March 16, 1962 (2)

The Senate resumed the consideration of the motion of the Senator from Montana [Mr. MANSFIELD] to proceed to the consideration of the joint resolution (S.J. Res. 29) providing for the establishing of the former dwelling house of Alexander Hamilton as a national monument.

Mr. EASTLAND. Mr. President-­

The PRESIDING OFFICER. The

Senator from Mississippi.

Mr. HOLLAND. Mr. President, will the Senator yield? Does the Senator wish to have a quorum call before he begins his speech?

Mr. EASTLAND. No.

Mr. President, thus the distinguished senior Senator from Georgia was affirming the principle that has existed for over a hundred and fifty years, that our Founding Fathers intended and contemplated that it should be the States themselves who have the power to determine the qualifications of their own electors. The question of whether the States or the Federal Government should determine the qualifications of electors of Representatives was thoroughly debated by the delegates at the Constitutional Convention of 1787. On August 6, 1787, Mr. Gouverneur Morris moved to strike from article IV, section 1, of the existing draft-which became article I, section 2, in the final draft-the words:

The qualifications of the electors shall be the same, from time to time, as those of the electors, in the several States, of the most numerous branch of their own legislatures.

Gouverneur Morris' purpose was "in order that some other provision might be substituted which would restrain the right of suffrage to freeholders." The motion to strike was defeated.

Gouverneur Morris argued that another objection against the clause, as it stood, was that it made the qualifications of the electors of the National Legislature depend upon the will of the States, which he thought not proper.

Colonel Mason opposed the striking of the sentence, stating:

A power to alter the qualifications would be a dangerous power in the hands of the Federal legislature.

Mr. Ellsworth argued that he thought "the qualifications on the most proper footing. The right of suffrage was a tender point, and strongly guarded by most of the State constitutions"-5 Elliott's Debates on the Federal Constitution, 285 et seq.

The debates in the Constitutional Convention reveal very clearly that it was the intention of the framers of the Constitution that the States should prescribe the qualifications of electors of Representatives in Congress by section 2 of article I. As Hamilton pointed out in the Federalist, this constitutional provision conformed to the "standard," meaning voting qualifications, established or to be established by the States-the Federalist, No. 52.

The qualifications prescribed by the State constitutions in force in 1787 and which .were carried over into the Federal Constitution, demonstrate that the words "qualifications" and "qualified" were directly related to requirements for voting. Thus, each of the original States carried in their respective constitutions fixed qualifications for determining eligibility for the franchise of voting.

Thus, the constitutions of the original States, at the time those States entered the Union, contained either a poll tax requirement or property ownership or taxpaying requirements, and that the words "qualified" and "qualifications" were used in referring to those conditions. Furthermore, that these conditions had to be complied with before a person became eligible to vote. Not all citizens could vote--only those who qualified by meeting requirements specifically set out 'in the State constitutions. This historical fact was commented upon by Mr. Chief Justice White, speaking for the Supreme Court in Minor v. Happersett (21 Wall 162) of the qualifications requisite for voting in the various States at the time the Federal Constitution was adopted, who said: When the Federal Constitution was adopted all the States, with the exception of Rhode Island and Connecticut, had constitutions of their own. These two continued to act under their Charters from the Crown. Upon an examination of those constitutions we find that in no State were all citizens permitted to vote. Each State determined for itself who should have that power. In this condition of the law in respect to suffrage in the several States it cannot for a moment be doubted that if it had been intended to make all citizens of the U.S. voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared.

It is clear that the framers of our Constitution merely carried over into our Constitution of 1789, in section 2 of article I, that the word "qualifications" included requirements for the payment of a poll tax or the payment of a property tax and the ownership of property where such requirements exist under State law. As a matter of fact, the ownership of property as an indicia for voting was carried over from colonial days on up to the year 1933 by the State of Pennsylvania. Thus, while there are only five States remaining today having the requirement of the payment of a poll tax, since the inception of our Union of States these States at one time or another had in their laws provisions similar to the poll tax provision.

It is still a qualification for voting in municipal and town elections in the State of Vermont.

During the last 150 years one after another of our sovereign States, by the actions of their own State legislatures, have repealed the poll tax provision, so that only five States are left. If it has taken 150 years for the majority of these States to repeal their poll tax provision, is there any great haste, or is there any reason to believe that the five remaining States should not be permitted through their own legislative process to repeal this prohibition, rather than directing the passage of a constitutional amendment specifically at them.

