Grandfather Clause

• Author: Kenneth L. Karst
• Pages: 1219-1220

Page 1219

This expression, born of legislative skulduggery, has survived to serve more acceptable purposes. A number of southern states, seeking to circumvent the FIFTEENTH AMENDMENT'S prohibition against RACIAL DISCRIMINATION in the field of VOTING RIGHTS, adopted LITERACY TESTS for voter eligibility. These provisions standing alone would have disqualified not only most black registrants but also a large number of whites. Under a typical exception, however, an illiterate might be registered if he had been eligible to vote before some date in 1865 or 1866, or if he were the descendant of a person eligible at that time. The Supreme Court, in GUINN V. UNITED STATES (1915) and Lane v. Wilson (1939), held such grandfather clauses invalid.

More recently, the same term has described any legislative exception relieving from regulation a person who has been engaging in a certain practice for a period of time. A new ZONING law, for example, might limit LAND USE in one zone to single-family residences, but contain a grandfather clause allowing the continuation of businesses or apartment houses already operating there. In part, such

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an exception is designed to avoid constitutional problems that arguably might arise in its absence. (See TAKING OF PROPERTY; VESTED RIGHTS; SUBSTANTIVE DUE PROCESS.) But the exception itself may be challenged as unconstitutional. In NEW ORLEANS V. DUKES (1976), the city had prohibited the sale of food from pushcarts in the French Quarter, but had exempted pushcart vendors who had been operating there more than eight years. The Supreme Court unanimously upheld this grandfather clause against an EQUAL PROTECTION attack. Quite properly, the Court omitted mention of Lane v. Wilson; it did say, however, that in cases of ECONOMIC REGULATION, "only the INVIDIOUS DISCRIMINATION " was invalid.

KENNETH L. KARST

(1986)

Bi...