May 23, 1911
Mc. - RAY:1'1-"'ER. Mr. - President--
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Tb~ VICIIl . PRESIDENT. Does: the: Senator from Tituh. yield to the Senator from :Maryland? ·
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- VICIIl The scans read: “VICE” (microfilm scan), “VICIIl” (main scan)
- Tituh. The scans read: “Utah” (microfilm scan), “Tituh.” (main scan)
Mr. SUTHERLAND. Certainly.
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Mi:. RAYNER. If the Sena.tor: will allow me, I intend, of course to vote against the proposed. amendment of tlie Senator from Kans.as [Ur. Bristow], but I shall vote for the joint reso. l'ation even ff the amendment be adopted. r want to call the Senator’s attention, however, to a remark he made, which, I think, will' require some modification. He- said that, in his judg ment, the · framers of the Constitution, if they · had provided that S . Senators should be elected by- the · people, would have - adopted this supervisory power. I want te- call his attention, or, rather; his recollection, to tlre fact fil.at New York and, if- I remember aright, Rhode Island, Pennsylvania, and Massachusetts, in ratifying the Constitution adopted a provision in the act of ratification that, in the contemplation of those - States ratifyin-g it, never was intended to give Congress any such power aS' that; · that the only power it was ever intended to confer upon Congress was the power ta act when the States failed to act:
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- tlie The scans read: “the” (microfilm scan), “tlie” (main scan)
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- l'ation The scans read: “lution,” (microfilm scan), “l'ation” (main scan)
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Now, just one word further. 1 will only take' m moment Let us Took at New York. The- preamble- to the: ratificatiorr in New York recited:
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In. full confidence, nevertheless, that until _ a conven.tion. shall be called and convened for proposing amendments to the Constitution *' • • that the- Congress will n-ot make or. alter any regulation ih this • State resu e cting the times, places, and manner o.t. holding. election£ for s~ ators anll. Representatives unless the legislature _ e in this State shall neglect or refuse to m.ake laws or regulations fm: the purpose, _9r from any circumstances be incapable of making the · same, and that- UL those cases such power will duly · be exercised until the- legislature o! this State. shalL make Qtovis1ori.s in the. premises.
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- e cting The scans read: “respecting” (microfilm scan), “e cting” (main scan)
- o.t. The scans read: “of” (microfilm scan), “o.t.” (main scan)
- election£ The scans read: “elections” (microfilm scan), “election£” (main scan)
- s~ The scans read: “Sen-” (microfilm scan), “s~” (main scan)
- anll. The scans read: “and” (microfilm scan), “anll.” (main scan)
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- o! The scans read: “of” (microfilm scan), “o!” (main scan)
- Qtovis1ori.s The scans read: “provisions” (microfilm scan), “Qtovis1ori.s” (main scan)
Pennsylvania, in adopting the Constitution, provided:
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That Congress shall not have power to make. or alter regulations · con- cernin,!" the. time, place, and. manner of electing Sen.at.ors and Representa tlves, except in. case of neglect" or refusal by the State to make regulations for the purpose, and then only- for such time a-s · su-ch neglect or refusal shall continue.
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- cernin,!" The scans read: “eerning” (microfilm scan), “cernin,!"” (main scan)
- Representa The scans read: “Re” (microfilm scan), “Representa” (main scan)
- tlves, The scans read: “sentatives,” (microfilm scan), “tlves,” (main scan)
The State of :Massachusetts did th~ same thin-g; . a:s aill3o did Rhode Island. J.l can not agree with the Senator's contentiom . .ll:r. SUT.EI.ER'LA~1Dt There · were : a . number of States which took that view.
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- contentiom The scans read: “contention. Mr.” (microfilm scan), “contentiom” (main scan)
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l'\tr. RA '¥NER. Tfie idea: of this clause - wag, that wftere · tbe State& failed · ta act Congress. should - act, l'Jut it never was: in· tended and ne v er was in the contemplation 0:1!- th e framers of the Constitution; and the Senu.t01· will, r think; . ne-ver be . able to find in. the debates of that- body ru:IY' recognition of t1ie principle that the authority of the Congress should snp _ e:c.seda the regulations of the State&.
