstyne quotes as saying that no “State which excludes any class of citizens [from voting] on account of race or color is republican in form,” and that he was opposed to H.R. No. 51 because “it gives a power to the States to make governments that are not republican in form,” ³² —revealed tellingly that he was merely engaged in wishful thinking. He admitted that by his disenfranchisement test his own State of California is “not republican in form”: “I do not believe there is a single State in the Union, except it may be one of the New England States, which is an exception to that general rule . . . Now, sir, I am aware that the practice has been very different . . . from the establishment of the Government.” ³³ When Ralph Hill of Indiana stated that, in placing the guarantee in the Constitution, the Framers “spoke with reference to such governments as then existed, and such as these same framers recognized for a long time afterwards as republican governments,” Higby replied: “that is a very good answer. It is an answer from a standpoint of seventy-five years ago. I speak from the standpoint of the present time.” ³⁴ Like our contemporary apologists for a judicial revisionary power, Higby would displace the established, original meaning with his own new one. Given that the Northern States discriminated against voting by blacks, “they were as subject to reconstruction by the federal authority” as was the South. For Radicals, “this whole argument contained political dynamite”;³⁵ and Higby himself admitted, “I do not know that there are half a dozen in this House who will sustain me.” ³⁶ Like the 125 to 12 vote on the admission of Tennessee, Higby’s concession underscores the framers’ indifference to the dissentient views on which Van Alstyne largely pitches his case.

Is it to be wondered that the Court, as Carl Auerbach noted, “agreed in Baker v. Carr that ‘any reliance’ on the Guarantee clause would be futile?” Auerbach pointed out that the Court “never adequately answered Mr. Justice Frankfurter’s argument that the equal protection claim it held to be justiciable was ‘in effect a Guarantee Clause claim masquerading under a different label.’ In fact the Court was being asked ‘to establish an appropriate form of government . . . for all the States in the Union.’ ” ³⁷ Congress, as Auerbach noticed, had expressed its judgment, in one form or another, “as to the nature of a republican form of government,” and it is Congress, not the Court, Luther v. Borden held, to whom that function is confided.³⁸ Where is the evidence that the framers who rejected the argument that Congress had power over State suffrage by virtue of the “republican form of government” guarantee meant to confer that power by the “equal protection” clause? It speaks volumes that Sumner, who employed “equality before the law” in a school desegregation case (wherein Chief Justice Shaw held against him),³⁹ should have turned to the “republican form of government” guarantee in the 39th Congress. After passage of the Amendment he proposed that the admission of Tennessee and Nebraska be conditioned upon no denial of suffrage, a confession that the “equal protection” clause did not preclude such denials.⁴⁰

Van Alstyne attaches considerable weight to Bingham’s “unusually rewarding” appeal to “a republican form of government,” which Bingham translated as a guarantee of the “right of franchise.” ⁴¹ His view was not shared by influential Republicans, and in the course of the debates he shifted his position, stating, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States.” ⁴² Shortly thereafter he changed course on the very “republican form” guarantee. He had moved for the admission of Tennessee, and Boutwell proposed “a condition precedent” that would require Tennessee to establish “suffrage for all male citizens,” without which, he argued, Tennessee would not have a “republican form of government” because of the exclusion of 80,000 blacks.⁴³ Boutwell was twitted by Bingham: “Why does not the gentleman move for an expulsion of Missouri from representation?” “When [the blacks] shall vote rests with the people of the State. There I leave it.” And, he concluded, with respect to the exclusion of Negroes, “So does Ohio, so does Pennsylvania, and so, also, do a majority of the States.” Boutwell was voted down 125 to 12.⁴⁴

Bingham is invoked still again by Van Alstyne:

The second section excludes the conclusion that by the first section suffrage is subjected to congressional law; save indeed, with this exception, that as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment a remedy might be given directly for a case supposed by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people.⁴⁵

