March 15, 1962 (4)

The Senate resumed the consideration of the joint resolution (S.J. Res. 29) providing for · the · establishing · of · the former dwelling house of Alexander Hamilton as a na _ national monument.

- Mr. EASTLAND. Mr. President, the distinguished Senator from Georgia [Mr. RussELL] gave notice that he would make a point of order with respect to an amendment to Senate Joint Resolution 29, concerning which a motion to consider has been made. I shall support that point of order.

Mr. President, the pending business before the Senate is the consideration of Senate Joint Resolution 29, which would provide for the establishing of the former dwelling house of Alexander Hamilton as a national monument. Section 3 of this proposal provides:

There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this joint resolution. This joint resolution requires the signature of the President of the United States in the identical manner and fashion as is required of legislative vehicles commonly denominated as "bills."

Thus, Senate Joint Resolution 29 is a legislative vehicle to further the constitutional process of lawmaking as provided for in article I, section 7, clause 2, of the U.S. Constitution. This clause provides in part:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States; if he approves he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections it reached on their journal and proceed to reconsider it.

The bill and Senate joint resolution herein described is the legislative process by which the laws of the United States as incorporated in the statutes at large are enacted. Senate Joint Resolution 29 in its present form is consonant with this constitutional and legislative process.

The senior Senator from Florida [Mr. HOLLAND] has now proposed an amendment to Senate Joint Resolution 29 in the nature of a substitute.

The proposed substitute would strike out all of the language after the enacting clause of Senate Joint Resolution 29 and insert in lieu thereof the identical language now contained in Senate Joint Resolution 58. Senate Joint Resolution 58 was introduced on February 28, 1961, and proposed an amendment to the Constitution of the United States relating to the qualifications of electors. This resolution is now pending in the Constitutional Amendments Subcommittee of the Committee on the Judiciary.

In other words, the resolution is now being studied in a subcommittee of the Committee on the Judiciary, of which the distinguished senior Senator from L. Tennessee [Mr. KEFAUVER] is the chairman. The Senator from Tennessee is a diligent Senator. I know he is studying and working on this question in a careful manner. I certainly think the Senate should not proceed to circumvent his efforts in this field. ·

The senior Senator from Florida now proposes to be an alchemist, one who would transfer base metals into gold, or a magician so adept that he can drop a · rabbit in a hat and pull out a polecat. His proposal · confronts a constitutional barrier that is insurmountable.

Senate Joint Resolution 58 and the language of the amendment now proposed in the nature of a substitute follow the language arid procedure required by article 5 of the Constitution, providing for the amendatory process. This amendatory process is not achieved by the enactment of a law described in article I, but is achieved by the mode of amendment set forth in article 5. Article 5 describes the machinery by which amendments to the Constitution are achieved. It is removed and divorced from the legislative machinery of every kind and character that is described in article I, section 7. This fact is pinpointed when we consider that the Supreme Court of the United States as early as 1798, in the case of Hollingsworth v. the United States, 3 Dall. 378, declared that resolutions of Congress proposing amendments to the Constitution need not be submitted to the President, but can be referred directly to the States for their approval.

Mr. President, this procedure is in violation of the Constitution of the United States; and when the Senator from Georgia makes his point of order, it certainly should be sustained by the Senate.

The interpretation by the Supreme Court in the Hollingsworth case conclusively demonstrates that the legislative machinery to be utilized in implementing article 5 of the U.S. Constitution was completely divorced and entirely apart from the type and character of legislative process described in article I, section 7, of the Constitution.

Neither by the rules of the Senate, the rules of the House of Representatives, nor by any possible statute law, can a vehicle designed as legislation requiring the signature of the President be converted into a proposal for a con­ . stitutional amendment which must be submitted to the States without recourse to the President. The cart cannot be put before the horse. If the subject of this proposed amendment in the nature of a substitute is to be put before this Senate for consideration, Senate Joint Resolution 29, by number, must be obliterated from the calendar, and a proper constitutional vehicle to achieve the purpose must be substituted in its place. Mr. President, 2 years ago, as I recall, when the Senate passed this identical resolution, it was substituted for another amendment-a resolution amending the Constitution-which then was pending on the Senate Calendar.