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- ta The scans read: “to” (microfilm scan), “ta” (main scan)
- l'Jut The scans read: “but” (microfilm scan), “l'Jut” (main scan)
- ne v The scans read: “never” (microfilm scan), “ne v” (main scan)
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One other word before the Senator sits down with refer:enc.e to tlie electors. There • is ru specific · power in the Constitution tb.a : t thff State& shall have the _ right to a-ppoint electors, The Constitution confers the · right upon the: States. to appoint their ow.n electors. It provides—
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- State& The scans read: “States” (microfilm scan), “State&” (main scan)
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Eaefi State shall appoint, in such · manner- a-g ttie legislature thereof nucy direct, a. nlIIllber of electors-, equal to the- whole · number ot Senators and Representatives , ta which the State: may b.e entitled in Congress.
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- nlIIllber The scans read: “number” (microfilm scan), “nlIIllber” (main scan)
- ot The scans read: “of” (microfilm scan), “ot” (main scan)
- ta The scans read: “to” (microfilm scan), “ta” (main scan)
1 connection
- quotes Article II, Section 1, Clause 2 (suggested)
There iS no provisiOn. in tlie Constitution giving- Congress States? supervisory power of tfie manner in which the- States shall de:- terntlhe the matter or the regulations as to the · election: of eleat'°rs..
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- terntlhe The scans read: “termine” (microfilm scan), “terntlhe” (main scan)
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:Nfr: SUTHERLAND. N-0; but · over the action of ~ elector~ when chosen the power' of' Congress- has been preserved. The Constitution not only preserves ' the- power of Congress, but provides how · these electors shall discharge their duties-.
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- elector~ The scans read: “electors” (microfilm scan), “elector~” (main scan)
- these The scans read: “those” (microfilm scan), “these” (main scan)
lifr. RAYNER But not their selection.
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- lifr. The scans read: “Mr.” (microfilm scan), “lifr.” (main scan)
Mr: ROOT. l\IE P-resident, will the Senator from Utah permit me to ask the Senator from Maryland' a question?
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Mr. SUTHERLAND: Certainly
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Mr. ROOT: What force does the Senator from · Maryland gf ve to the words or alter such regulations"? · Section 4, . Article I, provides-
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- gf ve The scans read: “giv:” (microfilm scan), “gf ve” (main scan)
1 connection
- quotes Article I, Section 4, Clause 1 (suggested)
But Congress- may at any. time Dy law make or alten such regula.tiong, HOw could. the~ alter such regulations if their powe~ was to exist only in. case the State failed to make any;? ·
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Mr. RAYNER. I can answer that hy saying that where. · the regulations were not sufficient for the purpose of accomplishing the purpose they intended the power atta.ch.ed. Mr. Pre&iden.t, I do not think the Senator from New York will' say, in . looking over the deba:tes . in the Constitutional Convention, although:, of course, it does not bear practically upon this question at all, . and I do not care. what the debate.S _ were . e . in the Constitutional Convention now, I do not think ke: would say that it was the intention of the framers of the Constitution or · that it was the intention of. the- States · that ratified the Constitution th.at Congress should have a supervisory {lOwer _ over the election re~ulations of the States. That power was - deemed tu exist in. Con: gress only when. the- States failed. te send Senators here and Representatives to the House of Representatives, antL the- wor-d " alter" meant when they did not sufficiently accomplish the purpose. . . The action. iIL·the New York convention, in the Pennsylvania convention, in the Rhode Island convention, in. the Massachusetts convention; and in. other conventions of other States that I do not: now r.ecall shows plainly that it was - never the intention to give Congress the. power. that the- Senat-or. from. Utah. claims it would have been given if the Constitution . had originally- provided for the election of Senators- by the people, . and that the framers of the. Constitution would not have · conferred any such power upon Congress as the Senator from Utah now wants to confer upon it. Of course, Congress Iras exercised the . power · with the a-pproval of the courts, , but I am speaking new of what was within. the conte¥tplati.on of . the- rati fying States.
