June 12, 1911

Mr. REED. It was fixed by the Federal authorities in fixing the districts under which they voted down there.

Mr. BRADLEY. Not for the legisla.ture-

Mr. REED. No; for the election of the men who were to write the constitution-the very fundamental law.

.Mr. BRADLEY. As I understand, the Territorial Legislature of New Mexico arranged the apportionment. A similar one was arranged by the Democratic Territorial Legislature of Arih 'bl B t thi n1 t th : ~sftio~~en more repre ens1 e. u s o Y s reng ens my

Mr. REED. If the Senator so strongly condemns the gerrymandering of States and says you can not trust the legislature in the future to pass laws regulating elections, I want to ask him if it is not those same gerrymandering legislatures that sent

Mr. BRADLEY. Notwithstanding all this gerrymandering in the State of Kentucky, the Democratic majority was only eight-one of the number died, and four of the others had good sense enough to vote for me for the Senate.

The PRESIDING OFFICER. The question is on the amend· ment of the Senator from Georgia to the substitute offered by the Senator from Kansas.

Mr. PERCY. Mr. President, this joint resolution and the provisions of the Bristow - substitute, then known as the S~therland amendment , were fully discussed at the last session of Congress, and I have no desire to thrash over old straw or to prolong the debate here, and yet the provisions of the Bristow substitute render it so obnoxious to a Democrat that I can not refrain from briefly referring to them.

I take it to be that those who favor the election of Senators by the people would prefer to have that amendment to the Constitution presented without any complications, but, unfortunately, that is impo sible. A change other than the simple election of Senators by the people is inevitable. And the question to be decided is whether that change shall be made by relinquishing the power in the Federal Government to make or alter the regulations for fixing the time and the manner of electing the Senators, or whether it shall be the vital change which consists in an extension of the power of the Federal Government over the popular election of Senators. One or the other change must be made. It is merely a question of which change shall be made. I assume it to be true that the power sought to be conferred by the Bristow substitute is identical with the power which it was proposed to confer upon the Federal Government at the last session of Congress through the Sutherland amendment and that that power gives the Federal Government plenary and paramount control over the election of Senators— control which enables it to supersede and displace the State authority in regard to such elections.

To recapitulate what that power involves, it would give to the Federal Government the power to appoint Federal registrars who should say how the voters or what voters should register under State laws, the power to appoint Federal judges and Federal supervisors who would say who are authorized to vote at such ele c tions, the power to name marshals and deputy marshals to carry out the orders of supervisors and judges, and, if need be, the power to summon the soldiers of this Govern­ ment to reenforce such marshals and deputy marshals, and the power to appoint a canvassing board to canvass the result of the election. A Senator coming to the Senate would bring acertificate of his election from that canvassing board instead of a commission from the governor of his State.

This power, while existing under section 4 of Article I #s to the election of Representatives, as to the election of Senators, is not vested in the Federal Government as it has existed up to this time, and does not arise under any provision of the Constitution except section 4 of Article I, and that has no application to the election of Senators under the Constitution as it stands to-day, and as it has stood since the first adoption of the instrument, because it has never been questioned that the power of Congress under this section, in so far as it affects the election of Senators, relates to such election after the organization of the legislature which elects, and does not go to the booths where the voter registers his will. The contrary contention would find no support either in the decisions of our courts or the debates in Congress.

If Congress has such power then it must be found under some other provision of the Constitution than section 4 of Article I, and the only other such provision is to be found in the second section of the fifteenth amendment, which confers upon Congress the pow.er to enforce it by appropriate legislation. Is the power under this amendment similar to that sought to be conferred by the Bristow substitute? Clearly not, for, in the first place, such power as Congress has under this amendment is not restricted to Federal elections, but extends to all elections, whether State officers or Representatives in Congress. The power conferred by this amendment is wider than that proposed to be conferred by the Bristow substitute, which relates only to the election of Senators. But , on the other hand , it lias been many times held that the power under this amendm e nt is only prohibitive and corrective of State action. Before this power can be invoked there must necessarily precede the invoking of it some · infringement of the right of the individual based on discrimination against him on account of race, color, or previous condition of servitude by the State through its legislative, executive, or judicial department, and no action by individuals; not under color of State authority, wiff suffice to predicate Federal action on it.

While this pro p osition is so clearly supported by the decisions of the Supreme Court as apparently not to require any citation of authority, I wish to read a few extracts from the decisions which bear directly on this proposition, because the point which I desire to emphasize is that the power which will exist with section 4 of Article I of the Constitution left unchanged is different and distinct from any power which the Federal Government has had in regard to the election of Senators; that it is absolutely different from the power which the - Government has under the fourteenth and fifteenth amendments or under any other provision of the Federal Constitution.

Ex parte Virginia (100 U. S., 339, 346) uses this language, relating to these amendments:

They have reference to actions of the political body denomlnated a State, by whatever instrument or in whatever mode that action may be taken. A State acts by its legislative, its executive, or · its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State or of the officers or agents by whom its powers are exercised, shall deny to any person within its jurisdiction the equal protection of the . laws. (Ex parte Virginia, 100 U. S., 339, 346; 25 L. Ed., 676, 679.)

Again, in United States v. Cruikshank (92 U. S., 542, 554; 23 L. Ed., 588, 592), the court uses this language :

The fourteenth amendment prohibits a State from denying to any per· son within its jurisdiction the equal protection of the laws; but this provision does. not, any more than the one which precedes it and which we have just considered, add anything to the rights which one citizen has under the Constitution aga:nst another. The equality of the rights of citizens is the principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle if within its power. That duty was originally assumed by the S t atesi and it still remains there. The only obligation resting upon the Unitea States is to see that the States do not deny the right. This the amendment ~arantees, but no more. The power of the National Government is l'imited to the enforcement of this guaranty.

