March 16, 1962 (4)

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, I was quoting from the committee report a statement by the distinguished former Senator from Wyoming, the Honorable Joseph C. O'Mahoney, who was probably the greatest constitutional lawyer since Daniel Webster. I continue the quotation:

So the argument of the proponents of this bill must be that the poll tax requirement is not a qualification, but an interference with the manner of holding an election.

Can anyone say that that is not a strained construction-so strained, Mr. President, that some of the advocates of the bill are not content to rely upon it, but say that the real basis of the bill lies in the provision of the Constitution by . which the United States is required to guarantee to each State a republican form of government. Then we are asked to believe that a poll tax requirement is a violation of the principles of a republican form of government. How can · that be contended in the face of the fact that the men who drafted the section, the men who drafted the Constitution, had been chosen by the people of States in every one of which there was some form of a property ownership or taxpayment qualification?

Mr. President, the poll-tax requirement as a prerequisite for voting was not abolished in the State of Massachusetts-and I speak of Massachusetts because I was born there and because I know that it has been one of the most progressive and liberal States of the Union-until 1892. It was not abolished in the State of Pennsylvania until 1933. So during all that time, from the moment when the Constitution was written by men chosen in States which recognized the the ownership of property and the payment of taxes as qualifications for voting, right down to this decade, the right of the States to impose or to repeal such a qualification had been recognized; and no one sought to question it until the bright · idea dawned that, by calling red blue, we could amend the Constitution- a qualification is not a qualification. Let the Congress by a majority vote so declare, and the necessity of amending the Constitution as the Founding Fathers di- rected us to do in article V would be obviated. Therefore, it seems to me to be perfectly clear, from the text of the debate in the Constitutional Convention itself, that the men who drafted this instrument knew precisely what they were doing, and when they defeated Gouverneur Morris' amendment to fix the qualifications in the Constitution, they did so precisely because they wanted that right to fix qualifications to remain with the States. This was because, in the wt.rds of Mr. Wilson, that it would be disagreeable to have two sets of electors, one voting for State officers and the other voting for Federal officers.

The proposal was voted down in the Constitutional Convention. The proponents of the bill ask us to vote it up by a State. They contend that although the Constitutional Convention said that the qualifications for those who are to choose the only Federal officials who are to be elected by the people shall be the same as the qualifica tiona of those who are to choose the most numerous branch of the State legislature, we should now alter that program, that procedure, that policy, and should make the qualifications different.

Senator O'Mahoney, in engaging in colloquies with the then Senator from Alabama, Mr. Bankhead, and the then Senator from Texas, Mr. Connally, made further observations which, I believe, bear repeating here:

Mr. O'MAHONEY. The Senator is quite right, and that leads me to make this observation. In the light of the debate which I have already read earlier today, it is clear that if the framers of the Constitution had wanted to make a Federal rule of qualification, since it is clear that they knew exactly what the issue was, they would have written it into the Constitution. One member, seconded by another member of the Convention, indeed tried to do that, and the effort was defeated, and then, as the Senator from Alabama has so cogently remarked 125 years later, when the people of the country were providing for the popular election of U.S. Senators, they decreed again that the qualifications of the electors who should choose the Senators should be the same as those of the electors of the most numerous branch of the respective State legislatures. There can be no question, it seems to me, of the meaning of the language. • • •

The drafters of the Constitution, and the States, when they amended the Constitution to provide for popular election of Senators, did precisely what the Senator from Texas said; they decreed that the Federal qualifications in each State should be those which each State adopted for itself. That is not only my view, the view of the Senator from Texas, the view of the minority on the Judiciary Committee; it has been the view of every person who has commented upon the Constitution from the time it was written and adopted down to the hour when the sponsors of the proposed legislation undertook to separate Federal qualifications from State qualifications.

Mr. President, I submit that the statement of the then subcommittee of the Committee on the Judiciary and the remarks of Senator O'Mahoney are as appropriate today as ti1ey were 20 years ago. It is my considered judgment that the Congress would be wise today to await the action of the five remaining States, by action of their State legislatures, rather than to whittle away by constitutional amendment a power that was left to the States themselves by the framers of the Constitution.