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- hy The scans read: “by” (microfilm scan), “hy” (main scan)
- the The scans read: “t” (microfilm scan), “the” (main scan)
- Pre&iden.t, The scans read: “Presiden” (microfilm scan), “Pre&iden.t,” (main scan)
- looking The scans read: “look” (microfilm scan), “looking” (main scan)
- although:, The scans read: “althoug” (microfilm scan), “although:,” (main scan)
- all, The scans read: “a” (microfilm scan), “all,” (main scan)
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- {lOwer The scans read: “power” (microfilm scan), “{lOwer” (main scan)
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- re~ulations The scans read: “regu tions” (microfilm scan), “re~ulations” (main scan)
- tu The scans read: “to” (microfilm scan), “tu” (main scan)
- te The scans read: “to” (microfilm scan), “te” (main scan)
- antL The scans read: “and” (microfilm scan), “antL” (main scan)
- iIL·the The scans read: “in the” (microfilm scan), “iIL·the” (main scan)
- by The scans read: “b:” (microfilm scan), “by” (main scan)
- · The scans read: “con-” (microfilm scan), “·” (main scan)
- Iras The scans read: “has” (microfilm scan), “Iras” (main scan)
- new The scans read: “now” (microfilm scan), “new” (main scan)
- conte¥tplati.on The scans read: “itemyation” (microfilm scan), “conte¥tplati.on” (main scan)
Mr. SUTHERLAND. I am entirely · familiar with the resolu. tions to which. the Sena.tor from. Maryland refer.&, but, with , all due respect. to him, they · do not meet iTu any degree the- contention . that ] am making. II cUl!e- not whether the-position et the Senator from :M.aryland is correct about it on my position is- correct a.bout it; my proposition is. that the: · framers of the Cons~ tution would. have. given Congress the , same powe-r, , whatever it may be, of supervision over the election of. Senator! that it does give them under the Constitution. if they had been elected by · a. direct vote of the people. It ga.ve the:- Congress the ultimate supervisory control over the election or Representatives, and they were. elected by the people ; it gave the ultimate. s11pervfsory- power- over the. election of United States Sena.tors, and they were elected by the. legislature; but if the Constitution ha:d provided that Senators should be elected by the people, the- same as Representatives · were elected by- tlm peorM,, the: frame~ . of the Constitution. would lm:ve: given tcJ Congress : exactly the power wlri«h. the-y had given them over tlre . election of Representatives. That is my- contention,
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- cUl!e- The scans read: “care” (microfilm scan), “cUl!e-” (main scan)
- on The scans read: “or” (microfilm scan), “on” (main scan)
- Cons~ The scans read: “Consti” (microfilm scan), “Cons~” (main scan)
- Senator! The scans read: “Senators” (microfilm scan), “Senator!” (main scan)
- or The scans read: “of” (microfilm scan), “or” (main scan)
- s11pervfsory- The scans read: “swpervisory” (microfilm scan), “s11pervfsory-” (main scan)
- elected The scans read: “elect” (microfilm scan), “elected” (main scan)
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Ml'. WILLJ.:AMS'. Mr. President
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- WILLJ.:AMS'. Only one scan has this word: “WILLJ.:AMS'.” (main scan)
The V:t:CE PRESIDENT. Does the Senator from Utah ytelil to the Senator- from Mississippi?
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- V:t:CE The scans read: “VICE” (microfilm scan), “V:t:CE” (main scan)
- ytelil The scans read: “yield” (microfilm scan), “ytelil” (main scan)
Mr. SUTHER'.fu.A...ND. I yield to tile Senator from Mississippi Mr. WILLIAlif S. Does not the Senator from 'Ntufu admit tlm.t Olll! forefathers and the Constitution regarded tlie Senators as peculiarly the representatives of · the StateS'-in a certain sense as ambassadors?
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- SUTHER'.fu.A...ND. The scans read: “SUTHERLAND.” (microfilm scan), “SUTHER'.fu.A...ND.” (main scan)
- tile The scans read: “the” (microfilm scan), “tile” (main scan)
- WILLIAlif S. The scans read: “WILLIAMS.” (microfilm scan), “WILLIAlif S.” (main scan)
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- tlie The scans read: “the” (microfilm scan), “tlie” (main scan)
l\fr: SUTHERLAND. r do not-know that r quite understood the Senator.
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Mr: WILLI'.A...'l\IS. :t say, does not" the Senator from Utah admit that our forefathers and that tfi.e Constitution contemplated the Senators as peculiarly the representatives; of the States, the Senate itself as a body being representative- of the Stat.e> and not of' the people of ' the State?
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- the The scans read: “t” (microfilm scan), “the” (main scan)
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- the The scans read: “that” (microfilm scan), “the” (main scan)
- the The scans read: “quite” (microfilm scan), “the” (main scan)
Mr. SUTHERLAND. ‘The Senator is a representative-- li!J.1. WILLIAMS. Now, if ' that is- the case, does the- Senator think they would have made- exactly the same rule for the Representatives elected ' by the people- and for these men who • in their view were iir a · sort of way ambassadors from - tlie
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Mr. SUTH.EJimAND~ . The , Senator from Mississippi is' - a representative of his: State: fir one- sense, but a Senator represents- tlie people · of- his - State- the same a& . a Representative represents the people of his State. And beyond that a Senator js not only a representative of his State, but he is a Senator of the United States. He exercises-
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- SUTH.EJimAND~ The scans read: “SUTHERLAND.” (microfilm scan), “SUTH.EJimAND~” (main scan)
- fir The scans read: “in” (microfilm scan), “fir” (main scan)
- tlie The scans read: “the” (microfilm scan), “tlie” (main scan)
- a& The scans read: “as” (microfilm scan), “a&” (main scan)
- js The scans read: “is” (microfilm scan), “js” (main scan)
Mr. WILLIAMS . . What I am trying to get at, if the Senator will permit me, is this: Not in your contemplation nor more than . in mine, for things have evolved since then very much, but whether in the contemplation of our forefathers the Senators moment-- were not the representatives of the States, of the corporate body, the State, more than of the people of the State.