In Civil Rights cases (109 U. S., 3, 13; 27 L. Ed., 835, 840; 3 Sup. Ct. Rept., 18, 22), the court uses this language:

And so in the present case, until some State law has been passed O'" some State action, through its officers or agents, has been taken adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against State laws and acts done under State authority. Of course, legislation may, and should be, provided in advance to meet the exigency when it ari s es ; but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is State laws or State action of some kind adverse to the rights of the citlzens secured by the amendment. Such legislation can not properly cover the whole domain of rights appertaining to life, Hberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and m a n in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that because the rigt.ts of life, liberty, and property (which inch;de ull civil rights .that men have) are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because of the denial by a State to any persons of the equal protection of the laws ls prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authodzed to adopt in this behalf is not general legislation upon the rights of the citizens, but corrective legislation; that is, snch as may be necessary and proper for counteracting such laws as the States may adopt and enforce and which, by the amendment, they are prohibited from malting or enforcing 1 or such acts and proceedings as the States may commit or take, ana which, by the amendment, they are prohibited from committing or taking.

That authority is cited and quoted with approval in James v. Bowman, in One hundred and ninetieth United St a tes-a ml;ch later opinion.

Again, in United States v. Harris (106 U. S., 629, 639; 27 L. Ed., 290, 294; 1 Sup. Ct. Rept., 601, 609), the court uses this language:

The language of the amendment does not leave this subject in doubt. When the State has been guilty of no violation of its pro v isions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived · any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the S t ates, as enacted by its l e gislative, and construed by its judicial, and admini s tered by its executive, departments, recognize and protect the rights of all persons, the amendment imposes no duty and confers no power upon Congress. .

It necessarily follows from the principles laid down in these cases that under the power conferred by the fifteenth amendment Congress can not adopt an election law of its own appointing Federal election officers to supersede and wipe out the machinery of election provided by State laws. The State law must fix the time, manner, and place of election, alone can provide penalties for individual infractions of the ordinary safegu a rds. Congress can only see that these laws on their face and as administered by the State officers are not unjustly discriminatory, but apply with equal fairness to all. Under the fourteenth and fifteenth amendments Congress has not even the power to punish individuals · not claiming any authority from the State, who, by intimidation, prevent persons from voting, though · it bQ done on account of their race, color, or previous condition of servitude. It is only when adverse action is taken by the State or som~ of its agents that the power of Congress can be invoked to secure the rights conferred by these amendments. This was expressly held in Civil Rights cases (109 U. S., 3):

In this connection it is proper to state that civil rights, such as are guarant e ed by the Consti,tution against State aggression, can not be impaired by the wrongful act of individuals, unsupport e d by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned, In some way by the State or not done under State authority his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual can not deprive a man of his right to vote, to hold property to buy and sell. to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment ot the right in a particular case; ha may commit an assault against a person, or commit murder, or QS.e .ruffian violence at the polls, or slander the good name of a fellow citizen; but, unless protected in these wrongful acts by some shield of State law or State authority. he can not destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the State where the wrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust · laws of the State by prohibiting such laws. it is not individual offenses, but obligation and denial of rights which it denounces, and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights for which the States alone were or could be responsible, was tfie great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must nreessarily be predicated upon that wrong. It must assume that ln the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.

Of course, these remarks do not apply to those cases in which Congress is 'Clothed with direct and plenary powers .of legislation over the whole subject, accompanied with an expressed or implied denial of such power to the State, as in the regulation of commerce with foreign nations, among the several States, and with the Indian tribes, the coining of money, the establishment of post offices and post roads, the declaring of war, etc., in these cases Congress has power to pass laws for regulating th~ subject specifi~d in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular State legislation or State action in reference to that subject, the power given is fimited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited State laws or proc~ings of State officers.

If the principles of interpretation which we have laid down are correct as we deem them to · be (and they are in accord with the principles laid down in the cases before referred to, as well as in the recent case -0f United states v. Harris, 106 U. S., 629), it is clear that the law . in question can not be sustained by any grant of legislative power made to Congress by the fourteenth amendment. That amendment prohibits the States from denying to any person the equal protection ot the laws and declares that Congress shall have power to enforce, by appropriate legislation, the provisions ot the amendment. The law in question, without any reference to adverse State legislation on the subject, declares that all persons shall be entitled to equal accommodation and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen .such eqtial accommodations and privileges. This is not .corrective legislation; tt is primary and direct; it takes immediate and absolute possession of the subject ot the right of admission to inns, public conveyances, and places of amusement. It 5upersedes and displaces State legislation on the , same subject, or only allows it permissive force. It ignores such legislation and assumes that the matter is on<;! that belongs to the domain of national regulation whether it would not have been a more effective protection of the rights of citizens to have clothed Con¥ess with plenary powers over the whole subject is not now the question. What we have to decide is whether such plenary power has been conferred upon Congress by the fourteenth amendment, and, in our judgment, it has not.

By virtue of the power proposed to be conferred by the Bristow substitute Congress .can take charge of elections and provide for the punishment of individuals unconnected with the State government who commit any of the ordinary offenses against the election laws. It will be seen that in this particular alone a vast difference exists between the power of Congress under these amendments and under the proposed substitute. It is by virtue of the limitation on the power as conferred by these amendments that the suffrage qualifications provided by the constitution of Mississippi and other Southern States are unassailable by the Federal Government, while under the power sought to be conferred by the Bristow substitute instances of individual intimidation might furnish the pretext, or without any pretext Congress might take exclusive charge of the election of Senators.

The difference between the power conferred by the fourteenth and fifteenth amendments and by section 4 of .Article I are illustrated in the case of United States v. Reese et al (92 U. S., 214) .and United States v. Munford (16 Fed.~ 223). In the former case the prosecution was undertaken against two of the inspectors of a municipal election in the State of Kentucky for refusing to receive and count at such election the vote of a citizen of African descent, under the act of May 31, 1870.

For the punishment of any person who shall, by force, bribery, threats, intimidation, or other unlawful means, hinder, delay, etc. or shall conspire with .others to hinder, delay, prevent, or obstruct any citizen from doing any act required to be done to qualify him to vote or from voting at any election.

