A CONSTITUTIONAL issue of great importance is currently before the House. As you know, the Senate has attached to the bill modifying and extending the Voting Rights Act of 1965 a rider that purports to enable Americans between the ages of 18 and 21 to vote in Federal, State and local elections.
I say "purports" because I believe it would not in fact confer the vote. I believe that it represents an unconstitutional assertion of Congressional authority in an area specifically reserved to the States, and that it therefore would not stand the test of challenge in the courts. This belief is shared by many of the Nation's leading constitutional scholars.
I strongly favor the 18-year-old vote. I strongly favor enactment of the Voting Rights Bill. But these are entirely separate issues, each of which deserves consideration on its own merits. More important, each needs to be dealt with in a way that is constitutionally permissible--and therefore, in a way that will work.
Because the issue is now before the House, I wish to invite the urgent attention of the Members to the grave constitutional questions involved in the 18-year-old vote rider, and to the possible consequences of ignoring those questions.
STATUTE VS. CONSTITUTIONAL
The matter immediately at issue is not whether 18-year-olds should be given the vote, but how: by simple statute, or by constitutional amendment.
The argument for attempting it by statute is one of expediency. It appears easier and quicker.
The constitutional amendment route is admittedly more cumbersome, but it does appear that such an amendment could be readily approved. A resolution proposing such an amendment already has been introduced in the Senate, sponsored by two-thirds of the members, the same number required for passage. Sentiment in the House seems strongly in favor. Some contend that ratification would be a long and uncertain process. However, public support for the 18-year-old vote has been growing, and certainly the submission to the States of a constitutional amendment, passed by two-thirds of both Houses and endorsed by the President, would provide powerful additional momentum. An historical footnote is pertinent: When the women's suffrage amendment was proposed in 1919, many said the States would never go along--but ratification was completed in less than 15 months.
If the Senate provision is passed by the Congress, and if it is later declared unconstitutional by the courts, it will have immense and possibly disastrous effects.
At the very least, it will have raised false hopes among millions of young people--led by the Congress to believe they had been given the vote, only to discover later that what the Congress had purported to confer was not in its power to give.
It will have cost valuable time, during which a constitutional amendment could have been submitted to the States and the process of ratification gone forward. It would almost certainly mean that the 18-year-old vote could not be achieved before the 1972 election.
Beyond this, there looms the very real possibility that the outcome of thousands of State and local elections, and possibly even the next national election, could be thrown in doubt: because if those elections took place before the process of judicial review had been completed, no one could know for sure whether the votes of those under 21 had been legally cast. It takes little imagination to realize what this could mean. The Nation could be confronted with a crisis of the first magnitude. The possibility that a Presidential election, under our present system, could be thrown into the House of Representatives is widely regarded as dangerous; but suppose that a probably unconstitutional grant of the 18-year-old vote left the membership of the House unsettled as well?
The Senate measure contains a provision seeking an early test of its constitutionality, but there can be no guarantee that such a test would actually be completed before elections took place. And the risk of chaos, if it were not completed, is real.
THE CONSTITUTIONAL QUESTIONS
On many things the Constitution is ambiguous. On the power to set voting qualifications, however, the Constitution is clear and precise: within certain specified limits, this power belongs to the States. Three separate provisions vest this power with the States: Article I, Section 2 (election of members of the House of Representatives), the Tenth Amendment (reserved powers) and the Seventeenth Amendment (direct election of Senators) all lodge this power with the States. There are four provisions placing limitations on this power: the vote cannot be limited on grounds of race (the Fifteenth Amendment), sex (the Nineteenth Amendment), or failure to pay a poll tax (the Twenty-Fourth Amendment); nor can States impose voting qualifications so arbitrary, invidious or irrational as to constitute a denial of equal protection of the laws (the Fourteenth Amendment).
Advocates of the proposal that passed the Senate rely on the power given Congress under the Fourteenth Amendment to enforce equal protection of the laws, and particularly on the Supreme Court's 1966 decision in the case of Katzenbach v. Morgan. This case upheld Federal legislation enfranchising residents of New York who had attended school in Puerto Rico, and who were literate in Spanish but not in English. However, I do not believe that the Court's decision in Katzenbach v. Morgan authorizes the power now asserted by the Senate to enfranchise young people. Neither do I believe it follows that because Congress has power to suspend literacy tests for voting throughout the Nation, as the new Voting Rights Act would do, it has power also to decide for the entire Nation what the proper age qualification should be.