I submit, Mr. President, that wisdom requires that the Congress abstain from this field of legislation, and leave the matter to the action of the State legislatures of these five States.

Mr. President, it is well settled that it is the right of the States alone to determine the qualifications of its voters, and that principle, as I set out earlier in these remarks, was carried over from the charters of the Colonies into the State constitutions of the original States and was incorporated into our Constitution by the drafters of that document. That same principle has been stated so many times in this deliberative body that I presumed it to be without question. Nevertheless we are faced here again with the task of reestablishing that traditional concept.

During the debates in Congress on the 17th amendment, providing for the direct election of U.S. Senators by the people rather than being selected by the State legislatures, the principle was enunciated time and time again that the States alone are to determine the qualifications of the voters.

During the course of that floor debate it was repeatedly stated and agreed that it is the States alone who are to determine the qualifications of their voters. It is the State who, in the first instance, says who can and who cannot vote, and then after the State determination, the Federal Government guarantees to those whose status has been determined by the States, the right to exercise that franchise. In other words, the Federal Government was not to interfere with any qualifications which the State fixes with reference to the voters.

But what is being attempted here today? The Congress is interfering with a qualification of a voter that has been fixed by the State and has long been observed by the State, that a voter to be qualified must have paid a poll tax. During the course of the debate on H.R. 1024, a bill providing for the elimination of the poll tax on election of Federal officers, the then senior Senator from Florida, Mr. Andrews, made some interesting remarks on the floor of the Senate November 21, 1942, which are as pertinent today as they were on that day in 1942, and I wish to quote some of Judge Andrews• remarks at this time:

If any citizen desires to know who are qualified to vote for Representatives and Senators in his State, all he has to do is to look at the constitution of his State and the statutes of his State, and he will find the answer. He wm not find it anywhere else.

The paying of a poll tax is inconsequential so far as the mere qualifying of electors in the States to vote is concerned. The amount Is not excessive; in fact, ' in many States it 1s only $1 a year. The requirement for the payment of a poll tax has been in vogue in most of the States comprising the Union for many years; in fact, before the Constitution there was a poll-tax requirement in the Colonies. In 32 States of the Union there Is now levied a poll tax, but it so happens that in only 7 or 8 States of the Union the prepayment remains a qualification for registration and participation in elections at the polls.

The registration books constitute an honor roll of citizenship; indeed, they evidence the fact that a man or a woman is a member of the great body of interested and responsible citizenship of the United States and thus entitled as a citizen of the United States to express his or her views and wishes at the polls.

Some States have abolished the poll tax as a prerequisite to voting. It happens that my own State of Florida is one of the States which has entirely abolished the poll tax. In 1937 an act was passed by the Florida Legislature repealing the law providing for the payment of a poll tax as a qualification for registration and voting. The next regular session of the legislature in 1939, eliminated all poll taxes entirely.

There were a great . number of people who felt that the poll tax should not be repealed because the proceeds, though small, went directly to public education. Originally the poll tax was not levied . for public-school purposes. Three-quarters . of a century ago the poll tax was collected from persons who did not put in a prescribed number of days work on the public roads.

Since that time, however, public education has been developed and expanded, and the public-school system has become so necessary for the education of our people that, by statute, the proceeds from the poll tax have been devoted to the support o! public schools. The repeal of the poll tax in Florida did not have any effect whatsoever on the casting of ballots so far as race, color, o~ previous condition of servitude were or are concerned.

The registration of voters regardless of race, creed, or party affiliations was greatly increased; but, so far as I am advised, there was no increase . whatsoever in the vote cast by our colored people; yet there has been created all over the United States a feeling that if the pending bill could be passed it would have a profound effect upon the number of votes cast by the colored people. What has happened in the State of Florida is sufficient to show that no such result would be brought about. All may vote who are qualified and register in the poll books. There are infinitely more poor white people who probably did not vote by reason of the poll tax than colored.

I was in favor of the abolition of the poll tax in my State not only for the reason I have stated but for another reason . The poll tax requirement for voting afforded designing politicians an opportunity. by collaboration with the heads of great organizations, to provide means whereby people who do not feel able to pay their poll tax had it paid for them, on condition they agree to vote a certain ticket. Such things perhaps have occurred all over the United States.