The court held that the power could not be upheld under section 4 of Article I, because it did not relate to the election of a Representative, and that it could not be upheld under the fifteenth amendment because it was not in its terms confined to unlawful discrimination on account of race, color, or previous condition of .servitude, and therefore the act w.as unconstltu· .

tional.

In the Munford case the offense was committed at an election for Representative in Congress, and the court held that the statute was a . valid exercise of power under section 4 of Article I of the Constitution. So the statute which was condemned as beyond the power of Congress under the fifteenth amendment was upheld under the power conferred by section 4 of Article I. In my judgment, these decisions are neither modified nor overruled by the Seibold case, One hundredth United States, nor the frequently quoted Yarborough case, in One hundred and tenth United States. The Seibold case arose under the Federal supervision laws, and the sole question involved was whether Congress could under these laws take partial control of the electi.on instead of exclusive control, and having taken such partial control could punish the State officers for violation of the law. The court anS"Wered the question in the affirmative. The indictment · was for ba11ot-box stuffing.

The Yarborough case was a habeas corpus case, and the sole question was whether the law of Congress under which the parties were · indicted was unconstitutional, they being charged with the offense of intimidating a negro in voting for a Member of Congress. While the language used by the court was broad, it did not purport to overrule its previous decisions, and the constitutionality of the law was, in fact, upheld upon the Seibold case and under section 4 of Article I.

' The fifth subdivision of the minority report is subject to the criticism of disingenuousness. It says :

Possession of the power which it is proposed to strike out from section 4 is essential t.o enable the National Government to act eft'.ectively in case it should ever have occasion to enforce the provisions of the fourteenth and fifteenth amendments of the Constitution. The basis of any enforcement of these provisions must necessarily be the ascertainment and establishment of the facts in respect of the elections to which they may relate. The proposed amendment of section 4 of Article I, if adopted, would be the latest expression of the sovereign will of the people of the United States, and would take away from the National Government authority to make those regulations regarding elections which are essential to the preservation ol evidence regarding what actually oc.curs.

The fourteenth and fifteenth amendments confer upon Congress the power to provide for their enforcement by appropriate legislation, and no additional power is needed to make them effective. As a matter of fact, the adoption of the Bristow substitute would have no possible effect upon the fourteenth and .fifteenth amendments, except in so far as they might apply to the narrow field of election of Senators. These amendments relate to all elections, and it is, to say the least, inaccurate to assert that the Bristow substitute, which relates only to the election of Senators, is necessary to make them effective. If they are ineffective now, they will not be made effective in this way except as to the election of Senators, to which they now have no real relation. What is, in fact, meant by the argument of the .minority -Of the committee is that the effect of the Bristow substitute, in so far as senatorial elections are concerned, while not needed to make these amendments effective, will greatly extend their application beyond what was ever intended at the time of their adoption. The minority doubtless had in their mind that with the Bristow substitute adopted Congress could create election machinery of its own and, among other things, provide penalties against individuals not connected with the State who, by intimidation or otherwise, sought to deny the right of suffrage by reason of race, color, or previous condition of servitude. In other words, while the amendments are only corrective and prohibitory and relate only to State action, the power conferred by the Bristow substitute is direct and primary, and could be made the means of extending the prohibition of these amendments far beyond what was intended by their authors.

The real purpose is not to make these amendments effective, but at this late day to extend the operation of them in a vital particular. Under the guise of making them effective a fundamental and revolutionary change is suggested of making their subject matter extend not only to State action as at present, but to the action of individuals as well, and to permit their enforcement by direct and primary instead of corrective and prohibitory legislation. There · is no merit in the contention of the minority that this latest expression of the sovereign will of the people would take away from the National Government authority to make these regulations regarding electi-0ns which are essential to the preservation of evidence regarding what actually .oeenrs. This statement is intended to relate to the fourteenth and fifteenth amendments. Congress now has the power to enforce these amendments by appropriate legislation, and the proposed amendment would leave the power to so enforce them by appropriate legislation absolutely unimpaired.

The minority report continues-

~hm rna7 be a difference of opinion as to whetl;lQr the fou~eenth and fifteGlltli. amendments should remain in the Constitution, but surely it can not be thought consistent with the dignity and honor of the United States to leave them in the Constitution and at the same time surrender the power which would be necessary for their enforcement. What would be surrendered by the resolution as reported r Every prohibition of both amendments would remain just as at present, while the power conferred on Congress to enforce them by appropriate legislation would remain and would be construed and interpreted exactly as at present. No power now existing or justifiable under these amendments would be surrendered. The only thing surrendered would be the power of Congress to fix or change the time or manner of holding elections for Senators. While the amendment as originally reported does not call for the surrender of any power to enforce the.se amendments, the Bristow substitute, if adopted, would have the effect of changing and extending their scope, and that is the question inTolrnd.

That Republicans should fa rnr this substitute is not surprising. It involves an extension of the power of the Federal Government at the expense of State sovereignty, and for such extension that party has always stood. But that Democrats should support that doctrine has not the merit of consistency. When th'.:l force bill of 1890 passed the House of Representatives it received 155 Republican votes-not a Democratic -vote-while 146 Democrats voted against it and only 3 Republicans, and they from the States of Louisiana, South Carolina, and New Jersey.

In 1894, when the Federal supervision la.ws were repealed, every Democrat in the House-194 of them-voted for the repeal, and every Republican-102 of them-against the repeal; and in the · Senate every Democrat (35) voted for the repeal, and every Republican (28L including several who are now members of this body, against this repeal, except Stewart of Ne-vada.

At the last session of Congress every Democrat in the Senate except one voted against the Sutherland amendment and every regular Republican for it.

Why should Democrats now vote for a change in the organic law of the Government in the form which they have by their recorded vote, disapproved of, and this , when the 'form approved of was reported fa vorab1y by a Republican committee and why, especially, should they do this at a time when every Democrat believes that within two years, by a Democratic majority in the Senate, they can frame the resolution in the form approved of by themselves! The State legislatures have no power to change a word of the resolution. They must accept it or reject it as offered. For 122 years we have lived under the Constitution as it now stands. Is it not better to await a few years m order to change it in the manner approved of by our judgment?