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l\fr. SUTHERLAND. Well, let me concede that, then- .Mr. WILLIA.MS. This body was inaugurated for the very preservation of the equality of the States, was it not? .
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Mr. SUTHERLAND. Let me concede that, at any rate, for unless the States decline to act. the sake of argument, and what does the Senator make of it? Does the Senator think that because that distinction might exist Congress ought to preserve no control over the election of United States Senators while it does preserve control over the election o - f Re,presenta ti ves?
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- o The scans read: “of” (microfilm scan), “o” (main scan)
- Re,presenta ti The scans read: “Representatives?” (microfilm scan), “Re,presenta ti” (main scan)
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.Mr. WILLIAMS. Yes--
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Mr. SUTHERLAND. Does that constitute a reason for that distinction? ·
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Mr. WILLIAMS. The reason for that · distinction is just as when a congress of people meet. There are so many delegates, and the congress itself has no control over the delegates.
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Mr. SUTHERLAND. I can not follow the Senator in that.
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Mr. WILLIAMS. I am saying that because you went back historically to the beginning; and if we are to go back, I should like to go back to the atmosphere that surrounded those people. Of course I admit, as a matter of fact, in the course of historical evolution that the very nature of institutions change because of the nature of new demands made upon them. . Mr. RAYNER. Will the Senator yield to me?
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Mr. SUTHERLAND. If the Senator will let me have just a moment, I will yield to him. ·
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To my mind, if there can be a distinction, there is more reason for the preservation of the supervisory control of Congress over United States Senators than over Representatives, because-
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Mr. WILLIA.MS rose .
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.Mr. SUTHERLAND. If the Senator will hear me throughbeca use a Senator of the United States, while he may be, as the Senator says, a representative of the State, is more a representative of the United States than is a Member of the House. The Representative, the Member of the House of Representatives, has nothing to do with the question of treaties. He has nothing to do with the confirmation of appointees to Federal positions and ambassadors to foreign governments. The Senator of the United States passes upon treaties with foreign governments. A Senator of the United States advises and consents to the appointment of the judges, ambassadors, and all the other officers of the United States.
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- throughbeca The scans read: “through—” (microfilm scan), “throughbeca” (main scan)
- use The scans read: “because” (microfilm scan), “use” (main scan)
Mr. WILLIAMS. Yes; I . understand that.
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Mr. SUTHERLAND. In that condition, can it be said that the Government of the United - States should absolutely yield to the States its control over the election of such an officer, who discharges these important functions of the National Govern- · Mr. WILLIAMS. And from their standpoint at that time resolution: one of the very reasons why they gave all these extraordinary powers to the Senate was that the Senate was peculiarly representative of the equality of the States.
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- · The scans read: “ment?” (microfilm scan), “·” (main scan)
Now, right here one other question. The Senator from New York [l\Ir. RooT] says that he wants to add to the present powers of the General Government this right to be present at the polls in a State when the Senator iS elected.
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Mr. ROOT. To retain it.
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Mr. WILLIAMS. That is my standpoint. Of course, his standpoint is that he is keeping things as they are. He says that one reason why the Federal Government must do that is because it must continue its own existence in the Senate and that New York must have her Senator here.
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I want to ask the Senator if, under the present condition of things, there is any way under the sun to compel Colorado to send a Senator here?
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Mr. SUTHERLA.l"'\"'D. Absolutely none.
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Mr. WILLIAM:~. None under the sun. So that the argument which be makes there is no more against the condition of things that would exist if the joint resolution of the committee should pass than it is at present.
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Mr. RAYNER. The Senator from Utah has been very liberal 1n allowing interruptions. Will the Senator permit me?
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Mr. SUTHERLAND. I will yield to the Senator briefly.