Mr. HILL. Mr. President, will the Senator from Mississippi yield?

Mr. EASTLAND. I yield.

Mr. HILL. It is a fact, is it not, that it was a resolution to amend the Constitution of the United States?

Mr. EASTLAND. That is correct.

Mr. HILL. And it was added to the resolution to amend the Constitution?

Mr. EASTLAND. Yes.

Mr. HILL. In other words, both propositions-in fact, before the resolution was passed, there were three propositions in it, but all three of them were amendments to the Constitution of the United States-were amendments to the Constitution; not one of the three was legislation. All three were · proposed amendments of the Constitution of the United States, were they not?

Mr. EASTLAND. Yes. It was recognized that the only way the Senate can proceed to amend the Constitution of the United States is by means of a joint resolution. which does not have to go to the President of the United States. In fact, we would violate the Constitution of the United States if we tried to proceed to amend the Constitution through legislation. However, that is what is being attempted in this case.

Mr. HILL. Mr. President, will the Senator from Mississippi yield again?

Mr. EASTLAND. I yield.

Mr. HILL. And of course any proposal to amend the Constitution of the United States must be passed by twothirds votes in both Houses of Congress, whereas a legislative proposal requires only majority votes.

Mr. EASTLAND. That is correct; and the measure which is the subject of the motion to call up, to which it is proposed to hitch the proposed constitutional amendment, requires only a majority vote for passage.

In searching the history of legislative procedures in regard to basic changes in forms of legislative proposals, the only compilation of cited authorities that I have been able to find is contained in Watkins' and Riddick's definitive book on Senate procedure. At page 101 of the 1958 edition it is stated:

The form of legislative proposals, by unanimous consent or without objection, have been changed after their introduction.

So far as I can determine, the language that opens this paragraph is correct and conclusive. All the citations of actions taken by either the House or the Senate, in regard to a change in the form of legislative proposals, show that they have been achieved by unanimous consent or without objection. And throughout the entire history of the Senate, when constitutional amendments have been subsituted or when a legislative proposal has been amended by striking out all after the enacting clause and inserting, in lieu thereof, a proposal to amend the Constitution of the United States, that has been done by · unanimous consent of the Senate; and that is the only proper way and the only legal way in which it can be done. Therefore, I now give notice that under no conditions can unanimous consent be obtair . ed, because I and other Senators will object.

Mr. HILL. Mr. President, will the Senator from Mississippi yield?

Mr. EASTLAND. I yield.

Mr. HILL. The reason why unanimous consent is required is that it is contrary to the rules and in violation of them to proceed in the way described.

Mr. EASTLAND. That is correct.

Mr. HILL. So unanimous consent is required, in order to proceed contrary to the rules.

Mr. EASTLAND. That is correct. Unanimous consent is required; and that is the way it . has been done throughout the history of this body.