When this resolution, then known as the Sutherland amendment, was before the last Congress eight insurgent Republican Senators voted against it. That rnte to-day would defeat it, but rumor says this vote will show changes. What is the explanation of such changes by men of unusual ability and sincere convictions! Is the rumor that insurgents are becoming more gentle and less disposed to harass the ranks of the regulars the explanation, or is it because the honor of introducing the resolution at this session is accorded one of the insurgent band, or is it because the voice of the old soldier has been heard protesting against an imaginary impairing of the war amendments, esteemed by them to be the fruits of their struggle, or is the prophecy so recently made by the distinguished ex-Senator from New York that the Republicans, if they did not insist upon this extension of power to the Federal Government, would feel the heavy displeasure of the negro vote, been so quickly realized? Have one or all of these reasons tended to bring about this significant change in the votes of these Republican Senators?

If so, do one or all of them furnish any reason for the support of the substitute by Democratic Senators!

It has been strenuously urged that the substitute is necessary in order to insure the perpetuation of the Union. In no clause of the Constitution has Congress ever had the power to force a State to elect a Senator. Is there any danger that States will refuse to elect Senators in the future, or is the danger that men can not be found to serve as Senators? One danger is just as real as the other, and both too fanciful to merit consideration. Certainly there is greater danger that Congress, yielding to the exigencies of some political demand may exercise in the future the power sought to be conferred upon it and take .charge of elections than there is tha.t such power will ever be needed in order to insure the election of Senators.

While this sub~ t itute must be obnoxious to every Democrat in the form in which it is offered, owing to the unfortunate conditions of the Southern States, it is necessarily more fraught with danger to them. While it may be true that immigration to some of the Southern States has reduced the gravity of the negro problem, yet it can not be true that this change has made Senators from those States deaf to the appeals of their brethren from less fortunate States, and it is only by a Democratic vote that this substitute can be adopted. Even admitting that tbesubstitute is needed to make the fom·teenth and fifteenth amendments more effective, does that furnish a rea.son for Democrats voting for the substitute? These amendments weI:iave accepted, and under them have· wrought out constitutions which have been stamped with the approval of the highest court in the land. Is it wise by our votes to change the operation of these amendments, rendering them more effective and probably embarking upon an uncertain sea of judicial construction? There is no advantage offered which compensates for the risk incurred.

Mr. PAYNTER. Mr. President, I am so very anxious that we shall take a vote upon this measure that I shall consume n-Ot more than one minute in what I shall have to say.

I, like my colleague, did not expa."1: to say anything upon this occasion, but he has presented an argument to the Senate, if his figures be correct, why this measure should become a part of the organic law of the land, because, if the legislatures of the country do not properly define the Iegi.slati"ve districts and thus give the people prope:r representation, the greater the reason why Senators should be elected by a direct vote of the people.

I am not here for the purpo.se of defending a legislature or legislatures which do not make fair apportionments. If I did, it would take perhaps the balance of this session, because thereis not a State in the Union, perhaps, th.at has not made legislative, judicial, senatorial, and congressional districts which are unfair in the manner o:f the assignments.

I do not think Kentucky stands alone, if it be as suggested by my colleague.

But I owe it to the Legislature of Kentucky to make this suggestion, which might apply to the legislatures in some other States. Take the State of Kentucky. There has been wonderful development in the mountainous part of the State. The eleventh congressional district is filled with rich coal mines. Considerable cities have grown up there in the last few years. Middlesboro is a city of mmiy thousands of people. You takeSomerset, which is another city that has grown up into its present proportions in the last few years. So a part at least of the vote in some o! these senatorial districts may be accounted for upon the idea that there has been an accession to the population in the last few years. That may not, and I do not say that it does, account for all of it, because if I did I would place the Legislature of Kentucky upon a higher plane, perhaps, than any legislature in this country could be placed with reference to the question of apportioning the territory into districts.

There is another view that may be suggested. There are . some parts of Kentucky in which the population has decreased instead of increased. That would account to some extent for the smallness of population in some of these legislative and senatorial districts. I say that that may not account for all o-f it, but it does account for some of it.

My colleague has suggested that the Court of Appeals of Kentucky said it was the duty of the legislature to reapportion the State into these various districts. If the court did do it, and I think it did, it was a mere dictum, because the court can only review the action of the legislature to determine whether or not it has acted within constitutional limitations. It has no power to enforce a redistricting of the State, and therefore what is the duty of the legislature as ta present or future action with refer ­ ence to that matter is not within the province of the court to prescribe for, because, as I say, it can only review the action of the legislature when it has acted upon these questions.

Further, I want to make another suggestion. Our constitution provides that these apportionments shall be made every 10 years. My colleague has said that the legislature did act. I have not the dates in my mind; I do not recall just when lt was; but if it acts, for instance, at the period provided by the constitution, and the court declares that the action of the legislature is invalid, then the question arises, has the legislature power to make an apportionment ulliil the expiration of the next 10 years? I do not suggest that that is a proper view of it. but it is a view that addresses itself to the legislatiYe branch of the Government, which it must determine for itself without the aid of the court.

Th.at is all I desire to say.

Mr. BRADLEY. :Mr. Pr efil<len t, the figure s which I read to the Senate were the census figures of 1D10. It is tme that these figures di:ffer from the. figures of preceding cc:lsuses, because there has been in the Republican portion of the State great advancement, but the same proportion substantially will be found to exist under the former census. Indeed, the difference · is even more radical.

I now desire to call the attention of the Senate to what the Court of .Appeals of Kentucky said under the census preceding this.

. In 1906 an act" was passed redistricting the State. More than 10 years had elapsed from the date of making former apportionment-1893-before that act was passed, and, notwithstand- ­ ing it was the duty of the legislature, under the constitution of Kentucky, to redistrict the State every 10 years, it refused persistently to do it. But in 1906 it enacted an apportionment bill, and that bill was passed on by the Court of .Appeals of Kentucky. I desire to read to the Senate what the court of appeals said of conditions under the census of 1909.