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Mr. RAYNER. I object on general principles to interpretations of the Constitution which, in my opinion, were not sanctioned at all at the time it was adopted. The best way to get at what the Constitution means is to get at what the States meant' when they . ratified it. - Nine out of the 13 States in their articles of ratification held that this clause does not mean what the Senator from Utah says it does mean. The records of the other 4 States have been lost, but I have · no doubt they would follow in the same line. It will not take me a
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Mr. · SUTHERLAND. Let me ask the Senator right here, whatever it means, why destroy the power?
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.Mr. RAYNER. Because it means just exactly what we say it means. We give the State the right to provide for the manner of electing Senators. And that is exactly what it meant,
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Mr. SUTHERLAND. Mr. President--
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Mr. RAYNER. Just a moment, .and then I shall have finished. I will just read this-it is only a few lines-and then I will not detain the Senator.
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The matter has always been so clear to me that I do not like to have a statement made upon the floor of the Senate contrary to what I think the framers of the Constitution meant. Here is what the State of South Carolina said:
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And whereas it is essential to the preservation of the rights · reserved to the several States, and the freedom of the people, under the operation of a General Government that the right of prescr i bing the manner , time, and places of hold i ng the elections to the Feder al Legislature should be forever inseparably annexed to the sovereignty of the several States, this convention doth declare that the same ought to remain to all posterity a perpetual and fundamental right in t h e local, ~xclusive of the interference of the General Government , except in cases where the legislatures of the States shall refuse or neglect to perform and fulfill the same according to the tenor of said constitution.
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- hold i The scans read: “holding” (microfilm scan), “hold i” (main scan)
- t The scans read: “te” (microfilm scan), “t” (main scan)
- ~xclusive The scans read: “exciusive” (microfilm scan), “~xclusive” (main scan)
Now, Virginia said:
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That Congress shall not alter, modify, or interfere in the times, places, and manner of holding elections for Sena.tors and Representatives, or either of them, except when the legislature of any State shall neglect, refuse, or be disabled by invasion or rebellion to prescribe the same.
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You have nine States. I never have had any doubt after a most careful examination as to the proposition that if the records of the other four States could be found they would substantiate the declaration in the ratification of these States. At least we have the records of nine of them, every one of them giving is as the opinion of the ratifying convention that it never was intended to repose in Congress the power that Congress . s has unlawfully exercised in regard to the matter.
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The Senator from Georgia. [Mr. BA o oN] at the last session of Congress cited these various acts of ratification to which I have referred and demonstrated the proposition that I am now contending for.
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Mr. NELSON. Will the Senator yield to me for a moment?
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Mr. SUTHERLAND. . N"D. Yes.
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Mr. :NELSON. The unfortunate thing, Mr. President, with the position of the Senator from Maryland is that if this para · graph is amended, whether the legislature acts or fails to act, in any event the Congress of the United States will have absolutely no power, and therefore the statement made by the Senator from Maryland is not germane and has no force, because the original joint resolution does not e v en girn the Congress the power to act when the legislature utterly fails. Here is the · language, and the only language, left in the original joint The times, places, and manner of holding el ect ions for Senators shall be prescribed in each State by the legislature thereof. . There is no proviso here giving Congress the power to act in case the · legislature fails to act. ·
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- v en The scans read: “even” (microfilm scan), “v en” (main scan)
- girn The scans read: “give” (microfilm scan), “girn” (main scan)
- ect ions The scans read: “elections” (microfilm scan), “ect ions” (main scan)
- case The scans read: “ease” (microfilm scan), “case” (main scan)
Mr. RAYNER. The Senator from Minnesota is contesting with a shadow. There is not the slightest possibility of a State declining to send a Senator to the Senate of the United States. There was danger at the time the Constitution was adopted. There is not now the slightest practical danger of a State not sending a Senator here.
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Mr. HEYBURN. Will the Senator permit me?
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Mr. RAYNER. I will permit an interruption, but the Senator from Utah has the floor.
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The VICE PRESIDENT. The . Senator from Utah has th _ e floor. .
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Mr. RAYNER. I am talking about the intention of the framers of the Constitution. The Senator from Utah says it was the intention to give Congress a supervisory power. I know very well they have exercised a supervisory power, but I say when you look over the ratification of the States you can come to but one conclusion, and that is that it never was the intent of the framers of the Constitution; and let me say another thing, that the Constitution never would have been raified if the States had believed that that was the intention.
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Mr. HEYBURN. I want to ask the Senator from Maryland a question, with the permission of the Senator from Utah.