Throughout the history of our country regulation of voting has been traditionally and appropriately a function of the States. In fact, the intrusion of the Federal Government into the regulation of voting has been generally considered unconstitutional except in those instances precisely defined in the 14th and 15th amendments. In Minor v. Happerset (88 U.S. 162 (1874)), Mrs. Minor was refused registration to vote for electors for President and Vice President of the United States, and for a Representative in Congress at the general election held in November 1872. She was refused because the Missouri constitution authorized voting by male citizens only. Mrs. Minor contended that the right to vote at elections affecting Federal offices was a right and privilege secured to her by the Constitution of the United States which could not be abridged by the State of Missouri. The Court said:

If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the constitution and laws of Missouri confining it to man are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters. The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case one need not determine what they are, but only whether suffrage is necessarily one of them.

It certainly is nowhere made so in express terms. The United States has no voters in the States of its own creation. The elective officers of the United States are all elected directly or indirectly by State voters. The Members of the House of Representatives are to be chosen by the people of the States, and the electors in each State must have the qualifications requisite for electors of the most numerous branch of the State legislature. Senators are to be chosen by the legislatures of the States, and necessarily the members of the legislature required to make the choice are elected by the voters of the State. Each State must appoint in such manner, as the legislature thereof may direct, the electors to elect the President and Vice President. The times, places, and manner of holding elections for Senators and Representatives are to be prescribed in each State by the legislature thereof; but Congress may at any time, by law, make or alter such regulations, except as to the place of choosing Senators. It is not necessary to inquire whether this power of supervision thus given to Congress is sufficient to authorize any interference with the State laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the State in this particular is certainly supreme until Congress acts.

The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guarantee for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen (Minor v. Happerset, 88 U.S. 162 (1874)).

Finally the Supreme Court said:

Certainly, if the courts can consider any question settled, this is one. For nearly 90 years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be. (Minor v. Happerset, 88 U.S. 162, 170 (1874)).

Mr. President, I ask unanimous consent that I may yield to my colleague the distinguished Senator from Mississippi [Mr. STENNIS] with the understanding that I shar. not lose my right to the floor; that when I resume the floor, it will not count as a second speech upon this motion; and that the junior Senator from Mississippi will have the floor when the Senate convenes on Monday next.

Mr. · HOLLAND. Mr. President, w111 the Senator from Mississippi yield for a question?

Mr. EASTLAND. I yield for a question.

Mr. HOLLAND. When does the senior Senator from Mississippi expect to resume the floor? I think the unanimousconsent agreement should show that.

Mr. EASTLAND. I do not know when I expect to resume the floor. It will be before the debate is over.

Mr. HOLLAND. Will it be sometime on Monday?

Mr. EASTLAND. I do not know when the junior Senator from Mississippi will finish his speech. I cannot say as to that. He has a right to present his views.

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

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

Mr. STENNIS. Mr. President, a great deal has been said about the poll tax. A great deal is misunderstood about the poll tax. It is thought of, in some circles, as being a tax on the right to vote, or is loosely called that. A poll tax is a tax on the person. Like other taxes such as a tax on a piece of property, or a tax on income, it is a head tax. The word "poll" comes from the word meaning people. That is the basis of the taxation. It is based on the simple proposition that everyone who enjoys the fruits of the government should pay · some tax. That is the origin of the tax-that there should be a tax upon each person. It is nothing new in American history . . It has always been recognized.

Mr. President, it has always been characteristic of our Government to require every person to pay some tax. Many States and many of the Colonies at the time of the American Revolution, and afterward, required the payment of a property tax or poll tax, or some kind of a contribution to the costs of govern- ment, before citizens could enjoy the privileges of government.

I never have believed otherwise than that it is a sound principle of government. I do not know that I have had many thrills in life greater than that I felt at the time I cast my first vote. I had the thrill of knowing that I was participating in the government directly, and I was also paying some tax, and therefore was sharing a part of the privileges and had a part in carrying some of the responsibility.

I never have believed otherwise, especially in view of the fact the right to vote is a privilege. Voting is a privilege; it is not a right. It never has been a right. I hope that in our form of government it never will be a pure right. The casting of a vote is a privilege, and that privilege arises from the States of the Union, not from the Federal Government. The Federal Government has never had the power to confer the privilege of voting upon anyone. There is written into the basic law of the Federal Government itself the direct provision that the Congress shall never-shall never-undertake to create the qualifications of electors. The privilege of voting comes from the States, and therefore the Federal Government adopts the qualifications the States prescribe.

