Those who advance the first argument assert that the poll tax is only a means, and an unconstitutional one, of denying a fundamental right. Thus the power of Congress to outlaw the poll tax is brought under section 4 of the article I. If Congress should act under its power to regulate the time, manner, and places of electing Federal officials, it is asserted that Breedlove and other cases would no longer be significant, since Congress has not yet legislated on the question as it relates to the manner of holding elections. 62 The debate on these bills would thus seem to indicate that the constitutionality of Federal anti-polltax legislation is at least doubtful. Finally, it may be noted that the poll tax is not as serious a restriction as it once was, for it is difficult to administer so as to bar Negroes alone from the ballot box. Any administrative procedure by which the tax would be exacted from the Negro alone would most certainly be invalidated by the Federal courts. FOURTEENTH AMENDMENT Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. * * * Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. The most significant substantive section in the Fourteenth Amendment respecting voting is the first. This defines citizenship and then imposes restrictions upon the States through what are commonly known as the privileges and immunities, due process, and equal protection clauses. While the Fourteenth Amendment is less precise than the Fifteenth in protecting the voting privilege, it has been used on numerous occasions to strike down State action that has caused discrimination between members of different races who attempt to vote. 02 See S. Rept. 530, 78th Cong., 1st sess. (1943) (III Sen. Misc. Rept. 2-3). To understand fully the import of the Fourteenth Amendment in the area of voting, it is necessary to know its precise coverage. THE CONCEPT OF CITIZENSHIP 1. Persons are citizens of the United States who, if subject to the jurisdiction of the United States, are born in the United States or born abroad of American parentage; or who become citizens by qualifying for it in accordance with naturalization statutes; or whose citizenship is thrust upon them, such as members of certain Indian tribes and inhabitants of certain dependencies of the United States.63 2. The Fourteenth Amendment recognizes and establishes a distinction between U.S. citizenship and State citizenship. For a citizen of the United States to be a citizen of a State he must reside in that State with a fixed intent to remain resident. Birth or naturalization in the United States does not alone confer State citizenship. 64 3. While national citizenship was not created by the Fourteenth Amendment, it was therein made "paramount" to State citizenship.65 4. National citizenship is not a qualification for voting in the absence of State constitutional or statutory requirements, so that a person could be a citizen of a State, thereby complying with residential voting requirements, yet not be a citizen of the United States. PRIVILEGES AND IMMUNITIES 66 1. The privileges-and-immunities clause is the only provision of the first section of the Fourteenth Amendment confined exclusively to citizens rather than persons generally. 2. As a source of power to protect the franchise, the privileges-andimmunities clause has been rendered ineffective by interpretation. The courts have held that it only forbids a State to discriminate against citizens of other States in favor of its own. The clause has not been applied to voting controversies between a State and its citizens. In short, it does not convert the rights of the citizens of each State, as of the date when the Fourteenth Amendment was adopted, into privileges and immunities of U.S. citizenship. Prior to the adoption and ratification of the Fourteenth Amendment, the Constitution contained no definition either of State or National citizenship. The Civil Rights Act of 1866 (14 Stat. 27), enacted 2 years prior to the Fourteenth Amendment, had declared that all persons born in the United States and not subject to a foreign power, excluding Indians not taxed, were citizens of the United States. The Fourteenth Amendment, the second of the so-called Civil War amendments, became effective on July 28, 1868. It removed all doubt as to the legality of the Civil Rights Act of 1866 and superseded the decision of the Supreme Court in Dred Scott v. Sandford, 60 U.S. 393 (1857), which had denied United States citizenship to a Negro even though he had been born in the United States and had been descended from a Negro residing as a freeman in one of the States when the Constitution was adopted. The ruling in this case had been that the Negro was ineligible to attain U.S. citizenship either from a State or by virtue of birth in the United States. Slaughter-House Cases, 83 U.S. 36 (1873). Arver v. United States (Selective Draft Law Cases) 245 U.S. 366, 377, 388-389 (1918) * Baker v. Keck, 13 F. Supp. 486. McDonel v. State, 90 Ind. 320 (1883). 