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The Senator from Maryland made the assertion that there - Mr. RAYNER. was not the slightest danger that any State would ever fail or refuse to send representatives to the Congress of the United States. The history of the United States discredits that assertion.
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l\Ir. RAYNER. I do not think it does, Mr. President. I should like the Senator to point out where it discredits it. It does not discredit it in the case of the State of Idaho.
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Mr. HEYBURN. Well, Mr. President, there were certain years in the history of this country when certain States did not send representatives here.
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Mr. RAYNER. And there were certain years in the history of the country when the Senate turned down Senators who were sent here and put in Senators who were never lawfully elected to the Senate.
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Mr. HEYBURN. I was merely referring to the statement of the Senator-that such conditions could never exist.
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Mr. BORAH. Will the Senator from Utah permit me to make just a suggestion here, because it illustrates what I may say is an exaggeration of the effect of section 4? At the time that the States did fail to send Senators here, of what earthly use was section 4 to the United States? We did not exercise · any power under it. We could not exercise any power under it. It was utterly useless to accomplish anything which now by imagination it is suggested might be accomplished.
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Mr NELSON. May I ask the Senator a question?
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Th~ VICE PRESIDENT. Does the Senator from Utah yield to the Senator from Minnesota?
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Mr. SUTHERLAND. Yes.
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Mr. NELSON. Of what earthly use was the Constitution anywhere-any part of it-during the Civil War? - Mr. BORAH. Well, I think it served a very good use. It held us together up here. But this particular section was never intended to give us the power to go into the States and elect Senators, and we have not that power now.
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Mr. HEYBURN. Mr. President- · -
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The VICE PRESIDENT. Does the Senator from Utah yield to the Senator from Idaho?
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Mr. BORAH. I hope he will.
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Mr. SUTHERLAND. Yes; I yield to the Senator.
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Mr. HEYBURN. There is in the Constitution a process of compelling the election of Senators and Representatives, which was adopted at that time, and it was an effective process. It took a little while to do it, but the Government of the United States compelled those States to resume the functions of statehood and send their representatives here. It was only a question of how they would do it, and they adopted the only method of doing it.
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Mr. BORAH. Mr. President--
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The VICE PRESIDENT. Does the Senator from Utah yield to the Senator from Idaho?
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Mr. SUTHERLAND. I will yield to the Senator from Idaho, and then I must proceed .
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Mr. BORAH. I assert that never at any time did the Congress of the United States undertake to exercise any power under this section to compel any State to elect a Senator or a Representative.
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That statement has been made here on the floor time and time again, and I challenge any Senator to point to a single instance, to a single statute, or a single proceeding under section 4 of the Constitution looking to the accomplishment of that purpose.
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Mr. HEYBURN. I can refer you to one.
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.Mr. LODGE. Will the Senator yield to me?
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The VICE PRESIDENT. Does the Senator from Utah yield to the Senator from Massachusetts?
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Mr . HEYBURN. If I may be permitted here, I think-
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Mr. SUTHERLAND. l\Ir. President, I think——-
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The VICE PRESIDENT. . The Senator from Utah has the floor. To whom does be yield?
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Mr. SUTHERLA.ND. This whole discussion is aside-
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Mr. HEYBURN. Three words will an swe r.
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Mr. SUTHERLAND. I will yield to the Senator, but I hope he will be brief.
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Mr. HEYBURN. By processes of martial law it made a government for these St ate s.
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.Mr. LODGE l\fr. RAYNER, and others addressed the Chair. Mr. SUTHERLAND.
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The VICE PRESIDENT. The Senator from Utah has the floor.
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l\1r. SUTHERLAND. I must decline to yield further.
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The VICE PRESIDENT. The Senator from Utah declines to yield further. The Senate will please be . in order.
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Mr. SUTHERLAND. l yield to the Senator from Massachusetts.
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I only wanted to say to the Senator that martial law is no law at all.
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The VICE PRESIDENT. The Senator has not yielded to the Senator from Maryland. He yielded to the Senator from Massachusetts.
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l\!r. LODGE . I will detain the Senator but a moment. I only wanted to say that it seems to me Senators forget the origin of those provisions. They were put in because toward the close of the Revolution the States failed to send delegates, in many cases, to the Continental Congress, and during the Confederation they absolutely brought the Government to a standstill by their failure to provide representation at the seat of government, and this was put in to prevent the new Government from being paralyzed in that way.
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Mr. SUTHERLAND. . I desire to get back to the point where I was when the storm broke.