Where Puerto Ricans were denied the! right to vote, the Court could readily conclude that there had been discriminatory treatment of an ethnic minority. This was especially so because of the particular circumstances of those whose rights were at issue: U.S. citizens by birth, literate in Spanish, but not literate in English because their schools, though under the American flag, had used Spanish as the language of instruction.
Similarly with literacy tests: the Court already has upheld the right of Congress to bar their use where there is presumptive evidence that they have been used in a discriminatory fashion. If Congress now finds that literacy tests everywhere impose a special burden on the poor and on large numbers of black Americans, and for this reason abolishes literacy tests everywhere, it is using the same power which was upheld when the Court sustained the Voting Rights Act of 1965.
To go on, however, and maintain that the 21-year voting age is discriminatory in a constitutional sense is a giant leap. This limitation--as I believe--may be no longer justified, but it certainly is neither capricious nor irrational. Even to set the limit at 18 is to recognize that it has to be set somewhere. A 21-year voting age treats all alike, working no invidious distinction among groups or classes. It has been the tradition in this country since the Constitution was adopted, and it was the standard even before; it still is maintained by 46 of the 50 states; and, indeed, it is explicitly recognized by Section 2 of the Fourteenth Amendment itself as the voting age.
If it is unconstitutional for a State to deny the vote to an 18-year-old, it would seem equally unconstitutional to deny it to a 17-year-old or a 16-year-old. As long as the question is simply one of judgment, the Constitution gives Congress no power to substitute its judgment for that of the states in a matter such as age qualification to vote which the Supreme Court has recognized is one which the States may properly take into consideration.
A basic principle of constitutional law is that there are no trivial or less important provisions of the Constitution. There are no constitutional corners that may safely be cut in the service of a good cause. The Constitution is indivisible. It must be read as a whole. No provision of it, none of the great guarantees of the Bill of Rights is secure if we are willing to say that any provision can be dealt with lightly in order to achieve one or another immediate end. Neither high purpose nor expediency is a good excuse. We damage respect for law, we feed cynical attitudes toward law, whenever we ride roughshod over any law, let alone any constitutional provision, because we are impatient to achieve our purposes.
To pass a popular measure despite the Constitutional prohibition, and then to throw on the Court the burden of declaring it unconstitutional, is to place a greater strain and burden on the Court than the Founding Fathers intended, or than the Court should have to sustain. To enact the Senate proposal would be to challenge the Court to accept, or to reject, a fateful step in the redistribution of powers and functions, not only between the Federal Government and the States but also between itself and the Congress.
Historically, under the Fourteenth Amendment as well as under many other provisions of the Constitution, it has been the duty of the Court to define and enforce the division of powers between the Federal Government and the States. Section 5 of the Fourteenth Amendment gives Congress power to "enforce" Constitutionally-protected rights against intrusion by the States; but the primary role in defining what those rights are belongs to the Court.
For the most part, the Court has acted with due deference and respect for the views of Congress, and for Congress' assessment of facts and conditions and the needs to which they give rise. But the Court has had the last word.
However, it is difficult to see how the Court could uphold the Senate proposal on the 18-year-vote without conceding that Congress now has the last word.
To present this challenge to the Court would thus raise equal and opposite dangers: on the one hand, if the Court acquiesced, its own power as the protector of our rights could be irreparably diminished; and on the other, if the Court rebuffed the challenge, the often valuable latitude Congress now has under broad readings of its Fourteenth Amendment power might in consequence be severely limited. Neither outcome, in my view, would be desirable.
THE PATH OF REASON
I have recently canvassed many of the Nation's leading constitutional scholars for their views on the Senate proposal. Some feel that, by a broad reading of Katzenbach v. Morgan, the proposal's constitutionality could be sustained. The great majority, however, regard it as unconstitutional--and they voice serious concern not only for the integrity of the Constitution but also for the authority of the Court, if it should be sustained.
At best, then, it would be enacted under a heavy constitutional cloud, with its validity in serious doubt. Even those who support the legislation most vigorously must concede the existence of a serious constitutional question.
At worst, it would throw the electoral process into turmoil during a protracted period of legal uncertainty, and finally leave our young people frustrated, embittered and voteless.
I therefore urge:
--That the 18-year-old vote rider be separated from the bill extending the Voting Rights Act.
--That the Voting Rights Bill be approved.
--That Congress proceed expeditiously to secure the vote for the Nation's 18-, 19-, and 90-year-olds in the one way that is plainly provided for in the Constitution, and the one way that will leave no doubt as to its validity: Constitutional amendment.