Although Van Alstyne finds this statement “puzzling,” it suffices to read the words in their ordinary sense: §2 shows that Congress was given no control of suffrage by §1, except in a case of a treasonable shift to a despotic government which does away with all voting. Manifestly, a change from representative government to a dictatorship calls for effectuation of the guarantee. But what light does this shed on the general control of suffrage? No subtle elucidation of this passage can cancel out Bingham’s flat-footed statement that “the exercise of the elective franchise is exclusively under the control of the States,” at a time when he completely abandoned the “guarantee” as a limitation on State control of suffrage.⁴⁶ The Supreme Court confirmed the views of the framers in 1874: “All the States had governments when the Constitution was adopted . . . These governments the Constitution did not change. They were accepted precisely as they were . . . Thus we have unmistakable evidence of what was republican in form.” ⁴⁷ Unless some special magic was deemed to inhere in the words “equal protection” —a supposition hereinafter examined—the evidence, to my mind, that suffrage was excluded from the Amendment is all but incontrovertible.⁴⁸

The Report of the Joint Committee on Reconstruction, which Stevens, Boutwell, and Bingham signed, furnishes a conclusive summation:

Doubts were entertained whether Congress had power, even under the amended Constitution, to prescribe the qualifications of voters in a State, or could act directly on the subject. It was doubtful, in the opinion of your committee, whether the States would consent to surrender a power they had always exercised, and to which they were attached. As the best if not the only method of surmounting the difficulty, and as eminently just and proper in itself, your committee came to the conclusion that political power should be possessed in all the States exactly in proportion as the right of suffrage should be granted, without distinction of color or race. This it was thought would leave the whole question with the people of each State, holding out to all the advantage of increased political power as an inducement to allow all to participate in its exercise.⁴⁹

To “leave the whole question with the people of each State” is to say that §1 left suffrage untouched and that §2 was merely “an inducement [to the States] to allow all to participate in its exercise.”

Chief Justice Warren’s Opinion in Reynolds v. Sims

Chief Justice Warren made no allusion to Justice Harlan’s historical demonstration of the limited scope of the Fourteenth Amendment, and instead struck off a new version of constitutional principle and history. He premised that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” ⁵⁰ Were Warren drafting a new Constitution that principle would be unexceptionable. But that was not the established principle at the adoption of the Constitution; nor was it embodied therein. On the contrary, Federalist No. 54 recognized that “in every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State.” ⁵¹ In the 39th Congress itself, Fessenden said that “everybody has admitted from the foundation of the Government down to the present day that the qualification of voters rested with the States.” ⁵² Such was the clear consensus in the 39th Congress.

Warren postulated that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth and Nineteenth Amendments can mean only one thing—one person, one vote.” ⁵³ But Lincoln also bowed to “the right of each State to order and control its own domestic institutions,” ⁵⁴ and reminded a Negro delegation of the ineradicable prejudice toward blacks, who were “far removed from being placed on an equality with the white man.” ⁵⁵ And if we are to extract a principle from the Fifteenth and Nineteenth Amendments it is that Congress and the people considered that express Amendments were needed to confer suffrage on Negroes and women, that absent these Amendments neither enjoyed “political equality.” ⁵⁶ The point was made by the Court itself in Minor v. Happersett (1874), wherein a woman claimed that the Fourteenth Amendment endowed her with suffrage: “after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth . . . If suffrage was one of the privileges and immunities [of the Fourteenth], why amend the Constitution to prevent its being denied on account of race.” ⁵⁷

The Seventeenth Amendment likewise speaks against Warren, for it provides, with respect to the popular election of Senators, that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature,” qualifications, it will be recalled, that were under exclusive State control from the beginning and were left in place by the Fourteenth Amendment.