Without analyzing the allegations of the petitions with overnice particularity, U is deemed sufficient to say that, in our opinion, they contain such a statement of facts with reference to the inequality of the representative districts of the State that the demurrers, which confess these allegations, raise sufficiently for adjudication the validity of the act which is assailed. The allegations upon which is predicated the infirmity of the act are substantially the same in both petitions. Gen­ 160, 161.) eral demurrers were filed to each of them and overruled by the trial courts. The defendants declined to answer, and thereupon judgments were entered holding the act of the general assembly under discussion invalid and perpetuating the temporary injunctions which had been granted at the commencement of the actions. From these judgments the defendants have appealed. (Ragland v. Anderson, 125 Ky. Repts., p. The court, after quoting section 33 of the constitution of Kentucky, requiring these divisions to be made every 10 years, says:

The first proposition with which we are confronted is raised by the insistence of a~pellants, that the question involved here is political and not judicial. (Ragland v. Anderson, 125 Ky. Repts., p. 151.)

I will not read further, but will remark that they decided it was a judicial question. I want to come to the facts of this case, as recited by the court, to show how much more glaring the outrages are than those which I cited a few moments ago for the purpose of proving that the census of 1900 does not palliate, but enlarges them.

Continuing, the court says (p. 154) :

That the act under discussion is grossly violative of section 33 of the Constitution, in that the injunction as to equality between the distri-cts was not even pretended to be obeyed by the legislature, is not and can not be denied. The material allegations of the petitions are admitted by the demurrers , and we have, therefore, before us a redistricting act in which 12 Democratic counties-the population of the largest of which is 12,137, and the smallest, 7,407-are each given a representative. The population of Kentucky, according to the census of 1900, was 2,147,174. This, divided by 100-the number of representative di stricts-produ ces as the average unit for representation the sum of 21,471. Tested by this ratio, some of the counties which are each given a representative have a population of less than one-half the unit of representation, and the rest have little more than one-half. On the other band, there are 12 Republican districts composed in large part of two and three counties each, the smallest of which districts bas a population of 30,615 and the largest 53,263, which are only given one representative each . The first 12 districts, composed of one county each , have an aggregate population of 124,933, while the aggregate population of the second 12 districts is 466,451. The first 12 districts were entitled to only 6 representatives, tested by the avera g e ratio, but were given 12. The second 12 districts were entitled to 22 representatives, but were only given 12. To take the extremes, Spencer lature: County-which belongs to the first set-has a population of only 7,407 and is given one representative, whereas Ohio, Butler, and Edmon son, which compose the twenty-sixth district under the act in question, have a total population of 53,262, and these together have only one representative. In other words, a voter in Spencer County exercises in the le gis lature of the State more than seven times the Influence of a voter in Ohio, Butler, and Edmonson Counties.

.And be it remembered the negro question does not figure in those counties: These were white voters almost entirely.

Continuing, the court says (p. 155)-

Thi s inequality is so glaring that it precludes the possibility that there was any attempt on the part of the legislature to apportion the Stat e into 100 representative districts as nearly equal in population or area as might be.

It needs no argument or elaboration to show that the arrangement of the districts for representation is clearly violative of the constitutional inhibition against inequality.

The court says there was not even any attempt upon the part of the legislature to conform . to this constitutional duty, and hence I say I am unwilling that such legislatures shall control the election of a United States Senator.

Now, let us go a little further. Says the court, in more eloquent words than I can employsecuon 1 of the bill of rights provides: "All men are by nature free and equal. • • •" Section 3: "All men, when they form a social compact, are equal. • • • " Section 33 provides for equality of representation. Sections 171, 172, 173, and 174 provide for equality of taxation (uniformity). Section 39 provides for equality (general) of laws. Indeed, it could not be otherwise, for when our forefathers emigrated from their European home it was, in the main, to escape from the oppression of inequality. They brought with them a burning love for this great democratic principle and imbedded it deep in the foundation of the empire they were destined to erect, and which they will preserve so long as the love of liberty is more than a name. When State. they threw off the supervising government of the mother country it was because they were denied equality of representation, or, as tbey then expressed the evil, they had imposed upon them taxation without representation.

Equality of repres e representation. is a vital principle of democracy. In pr.oportion as this is denied or wi th held, the government becomes ohgarchical or monarchical. Without equality republican institutions are impossible. In eq uality of representation is a tyranny to which no · people worthy of fre e dom will tamely submit. To say that a man in Spencer County shall have seven times as much influence in the government of the State as a man in Ohio, Butler, or Edmonson is to say that six men out of every seven in those counties are not represented in the governm e nt at all. They are required to submit to taxation without representation. It was this kind of oppression which inspired that great struggle for freedom which began on Lexington Green in 1775 and ended at Yorktown in 1781. Equality of representation is the basis of patriotism. No citizen will, or ought to, love the State which oppresses him, and that citizen is arbitrarily oppressed who is denied equality of representation with every other citizen of the Commonwealth. It is no answer to the demand of appellees that the act of _ 1906 be declared unconstitutional . l to say that it will follow that the act of 1893 must also be declared unconstitutional, because it created unequal representative districts, although in a less degree than that ot 1906. The conclusion sought to be drawn does not follow. The act of 1893 has gone into effect and the Government has been organized under it. To hold it void would be to throw the Government into chaos; and this no court is required to do. It is now too late to question its validity . (Ragland v. Anderson, 125 Kentucky :Repts., pp. The court then proceeded to hold that act unconstitutional In the other case to which I referred, which my distinguished colleague says is merely a dir.tmn of the court, the court was asked to declare the act of 1893 unconstitutional.

.Mr. PAYNTER. Mr. President--

The PRESIDING OFFICER. Does the Senator from Kentucky yield to his colleague?

.Mr. BR.ADLEY. Certainly.