67 As stated in Edward S. Corwin's basic work on the Constitution of the United States, the only privileges that the Fourteenth Amendment expressly protects against State encroachment are those "which owe their existence to the Federal Government, its National Character, its Constitution, or its Laws." 68 3. In Twining v. New Jersey," the Court listed the following privileges and immunities as applying to U.S. citizens and, contrary to the allegations of litigants, not to those of State citizenship: the right to pass freely from State to State; the right to petition Congress for redress of grievances; the right to enter public lands; the right to be protected against violence while in the lawful custody of a U.S. marshal; the right to inform the U.S. authorities of violations of its laws. 4. The protection of the franchise under the privileges-and-immunities clause of the Fourteenth Amendment is slight. State action has been upheld against the charge of abridgment of this clause where it required that persons coming into the State make a declaration of intention to become citizens and residents thereof before being permitted to register as voters; 70 where payment of poll tax was made a prerequisite of the right to vote; " where the right to become a candidate for State office was involved; 72 and where there were established ostensibly unrealistic State requirements concerning formation and nomination of candidates for a new political party." EQUAL PROTECTION OF THE LAWS 1. The prohibition against denial of equal protection of the laws refers exclusively to State action. This means that no agency or instrumentality of the State nor any person exerting State power may 7 Edward S. Corwin, The Constitution of the United States, Analysis and Interpretation, U.S. Government Printing Office, 1953, p. 996, citing the Slaughter-House Cases. Slaughter-House Cases, 83 U.S. 36 (1873) 79, citing the case of Crandall v. Nevada, 73 U.S. 35 (1868) which was decided before ratification of the Fourteenth Amendment. Corwin summarizes the rights of citizens protected by implied guaranties of the Constitution as listed by the Court in the above cases: "Right of access to the seat of government, and to the seaports, subtreasuries, land offices, and courts of justice in the several States; right to demand protection of the Federal Government on the high seas, or abroad; right of assembly and privilege of the writ of habeas corpus; right to use the navigable waters of the United States; and rights secured by treaty" (Corwin, supra at 967). Since these were privileges available to U.S. citizens even prior to the adoption of the Fourteenth Amendment, with which no State could interfere due to the principle of Federal supremacy, this interpretation reduced to insignificance the privileges-and-immunities clause of the Fourteenth Amendment (Corwin, supra at 966). It may well be, however, that had the case involved protection against infringements based upon race, color, creed, or national origin rather than a grant of business monopoly, a different result would have obtained. The Supreme Court itself indicated this possibility. 6211 U.S. 78, 97 (1908). To Pope v. Williams, 193 U.S. 621 (1904). deny equal protection to any person within the jurisdiction of the State. This refers both to discriminatory legislation in favor of particular individuals as against others in like condition, and to the way a law is administered.74 2. Unlike the privileges-and-immunities clause, the equal-protection clause provides a guaranty to any person within the jurisdiction of a State. It is not limited to citizens of the United States or of a State.75 3. The equal-protection clause applies to all persons-individual, corporate, or otherwise within the jurisdiction of a State. The restriction of "within the jurisdiction" in relation to individual persons has never required judicial construction, since article 4, section 2, of the U.S. Constitution has always entitled citizens of each State to the privileges and immunities of citizens in the several States.76 4. The clause does not require that identical treatment be accorded all persons without recognizing differences in relevant circumstances. It requires only that equal laws shall apply to all under like circumstances in the enjoyment of personal and civil rights, in acquisition and enjoyment of property, and in access to the courts. It is intended to prevent undue favor, individual or class privilege, and hostile discrimination or oppression." 