Reliance upon the Declaration of Independence, to which the Radical left frequently appealed in the 39th Congress, might be dismissed with the remark of neoabolitionist tenBroek: “ ‘All men are created equal’ proclaimed the Declaration of Independence. All men? Well not quite all—not negro slaves like those owned by Jefferson, among others.” ⁵⁸ To import the Declaration into the Constitution is to overlook their totally different provenance. The Declaration was a product of rebels and revolutionaries; the Constitution came twelve years later, in no small part as a recoil from the “excesses” of popularly controlled legislatures.⁵⁹ Men of substance felt threatened and, in the words of John Dickinson, sought to protect “the worthy against the licentious.” ⁶⁰ TenBroek noted that “Equality was the dominant note in the Declaration,” whereas a “stronger position” was accorded in the Constitution to “property,” ⁶¹ including property in slaves as the fugitive slave clause testifies. There is no blinking the fact, as Kent Newmeyer recently reminded us, that the Constitution was “racist.” ⁶² Jefferson himself, author of the Declaration, predicted emancipation, but wrote: “it is equally certain that the two races will never live in a state of equal freedom . . . so insurmountable are the barriers which nature, habit and opinions have established between them.” ⁶³ Stevens powerfully summarized this history at the outset of the 39th Congress:

Sir, our fathers made the Declaration of Independence; and that is what they intended to be the foundation of our Government. If they had been able to base their Constitution on the principles of that Declaration it would have needed no amendment during all time, for every human being would have had his rights; every human being would have been equal before the law. But it so happened when our fathers came to reduce the principles on which they founded this Government into order, in shaping the organic law, an institution hot from hell appeared among them . . . It obstructed all their movements and all their actions, and precluded them from carrying out their own principles into the organic law of this Union.⁶⁴

It needs also to be borne in mind that the Declaration was drawn by the Continental Congress, a league of independent States, each of which jealously guarded its independence.⁶⁵ One of the reasons advanced by Senator Poland for §1 of the Fourteenth Amendment was doubts as to Congress’ power to “destroy all such partial State legislation” as violated the “principles” of the Declaration of Independence.⁶⁶ Senator Howard, a favorite of the neoabolitionists, stated that he could not discover the Negro right to vote in the Declaration of Independence and that, “notwithstanding the Declaration of Independence, it is the right of every organized political community to regulate the right of suffrage.” ⁶⁷ Manifestly, Warren’s appeal to the Declaration as a guiding principle of constitutional construction is out of tune with the historical facts.

A word about his appeal to James Wilson’s 1791 Lectures in Philadelphia: “all elections ought to be equal. Elections are equal, when a given number of citizens, in one part of the State, choose as many representatives, as are chosen by the same number of citizens, in any other part of the state.” ⁶⁸ This stated an ideal, not a constitutional requirement. When Wilson turned to the Article I, §2, provision that “the Electors in each state shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature,” he said, “the regulation is generous and wise. It is generous for it intrusts to . . . the several states, the very important power of ascertaining the qualifications” of the Electors. It was evidence of confidence, “that this foundation should be continued or altered by the States themselves.” ⁶⁹ Wilson was thoroughly aware of the disparate State exclusions from suffrage, having made a survey of the different State constitutions, even noticing that Connecticut provided power to exclude freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” And he praises “the wisdom . . . which rested one of the principal pillars of the national government upon the foundations prepared for it by the governments of the several states.” ⁷⁰ Warren’s use of Wilson affords striking illustration of the “lawyers history” so justly condemned by Alfred Kelly.

Warren’s pervasive error, to my mind, is to substitute twentieth-century logic for the framers’ intention, so clearly expressed in the legislative history: “Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people in a State would elect a majority of that State’s legislators.” ⁷¹ “Ostensibly grounded” refuses to come to terms with the historical fact that suffrage and apportionment were the province of the States. Once again is demonstrated the wisdom of Holmes’ aphorism, “a page of history is worth a volume of logic.” ⁷² That history was summarized with crystal clarity in the Report of the Joint Committee on Reconstruction.⁷³

Justice Brennan’s Opinion in Oregon v. Mitchell

Justice Brennan recognized that “racial prejudice in the North” was a most “significant” obstacle in the path of equal suffrage:

Only five New England States and New York permitted any Negroes to vote as of 1866 . . . and extension of the suffrage was rejected by the voters in 17 of 19 popular referenda held on the subject between 1865 and 1868. Moreover, Republicans suffered some severe election setbacks in 1867 on account of their support of Negro suffrage . . .