So, Mr. President, I, for one, do not give unanimous consent; and I emphatically object to having the present amendment in the nature of a substitute attached to Senate Joint Resolution 29. I further register my objections to this procedure on the basis of the point of order, which should be unanimously sustained by the Members of this body. Since 1791, when the first 10 amendments to the Constitution were ratified, only 12 additional amendments have been added thereto-an average of 1 new amendment for each 14 and a fraction years. Proposed abolition of the poll tax by one form of legislative or constitutional action or another has been a perennial matter for discussion and consideration by the U.S. Congress. The number of poll tax States has diminished to five. Where are the necessity and the urgency for adopting the presently proposed unique and unheard-of procedure to achieve a constitutional amendment? While I am one of those who have always believed that the poll tax was a legitimate prerequisite to exercise of the franchise, and that it was unwise to adopt any constitutional amendments which would deny to a State the right to levy a poll tax if it so chose, I do admit that over a long period of years a great number of persons have disagreed with my personal views in this regard. It is now heartening to see that the pendulum is swinging back to my point of view. No less person than the President of the United States, in a recent message to Congress, wholeheartedly endorsed the principle involved in the poll tax. He said, on January 30, 1962, in a message transmitting to Congress the proposal to ap­ · propriate up to $100 million for the purchase of United Nations bonds that: It is the opinion of the United States that special assessments voted by a two-thirds majority of the General Assembly are obligatory. We anticipate a decision by early summer of this year. If our view, which is shared by most of the members of the United Nations, is confirmed by the Court (the International Court of Justice), then all members will have to pay their dues or lose their right to vote in the General Assembly. It is only fair that members that . participate in the privileges of membership should participate also in its obligations. The President here is not only stating his opinion, but he purports to speak for the United States. If the United States believes that a nation which does not pay its assessments should be denied the right to vote in the General Assembly of the United Nations, then where is the consistency in saying that a sovereign State cannot require a small . Per capita or head tax as a prerequisite for its citizens to exercise the privilege . of suffrage? Unlike some assessments against member nations in the United Nations, no existing poll tax in any of the States where it exists is onerous or oppressive. They are all modest contributions to help supply the funds necessary to the operations of the State Government. In my State the entire amount of the poll tax-$2-goes , to the support of public schools.

The President's opinion as to the . United States attitude toward - voting rights in the . Un.ited Nations was buttressed by the testimony of the Secretary of State, our Ambassador to the United Nations, and practically every individual or organization that appeared before the Senate Foreign Relations Committee testifying in behalf of the United Nations bond issue appropriation. Is there any reason or justification that a separate standard of conduct should be imposed on nations than that which is required of the individuals who make up any sovereignty, be it a State or a nation?

It is the policy of the American Government that no member State of the United Nations that does not pay its dues shall vote in that body. Here it is proposed to tell a sovereign State that it cannot levy a puny $2 or $1.50 poll tax as a requirement for voting. The President of the United States, the Secretary of State of the United States, the Ambassador of the United States to the United Nations have in principle endorsed the · theory of the poll tax and have made it the official policy of the United States Government.

While I am one of those who do not feel that either the United States or any State thereof is bound legally by any decision that might be rendered by the International Court of Justice, certainly before any further consideration is given to the domestic matter of a poll tax, it would not be inappropriate to ask that the decision be deferred until such time as we might have the benefit of the decision of the International Court of Justice on the principle involved. At least, whatever the decision is, there is a possibility that the inconsistency inherent in the position taken by the United States in international affairs and the urgency for this proposed constitutional amendment in domestic affairs might be resolved if the Court held that payment of assessments could not be required as a prerequisite for a nation voting in the General Assembly of the United Nations. Personally, I think it would be very appropriate for the Court to hold that a nation should be ;required to pay its assessments as a prerequisite to voting, and, by the same token, I hold that my State should have the fundamental right to continue to make such a requirement.

Mr. HOLLAND. Mr. President, will the Senator yield? . Mr. EASTLAND. I yield.

Mr. HOLLAND. I point out to him that I see no similarity between the situation in the United Nations to which he has referred and the situation relative to the poll tax. In the United Nations the charter itself provides that a nation which is in default for a certain period of time in the payment of regular annual assessments may not vote. The question being presented to the International Court of Justice, as I understand it, is whether or not these arrearages would be classified as falling within the purview of regular assessments or whether they would be classified as coming under some other category. I see no similarity, no comparison at all, between that situation and the poll tax. To repeat, the Charter of the United Nations itself, by which every nation :who is .a member is bound, provides conclusively that . t a nation which _ h does not pay its regular annual assessment . nt for a fixed period of time-as I remember, 2 years-c~nnot vote; and this bond issue is not ~ normal sort of procedure. The question now pending before the International Court of Justice, as I understand, is whether, in the opinion of that Court, the assessments in arrears shall be held to fall within the purview of the regular annual assessment. · Mr. EASTLAND. I am certainly sorry the distinguished Senator from Florida does not see this. It is very similar. It is very plain. Yes, the Charter of the United Nations provides that a nation has to keep up its assessments in order to vote. That assessment can be onerous to a country. It is identically the same principle contained in the State Constitution, that one has to pay a poll tax in order to vote; but that poll tax is not onerous. It is exactly the same principle.