The question may be asked, Why should a person who believes as I believe, · that it was wise to abolish the poll tax in Florida, oppose the pending bill? I have just read from the Constitution of. the United States which provides, . es, in clear terms, that the power to provide qualifications for voters was and 1s a power retained by the States. If . the Congress can pass a law doing away with the qualifications now so provided in certain States, it could go further and pass a law providing that there shall not even be registration, which is now the prima facie evidence that one is entitled to vote. If such an attempt had been made during the Constitutional Convention, or during the time the B111 of Rights was under discussion, lt would have failed.

In other words, this matter should be left in the hands of the several States, to be decided by the States themselves, instead of the States being coerced by groups in other States.

As Judge Andrews so cogently observed in 1942, if the Congress can pass a law doing away with the voter qualifications now provided in certain States, as is here attempted by way of a constitutional amendment, it can go further and provide that there will not even be voter registration. If this path is pursued by the proponents, there will be no authority left in the States over its own voters and the inevitable result will be Federal preemption of the entire voter field.

I say that if this course is followed by the Congress, the words o{ Chief Justice Fuller in McPherson v. Blacker (146 U.S. 1), at page 36, no longer will have meaning. Chief Justice Fuller said:

The right to vote protected or secured by the Constitution Is, and only is, the right to vote as established by the laws and constitution of each State.

If we deprive the States of the power to determine the qualifications of its voters, the right to vote will be only that right conferred by the Federal Government. The States will have nothing to say about its own voters.

Mr. President, if Congress should adopt the resolution, we will be on the high road of the federalization of the qualifications of electors and the Federal control of elections. and we will preempt the whole field to the National Government. That will be one of the gravest steps in the 20th century toward the federalization of the United States, to the destruc­ . tion of our dual system of government, to the destruction of our States, and to the concentration of all power and all authority in Washington. That is, funda­ - mentally, what the issue is all about. It is a fight against stateism. It is a fight against the destruction of the dual system of government. It is the fight to retain the powers unimpaired of the 50 sovereign States, and the liberties of the American people. The liberties of the people at the cross roads and at the creek banks of this country are protected through their State government.

In Germany, when Hitler rose to power, he had designs upon a dictatorship. However, before he could crush the liberties of the German people, he had to federalize the German Government and destroy the powers of the States which compose that Government.

Mr. President, in the 83d Congress there was before the Senate, Senate Joint Resolution 53, proposing an amendment to the Constitution of the United States to grant to citizens of the United States who have attained the age of 18 the right to vote. On May 21, 1954, after debate, the Senate rejected that proposed constitutional amendment. It was the considered judgment of the Senate on that day that the power of the States to determine the age at which its citizens may vote is a qualific&tion which should be retained by the States themselves. I believe that the arguments made · on the floor of the Senate in the . 83d Congress by those opposing a constitutional amendment which would lower the voting age to 18 are equally applicable here today in opposing this constitutional proposal to outlaw the poll tax. It was stated on the floor of the Senate in the debate on the constitutional amendment lowering the voting age to 18 that the States themselves should determine the qualifications of their own voters; that if a constitutional amendment were adopted lowering the voting age to 18 and taking that power from the Statesthis was 1954-then there would be other attempts by way of constitutional amendments to take other powers · con- ceming voters from the States. The end result of this would be to lodge all power and control over voting requirements in the Central Government rather than in the States where the Constitution properly determined they should be. Mr. President, that is a great safeguard of a free people, namely the power, through their State government, to say who can vote, to fix the qualifications of the voters.

The Senate in 1954 rejected th~ reasons for a constitutional amendment to lower the voting age, because it would place us on the highroad to destruction of what is fundamental in our system, the power of the people through their State governments to determine the qualifications of their electors.

During that debate on the 18-year-old amendment, Members of this body echoed and reechoed the statement that the Federal Government should not in­ · vade the States and say to those people, "We are going to tell you what to do and we Will deny to you the right to legislate in this vital - field of maintaining and operating the elective process and deciding the qualifications of your electors."

I appeal to the Senate that it show as much wisdom today as the Founding Fathers showed when they wrote the Constitution of the United States, and as the membership of this great body has shown throughout the entire history of this Republic, when it has protected and preserved the rights of the States to define the qualifications of those who participate in elections.

