March 21, 1962 (2)

The Sent",te 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. ROBERTSON obtained the floor.

Mr. MANSFIELD. Mr. President, will the Senator from Virginia yield briefly to me, if it is understood that in doing so he will not lose his right to the floor?

Mr. ROBERTSON. I yield.

Mr. MANSFIELD. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

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 ask unanimous consent that the order for the quorum call be rescinded.

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

The Senator from Virginia has the floor.

Mr. ROBERTSON. Mr. President, at the outset of my remarks, I wish to make it crystal clear that we of the South who have been debating the issue of a poll tax regret that in these critical day~ an issue which to many persons appears to be inconsequential has been forced upon us-whetheJ;: or not five States may impose a poll tax. The issue, however, is not inconsequential This issue affects the sovereignty of the States that compose this Union.

But for the assurance given by James Madison, Alexander Hamilton, and others who participated in the Constitutional Convention in 1787, the Constitution would never have been ratified. Even then, such grave doubts about the protection of the States were expressed in the State ratifying conventions, that several States adopted resolutions, to accompany the vote to ratify, which called for a clarification of the rights of the States.

The Virginia ratifying convention recommended 12 safeguarding amendments, and James Madison, in the first Congress, offered all 12 of them. The Congress adopted 10 of the 12, and one of those 10 is the lOth amendment, which provides that the rights not delegated to the Central Government nor prohibited to the States are reserved by them or the people thereof.

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

Mr. ROBERTSON. I yield.

Mr. HOLLAND. May I ask respectfully of the distinguished Senator if it is not true that he joined the Senator from Florida in introducing an antipoll tax amendment---

Mr. ROBERTSON. Well, certainly it is true. I had to choose between the lesser of two evils. On the one hand was an effort to abolish the poll tax by an act of Congress, which required only a majority of votes and the signature of the President, which might have been forthcoming, even though the measure was clearly unconstitutional. So the Senator from Virginia thought, well, a constitutional amendment requires a two-thirds majority of each House of Congress, and then it must be ratified by three-fourths of the States. By supporting the amendment-a lesser of two evils-we may then be able to gain the necessary time with which to present a case to the Congress showing that, while the amendment would affect the laws in only five States, it would set a precedent for undermining one of the sacred rights which was reserved to the States when they agreed to ratify the Constitution; namely, the right set out in section 2 of article I of the Constitution, that the States should fix the qualifications of their electors provided--

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

Mr. ROBERTSON. No, I do not yield until I finish my answer to the Senator's

Mr. HOLLAND. The Senator did not permit me to finish asking my question--

Mr. ROBERTSON. The Senator asked me if I joined him on the proposed amendment . once. I said that I joined him once but that I have not joined the Senator in recent years, because the situation has changed.

Therefore, the Senator from Virginia replies, "Yes, I did say 'Well, if I must choose between an unconstitutional bill and the Holland amendment,' I will take my chances on the amendment." That proved to be good judgment, for neither measure has yet passed both Houses.

The Senator from Virginia feels that he was well justified at the time, in choosing between the lesser of two evils, to go along with this proposed amendment.

Mr. HOLLAND. Mr. President, will the Senator permit me to finish my first question?

Mr. ROBERTSON. I am sorry. I thought the Senator had completed his question-a question, I might add, which he has asked my distinguished colleague from Virginia [Mr. BYRD J and every other Senator who has taken the floor to oppose his amendment.

Mr. HOLLAND. I merely asked the Senator whether he joined in the 81st Congress. I was going to ask whether he joined also in the sponsorship of this particular amendment in the 82d Congress and in the 83d Congress.

Mr. ROBERTSON. I do not remember; however, if I did support the proposed amendment, it was to block congressional action and not because I favored the measure for any other reason.

The Senator from Florida must know that what we really face here is the Javits bill, not his proposed amendment. Those who want to get political credit for opposing the poll tax know that they cannot get any political credit from an amendment to the Constitution, because the States amend the Constitution. The Congress cannot. All we can do is to submit an amendment to the States. Then, if the States ratify, the States have changed the Constitution.

Those who are seeking the votes of the NAACP cannot get much political mileage out of that. What they want to do, in effect, is to amend the Constitution by congressional action.

A man should have some stake in government and some intelligent understanding of government before he acquires the right to vote.

