sault which the contention here advanced makes is not on the tax as a tax, but on the State as a State. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it

Discussion Notes

1. Would the decision in Pacific States Telephone preclude a state court from determining that some provision of a state constitution violated the federal guarantee clause?

2. A recent commentator proposed that the guarantee clause be interpreted to require “as a matter of federal constitutional law, that the states either observe their own constitutions and laws or change them by legally valid procedures." Note, "The Rule of Law and the States: A New Interpretation of the Guarantee Clause," Yale Law Journal

establish its right to exist as a State, republican in form.

As the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not therefore within the reach of judicial power, it follows that the case presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for want of jurisdiction.

93 (January 1984): 561 (emphasis added). Is this a workable proposal?

3. With respect to the "Dorr Rebellion," giving rise to Luther v. Borden, discussed at length in Pacific States Telephone and Telegraph, see Geroge M. Dennison, The Dorr War: Republicanism on Trial 1831-1861 (Lexington: 1975); Marvin Gettleman, The Dorr Rebellion: A Study in American Radicalism, 1833-1949 (New York: 1973); John M. Schuchman, "The Political Background of the PoliticalQuestion Doctrine: The Judges and the Dorr War," American Journal of Legal History 16 (April 1972): 111.

Article VI, Clause 2,

United States Constitution

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding.

a "statute" within the meaning of sec. 1257
(2).

Is there a difference in analysis when a state constitutional provision, rather than a state statute or administrative practice, is challenged as violating the federal constitution? Read the next case with this in mind.

1. Conflict between State Constitutions and the Federal Constitution

28 U.S.C. sec. 1257 provides:

Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:

(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of it being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.

In Pruneyard Shopping Center v. Robins, 447 U.S. 74, 79 (1980) the Court stated:

We initially conclude that this case is properly before us as an appeal under 28 USC sec. 1257 (2). It has long been established that a state constitutional provision is

Reitman v. Mulkey 387 U.S. 369 (1967)

MR. JUSTICE WHITE delivered the opinion of the Court.

The question here is whether Art. I, sec. 26, of the California Constitution denies "to any person... the equal protection of the laws" within the meaning of the Fourteenth Amendment of the Constitution of the United States. Section 26 of Art. I, an initiated measure submitted to the people as Proposition 14 in a statewide ballot in 1964, provides in part as follows:

Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.

The real property covered by sec. 26 is limited to residential property and contains an exception for state-owned real estate.

The issue arose in two separate actions in the California courts, Mulkey v. Reitman and Prendergast v. Snyder. In Reitman, the Mulkeys, who are husband and wife and respondents here, sued under sections

51 and 52 of the California Civil Code3 alleging that petitioners had refused to rent them an apartment solely on account of their race. An injunction and damages were demanded. Petitioners moved for summary judgment on the ground that sections 51 and 52, insofar as they were the basis for the Mulkeys' action, had been rendered null and void by the adoption of Proposition 14 after the filing of the complaint. The trial court granted the motion and respondents took the case to the California Supreme Court.

First, the court considered whether sec. 26 was concerned at all with private discriminations in residential housing. This involved a review of past efforts by the California Legislature to regulate such discriminations. The Unruh Act, Civ. Code sections 51-52, on which respondents based their cases, was passed in 1959. The Hawkins Act, formerly Health & Safety Code Sections 35700-35741, followed and prohibited discriminations in publicly assisted housing. In 1961, the legislature enacted proscriptions against restrictive covenants. Finally, in 1963, came the Rumford Fair Housing Act, Health & Safety Code Sections 35700-35744, superseding the Hawkins Act and prohibiting racial discriminations in the sale or rental of any private dwelling containing more than four units. That act was enforceable by the State Fair Employment Practice Commission.

It was against this background that Proposition 14 was enacted. Its immediate design and intent, the California court said, were "to overturn state laws that bore on the right of private sellers and lessors to discriminate," the Unruh and Rumford Acts, and "to forestall future state action that might circumscribe this right." This aim was successfully achieved: the adoption of Proposition 14 "generally nullifies both the Rumford and Unruh Acts as they apply to the housing market," and establishes "a purposed constitutional right to privately discriminate on grounds which admittedly would be unavailable under the Fourteenth Amendment should state action be involved."

