"It was a very small [poll] tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other…"
KENNEDY: Let me go to the issue of poll taxes. The right to vote is the cornerstone of a free society. For decades poll taxes were used to keep poor Americans, often of racial minorities, from exercising the franchise. In Harper v. Virginia Board of Elections, which was decided in 1966, the Supreme Court struck down the poll tax because it deprived poor Americans of equal protection of the laws by barring them from exercising their fundamental right to vote. In its majority opinion the court stated: "Wealth or fee paying has, in our view, no relation to voting qualifications. The right to vote is too precious, too fundamental to be so burdened or conditioned." Judge Bork, is it not true that in your confirmation hearings to be Solicitor General in 1973 you testified that you thought that Harper, and I quote, "as an equal protection case seemed to be wrongly decided"?
You were asked whether as far as the welfare of the nation was concerned the Harper case was correctly decided. Am I correct that you answered, "I do not really know about that. As I recall it was a very small poll tax. It was not discriminatory and I doubt it had much impact on the welfare of the nation one way or the other." And then you were asked about the constitutional issue, and you responded, "I think that is a question of degree. It depends on the size of the poll tax."
Do you remember? Is that accurate?
BORK: AS I recall it, Senator, yes.
KENNEDY: NOW, am I correct that in 1985, in your forward to The Constitution and Contemporary Theory, you again suggested the Supreme Court had been wrong to strike down the poll tax in the Harper case?
BORK: Sir, I am willing to discuss that case, fully, Senator.
KENNEDY: I am just wondering if you have changed your view that the Supreme Court was wrong in the Harper case to hold that poll taxes are unconstitutional?
BORK: I think it was, and I will tell you why, and I have no desire to bring poll taxes back into existence. I do not like them myself. But if that had been a poll tax applied in a discriminatory fashion, it would have clearly been unconstitutional. It was not. I mean, there was no showing in the case. It was just a $1.50 poll tax.
Ta-Nehisi Coates: The Volokh Conspiracy Commits "One of the Most Immoral Paragraphs [He Has] Read in a Long Long TIme"
Over at the Volokh Conspiracy, David Post reminds me of Aunt Sally and Huck Finn in Mark Twain's novel (yes, Samuel Longhorne Clemens knew what he was making his characters say):
Ta-Nehisi Coates::
J. Bradford DeLong on December 02, 2012 at 05:35 PM | Permalink | Comments (54) | TrackBack (0)