We of the South deeply deplore the fact that this poll tax proposal is considered in a period of crisis, when we ought to be concerned about the Communist aggression in South Vietnam; when we ought to be concerned over the Berlin issue; when we ought to be concerned as to what new weapons must be added to our arsenal to prevent a shooting war; when we ought to be concerned over the financial crisis which America The United States will furnish this fiscal year, in a period of the greatest prosperity in the history of the Nation, with a budget deficit that the President says may not be less than $7 billion. The President has predicted a budget surplus approaching $500 million for the next fiscal year. But it now seems extremely unlikely that we will have any surplus at all.

Already we find that the "boom " predicted for early this year has not been so big as was expected. Our gross national product is now running below the level that was anticipated only a few months ago.

We are not in any depression. We are having good times. The predictions are that we shall continue to have good times. But the fact remains that we may not, in the coming fiscal year, receive all the budget revenue that was predicted last January. In order to do so, we would have to receive about $11 billion more next year than in this fiscal year, and that is quite a large increase.

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

Mr. ROBERTSON. I yield for a question. The Ser-ator understands that we are being subjected to tight restrictions.

Mr. BENNETT. Yes.

Mr. ROBERTSON. We shall have to make it clear that if I yield it will be for a question, or else some Senator may make a point of order that I have lost the floor. So, for a question only, I yield to the Senator from Utah.

Mr. BENNETT. The Senator has referred to the fact that in order to balance the budget there must be an increase in revenue of about $11 billion. Is it not true that in order to get that increase, particularly out of the tax on cor­ · porations, there would have to be an increase of about $22 billion in corporate profits before taxes?

Mr. ROBERTSON. The Senator is correct. The top corporate rate is 52 dence. percent. We would have to have an increase of about $22 billion in corporate profits in order to get a $11 billion increase in taxes from corporations.

Mr. BENNETT. Is it not also true that for the past 10 · years, corporate profits before taxes have been very stable, and have been running around $45 billion a year?

Mr. ROBERTSON. The Senator is correct.

Mr. BENNETT. Is it not true, then, that in order to balance the budget on that basis, we would have to have an increase of more than 50 percent in corporate profits before taxes?

Mr. ROBERTSON. correct. For that and other reasons, I do . not think there will be any surplus in the budget.

Mr. BENNETT. I thank the Senator.

Mr. ROBERTSON. In my opinion, the issue is not whether there will be a budget deficit in the next fiscal year, but rather how large the deficit will be. Yet in 1962, we shall have by far the largest gross national product in our history and by far the largest personal income in our history. The President has estimated that the former will be close to $570 billion, and the latter will be about $448 billion.

Even so, it is said that we cannot balance the budget. If we cannot balance the budget now, will we ever balance it? That, to me, is a serious question. If we cannot balance the budget this year and next year, will we ever balance it-­ unless, of course, God changes the hearts of the Politburo, and its representatives suddenly say, "Let us disarm. We will give you free and full inspection everywhere. Let the lion and the lamb lie down together." If such an unlikely eventuality took place, we could reduce the $50 billion or more that we appropriate for our defense establishment. We might then balance the budget. But if a large reduction in defense expenditures was made at once, we would probably have a severe depression for some time after that spending stopped.

So, Mr. President , I say that we are living in critical times. Yet because five States exercise · a constitutional right which they have had ever since the Union was formed, a right to fix the qualifications of the electors in their States, the Senate is plunged in debate. We come in at 9 o'clock in the morning and remain until 7 o'clock in the evening. Perhaps the sessions will eventually run until 9 o'clock in the evening. No committees can function. . I am privileged to be chairman of the Appropriation Subcommittee on Treasury and Post Office, which has reported what is supposed to be a minor bill, although it involves $6 billion or $7 billion.

We have the bill ready for action on the floor of the Senate. But we cannot .take up an appropriation bill. We must discuss poll taxes.

~ Yesterday the House of Representatives passed the appropriation bill for - the Department of the Interior . We · Should proceed and complete action on that bill right away. But proposals to limit States' rights must take preceI wonder if Senators have forgotten that not until midnight on the last day of the first session of this Congress did we complete action on the appropriation for foreign aid amounting to over $3 billion, and the appropriation for public works amounting to over $1 billion. Since time was of the essence, nobody knew exactly what was contained in the conference report when it was finally acted upon.