What strikes me is that only in the past few weeks the U.S. Government, has endorsed that principle in the United Nations. It is a policy of the U.S. Government in international affairs.

Mr. HOLLAND. I am afraid that my distinguished friend has not studied the question very carefully, because if he had I think he would find the situation there is not similar to this. The Soviets and the behL'ld-the-Iron-Curtain satellites have been very careful to pay their annual assessments, in order to keep their voting rights, but they have not paid special assessments for operations in the Congo. The U.N. bond issue is supposed to take the place of and take care of the special assessments.

My understanding of the issue before the Court is whether these special assessments are something that fall within the purview of regular assessments.

I notice the Senator from Kentucky [Mr. MORTON] on his feet. He has made a study of the question. I venture only a horseback opinion. That is my understanding. I hope the Senator from Mississippi will yield to the Senator from Kentucky.

Mr. EASTLAND. Certainly.

Mr. MORTON. I think the issue before the World Court has really nothing to do with the bond issue. The issue went to the World Court before the question of the bond issue was passed upon by the General Assembly. The issue before the World Court involves three categories of assessment on members of the United Nations. One is called a general assessment, which goes to the regular operating functions of the United Nations. The second assessment is to take care of the expenses of the security force in the Gaza strip, which went there in 1957 and which has been continued there by the United Nations. The third assessment is to take care of the Congo operations.

The question is, Does article 14 apply to special assessments as it does to regular assessments? If, as anticipated, the Court holds that it does, then I think that makes the Aiken-Hickenlooper proposal a very proper · proposal and gives the United Nations 3 years in which to straighten out its fiscal dilemma.

Mr. EASTLAND. Mr. President, I ask unanimous consent that I may yield to the distinguished Senator from Kentucky provided that I do not lose my right to the :floor.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. EASTLAND. I had only yielded for a question.

Mr. MORTON. I certainly would want the Senator to retain his right to the :floor.

Mr. EASTLAND. Proceed, please.

Mr. MORTON. I merely wished to straighten out one point. I think the Senator from Mississippi has made an interesting point. I trust that someone speaking for the administration, if not this evening, at least tomorrow, wHl answer as to whether or not the President of the United States is against the poll

Mr. EASTLAND. There is no answer to it. That is the proposal. We have the testimony of the Secretary of State. We have the testimony of the Ambassador to the United Nations. They say, "You cannot vote unless you pay your assessment"; and it can · be an onerous assessment.

Mr. HOLLAND. Mr. President, will the Senator yield?

Mr. EASTLAND. I yield for a question.

Mr. HOLLAND. I trust that the Senator will yield for a short statement.

Mr. EASTLAND. Mr. President, I ask unanimous consent that I may yield to the Senator from Florida without losing my right to the :floor.

The PRESIDING OFFICER. Is there objection to the request of the Senator from Mississippi? The Chair hears none, and it is so ordered.

Mr. HOLLAND. Replying to the suggestion made by my distinguished friend from Kentucky, I invite his attention to the fact that the record of the hearings in this particular matter shows that the Assistant Attorney General, Mr. Katzenbach, who appeared to testify on various pending constitutional amendments, made it very clear that on this particular amendment he was authorized to speak for the President in these words, as shown on page 388:

I am authorized on this to speak for the administration and for the President.

That comes after the time . he said:

The Justice Department supports the proposed amendment as a realistic technique which seeks the early demise of the poll tax. Those statements appear in several other forms during the course of the statement, that the President had given specific support to this and to this alone, of the various proceed:lngs.

Mr. EASTLAND. Will the Senator tell us from what he is quoting?

Mr. HOLLAND. From the printed record of hearings before the Subcommittee on Constitutional Amendments of the Committee on the Judiciary of the U.S. Senate . .

