March 16, 1962 (3)

The Senate resumed the consideratidn 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, I believe the · Senate of the United · States would strike a mortal blQW at - the sovereignty of our individual States if it limited the p(>wer of the States to determine the qualifications of its voters.

In the 77th Congress, the Committee on the Judiciary had under consideration Senate bill 1280, concerning the qualifications of voters or electocs within the meaning of section 2, article I of the Constitution, and making unlawful the requirement for the payment of a poll tax as a prerequisite to voting. A subcommittee of the Committee on the Judiciary submitted to the full committee an adverse report on this proposal. The adverse report of the subcommittee contained a statement which bears repeating at this point. In its report the subcommittee stated:

It is acknowledged by the proponents of this bill that Congress has no power to fix or alter the qualifications of voters for State office and so they propose only to abolish the poll tax for election of Federal officials. To do this, they must deny that a poll tax is a qualification. Otherwise, they would be forced to admit an attempt to disregard section 2 of article I. This they cannot do without conceding the unconstitutional character of the bill. So they adopt the ingenious ruse of declaring in the first section of the measure that the poll tax requirement is not a qualification of voters but an interference with the manner of holding a Federal election and as such subject to regulation by Congress under section 4, article I. Here, however, they are met by the historic fact that when the Constitution was adopted all of the original States had property or tax qualifications for voters.

The framers of the Constitution knew, for example, that the actual payment of a State or county tax was a voting qualification in Pennsylvania when the instrument was drawn and that the other States had similar provisions. The framers accepted these qualifications whatever they might have been in all of the States by the language of section 2 of article I and nowhere did they give Congress the power to alter them. They did give Congress the power to alter State regulations governing the times and manner of choosing Senators and Representatives as well as the places of choosing Representatives, but no such supervisory power over voting qualifications was granted. Certainly such power cannot be implied by contending that although the Constitution makers, who were perfectly familiar with property qualifications, did not have them in mind when writing section 2 of article I which deals with qualifications, but did intend to give Congress power to change them, when they wrote section 4 of article I which deals with the manner of holding elections.

It would be difficult to imagine any language more clear than the first clause of section 2, article I:

"The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature."

If Congress by law should undertake to provide , as the proponents of this bill urge Congress to do, qualifications for the electors o::: Members of the National House of Representatives other than and different from those "requisite for electors of the most numerous branch of the State legislature'• in any State, it would be acting in direct contravention of the mandate of the Constitution that they should be the same.

_ It should be noted that the chairman of the subcommittee considering the proposal at that time was the then distinguished Senator from Wyoming, Mr. O'Mahoney, one of the leading constitutional lawyers of all time.

That subcommittee, in considering Senate bill 1280, also stated:

It is better to await the wise action of the remaining States than by a strained construction of the Constitution to apply by statute the power of the Central Government to force upon any State a particular course of action in a field which the Constitution left to the States.

During the course of the same debate on Senate bill 1280, one of the greatest legal arguments ever made on the Senate floor was delivered by the Honorable Joseph C. O'Mahoney, who has long been recognized as one of the leading constitutional lawyers in this body. Senator O'Mahoney said:

We now come to the question whether or not the pending bill represents a constitutional attempt to exercise constitutional congressional power. To me the answer to the question is so clear that I wonde.r how it can be debatable. At the very outset of the hearing on the pending bill I propounded the constitutional questions and asked the advocates of the bill to present arguments in support of their contention that the power to fix the qualifications of voters resides in a majority of Congress rather than in the States. The answer to that question has been merely the ingenious and clever stringing together of words, phrases, and emotional appeals by special pleaders who found themselves confronted by language and history which no person can misunderstand.

Bear in mind the fact that the framers of the Constitution clearly intended to make the States equal, and that they were careful to preserve in the States those powers which were not delegated to the Federal Government. We are confronted with the question of what they did about determining who should be the electors and who should fix the qualifications of the electors. Let it be remembered that the men who sat in the Constitutional Convention and drew this instrument, which everyone recognizes as one of the most remarkable instruments ever drafted, did not provide for popular election of Senators. They provided that Senators should be elected by the State legislatures; and of course they neither exer .. cised any jurisdiction, nor attempted to exercise any jurisdiction, over the qualifications of members of the legislatures. Their decision was that so far as the Members of the Senate were concerned, the selection should be made by whomever the people of the several States might choose to send to the State legislatures.

Even in the matter of the election of the President, they erected a barrier between the people and the Chief Executive by creating the electoral college. The idea was that a group of wise men should be chosen as electors by the several States-chosen independently in the several States; let us not forget that-that such electors should meet in their own States, that they should not come together in any g~eral body to debate, but that, meeting separately in their several States, they, in the exercise of their judgment, should choose the President. The genius of the people of America for selfgovernment was so great, however, that though we have never changed the electoral college, the electors now, as a matter of course, vote for the candidates chosen by the parties by whom they in turn are nominated .

ot course, it may be pointed out here with respect to the election of Senators that the 17th amendment made no change in the fundamental concept of the independence of the States of the right of the States to determine the qualifications of the voters. Bearing in mind that Senators as Federal officials were not to be elected by the people, and that the President was not to be elected by the people, we find the explanation of section 2 of article I, which is the only provision in the Constitution dealing with voters' qualifications. It has already been read during the course of this debate; but for the sake of the continuity of my argument let me read it again:

"The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature."

What is the answer? One of the principal advocates of the bill before us, in an article which he prepared for a law journal, acknowledged that for years it was generally assumed that the sole power to fix the qualifications requisite for electors for the House of Representatives resided in the States; and he said there never was any thought otherwise until some bright mind conceived the idea of separating the qualifications requisite for . electors of Federal officials from those requisite for electors of State officials, and of arguing · that a poll-tax requirement Is not a. qualification, but merely an interference with the manner of holding a.n election, because section 4 of the first article provides:

"The times, places, and manner of holdIng elections for Senators and Representatives shall be prescribed In each State by the · legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators."

Mr. President, I ask unanimous consent to suggest the absence of a quorum, provided I do not lose my right to the floor, provided I retain my right to the floor at the conclusion of the quorum call, and provided that it does not count as a speech on the pending motion.

The PRESIDING OFFICER (Mr. PELL in the chair). Is there objection to the request of the Senator from Mississippi?

Mr. HOLLAND. I have no objection, Mr. President.

The PRESIDING OFFICER. Without objection, it is so ordered. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. HOLLAND. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

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

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

Mr. EASTLAND. Mr. President, I ask unanimous consent that I may yield to the distinguished Senator from Alaska under the same conditions upon which I have heretofore requested unanimous consent to yield to other Senators.

The PRESIDING OFFICER. With­ . out objection, it is so ordered.