After a conference on the public works bill had been agreed to, the House removed some provisions that were in the conference report, and we had either to accept the report or have Congress called The Senator is back into special session.

This year is an election year. Presumably we will adjourn early for that very reason. Yet the Senate has not passed a single appropriation bill.

There are a number of very important bills in the offing. In particular, we will consider a tax bill and a foreign trade bill. No one should be under any illusion about the time which debate on these bills will consume.

Nevertheless, we are forced to appear in the Senate and spend hour after hour-doing what? Opposing attempts to dispossess the States of their constitutional rights. I am sure all Senators remember that years ago, when Lord Macauley was in our country-and I paraphrase his remark-he said, "Your Constitution is all sail and no anchor. You will come to the time when there will be more feeding out of the Treasury than there will be those paying money into the Treasury. That is when your Government will be wrecked."

We have never had in this country a greater or wiser group of men than the men who assembled in Philadelphia to write the Constitution. Lord Gladstone did not overpraise the Constitution when he said that it was the greatest instrument ever struck off by the brain and purpose of man. It is the only instrument which has kept a representative democracy together as long as ours has been held together. Our Government, in its present form, is older than any other government in the world today.

What are we doing? We are gradually pulling out the foundation stones of a superstructure that unites national sovereignty with States rights.

Mr. President, it seems that we cannot hold a session of Congress without the Senate's consideration of proposals which,' in one form or another, would withdraw powers from the sovereign States-powers that are guaranteed to them by the Constitution and by the lOth amendment, which provides:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States , respectively, or to the people .

Today I am rising to oppose two such proposals ; Senate Joint Resolution 58 and S. 478.

Both of the proposals to which I am referring would prohibit the use of a poll tax or any property requirement as a voter qualification · in · Federal elections.

ProPOsals · of . this . type are not, of course, new to Senate debate. On January 28 of 1960 I discussed at length on the floor the doubtful constitutionality of S. 2868, a bill which is similar to S. 478. On February 1 of that year I argued against a proposed constitutional amendment-similar to Senate Joint Resolution 58-which, if approved by the required three-fourths of the State legislatures, would have accomplished the same result.

Although the proposals presently be­ fore the Senate have similar objectives; Senate Joint Resolution 58 would amend the Constitution in accordance with the requirements of article V. Unfortunately, the Congress and the courts have not always resorted to constitutional means in their fervor to change the structure and principles of our Government. S. 478 represents an attempt of this type. Recent history abounds with similar examples of this lapse in constitutional procedure, two of the most prominent being the Supreme Court's Brown against Board of Education decision of 1954 and the so-called Civil Rights Act of 1960.

Nevertheless, · even though Senate Joint Resolution 58 would follow a con· stitutional avenue, both this resolution and the bill suffer from a common defect: Their reliance upon the false premise that every citizen of the United States has an inherent right to vote.

In support of Senate Joint Resolution 58, its author, the learned senior Senator from Florida [Mr. HoLLAND] re· cently said on the floor:

In my opinion every citizen should, as a matter of right, be entitled to vote for President, Vice President, and Senators and Representatives; and that is all that is involved in this case. ·

I would like to remind the Senate that every American has a dual citizenship in that he is a citizen both of our Nation and of his particular State. · The rights of individuals are clearly defined in the Bill of Rights which consists of the first 10 amendments to the Constitution. These amendments are substantially what George Mason proposed in his immortal Virginia Declaration of Rights, and nowhere in the first 10 amendments is there any guarantee of a right to vote.

There is a guarantee in the 15th amendment that no citizen can be denied the right to vote because of race, creed, or color. In the 19th amendment it is provided that no citizen · en shall be denied the right to vote on account of sex.

However, we are not to conclude from these amendments that every citizen of the United States has a right to vote. He may vote only if he meets the qualifications set by his State under article I, section 2, of the Constitution within the limitations of the 15th and 19th amendments.

Suffrage, therefore, is basically a . privilege. It becomes a right only if it is denied under the guarantees of the 15th and 19th amendments. Or, as the Supreme Court said in Minor v. Happersett , 2 1 Wall . 162 ( 1864):

The Constitution of the United States does not confer the right of suffrage on anyone.