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The Senator from Maryland has . called attention to the resolutions passed by several of the States in which in substance they declared that this clause of section 4 was only intend ed to operate in case the States failed to act . Now, I care not wh eth er that was the view of the framers of the Constitution or the view of those who ratified the Constitution. The point that I was making to the Senator was that whatever their view of the scope and meaning of this provision was they int ended it should operate upon the election of Representatives and United States Senators, whether they were elected by the people or by the legislature . Whether you give it a broad application or a limited application, they did not intend to make a distinction as to the power which should be exercised based upon the manner in which the Senator or the Representative should be elec t ed. But if that was the original intention of the framers and tha.t was the view of these States it has been construed to have a broader operation during the 124 years of the existence of the Republic, and the people of the United States during that 124 years have been quite content to leave that provision in the Constitution with that broad interpretation of it.
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- wh eth The scans read: “whether” (microfilm scan), “wh eth” (main scan)
Now l\Ir . President, it has been suggested that even if we eliminate this clause of section 4 from the Constitution the power will still exist in . Congress to regulate the manner of the election of United States Senators, under the general provisions of the Constitution. I do not agree with that view. I think if we provide in express terms by an amendment to the Constitution that the legislatures of the States shall be given the authority to make regulations as to the times, place, and manner . of election of Sena.tors, that will constitute the last expression of the people's will upon that subject. .
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TM language is exclusive. It is specific . It confers upon that one agency the power to do this thing; and the rule of statutory construction is too well settled to admit of dispute, that when we have conferred a specific power, in exclusive terms, upon one agent, we, by that very act, deny it to any other agent. I can not understand--
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Mr. BORAH. Mr. President--
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Mr. SUTHERLAND. Just a · moment. I can not understand how, when we shall have conferred the express, positive, and exclusive power upon the State governments, any power to ~o that s am e thing can remain in the General Government under any general language of the Constitution.
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Now I will yield to the Senator from Idaho.
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l\Ir. BORAH. Mr. President, the Supreme Court has said in the case of McPherson v. Blacker, with which the Senator is familiar:
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Under the second clause of Article II of the Constitution, the legislatures of the several States have exclusive power to direct the manner in which the electors o:t President and Vice President shall be appointed.
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- o:t The scans read: “of” (microfilm scan), “o:t” (main scan)
- appointed. The scans read: “pointed.” (microfilm scan), “appointed.” (main scan)
1 connection
- cites Article II, Section 1, Clause 2 (suggested)
The Congress has from time to time passed certain acts pro tecting elections with reference to Representatives and Senators and electors, and the Supreme Court has sustained those acts, when sustained at all, upon other grounds and according to other powers than that found in section 4.
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Mr. SUTHERLAND. In what case did the Supreme Court say that?
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Mr. BORAH. In one of the cases which the minority cited in their views .
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Mr. SUTHERLAND. The Siebold case!
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Mr. BORAH. No; the Yarborough case. I must entirely disagree with the Senator with regard to that. The Yarborough case is based upon the Siebold case, in One hundredth United States, and the Siebold case expressly holds that the act which was passed was under clause 4 of Article I of the Constitution.
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Mr. BORAH. I wm read the section to the Senator, and I will submit to him here on the floor whether he thinks that section was based on section 4.
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- he The scans read: “be” (microfilm scan), “he” (main scan)
Mr. SUTHERLAND. The Senator is referring to the act of 1872. I would not undertake to say that every section wa.s passed under that clause. There may have been some sections that were not
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.l\Ir. BORAH. But the section which the court was construing was section 5508. It was not passed by virtue of section 4, and the court did not undertake to uphold it by reason of section 4.
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Mr. SUTHERLAND. What I say about it is this: Heretofore the express power has rested in Congress, in the last analysis, the whole. to supervise the time and manner of the election of Senators . If the people of the United States, in effect, repeal that provision, take it out of the Constitution, . so that it shall no longer exist in tlte Constitution, and confer in exclusive terms that identical power upon the State legislatures, I can not understand under what rule of construction it could possibly be held that the power would still exist in the General Government as it exists now. It will be taken away in express terms and expressly conferred upon somebody else, and it can not at the sa.me time be taken away an.d still exist, as it seems to me.
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Now, Mr. President, I want to hurry along and get through, because it is not only getting late, but it is continuing warm. This power has been exercised from time to time, and :necessarily exercised, by the General Government It passed at one time-I do not recall the exact date of it-a law which fixed the uniform time for the holding of elections. That was a necessary law. It could not have been passed so far as United States Senators are concern.ed if the joint resolution advocated by the Senator from Idaho had been in force.
