Allen v. State Board of Elections/Dissent Black

by Hugo Black

United States Supreme Court

393 U.S. 544

Allen  v.  State Board of Elections

 Argued: Oct. 15 and 16, 1968. --- Decided: March 3, 1969

Mr. Justice BLACK, dissenting.

Assuming the validity of the Voting Rights Act of 1965, as the Court does, I would agree with its careful interpretation of the Act, and would further agree with its holding as to jurisdiction and with its disposition of the four cases now before us. But I am still of the opinion that for reasons stated in my separate opinion in South Carolina v. Katzenbach, 383 U.S. 301, 355-362, 86 S.Ct. 803, 835, 15 L.Ed.2d 769 (1966), a part of § 5 violates the United States Constitution. Section 5 provides that several Southern States cannot effectively amend either their constitutions or laws relating to voting without persuading the United States Attorney General or the United States District Court for the District of Columbia that the proposed changes in state laws do not have the purpose and will not have the effect of denying to citizens the right to vote on account of race or color. This is reminiscent of old Reconstruction days when soldiers controlled the South and when those States were compelled to make reports to military commanders of what they did. The Southern States were at that time deprived of their right to pass laws on the premise that they were not then a part of the Union and therefore could be treated with all the harshness meted out to conquered provinces. The constitutionality of that doctrine was certainly not clear at that time. And whether the doctrine was constitutional or not, I had thought that the whole Nation had long since repented of the application of this 'conquered province' concept, even as to the time immediately following the bitter Civil War. I doubt that any of the 13 Colonies would have agreed to our Constitution if they had dreamed that the time might come when they would have to go to a United States Attorney General or a District of Columbia court with hat in hand begging for permission to change their laws. Still less would any of these Colonies have been willing to agree to a Constitution that gave the Federal Government power to force one Colony to go through such an onerous procedure while all the other former Colonies, now supposedly its sister States, were allowed to retain their full sovereignty. While Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), held that courts can pass on the constitutionality of state laws already enacted, it certainly did not decide to permit federal courts or federal executive officers to hold up the passage of state laws until federal courts or federal agencies in Washington could pass on them. Proposals to give judges a part in enacting or vetoing legislation before it passed were made and rejected in the Constitutional Convention; another proposal was made and rejected to permit the Chief Justice of this Court 'from time to time (to) recommend such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice, and such as may promote usef l learning and inculcate sound morality throughout the Union * * *.' See my dissenting opinion in Griswold v. Connecticut, 381 U.S. 479, 515, n. 6, 85 S.Ct. 1678, 1698, 14 L.Ed.2d 510 (1965).

It seems to me it would be wise for us to pause now and then and reflect on the fact that the separate Colonies were passing laws in their legislative bodies before they themselves created this Union, that history emphatically proves that in creating the Union the Colonies intended to retain their original independent power to pass laws, and that no justification can properly be found in the Constitution they created or in any amendment to it for degrading these States to the extent that they cannot even initiate an amendment to their constitutions or their laws without first asking the permission of a federal court in the District of Columbia or a United States governmental agency. I would hold § 5 of the 1965 Voting Rights Act unconstitutional insofar as it commands certain selected States to leave their laws in any field unchanged until they get the consent of federal agencies to pass new ones.

Notes