In my day, college kids could drink but not vote. Now they can vote but not drink. What gives?
There was once a time-honored American tradition of drinking and voting. Candidates would "likker up" their supporters and festive mobs would parade to the polls on election day, taking over the polling place and generally intimidating anyone with the temerity of voting for someone else. I blame the Australians for ruining this custom with their curious habit of voting by "secret ballot" at "neutral polling places." This foreign invention – the "Australian system" – was imposed upon the boistrous American electorate between 1888 and 1896, and things have never been the same. (See the discussion of this topic in the Supreme Court decision Burson v. Freeman (1992)).
When I was young and the world was too the drinking age was 18 – 'nuff said – and the voting age was 21, so I only had the opportunity to vote against Nixon once.
The Supreme Court has approached this topic of young people drinking and voting in jest, whimsically ruling that while Congress had the power under the Constitution to cause the states to raise the drinking age from 18 to 21, it did not have the power to lower the voting age in the states from 21 to 18.
The voting age case was Oregon v. Mitchell (1970), which concerned the constitutionality of the Voting Rights Amendments Act of 1970. That law lowered the voting age to 18 in all elections. By a vote of 5-4, the Supreme Court found that while Congress has the power under the Constitution to regulate the age of voters in federal elections, it does not have the authority to reduce the voting age in state elections. Justice Hugo Black wrote that the States have discretion to determine the qualifications of voters in state and local elections:
No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices.
What about the 14th Amendment which gives Congress the power to enforce the Equal Protection Clause? In lowering the voting age to 18 wasn't Congress just ameliorating an incident of age discrimination?
Not according to the Supreme Court. Justice Black ruled against the law and against the right of young people to vote. Although he is remembered as a staunch defender of the Bill of Rights, by 1970 Justice Black was not particularly mindful of the constitutional rights of young people. See, for example, his dissent from the Court's decision in Tinker v. Des Moines Independent School District (1969), a case in which the majority of the Supreme Court upheld the right of thirteen-year-old Mary Beth Tinker to wear a black armband to public school, and struck down the order suspending her from school. In response to this midwestern schoolgirl's quiet demonstration of protest against a very big war, Justice Black wrote:
One does not need to be a prophet or the son of a prophet to know that after the Court's holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students.
The discerning reader may detect in the foregoing passage a certain lack of sympathy for the rights of young people on the part of Justice Black.
The Voting Rights Act Amendments of 1970 lowering the voting age were largely viewed as a concession to the fact that young people were being drafted to fight in a war that they could not vote against. But in Oregon v. Mitchell Justice Black ruled that the 14th Amendment does not give Congress the power to eliminate discrimination on the basis of age, at least in an area as reserved to the control of the states as voting in state and local elections. The following year Congress adopted and the states quickly ratified the 26th Amendment, granting 18-year-olds the power to vote in national and state elections.
The drinking age case is less fraught with angst but no less controversial. In 1984 Congress enacted a law directing the Secretary of Transportation to withhold 5% of federal highway funding from any state that failed to raise its drinking age to 21. Three years later in the case of South Dakota v. Dole (1987), the Supreme Court upheld the constitutionality of this law under Congress' "power of the purse" – the Spending Clause, Article I, Section 8, Clause 1. This was another 5-4 decision. The case turned upon the question of whether "drinking age" was sufficiently related to "highway safety" (shouldn't this parameter have been "highway construction"?) to justify a federal withhold. The Court found that the purpose of the withhold was sufficiently related to the purpose of the funding to justify a penalty in the amount of 5%.
The extent of Congress' power to enact legislation under the 14th Amendment and the Spending Clause is still a matter of contention. And going forward I predict that the Supreme Court of the United States and constitutional courts around the world will, more and more, give recognition to the equal rights of young people.
Professor Huhn has taught Constitutional Law at The University of Akron School of Law for over 25 years. You may access his website on constitutional law for materials relating to his course as well as links to other sources of information on constitutional law.