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

Mr. EASTLAND. I yield.

Mr. STENNIS. I appreciate the Senator's yielding to me. I have not had an opportunity to hear all of his address today, because of the pressure of other matters. However, I have heard enough in the last 40 minutes to find good, solid reasoning in what the Senator has said. I wish to refer the Senator to the matter of the franchise of voting, and to ask him what his ideas are with reference to the situation in the Constitutional Convention. Was it not one of the basic, fundamental foundations that the delegates were finally able to get together on, and made the Constitution possible, that they would nail down in clear, unmistakable language that this matter of the voting franchise would be left to . each individual State?

Mr. EASTLAND. The Senator is correct. First there was the qualification in the Colonies. When the Colonies won their independence, they were sovereign States, and they set their own voting qualifications. They put into the Constitution words to retain those qualifications, to retain that power within the States, to fix the qualifications of electors, as the very basic factor in our system of government.

Mr. STENNIS. Does not the Senator believe, as a student of the Constitutional Convention and of the other major parts of American history, as well, that had it not been for that basic agreement, and had it not been for that clear language nailing it down unmistakably, there would not have been an agreement with reference to the Constitution that had the validity and the substance in it which was necessary to form an effective government?

Mr. EASTLAND. There would have been no Constitution unless that right had been preserved to the individual States.

Mr. STENNIS. Is not that conclusion recognized by all scholars and historians of our Government?

Mr. EASTLAND. It is recognized throughout all the debates and is so stated in the debates. Gouverneur Morris offered an amendment relating to Federal qualifications, and his amendment was defeated. Delegate after delegate said that they could proceed to write the Constitution and support it only on the basis that the States would fix the qualifications of their electors. Congress has maintained and preserved that right since the founding of the Republic, and that right is inherent to our liberty.

Mr. STENNIS. Moving forward considerably more than 100 years beyond the Constitutional Convention to the adoption of the amendment which permits women to vote-the adoption of that amendment being the result of more than 100 years of experience in the growth and development of our Nation, which was an experiment, to a degree, when it was started-the woman suffrage amendment provided, in the first place, for the creation of a new group or the granting of a new right, rather than merely passing upon the qualifications of voters, was it not? In other words, a new group altogether were encompassed in this field.

Mr. EASTLAND. That is correct. The franchise to vote was granted to women based upon the same voting qualifications that existed for men.

Mr. STENNIS. That is the point. It was the creation of a new right for a new group; but when it came to the qualifications, the selfsame rule was applied.

Mr. EASTLAND. That is correct.

Mr. STENNIS. And in the same language. Is that not true?

Mr. EASTLAND. That is correct.

Mr. STENNIS. That shows that after more than a century, the language of the Constitution had worn well, was found to have been sound and solid, and was considered as essential as when the Constitution was adopted.

Mr. EASTLAND. That is correct. Consider the 17th amendment, which provides for the popular election of U.S. Senators. There the same language is preserved, namely, that the States shall have the power to fix the qualifications requisite for the election of Senators.

Mr. STENNIS. The 17th amendment applied to the election of a particular office, not the qualifications of electors. But as to electors who would be qualified, the selfsame language again, was brought forward, and that principle was approved again in the light of experience.

Mr. EASTLAND. That is correct.

Mr. STENNIS. That amendment actually preceded the woman suffrage amendment. Even though the present proposal for a constitutional amendment with reference to the poll tax is constitutionally sound as to method, the invasion of the principle will violate the letter and the spirit of the original concept as found in the Constitution, will it not?

Mr. EASTLAND. I agree with the distinguished Senator. The proposal before the Senate is constitutionally sound as to method, but it is an attack upon the ideals and principles upon which the Government was founded.

Mr. STENNIS. In effect, it is the coercion of a State against its will on the sacred ground of voting privilege.

Mr. EASTLAND. The distinguished Senator is eminently correct. The idea of the coercion of a sovereign State by other States is abhorrent to the American system of government.

Mr. STENNIS. Again the Senator from Mississippi has well stated the objection to the proposal. I thank the Senator for yielding to me.

Mr. EASTLAND. I thank my colleague from Mississippi.