Meeting in the winter and spring of 1866 and facing elections in the fall of the same year the Republicans thus faced a difficult dilemma: they desperately needed Negro suffrage in order to prevent total Democratic resurgence in the South, yet they feared that by pressing for suffrage they might create a reaction among northern white voters that would lead to massive Democratic electoral gains in the North. Their task was thus to frame a policy that would prevent total Democratic resurgence and simultaneously would serve as a platform upon which Republicans could go before their northern constituents in the fall. What ultimately emerged as the policy and political platform of the Republican Party was the Fourteenth Amendment.⁷⁴

Why could not the Republicans in Congress tell their constituents that unless Negro suffrage was granted Republican hegemony was doomed? Unless Northern voters preferred Democratic resurgence to Negro suffrage, the interests of Republican voters and members of Congress were one and the same. In fact the framers shared the prejudices of their Northern constituency, to recall only George W. Julian’s statement in the House: “The real trouble is we hate the Negro.” ⁷⁵ If the Republicans entertained a secret design to slip suffrage into the Amendment over voter opposition in order to hang on to office, they were betraying their constituency, and for this firm evidence needs to be adduced.

Given the framers’ awareness of voter antipathy to suffrage, one would expect Justice Brennan to resolve all doubts in favor of those sentiments. Instead he substitutes twentieth-century speculation for historical fact to effectuate his own predilections and commits the very sin he incorrectly lays at Harlan’s door: “historical analysis is flawed by ascription of 20th century meanings to the words of 19th century legislators.” ⁷⁶ For example, Harlan’s “view would appear to allow a State to exclude any unpopular group on the basis of its political opinions.” ⁷⁷ But if State control over suffrage was plenary, if the Amendment left States free to exclude Negroes on account of their color, they were equally free to exclude others for their “political opinions,” unpalatable as that appears to twentieth-century thinking. It will be recalled that James Wilson noticed the Connecticut provision for exclusion of freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” Historical analysis must proceed from the 1866 facts, not reason backward from 1970 predilections. Justice Brennan would substitute his choices for those of the framers; because we dislike a policy today, it does not follow that it is unconstitutional. That standard was rejected both by the Founders and by Chief Justice Marshall.⁷⁸

Justice Brennan’s opinion runs to some 38 pages; refutation, as is well known, requires more space than bare assertion; hence only a sampling of the Brennan opinion can here be analyzed. A few examples, however, should suffice to disclose Justice Brennan’s preference for speculation over fact. Section 1 began, he notices, as a “provision aimed at securing equality of ‘political rights and privileges’ ”; but the Joint Committee rejected an express reference “to political and elective rights”; it dropped all references to “political rights” and spoke in terms of “privileges and immunities” and equal protection of “life, liberty, and property” by a vote of seven to six. Commenting on these facts, Justice Brennan stated, “the breakdown of the committee vote suggests that . . . no change in meaning was intended,” because the “substitute was supported by men of all political views,” among them Howard and Boutwell, “who had earlier sought to make the section’s coverage of suffrage explicit,” and Stevens and Fessenden.⁷⁹ But Boutwell, Fessenden, Howard, and Stevens later agreed that the Amendment did not grant suffrage and signed the Joint Committee Report that so stated. To deduce that Bingham merely “sought to do no more than substitute for his earlier specific language more general language” ⁸⁰ ignores the repeated rejection of the specific proposals. General language may be construed to comprehend specific language that was earlier approved; but when specific language was rejected, evidence is required to explain why the rejected specific was now embodied in the general, evidence, not speculation. Then, too, Bingham cannot be lifted out of the mainstream of Republican statements that the Amendment did not confer suffrage; in fact he himself so stated.⁸¹