3

Cal. Civ. Code §§ 51 and 52 provide in part as follows: "All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

"Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of color, race, religion, ancestry, or national origin, contrary to the provisions of Section 51 of this code, is liable for each and every such offense for the actual damages, and two hundred fifty dollars ($250) in addition thereto, suffered by any person denied the rights provided in Section 51 of this code."

Second, the court conceded that the State was permitted a neutral position with respect to private racial discriminations and that the State was not bound by the Federal Constitution to forbid them. But, because a significant state involvement in private discriminations could amount to unconstitutional state action, Burton v. Wilmington Parking Authority, 365 U.S. 715, the court deemed it necessary to determine whether Proposition 14 invalidly involved the State in racial discriminations in the housing market. Its conclusion was that it did.

To reach this result, the state court examined certain prior decisions in this Court in which discriminatory state action was identified. Based on these cases. .. it concluded that a prohibited state involvement could be found "even where the state can be charged with only encouraging," rather than commanding discrimination. Also of particular interest to the court was MR. JUSTICE STEWART'S concurrence in Burton v. Wilmington Parking Authority, 365 U.S. 715, 726, where it was said that the Delaware courts had construed an existing Delaware statute as “authorizing" racial discrimination in restaurants and that the statute was therefore invalid. To the California court "[t]he instant case presents an undeniably analogous situation" wherein the State had taken affirmative action designed to make private discriminations legally possible. Section 26 was said to have changed the situation from one in which discrimination was restricted "to one wherein it is encouraged, within the meaning of the cited decisions"; sec. 26 was legislative action "which authorized private discrimination" and made the State "at least a partner in the instant act of discrimination. . . ." The court could "conceive of no other purpose for an application of section 26 aside from authorizing the perpetration of a purported private discrimination...." The judgment of the California court was that sec. 26 unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment.

There is no sound reason for rejecting this judgment. Petitioners contend that the California court has misconstrued the Fourteenth Amendment since the repeal of any statute prohibiting racial discrimination, which is constitutionally permissible, may be said to "authorize" and "encourage" discrimination because it makes legally permissible that which was formerly proscribed. But, as we understand the California court, it did not posit a constitutional violation on the mere repeal of the Unruh and Rumford Acts. It did not read either our cases or the Fourteenth Amendment as establishing an automatic constitutional barrier to the repeal of an existing law prohibiting racial discriminations in housing; nor did the court rule that a State may never put in statutory form an

existing policy of neutrality with respect to private discriminations. What the court below did was first to reject the notion that the State was required to have a statute prohibiting racial discriminations in housing. Second, it held the intent of sec. 26 was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with sec. 26 as though it expressly authorized and constitutionalized the private right to discriminate. Third, the court assessed the ultimate impact of sec. 26 in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.

The California court could very reasonably conclude that sec. 26 would and did have wider impact than a mere repeal of existing statutes. Section 26

Discussion Notes

1. Would the outcome in Reitman have been different if the California housing discrimination laws had merely been repealed? Why would the technique of constitutional amendment have been chosen?

2. Compare James v. Valtierra, 402 U.S. 137 (1971); George Lefcoe, "The Public Housing Referendum Case, Zoning, and the Supreme Court," California Law Review 59 (November 1971): 1384.

Hunter v. Underwood 471 U.S. 222 (1985)

JUSTICE REHNQUIST delivered the opinion of the Court.

We are required in this case to decide the constitutionality of Art. VIII, sec. 182, of the Alabama Con

2Section 182 of the Alabama Constitution of 1901 provides: The following persons shall be disqualified both from registering, and from voting, namely:

All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in

mentioned neither the Unruh nor Rumford Act in so many words. Instead, it announced the constitutional right of any person to decline to sell or lease his real property to anyone to whom he did not desire to sell or lease. Unruh and Rumford were thereby pro tanto repealed. But the section struck more deeply and more widely. Private discriminations in housing were now not only free from Rumford and Unruh but they also enjoyed a far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources.

