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I SUPPOSE THAT IN 1920, WHEN THE NINETEENTH AMENDMENT WAS RATIFIED GIVING WOMEN THE RIGHT TO VOTE, IT WAS ASSUMED BY MOST CONSTITUTIONAL EXPERTS THAT THERE WAS NO RELIEF BY WAY OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. IN MINOR V. HAPPERSETT, 21 WALL. 162, THE COURT HELD IN THE 1874 TERM THAT A STATE COULD CONSTITUTIONALLY RESTRICT THE FRANCHISE TO MEN. WHILE THE FOURTEENTH AMENDMENT WAS RELIED UPON, THE THRUST OF THE OPINION WAS DIRECTED AT THE PRIVILEGES AND IMMUNITIES CLAUSE WITH A SUBSIDIARY REFERENCE TO THE DUE PROCESS CLAUSE. IT WAS MUCH LATER, INDEED NOT UNTIL THE 1961 TERM-- NEARLY A CENTURY AFTER THE FOURTEENTH AMENDMENT WAS ADOPTED-- THAT DISCRIMINATION AGAINST VOTERS ON GROUNDS OTHER THAN RACE WAS STRUCK DOWN.
"THIS NEW CONSTITUTIONAL RIGHT WAS MAINLY DESIGNED FOR CITIZENS OF AFRICAN DESCENT. THE PRINCIPLE, HOWEVER, THAT THE PROTECTION OF THE EXERCISE OF THIS RIGHT IS WITHIN THE POWER OF CONGRESS, IS AS NECESSARY TO THE RIGHT OF OTHER CITIZENS TO VOTE AS TO THE COLORED CITIZEN, AND TO THE RIGHT TO VOTE IN GENERAL AS TO THE RIGHT TO BE PROTECTED AGAINST DISCRIMINATION." IT WAS IN THAT TRADITION THAT WE SAID IN REYNOLDS V. SIMS, SUPRA, AT 555, "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." THIS "RIGHT TO CHOOSE, SECURED BY THE CONSTITUTION," UNITED STATES V. CLASSIC, 313 U.S. 299, 315, IS A CIVIL RIGHT OF THE HIGHEST ORDER. VOTING CONCERNS "POLITICAL" MATTERS; BUT THE RIGHT IS NOT "POLITICAL" IN THE CONSTITUTIONAL SENSE. INTERFERENCE WITH IT HAS GIVEN RISE TO A LONG AND CONSISTENT LINE OF DECISIONS BY THE COURT; AND THE CLAIM HAS ALWAYS BEEN UPHELD AS JUSTICIABLE. /5/ WHATEVER DISTINCTION MAY HAVE BEEN MADE, FOLLOWING THE CIVIL WAR, BETWEEN "CIVIL" AND "POLITICAL" RIGHTS, HAS PASSED INTO HISTORY. IN HARPER V; VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663, 669, WE STATED: "NOTIONS OF WHAT CONSTITUTES EQUAL TREATMENT FOR PURPOSES OF THE EQUAL PROTECTION CLAUSE DO CHANGE." THAT STATEMENT IS IN HARMONY WITH MY VIEW OF THE FOURTEENTH AMENDMENT, AS EXPRESSED BY MY BROTHER BRENNAN: "WE MUST THEREFORE CONCLUDE THAT ITS FRAMERS UNDERSTOOD THEIR AMENDMENT TO BE A BROADLY WORDED INJUNCTION CAPABLE OF BEING INTERPRETED BY FUTURE GENERATIONS IN ACCORDANCE WITH THE VISION AND NEEDS OF THOSE GENERATIONS." POST, AT 278. HENCE THE HISTORY OF THE FOURTEENTH AMENDMENT TENDERED BY MY BROTHER HARLAN IS IRRELEVANT TO THE PRESENT PROBLEM. SINCE THE RIGHT IS CIVIL AND NOT "POLITICAL," IT IS PROTECTED BY THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT WHICH IN TURN, BY SEC. 5 OF THAT AMENDMENT, CAN BE "ENFORCED" BY CONGRESS.
It was these words, written by Justice Douglass in Oregon v. Mitchell, 400 US 112, on December 21, 1970, which got us into the troubles we now face today. It is inaccurate when he said that "this new constitutional right"--namely the Fourteenth Amendment, and specifically the term "equal protection"--were "mainly" designed for citizens of African descent. The framers of this amendment were very careful to specify that this amendment was written SOLELY to free slaves and give them citizenship, be they of African descent or not. The amendment would never have been ratified if the guarantee were not made by the framers of the amendment that it would apply narrowly to only this one group. It is flat out prevarication to now change this to "mainly" and "African descent".
He stated that he agreed with the view that "NOTIONS OF WHAT CONSTITUTES EQUAL TREATMENT FOR PURPOSES OF THE EQUAL PROTECTION CLAUSE DO CHANGE", but he ignored the facts that neither we the people, nor Congress, nor the States, informed him or his court that we had either changed our minds about these "notions", nor abandoned our Christian principles regarding the sanctity of marriage (which this misapplication of "equal protection" completely undermined). It is pretty certain that the two thirds of the California voters who rejected laws established by judicial fiat (like affirmative action) would not support his contention that these "notions" changed. It is clear that the 84% of whites and 76% of blacks who responded to a Gallup Poll that they do not support racial set-asides, would not support his contention. The 90% of women in the home who stated that they did not envy women in the workplace, and the 50% of the women in the workplace who said that they did envy women in the home, would probably not support his contention. The 80% of women entering Eastern feminist universities who soundly reject feminism would not support his contention. 98% of the women who have vociferously discussed this issue disagree with this contention. The majority who voted against the "Equal Rights Amendment", and thus helped to defeat such notions, do not support his contention. WHO exactly is he talking about?
Not even the small number of people who might agree with him had the chance to debate or even discuss it, because it happened by the will of 9 (or fewer) Supreme Court Justices, and only by them. When he says: "WE MUST THEREFORE CONCLUDE THAT ITS FRAMERS UNDERSTOOD THEIR AMENDMENT TO BE A BROADLY WORDED INJUNCTION CAPABLE OF BEING INTERPRETED BY FUTURE GENERATIONS IN ACCORDANCE WITH THE VISION AND NEEDS OF THOSE GENERATIONS", exactly WHO is he talking about. The legislature asked (by way of the "Equal Rights Amendment") and we the people said "NO". But most of those who belong to these "future generations" were not asked, so most never even had the chance to say "NO". The few who were asked did say "NO". These "future generations" are now living under judicial fiat, not the will of the majority of "past generations".
The distinction made between "civil" and "political" rights did not even exist in most people's minds at the time the Fourteenth Amendment was drafted, so using this to conclude that the framers "understood their amendment to be a broadly worded injunction", when they knew that the framers were under the gun to craft the most narrow injunction possible (namely only to apply to slaves, and not to women, nor to women slaves), is specious. It is a direct violation of the will of the people, AND of Congress. To say that it "CAN BE "ENFORCED" BY CONGRESS" when Congress itself stated over and over and over again that the amendment was intended for that one narrow application, is judicial fiat. There was no single act of Congress which allowed the Supreme Court to make such an "interpretation" of this amendment--it was accomplished solely by a Supreme Court ruling, which has had devastating consequences, not the least of which is the ultimate admission of women to VMI.