At the instigation of Robert Dale Owen, a reformer, Stevens had submitted a proposal that after July 4, 1876, “no discrimination shall be made . . . as to . . . the right of suffrage because of race.” This provision was deleted by the Joint Committee, Justice Brennan notes, but “the reasons for the rewriting are not entirely clear.” He notices, however, that in 1875 Owen furnished Stevens’ explanation: “several state delegations held caucuses which decided that the explicit references to ‘negro suffrage,’ in any shape, ought to be excluded from the platform.” ⁸² Is this not a “clear” explanation? By Brennan’s own testimony the Republicans feared to endanger the Fall elections by the submission of Negro suffrage. He reasons, however, “Perhaps the changes in §1 of the Amendment were thought by the Committee to be mere linguistic improvements which did not substantially modify Owen’s meaning.” ⁸³ The fact is that the 1876 provision was dropped to avoid alienating the electorate. That the “changes” were not “thought by the Committee to be mere linguistic improvements” is once more demonstrated by the unequivocal statement in its Report that suffrage had proven impossible of achievement and was left in the control of the States.

At “the very least,” states Justice Brennan, “the Committee must have realized that it was substituting for Owen’s rather specific language Bingham’s far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” ⁸⁴ Because, Brennan amplified, “political considerations militated against clarification of issues and in favor of compromise,” because “much of the North . . . opposed Negro suffrage, and many Republicans in Congress had to seek reelection from constituencies where racial prejudice remained rampant,” “what Republicans needed, in the words of Wendell Phillips . . . was ‘a party trick to tide over the elections and save time.’ ” ⁸⁵ This is the Bickel “open-ended” theory which I shall hereafter examine; and I shall also collate the evidence which repels the conclusion that the framers purposely employed “elastic language” to dupe the voters.

For Justice Brennan “the purpose of §1 in relation to the suffrage emerges out of the debates . . . with an equal obscurity.” ⁸⁶ As exhibit #1 he instances Howard’s statement that “the first section of the proposed amendment does not give to either of these classes the right of voting,” which is “not as unambiguous as [it] initially appear[s].” This is because after stating that “the right of suffrage was not one of the privileges and immunities protected by the Constitution . . . he read into the record an excerpt from . . . Corfield v. Coryell . . . which listed the elective franchise as among the privileges and immunities.” ⁸⁷ But Senator Trumbull, after calling attention to this Corfield listing, had pointed out that suffrage was not included in the Civil Rights Bill.⁸⁸ One might deduce that Howard felt no need to repeat such a statement after twice stating that the Amendment did not grant suffrage. Moreover, if an ambiguity be assumed, it was cured by his final statement: “the theory of this whole amendment is to leave the power of regulating the suffrage . . . with the States . . . and not to assume to regulate it.” ⁸⁹

For exhibit #2, Justice Brennan turns to Bingham’s “completely incongruous statement”: “the exercise of the elective franchise though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” ⁹⁰ Now Bingham was a confused thinker, as I shall show, but on one thing he was clear: the Amendment did not confer suffrage. At a later point he said: “We all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” He further stated, “the second section excludes the conclusion that by the first section suffrage is subjected to congressional law.” ⁹¹ Thereafter Bingham vigorously defended the exclusion of Negro suffrage from the Tennessee Constitution. When Boutwell objected during the debate on the readmission of Tennessee that in consequence it did not have a “republican form of government,” Bingham replied that whether a black “shall vote rests with the people of [Tennessee]. There I leave it . . . I ask the gentlemen to weigh well the question when they come to vote, whether Tennessee shall be rejected only because the majority exercises the same power as to colored suffrage claimed for and exercised by all the other States.” ⁹² This was after Congress submitted the Amendment with its “equal protection” clause to the people, and Bingham was upheld by a vote of 125 to 12,⁹³ an irreducible fact that speaks more loudly than all of Justice Brennan’s speculations. Here were materials that cured the “ambiguity,” ⁹⁴ that dissipated the “obscurity” conjured up by Justice Brennan, of which he took no notice. And why lean so heavily on the alleged “ambiguities” of two leaders when the vast majority of the leadership and rank and file affirmed or recognized that suffrage was excluded from the Amendment?