I repeat, Mr. President, that voting is a privilege. That - privilege arises from the State itself. Therefore the States ought to have control.

Even apart from what is written into the Constitution, logic dictates that the States should have such control. As I have said, it is a privilege to pay something, to pay some kind of a tax or to make some contribution in order to be able to vote. I remember that as a young boy I heard a very fine sermon, the substance of which was, "Salvation is free." I did not believe it then, and I do · not believe it now. I am not a theologian, and do not intend to enter into a discussion of theology, We could never earn salvation ourselves. I think in any realm reward requires some kind of effort on my part. I have to live up to something. I have to do som,ething. I cannot be fully worthy; there is something I have to do. I still believe -this to be true.

I believe that in our free Government freedom is a two-way street. This should be told to the people. It should be emphasized at every turn, everywhere, every day in every manner. There is something the people must do. The privileges we enjoy simply do not come like rain from the heaven. · Privileges and responsibilities go hand in hand.

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

Mr. STENNIS. I yield.

Mr. HOLLAND. I do not wish to interrupt the distinguished Senator, except to say that the majority leader asked me to move to recess the Senate, under the order previously entered, at 6 o'clock or shortly thereafter. At any time it might be convenient to whoever had the floor. Whenever the Senator from Mississippi reaches such a stage, I shall be glad to move that the Senate recess under the previous order.

Mr. STENNIS. I thank the Senator from Florida. I should like to proceed for just a few minutes more, in order to reach an appropriate stopping place.

There should be at least some kind of requirement for some kind of payment on the part of all who go to the ballot box. I know that that is the way it works in my State. The payment of a poll tax has proved to be a very reasonable regulation of the exercise of the high privilege of voting, one within the reach of all; and it is such a small amount that it is certainly easily within the reach of all to pay. But if any person should be crippled or otherwise incapacitated, such person could obtain a certificate of exemption. The tax is only $2 a year per person; and it applies to all alike, regardless of sex, color, or any other consideration.

There is a further provision that persons above 60 years of age are not required to pay the tax, but merely have to be certified that they are exempt, and thereby shall be eligible to vote.

Some say they do not think the poll tax is sound in principle, if its payment is required as a prerequisite to voting. Mr. President, I think it is. It is a very reasonable and a very effective regulation. It requires that a person manifesting an interest in an election shall pay a small amount for the privilege of participating in the election.

Mr. President, I have never seen an illustration of any material or substantial abuse with reference to the poll tax law. Stories are told about some ward politician showing up at the last minute with a pocketfull of poll tax receipts, and getting persons whom he controls qualified to vote. Mr. President, I could not say that such things do not happen sometimes, somewhere; but certainly I know that they do not happen to any appreciable extent in my State, and I do not believe they happen on any extensive scale anywhere. The law requires that the :Poll tax be paid in advance; and no one can show up at the last minute and pay the poll tax for others, so as to control their votes.

Another feature of the tax in my State is that a citizen has to pay only 1 year's arrears, if he falls behind in his payments. He has to pay only 1 year's arrears of the tax, in order again to become qualified to vote. Clearly there is no stacking up of these delinquencies, or a _ anything of that kind.

Furthermore, Mr. President, the money goes solely and exclusively to public education of all children in all public schools, in cur State. As I recall, the money has to be spent in the county where the tax is imposed or where the person lives. The money has to be spent exclusively for the schools in that county; and it cannot be diverted-not under any circumstances-to any other purpose-not to any purpose except that of the general education of all the schoolchildren.

Mr. President, I have now reached a concluding point; and I ask unanimous consent that I may now suspend, pursuant to the understanding which has been reached.

Mr. EASTLAND. Mr. President, a part of the unanimous-consent request is that when the Senate takes a recess at the conclusion of its session today, such action not be regarded as causing my colleague, the juni01 · Senator from Mississippi [Mr. STENNIS], to be charged with making one speech on the pending motion.

The PRESIDING OFFICER. With­ out objection, it is so ordere~.