Mr. PAYNTER . I th.ink my colleague misapprehended what I said. I said in so far as the court expressed an opinion as to _ whether the legislature should act, it was dictum; that it was only competent for the court to review the action of the State legislature to determine the validity of the act in question.

Mr. BR.ADLEY. I do not think I misunderstood my colleague. I understood him to say just what he has said now, but I am coming to that proposition.

Here is another opinion of the court. The first opinion will be found in 125 Kentucky. The one from which I now read is in 126 Kentucky. This was an action attempting to have the act of 1893 held unconstitutional The court said:

We do not deem it necessary to write an elaborate opinion in this case, but will virtually content ourselves with restating and adopting a portion of the opinion of this court in Ragland v. Anderson (100 S. W., 865; 125 Ky., 141; 30 Ky. Law .Rep., 1199), handed down on March 20, 1907, in which opinion the court, after holding the act of March, 1906, redistr:icting the State into representative districts, void, said: " It is no answer to the demand of appellees that the act of 1906 be declared unconstitutional that it will follow that the act of 1893 must also be declared unconstitutional, because it created unequal representative districts, although in a less degree than that of 1906. The conclusion sought to be drawn does not follow. The act of 1893 has gone into effect and the government has been organized under It. To hold it void would be to throw the government into chaos, and this no court is required to do. It is now too late to question its validity. The next legislature must be elected under it. (Kentucky Reports, vol. 126, April term, 1907, Adams, etc., v. Bosworth, pp. 63, 64.)

Now comes the dictum of the court; but nevertheless, whether a dictum or not, a direct warning and .instruction to the legisThe next legislature must be elected under it, and then we have no doubt the members, impelled by their sense of duty and the obligations of their oath of office, together with that spirit of justice which is the heritage of the race, will redistrict the State as the constitution requires (p. 64). •

But, notwithstanding this terrific arraignment by the court of appeals, notwithstanding its expression of hope that the Legislature of Kentucky would comply with the constitution under their oaths, the legislature met and refused to redistrict the State.

It is no answer to say that the same sort of conduct might have happened in some other States. We are asked here to deprive ourselves of the supervisory right that we have over the election of Senators, and to turn it over to the legislatures of the States, and if the legislatures of States, Kentucky and others, disregard and trample under - foot the sacred precepts of the State constitutions, what right have we to expect any better or different treatment when the time, place, and manner of electing Senators is turned over to them entirely and this Senate deprived of all of its rights?

I am willing to trust the people, yes; God bless the people. After they think and deliberate I am always willing to trust them, but I am not at all times willing to trust representative bodies, and certainly not when they persist in fin open, bold, and defiant violation of the constitution of the State and their oaths as well. Disregarding the injunction of the highest court of the State it still continues its bold violation of the constitution . and denies to the people of Kentucky that equality of representation to which they are entitled under the constitution of the

Mr. OWEN. Ml:. President, the difference between the Bristow amendment and the Borah resolution is this: The Borah resolution provides that the time, place, and manner of holding elections for Senators shall be as prescribed in each State by the legislature 'thereof. The Bristow amendment strikes that provision out. The Borah resolution proposes to leave this question -to the State. ' The Bristow . amendment .proposes to leave it as 1t stands in the Constitution, substantially with the provision, Jn .effect, that if the Congress of the United StateS sees fit to · exercise its control over the time, place, and manner of electing · senators it may · exer-cise that Tight.

It is far this reason that .I . am .opposed to the "Erl.stow amendment. I desire every State :in tlle Union, and par.ticulaJ:ly the State of ' Oklahoma, to exercise a'bso1ute control oTer its own elections, without . any interference w.llatever .on the part of the Federal GoYernment. I · believe that this -system will , be a})- proved by every State in ri:he Union.

I can not at all agree with the . Senator from .Kansas [Mr. BfilsTow] that if · this matter is , presented to the States · of the Union over a four.th of the · States in this Republic would be willing and w-ould prefer . to div.est themselv.es of the right of determining the · " time, place, . a:nd manner " of their o.wn elections of Senators. He fears the defeat · of the .Borah l.'esoln· tion by over a fourth of the States oppoSing it on this g . ro.und. What Senator · on this floor is willing to arise and say that his State desires to divest itself of ' this light of .'fixing the time, 1 pln.ce, and manner of -electing Senators and give that right to the Federal Government? l · do not favor the amendment proposed lly the Senator from Kansas giving the Feder.al Government the right · of controlling the election t0f Senators in the several States, for the very xeason that, as it will .require three-fourths nf .the States of the U.nion to make .effective this proposed amendment, and as it requires only 12 States to defeat it, his . amendment will put the whole ,Proposition in jeopardy. We .have heard from representn.ti~es of the Southern States their apprehension with r.e- gard . to this matter. .I do .not .agree with the reality of the danger, but I do agree with them in recognizing the fact that they do .fear, on account · Df the pr.evious experience with the Lodge f oroe bill, .and that they will .not expect the approval of their own States if they vote for the Bristow .amendment, .and therefore that we a.re in danger .of losing a number of .the States in the South Jf w.e send out :the Bristow form to .be voted on. It would . require only a :few . others besides .the Southern States to . defeat this .measure .before the country. Probably 7 .Southern States might reject the Bristow .amendment, .and if the special interests .could line up 5 Northern States .against the proposed amendment, the constitutional amendment would be defeated. I favor the Borah .resolution Above all other things l>eeau"Be it not only gives :the people the right to sele.ct their , own senates tors by dir-ect vote, but for the further and gr.eater reason that it is a _ Jong e.na . substantial step toward making democratic the Constitution of . the United Sta.t~s-and I use . that term most advisedly, because I say that the .Constitution Df the United States is not tho.roughlY democratic. The Constitution of the United States was so dr.awn by Madison and those who were in the .<Jonstitutional ' ~vention as to aTlow 1lil unfair power to vest m the bands of the minority, 'B.OO ili1s principle shows from one end of the Constitntlon to the other. !rbe ()onstitution of 'the Un1ted 'Stlrtes is not '3.lld was not-then · (1789) m accord with the democratic constitutions of the Tarious ' States as they existed 11.t - tlle time of the .making of .the Constitution nt the United 'States.