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We passed at a later time a provision with reference to the character of the ballot, providing that the ballot should be written or printed. . Those laws have a uniform operation throughout the United States. Without the provision for a printed ballot it would have been entirely competent for a State to hm·e provided for an election by a viva voce vote.
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- voce The scans read: “voee” (microfilm scan), “voce” (main scan)
We provided for the use of the voting machine by a later act. The act of 1872 .. while perhaps not entirely based upon that clause, was at least in part based upon it, as the Supreme Court held in the case to which I have already referred.
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Now, there is one other thing that I desire to call attention to in this connection, and that is that the burden of proof in this matter is upon those who undertake to change the existing provision of the Constitution. It is or them to show that no . harm would result. It is indeed for them to show more than thatnot only that no harm will result from it-, but that some positive good is to result from this amendment to the Constitution. It does not seem to me that that has been done or attempted np to this moment
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- np The scans read: “up” (microfilm scan), “np” (main scan)
If we amend the Constitution in this particular, however unwise it may be hereafter found to be, no matter what embarrassment the change may occasion to the General Government, it will be utterly impossible for us to retrace our steps. We can prevent its being done. One-fourth of the States ef the Union may prevent this change from being made; but when it has once been made, no matter how important the restoration of the provision may be made hereafter to appear, it will be impossible to put it back into the Constitution except by a vote of three-fourths of the States, and that probably never could be obtained.
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Something was said in a former debate on this question to the effect that the several States may be trusted to see that the elections are fairly conducted, their purity preserved, and their freedom from sinister influences guaranteed and protected. I do not doubt, and I think no one doubts, the truth of this assertion under the normal conditions which prevail to-day; but the Constitution is made, not for to-day alone, or for a month hence, or a year hence, but for a vastly expanding and constantly changing future, the nature and extent of which n.o man can with any degree of certainty predict
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We may indulge the hope, we may believe, that no occasion will ever arise for the exercise of the ultimate authority of Congress in this regard, and yet we can not with safety close our eyes to the fact that occasion has arisen in the past, and that what has happened may happen again. This authority of Congress will be and should be exercised sparingly in the future, · as it has been exercised sparingly in the past.
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The Constitution, by devolving upon the States the primary duty and responsibility, clearly contemplates that Congress shall not intervene so long as normal and healthful political conditions prevail, but who among us is so wise as to know that these normal and healthful conditions will always continue?
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True, the States are interested in the election of Senators, but has the Nation no interest? The interest of the States is one of great importance, but that of the Nation is vital. If the retention of this ultimate supervising power in the Nation be an expression of distrust in the State governments, which it is not, will not its elimination express a loss of confidence in the wisdom and fairness of the National Government?
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- election The scans read: “long” (microfilm scan), “election” (main scan)
- Nation The scans read: “among” (microfilm scan), “Nation” (main scan)
- one The scans read: “continue?” (microfilm scan), “one” (main scan)
The Nation is sim'ply the whole of which the States consti- · tute the integral parts. We are an "indissoluble Union of indissoluble States." If in a Nation so constituted there are degrees of fidelity, surely the whole may he trusted to preserve . the integrity of the various parts more safely than each of the several parts may be relied upon to preserve the integrity of There is the one tremendous lesson of our hi ~tory-some of the States once sought to dismember the Union, but the Union has never sought ancl will never seek to dismember itself. I am for preserving the power of the Nation unimpaired and undiminished, not for the normal ordinary days when the power may safely remain uninvoked, but for that rare and exceptional day of stress when its exercise shall become of imperious ancl overshadowing necessity-when the strong, supervising, compelling hand of the Federal Government not only may but must stretch forth to preserve it from disaster or from destruction.
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- ancl The scans read: “and” (microfilm scan), “ancl” (main scan)
Mr. BORAH . . The Senator from Wisconsin [Mr. LA Fo:r;- LETTE] is on the floor, and as he perhaps desires to proceed under his notice of yesterday, I am going to have the joint resolution laid aside temporarily, but before doing so I move that when the Senate adjourns to-day it be to meet to-morrow at 12 o'clock.
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The VICE PRESIDENT. The Senator from Idaho moves that when the Senate adjourns to-day it · be to meet at 12 o'clock to-morrow.
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The motion was agreed to.
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Mr. BORAH. I ask that the unfinished business be temporarily laid aside.
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The VICE PRESIDENT. The Senator from Idaho asks unanimous consent that the unfi:nished business be temporarily laid aside. Is there objection? No objection is heard. ·
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