5. It was not intended to interfere with a State's power, sometimes called police power, to prescribe regulations dealing with health, morals, education, peace, or to legislate for the purpose of increasing the industry, health, and prosperity of the state. This type of regulation may impose greater burdens upon some than on others, but it is designed to promote the general good rather than impose unequal or unnecessary restrictions upon any person. If these differences operate alike on all persons and property under the same circumstances and conditions, they do not violate the equal-protection clause.78 6. While State legislatures are allowed wide latitude in classifying for different purposes, they may not select certain individuals arbitrarily for the operation of statutes. However, there is a strong presumption that ostensibly discriminatory legislative classification is based on reasonable and adequate grounds." 14 Corwin, op cit. supra note 67, at 1141, citing Virginia v. Rives, 100 U.S. 313, 318 (1880). Minneapolis & St. L.R. Co. v. Beckwith, 129 U.S. 26, 28 (1889). Yick Wo v. Hopkins, 118 U.S. 356, 373-874 (1886). "Corwin, op cit. supra note 67, at 1143. Initially, the Supreme Court indicated doubt as to whether State discriminatory action not directed against Negroes as a class, on account of their race, would ever come within the purview of this clause. See Slaughter. House Cases, op. cit. supra note 68, at 81. However, this view was never enforced. A broad interpretation has prevailed so that the clause applies to all persons within a State without being limited to protect only certain persons of a particular race, color, or nationality. See Yick Wo v. Hopkins. supra, note 74, at 369. 14 Corwin, op cit. supra, note 67, at 1143; cf. Hillsborough v. Cromwell, 326 U.S. 620 (1946). "Id. at 1144-5; Truax v. Corrigan, 257 U.S. 312, 332-333 (1921). " Id. at 1144-5; Barbier v. Connoly, 113 U.S. 27, 31-32 (1885). "Id. at 1145; Bachtel v. Wilson, 204 U.S. 36, 41 (1907). Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911). Middleton v. Texas Power and Light Co., 249 U.S. 152, 157 (1919). 7. The equal-protection clause does not require that all occupations called by the same name must be treated the same way. The State has discretion to stop short of covering with legislation all conditions it might have covered, and to except specific classes from certain laws if reasonable grounds are given.80 In short, there is no basis for claiming denial of equal protection because a particular statute does not go further, provided that the statute has a reasonable basis and that what it commands of one it commands of all others similarly situated.81 THE FIFTEENTH AMENDMENT Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. The Fifteenth Amendment, ratified in 1870 as the third of the socalled Civil War amendments, is a principal source of substantive Federal protection in the area of voting. It affords to every citizen a right to be free from discrimination in voting because of race, color, or previous condition of servitude. From one point of view the Fifteenth Amendment operates "as an immediate source of a right to vote." 82 By this is meant, for example, that should a State by constitution or statute limit voting to "white" persons only, the Fifteenth Amendment would annul the discriminating word "white." In this sense the Fifteenth Amendment confers on the nonwhite the right to vote, provided he is otherwise qualified. Congress is empowered to protect and enforce that right. LIMITATIONS While the Fifteenth Amendment is precise in protecting the franchise, the scope of its protection is limited. First, it does not directly confer the right of suffrage upon anyone, but rather affords to citizens the constitutional right of "exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude." 83 Second, it recognizes (a) that the right of suffrage is not a necessary attribute of national citizenship, (b) that voting qualifications are determined by States, and (c) that only exemption from discrimination comes from the United States.84 80 Corwin, supra, 1146; Dominion Hotel v. State of Arizona, 249 U.S. 265, 268 (1919). Phelps v. Board of Education, 300 U.S. 319, 324 (1937). 81 Chicago Dock and Canal Co. v. Fraley, 228 U.S. 680, 687 (1913). 82 Ex parte, Yarbrough, 110 U.S. 651, 665 (1884); see Corwin, op. cit. Supra note 67, at 1183. 83 United States v. Reese, 92 U.S. 214 (1876); Minor v. Happersett, 21 Wall 178 (1875). United States v. Cruikshank, 92 U.S. 542 (1876). |