Then there is Brennan’s citation of Sumner, who was all but ostracized in the Senate, whose proposals were regularly voted down by very large majorities;⁹⁵ and his appeal to Stevens’ statement that the Amendment “merely allowed ‘Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.’ ” ⁹⁶ Stevens sought equality with respect to the rights enumerated in the Civil Rights Act, from which suffrage was excluded. But on the issue of suffrage, he stated, “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this [ “representation” proposal] does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualifications of their voters . . . You could not get five in this Union.” ⁹⁷ It was on Stevens’ motion that the Joint Committee adopted a reduction of representation proposal; and it rejected Boutwell’s motion to “abolish” any distinction.⁹⁸

Justice Brennan also refers to three Democratic opponents of the Amendment who, more or less clearly, saw in it a grant of suffrage.⁹⁹ Opponents of a measure, particularly those who seek to discredit it, are given slight credence, as I shall show; their testimony is not employed to define its scope.¹⁰⁰ What are we to think of Brennan’s reference to Senator Stewart, who, “while unhappy that the Amendment did not directly confer suffrage, nevertheless could ‘support this plan’ because it did ‘not preclude Congress from adopting other means by a two-thirds vote’ ”?¹⁰¹ Of course Congress could later propose another amendment by a “two-thirds vote”; Stewart plainly had no reference to congressional implementation by statute, for that could be done by majority vote, given authorization by the Amendment.

Finally, Justice Brennan takes over Van Alstyne’s critique of Harlan’s alleged view that “ §2 is specifically concerned with voting rights, and it provides an exclusive remedy that precludes or preempts application of §1.” ¹⁰² Apparently this is based on Harlan’s reference to the “Court’s utter disregard of the second section which expressly recognized the State’s power to deny the right . . . to vote and its express provision of a remedy for such denial or abridgment.” ¹⁰³ This unduly exalts a loose, passing reference to “remedy.” Remedies are given for “wrongs”; it is no “wrong” to exercise the “recognized . . . power to deny the right . . . to vote.” Then, too, since §1 conferred no suffrage, §2 obviously created no remedy for a nonexistent right. Certainly it gave no “remedy” to the black who was denied a vote. Senator Stewart, a Republican, sardonically commented that §2 relieves the Negro “from misrepresentation in Congress by denying him any representation whatever.” ¹⁰⁴ Justice Brennan explains that §2 “was of critical importance in assuring that, should the Southern States deny the franchise to Negroes, the Congress called upon to remedy that discrimination would not be controlled by the beneficiaries of discrimination themselves.” ¹⁰⁵ The truth is that §2 was the core of the Republican program because, as Brennan himself states, the Republicans needed to “prevent total [Democratic] resurgence,” “massive electoral gains in the North.” Reduction of representation when Negro suffrage was denied was deemed more important than endowing blacks with the vote; perceptive Republicans doubted whether the South would be “induced” to enfranchise Negroes and thus lose control.¹⁰⁶ Section 2, therefore, was not so much a “remedy” to enforce rights which §1 had not granted as a mechanism to preserve Republican hegemony. Forlorn hopes that the South could thereby be “induced” to confer suffrage were doomed to disappointment.

Enough has been set forth to exhibit Justice Brennan’s strange preference for minority Democrats and dissentient radicals like Sumner over the Republican leadership and its followers who enacted the measure and whose utterances are virtually ignored by him, his preference for “ambiguous” utterances rather than the crystal-clear explanations of the self-same speakers, and for speculation over the mass of stubborn evidence to the contrary.¹⁰⁷ Future historians, I confidently predict, will not prefer the “history” of Brennan to that of Harlan.