The Senator from Mississippi is, of course, the chairman of the full Committee on the Judiciary.

Mr. EASTLAND. Yes.

Mr. HOLLAND. This is a. print from one of the subcommittees of his committee. There is no question about it.

In addition to that, Mr. President, fur- ther evidence will be offered during the course of the argument.

Mr. EASTLAND. the Senator yield for a question?

Mr. HOLLAND. The Senator from Mississippi has control of the floor.

Mr. EASTLAND.

Senator from Florida, under unanimous consent.

Mr. HOLLAND. I am glad to yield.

Mr. EASTLAND. Does the Senator not know that the Attorney General testified today in favor of abolishing the poll tax by legislation?

Mr. HOLLAND. I had not heard that, but I know what the President wants; and that is not in accord with his wishes, and it is not in accord with the position of the Justice Department, as stated by Mr. Katzenbach. I think we shall be able to show that conclusively.

Mr. EASTLAND. I believe the testimony today was on the literacy test, by legislation, but of course that involves the same principle.

Mr. HOLLAND. If the Senator will yield further, for some reason unknown to me the Justice Department has taken the position that the literacy test is in a different category from the poll tax question. I do not know why.

I certainly do not give the rubber stamp of complete approval to everything coming from the Justice Department, but I say that the Justice Department and the President are both clearly on record before the subcommittee on Constitutional Amendments of the Senator's own committee as supporting the amendment which is proposed, and the feeling that that is the practical and constitutional way to go after the poll

Mr. EASTLAND. Mr. President, there is no question that they so testified, but what does that have to do with what I said? Of course they testified to that, but what I said is that the policy of the U.S. Government has endorsed the principle of the poll tax in international affairs, because we say that no nation shall vote in the United Nations unless it pays its assessments, even though they be onerous.

Mr. HOLLAND. Mr. President, will the Senator yield?

Mr. EASTLAND. I yield for a question.

Mr. HOLLAND. The reason for that statement is that the charter, to which we are bound by treaty, so provides.

Mr. EASTLAND. The State constitutions so provide.

Mr. HOLLAND. The Federal Constitution does not so provide, however, and the Federal Constitution is changeable, and changeable in the method we are seeking to follow. The submission to the jury of the States is a method which existed before the Senator's State and mine came into the Union.

Mr. EASTLAND. Of course it can be submitted properly to the jury of the States, but that does not change the fact that - the U.S. Government fu international affairs has adopted the principle of the poll tax. The Senator cannot explain it away. The Senator cannot la.ugh it away. The Senator cannot Mr. President, will brush it away. It is there.

Mr. HOLLAND. Mr. President, if the Senator will yield further, I am laughing it away, because I see no possible comI yielded to the parison between the two.

The United States and the other governments are able to pay their assessments. The thing we protest against is the · fact that people oppressed by penury and poverty are not always able to pay them, and have not paid them.

Mr. EASTLAND. I defy the Senator to name one individual in my State or in the State of Alabama whom the poll tax has disqualified.

Mr. HOLLAND. Mr. President, I do not care to go into that subject.

Mr. EASTLAND. I defy the Senator to name an individual. ·

Mr. HOLLAND. I merely invite attention to the fact that the Senator would not let me put in the RECORD this morning-but I am stating it now, with his indulgence-the fact that the 2 States so ably represented by · the Senator from Mississippi [Mr. EASTLAND] and the Senator from Alabama [Mr. HrLLJ, both of whom are on the floor, are at the very bottom of the 50 States in respect to participation of their citizens in elections. There must be some good reason for that.

Mr. EASTLAND. Now the Senator has gone far afield. He is quoting from the Civil Rights Commission, and he knows it is not worthy of belief. He has been opposed to it.

Mr. HOLLAND. I am not quoting from the Civil Rights Commission; I am quoting from the Senator's own record, from his own committee, which is based on the report of the Census Bureau, the State officials, and the American Heritage Foundation.

Mr. EASTLAND. The Senator knows that in the South, where we do not have an effective two-party system, the Democratic primary really is the election.