One of the great di.ff.er.ences w.hich :I will .ca11 Ihe attention of the Senate to--..and I am .not going to .detain iihe Senate long-1s in the niatter of :the judici:n : ry. Hamilton made the ru~ument that the Fooera1 judicial.·y olliht to be a..P..POmtea tor life, and he made , the · argument and . backed 1t up w.itb. a :fallacious theory~ which .seems · to have heen guite gen.erall_y acquiesced in iby those who .haye written lIJ)on . this .subject. He b n:s ed .his -argument tor ll life jucliciacy lll_pon .the theocy that this would , be in l)ubstarrtial .aucm:d wll.th the English system when, in point of fact, it wa.s nothing of the ik:ind~ .It is true, in the .English system the judges wer~ :a._pp_ointed :for life, but it is also .true that the n_g.lrt of recall of the English judges Wll.S tProrided .for by m.emortial i or .resalH:tion · Ol' :address of the Parllimlen.t .of-Or.eat Britain as far hack as 1688.. ~e Jndieia.ey of Grea-t .Britain does .not legislate nor declare .acts of .Parliament null and yoid. It is responsible to Parliament and Aot Jl.Il entirely inde.Pendent fill.d irresponsible pow~

There js no recall for the Su_pmme Court of the Unit..ed St.ates, as .in .qrea.t .BDita.in, .aD.d nn -som:e .more .suitable lilld .c.onvenient l()CCasion .I will undertake to presen.t ;to the Senate the r.eason-s wl:J;y I think it • unwise to .have -a judiciary entil,el;y in* peDdent nt -Congress and .of the great pnbli.c .o_pin.ion -0t the CJn1ted States. I do not bellew 'in nine men, · no matter wno they -are, being put 1n a -position -where they can dlsregfil'd the will of 'fhe 11eap1e of t'h~ United 'States and of their representatives in Congress with comparative impunity. It is one of the ways in which the right of the majority to control th1s -cormtry is uenied; it is one of the ways in wmeh the -Oonstitution of the United States was made undemocratic.

We talk about the right of recan of judges a'S 1f 'it were a new 1 strange, and unwise doctrine. I can your fl.tiention to the fact that tbe major.tty of .the States of the Uni.on at the time of the estab1ishment of the Constitution of the United States had the right of-recall of their judges.

The legislature, indeed, being the direct re_presentative of the people, in mnny instances chose the judiciary, .as in Oonneeticut, [Rhode 1Sland, New J . ersey, Virginia_, "North Crrrolina, -Geo.rgia, N.ew Yoxk, and Delaware, ..and it was not regarded as n:nreason­ , able by our forefathers that the legislature should recall judges, ns the Parliament did in England, and this was actually aone by :the executtve on an address of both brancb~ -0f the legislature in many af the -Sta.tes, as in Massachusetts, New Ham_pshire, ~Maryland, De'la.war-e, Sou"fh Carolina, and .Pennsy1v..anla.

In Rhode Islund, Connecticut, and Georgia judges were elected on1y for one y.ezr, nnd were thus automatica1ly recalled by this cxcee.ding1y short "tenure.

In eight States-Massaclmsetts, New Ila.m,pshlre, New York, Delaware, "Ma:ry1and, North Carolina, .Suuth O:rro.Iinn, an.a Vrrginia-fhe term af office ofjnogeswas d:n:r1ng _good behavior. Restoring the uctive :right of :recall of judges will go "fa-r toward making democratic the Constitution of the United States, 1 .and for that reason I strongly favor it. When 'Congress or the people lla-Ye 'B. legal right to recall judges, fthe jrndges will respet!t public opinion and the general welfare. They will not set aside State or Federal laws, nor legislate under co1or r of juwcial decisions, and they will · so conduct i:hemselves tthat the u-se · of tlm :recall will be unnecessary.

The 1ID.demoeratic character -of the Constitution C1f the United States is -shown in the extreme diffieulty the people 'l:urve ill changing the -Oonstitution in any i)artienlar. For example, in ctmnging the Cons.titntion so as to permit the election of · senntors by -direct -vote, one vote in excess of a third of the votes -0f the House of Representatives can block this amendment of the Constitution. In like manner a fraction · over a third of the -votes in the Senate can defeat this amendment to the Constitution ; and J.f both these .hw:;dles ])e passed, a fraction over onei fourth of the States , can • d-efeat the will of nearly three-fourths of the States. And of the 36 · states nec.es-sary ta amend the Oonsti.tnti~ · any one of-the 36 governors m1g1rt, by an arbitrary veto or even by corrupt influence, block the will of the American people; 'OT filly one of the 36 legislatures .might be obstructed by .a majority in any one of the 36 senates or af the 36 houses.

"It is thus obvious that a line of obstacles has been interposed, in the framing of the Constitution of the United States, to pre­ 1 ent the will of the majority of the people of the United States from contr.o1ling the Jaws of 'this uOlII!tcy, tl:ms giving an unfair veto pow.er .into the · hands of the minority.

W.e preach in this coun.t:cy~ -as a demDcra:tic doctrine, the -right of the majority to ru1e. We haye pennitted our hands, · never.­ theless, to ' oo iied by an -undemocratic Constitution, wher-e a .minority · actuaTiy ru1es. We do not allow the majority of the people o--r of the , States :to rule or -to chan~ the , Constitntion. Nine-t-enths "Gf ihe peop1e · Of the United - States ha-v-e desir-ed the election of Senators by dir"ect Tote of the _people, and they have been trying to obtain their wish for a hundred years in zain. The majority is ~ontrolled by the minority, .and the Constitution whien does fhis is glorified and proclaimeCl ns a 'Perfect instrument of democimcy. We should make democratic the Constitntion and provide for the majority ru1e.

