LITMIR.BIZ

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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

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