New York chooses to require that its voters be able to read and write English. Georgia. extends the franchise to those who have reached the age of 18. · Alabama has a residence requirement of 2 years. The constitution of North Dakota. provides that the legislature shall establish an educational test as a qualification for voting. Mississippi requires that its citizens be able to give a reason­ · able interpretation of any section of the Constitution. And Virginia through its duly elected representatives has provided that its citizens must pay a poll tax of Who is better qualified than the elected representatives of each State to determine what voter qualifications are in that State's best interest? No one in the Virginia General Assembly, for example, would presume to tell his Georgia colleagues that the voting age in that State should be raised to 21, for he realizes that the Georgia legislators are much better qualified than he to decide what is best for Georgia.

Mr. President, it is also worth noting that an inherent right to vote was as nonexistent in colonial times as it is today. Indeed, the early legislatures set qualifications which were more stringent than those prescribed by present State legislatures. The qualification that the voter must be a freeholder, for example, was prominent in early State constitutions and charters.

It is appropriate at this time to review the voter qualifications prescribed by the constitutions and legislatures of the Thirteen Colonies:

NEW HAMPSHIRE

The Senate shall be the first branch of the legislature, and the Senators shall be chosen in the following manner, viz: Every male inhabitant of each town and parish with town privileges in the several counties in this state, of twenty-one years of age and upwards, paying for himself a poll tax, shall have a right at the annual or other meetings of the inhabitants of said towns and parishes, to be duly warned and holden annually forever in the month of March; to vote in the town or parish wherein he dwells, for the Senators in the county or district whereof he is a member.

And every person qualified as the constitution provides shall be considered an inhabitant for the purpose of electing and being elected into any office or place within this state, in that town, parish, and plantation where he dwelleth and hath his home.

The Members of the House of Representatives shall be chosen annually in the month of March, and shall be the second branch of the legislature.

All persons qualified to vote in the election of Senators shall be entitled to vote within the town district, parish, or place where they dwell, in the choice of representatives.

MARYLAND

ARTICLB II. That the House of Delegates shall be chosen in the following manner: All freemen, above twenty-one years of age, having a freehold of fifty acres of land, in the county in which they offer to vote, and residing therein-and all freemen, having property in this state above the value of thirty pounds current money, and having resided in the county, 1rl which they offer to vote, one whole year next preceeding the election, shall have a right of suffrage, in the election of Delegates for · such county; and an freemen, as qualified, shall on the first Monday of October, seventeen hundred and seventy-seven, and on the same day in every . year thereafter, assemble in the counties, i~ :Which they are respectively qualified to vote, at the courthouse, in the said counties, or at such other place as the Legislature shall direct; and, when assembled, they shall proceed to elect, viva voce, four Delegates, for their respective counties, of the most wise, sensible, and discreet of the people, residents in the county where they are to be chosen, one whole year next preceding the election, above twenty-one years of age, and having, in the State, real or personal property above the value of five hundred pounds current money; and upon the final casting of the polls, the four persons who shall appear to have the greatest number of legal votes shall be declared and return, duly elected for their respective counties.

NEW JERSEY

ARTICLE IV. That all inhabitants of this Colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote for Representatives in Council and Assembly; and also for all other public officers, that shall be elected by the people of the county at large.

ARTICLE XIII. That the inhabitants of each county, qualified to vote as aforesaid, shall at the time and place of electing their representatives, annually elect one Sheriff and one or more Coroners; and that they may reelect the same person to such offices until he shall have served three years, but no longer, after which, three years must elapse before the same person is capable of being elected again. When the election is certified to the Governor, or Vice President, under the hands of the six freeholders of the county for which they were elected, they shall be immediately commissioned to serve in their respective offices.

SOUTH CAROLINA

The qualification of electors shall be that every free white man, and no other person who acknowledges the being of a God, and believes in a future state of rewards and punishments, and who has attained to the age of one and twenty years, and hath been a resident and an inhabitant in this State for the space of one whole year before the day appointed for the election he offers to give his vote at, and hath a freehoold at least of fifty acres of land, or a town lot, and hath been legally seized and possessed of the same at least six months previous to such election, or hath paid a tax the preceding year, or was taxable the present year, at least six months previous to the said election, in a sum equal to the tax on fifty acres of land, to the support of this government, shall be deemed a person qualified to vote for, and shall be capable of electing, a representative or representatives to serve as a member or members in the Senate and House of Representatives, for the parish or district where he actually is a resident, or in any other parish or district in this state where he hath the like freehold. Electors shall take an oath or affirmation of qualification, if required by the returning officer.