The people are denied fhe rlgn.:t to .choose their own · senators under this Constitution, which was so . iramed . as to make easy the corrupt election of 'SeuatoTs. It was so "framed-not b,y intent but by its mechanism-as to ,per.mil ·sen.atorshlps to be bought with comparative ease and safety; it was so .tramednot by intent bnt by its niech:anism-as io J>erIIlit 'Corruption 'Uild successful rascality.

And all the special interes.ts in .the -eountry are -now opposed to the clrange an.a. praise tne Constituticrn -:as a sacred instr.u­ ment, so Eacred that to :suggest .its lm_p.rovement or ..amendment is denounced af'I .sacrilege. Fortunat-ely, however, <the great Democratic Party., and evecy other :party · exc~pt the Bepublica:n P.arty, ha..s gone on record in fa;vor of this _pa.rtic11lar ll'eform. Now, Mr. President, I want to place in the REcom> the grossl_y nndemocratic attitude of -the Republican national }JUTty .Illllchine on -this question of the .direct election .of Serui t o.rs. I made reference '.to it when the Senator from llissouti w.as ED;>eaking. But :.fixst I will -presem · the democratic attitude of what may be called the Progressive Republicans of the United States on this question. The minority report of CooPEB, of Wiscousin, on this matter before the Republican national convention in Chicago in 1908 is very short and goes to the heart of this question.

, His minority report from the committee on resolutions is as follows:

ELECTIONS 6F UNITED ST.A.TES SENATORS BY DIRECT VOTE.

The people of this country demand that government shall be truly rep ::'a se!ltative. The legislatures of 27 States, 19 of them r e presented by Republican Senators in the United States Senate, have adopted joint resolutions favoring a constitutional amendment for the election of United States Senators by direct vo t e of the people. The House of Reprrn e ntatives has five times, the last time by unanimous vote, adopt e d and transmitted to the Senate a resolution proposing such a constitutional amendment. 'The Senate refuses to p e rmit a vote upon. the passag e of such a resolution. Washington declared in his Farewell Ad· dress that: "The basis of our political system is the right of the people to make and alter their constitutions of government." •ro deny or withhold that right is destructive of the basic principle of a republican form of government. Believing with Abraham Lincoln that this should be in truth a " Government of the people, by the people, for the people" we demand that Congress shall, upon the convening of the next session, prop c se for the ratification ot the legislatures of the several States an amendment to the Constitution providing for the election of United States Senators by direct vote of the people.

Tllat was the voice of the progressive · Republicans in the Republican national convention of 1908, and, in my judgment, the progressive Republican citizens and voters number nearly, if not more than, half of the Republican voters in the United States. Now. listen to the undemocratic machine voice of the "regular Republicans," through Mr. Albert J. Hopkins, of Illinois, chairman of the committee on resolutions:

Gentlemen of the convention-

Says he, and he is speaking with regard to these proposals of the progressive Republicans, favoring the "direct election of Senators," "the physical valuation of railways," "control of the trusts," " reducing the tariff," " publicity of campaign contributions and expenditures," "regulation of telegraph and telephone rates," "against ship subsidies," "against government by injunction," "in favor of trial in contempt cases,'.' "in favor of a department of labor," and "protection to employees" and the 'eight-hour law," as submitted by the minority report of Mr. HENRY ALLEN CooPER-he is speaking for the Republican machine as its authorized mouthpiece:

I am not going to make a speech­

Says l\fr. Hopkins-

! d e sire to call your attention to the fact that this convention selected 53 members from the body of the convention, one from each delegation, to prepare a declaration of principles. The report that I have read to thi s convention embodies the work of 52 of the 53 members of t h nt committee. [Applause.] In our deliberations every plank that has been offered by the gentleman from Wisconsin was considered by the committee. Everything that is Republican in any one of those planks 1s already adopted in the majority report. [Applause.]-

The election of :;3enators was not in the majority report nor wer e the other progressive principles registered there, which I }Jave enumerated.-

We rej e cted in those planks that have been offered by the gent l eman from Wisconsin the doctrines of socialism embodied in them. [Applause. J Now, gentlemen, the question for you to determine is whether you will stand by the report of the majority 01· whether you will take the Socialist-Democratic utterances of Wisconsin. [Applause.]

Not only were the reasonable demands of the progressive Republicans rejected in every particular, but subjected to epithets int e nded to be insulting. And thereupon the machine voted and rejected the proposal favoring the election of Senators by direct vote ( 866 nays to 114 yeas), as follows :

Number of votes Yeas. Nays.

States, Territor1es, etc. · in convention.

Ala Arkansas b ama .. ... ························-···-············ ·- .................................•.... 18 • . . • . . • • . . Calliornia .......................................... . i8 :::::::::: i8 Colorado ..............................••....•....... ~~~~!~~;~_t:::::::: ::: :: ~:::: :::::: :: :: : :: :: :: : ::: : : 14 6 . . .. • ••• .. .•... ••... Florida ............................................ . ~~ :::::::::: Georgia .••..••.•....•••.•••..•..•••••••..•••..•..•.. m~iiS::::::::::::::::::::::::::::::: :: : : : : :: : : ~::: : 54 6 1 3 53 Indiana ............•..........•...•...•..•...••..... ~ 1 f Iowa . ............................•.....•••.......... Kan ~ as ....•.•................•..•..••••............ 20 . .. . ... .. . Maryland ~~YF!~~~-·:·:: ........•.....••..••..•..•..••.••..•..••... ·:: :~ :: : : : : :: :::: :: :: : ::: ::::::: ::: ::: : : ~ 12 16 2 1 2 Massachusetts ......••..•........•.................. 32 .•••.••• 5 . g Mich ig an .. ·······················"················· ~ . . •• • •• • • • 22 1 20 ..•....... 20 ~fil~V~ :·::::: :: : : : : : :: : : : : : : : : : : : : : : :: : : : : ::: : :: : ~ 4 Montana Nebraska ........................................... ........................................•.. . 16 ·······iii" . . . . . . by . l?rocesses . . . Nevada .......................•...........•.••.•..•. 6 •••••.••••