Mr. President, the debate in the Senate on the constitutional amendment lowering the voting age to 18 restated principles which are equally applicable in this debate here today. It was the feeling of a majority in the Senate at that time that that amendment should not be passed, for it would place some States in a position if they wanted at some other time to change the voting age from 18 to 19, or 20, if they so found it necessary, they could not do it in the face of a constitutional amendment once passed; and while that lowered age worked well in one State, other States should not be coerced to follow that very same policy, for it might have the opposite effect. In other words, it was tantamount to putting the voters of a State in a straitjacket.

The Constitution provides that the States are to prescribe the qualifications of electors of the most numerous house of the respective legislatures, and within those qualifications is the qualification of age of the voter. In the nature of suffrage there must be the age qualification, and the States by their own constitutions prescribe the age at which a voter is eligible to vote. By constitutional amendment, Congress attempted to limit the power of a State to determine at what age its voters may vote. That attempt was defeated on the :floor of the U.S. Senate on May 21, 1954. Another qualification that the States have imposed in the past and which is now observed as a requirement by only five States is the payment of a poll tax as a prerequisite for voting. Here today, is an attempt to limit the power of the States in that area. If that proves successful, then what can be done next? A residence requirement is common and perhaps universal, but the time of residence varies greatly in the different States, and each State, within its own constitution, prescribes a residence requirement as a voting qualification. It follows that there can be next on the horizon a constitutional amendment taking from the States the power to determine the residence requirement for its own electors.

Registration of voters is a commonplace and proper qualification. The several States, by their constitutions, establish registration requirements. Possibly within the near future attempts will be made via the constitutional amendment route to take away the power of the State to determine registration requirements for its voters.

A number of the States have literacy and educational tests as a proper qualification for a voter. A constitutional amendment could be proposed to take that power from the States.

The end result will be, if this action is successful here now, to limit the power of the States to determine its qualifications by way of a poll tax requirement, that all of the other voter qualifications followed by the States today will be taken from them and lodged in the central government. ·

I say that it is possible that there are those who feel that the States should have no power at all over the qualifications of its own electorate, and if they keep on in their efforts, there will be no State power over the electorate, but everything will be in the · hands of the Federal Government. In my judgment, the adoption of this amendment will be but a step in the direction of concentrating all power in the Federal Government over State electors, and if successful in approving this constitutional amendment, those steps will inevitably follow.

Mr. President, the impression has been created that those who oppose legislation to repeal the poll tax are trying to preserve poll taxes as such. Our opposition to this measure is predicated on the basis that any action by way of repeal should come from these States themselves rather than by action of the Federal Government. In opposing the favorable consideration of this amendment, we stand on the principle that fixing qualifications for voting shall continue to be the right of the States and should not be taken over by the Federal Government.

Past history reveals that the poll tax has been, is being, and can be ended by action of the States themselves, thereby making it unnecessary for action by the Federal Government in this field. It is our strong feeling that those who demand action by the Federal Government by way of the constitutional amendment route indirectly give aid and comfort to those who try to break down our American system of government by taking from the States functions that they should and always have exercised under our constitutional form of government. If efforts are successful in this instance to whittle away part of the sovereignty of the States, it can be accomplished in other fields, arid eventually there will be little left of the States as governmental entities.

Over 150 years ago the framers of our Constitution debated at great length in the Constitutional Convention this question of . the qualification of electors. After full and unlimited debate, the collective judgment of that great Convention was that the qualifications requisite for Members of the House of Representatives should be the same as those requisite of electors of the most numerous branch of the State legislature. There were in the Convention some who wanted to place in the National Government the power of determining the qualifications. However, the members of the Convention determined that the right of fixing the qualifications should be within the power of the States; and so that power has remained with the States for over 150 years. Today, because five States have on their statute books a qualification pursuant to their own constitutions, some Members are proposing that this Congress reverse the action taken in 1787 by the framers of our Constitution.

Mr. President, I ask unanimous consent that at this time I may yield to the Senator from Vermont [Mr. AIKEN]; that in yielding for that purpose, I shall not lose my right to the floor; that at the conclusion of his remarks, I shall regain the floor; and that my yielding for this purpose is not to be counted as a speech by me on the pending motion.

The PRESIDING OFFICER (Mr. PELL in the chair). Without objection, it is so ordered. / AMENDMENT TO UNITED NATIONS