3. In Reynolds v. Sims, 377 U.S. 533, 584 (1964) the Supreme Court said, "With respect to the operation of the Equal Protection Clause, it makes no difference whether a State's apportionment scheme is embodied in its constitution or in statutory provisions." See also Fisk v. Jefferson Police Jury, 116 U.S. 131, 135 (1885); Railway Employees Dept. AFL v. Hanson, 351 U.S. 225, 232 (1956).

stitution of 1901, of 1901, which provides for the disenfranchisement of persons convicted of, among other offenses, "any crime... involving moral turpitude." Appellees Carmen Edwards, a black, and Victor Underwood, a white, have been blocked from the voter rolls pursuant to sec. 182 by the Boards of Registrars for Montgomery and Jefferson Counties, respectively, because they each have been convicted of presenting a worthless check. In determining that the misdemeanor of presenting a worthless check is a

adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude; also, any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector.

crime involving moral turpitude, the Registrars relied on opinions of the Alabama Attorney General.

The predecessor to sec. 182 was Art. VIII, sec. 3, of the Alabama Constitution of 1875, which denied persons "convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or other crime punishable by imprisonment in the penitentiary" the right to register, vote or hold public office. These offenses were largely, if not entirely, felonies. The drafters of sec. 182, which was adopted by the 1901 convention, expanded the list of enumerated crimes substantially. . . . The drafters retained the general felony provision-"any crime punishable by imprisonment in the penitentiary"--but also added a new catchall provision covering "any . . . crime involving moral turpitude." This latter phrase is not defined, but it was subsequently interpreted by the Alabama Supreme Court to mean an act that is "'immoral in itself, regardless of the fact whether it is punishable by law. The doing of the act itself, and not its prohibition by statute fixes, the moral turpitude."" Pippin v. State, 197 Ala. 613, 616, 73 So. 340, 342 (1916) (quoting Fort v. Brinkley, 87 Ark. 400, 112 S. W. 1084 (1908)).

Section 182 on its face is racially neutral, applying equally to anyone convicted of one of the enumerated crimes or a crime falling within one of the catchall provisions. Appellee Edwards nonetheless claims that the provision has had a racially discriminatory impact. The District Court made no finding on this claim, but the Court of Appeals implicitly found the evidence of discriminatory impact indisputable:

The registrars' expert estimated that by January 1903 section 182 had disfranchised approximately ten times as many blacks as whites. This disparate effect persists today. In Jefferson and Montgomery Counties blacks are by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under section 182 for the commission of nonprison offenses. 730 F. 2d, at 620.

So far as we can tell the impact of the provision has not been contested, and we can find no evidence in the record below or in the briefs and oral argument in this Court that would undermine this finding by the Court of Appeals.

Presented with a neutral state law that produces disproportionate effects along racial lines, the Court

of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment:

[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.

429 U.S., at 264-265.

See Washington v. Davis, 426 U.S. 229, 239 (1976). Once racial discrimination is shown to have been a "substantial" or "motivating" factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor. See Mt. Healthy, 429 U.S., at 287.

Proving the motivation behind official action is often a problematic undertaking. See Rogers v. Lodge, 458 U.S. 613 (1982). When we move from an examination of a board of county commissioners such as was involved in Rogers to a body the size of the Alabama Constitutional Convention of 1901, the difficulties in determining the actual motivations of the various legislators that produced a given decision increase. With respect to Congress, the Court said in United States v. O'Brien, 391 U.S. 367, 383-384 (1968) (footnote omitted):

Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decisionmaking in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.

But the sort of difficulties of which the Court spoke in O'Brien do not obtain in this case. Although understandably no "eyewitnesses" to the 1901 proceedings testified, testimony and opinions of historians were offered and received without objection. These showed that the Alabama Constitutional Convention of 1901 was part of a movement that swept