NEW YORK

ARTICLE VII. That every male inhabitant of full age, who shall have personally resided within one of the counties of this State for six months immediately preceding the day of election, shall, at such election, be entitled to vote for representatives of the said county in assembly: if, during the time of aforesaid, p~ shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yea-rly value of forty shillings, and been rated and actually paid taxes to this State: Provided always, That every person who now is a freeman of the City of Albany, or who was made a freeman of the City of New York on or before the fourteenth day -:>f October, in the year of our Lord one thousand seven hundred and seventyfive, and shall be actually and usually resident in the said cities, respectively, shall be entitled to vote for representatives in assembly within his said place of residence. ARTICLE XII. That the election of Senators shall ?e after this manner: That so much of this State as is now parceled into counties be divided into four great districts: the southern district to comprehend the city and county of New York, Suffolk, Westchester, Kings, Queens, and Richmond Counties; the middle district to comprehend the counties of Duchess, Ulster, and Orange; the western district, the city and county of Albany, and Tryon County; and the eastern district, the counties of Charlotte, Cumberland, and Gloucester.

That the Senators shall be elected by the freeholders of the -aid districts, qualified as aforesaid, in the proportions following, to wit: In the southern district, nine; in the middle district, six; in the western district, six; and in the eastern district, three. And it be ordained, that a census shall be taken, as soon as may be after the expiration of seven years from the termination of the present war, under the direction of the legislature; and if, on such census, it shall appear that the number of Senators is not justly proportioned to the several districts, that the legislature adjust the proportion, as near aa may be, to the number of freeholders, qualified as aforesaid, in each district.

MASSACHUSETTS

ARTICLE II. There shall be a meeting on the first Monday in April, annually, forever, of the inhabitants of each town in the several counties of this commonwealth, to be called by the selectmen, and warned in due course of law, at least seven days before the first Monday in April, for the purpose of electing persons to be Senators and Councilors; and at such meetings every male inhabitant of twenty-one years of age and upward, having a freehold estate within the commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to give in his vote for the Senators for the district of which he is an inhabitant. And to remove all doubts concerning the meaning of the word "inhabitant," in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within this State, in that town, district, or plantation where he dwelleth or hath his home.

The selectmen of the several towns shall preside at such meetings impartially, and shall receive the votes of all the inhabitants of such towns present and qualified to vote for Senators.

PENNSYLVANIA

SEc. 6. Every freeman of the full age of twenty-one years, having resided in this state for the space of one whole year next before the day of election for representatives, and paid public taxes during that time, shall enjoy the right of an elector: provided always, that sons of freeholders of the age of twenty-one years shall be entitled to vote although they have not paid taxes.

GEORGIA

ARTICLE IX. All male white inhabitants of the age of twenty-one years, and possessed in his own right of ten pounds value, and liable to pay tax in this State, or being of any mechanic trade, and shall have been resident six months in this State, shall have a right to vote at all elections for represent ' a­ tives, or any other officers herein agreed to be chosen by the people at large; and · every person having a right to vote a:t any election shall vote by ballot personally.

NORTH CAROLINA

ARTICLE VIII. That all freemen of the age of twenty-one years, who have been inhabitants of any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled . to vote for the members of the House of Commons for the county in which he resides. .

ARTICLE IX. That all persons possessed of a freehold in any town in this State, having a right of representation, and also all freemen, who have been inhabitants of any such town twelve months next before , and at the day of election, and shall have paid public taxes, shall be entitled to vote for a member to represent such town in the House of Commons: Provided alw a ys, That this section shall not entitle any inhabit a nt of such town to vote for members of the House of Commons, for the county in which he may reside, nor any freeholder in such county, who resides without or beyond the limits of such town, to vote for a member for said town.

VIRGINIA

The constitution of Virginia of 1776 simply incorporated the right of suffrage as it existed under the ancient charter and the acts of the assembly which had been passed prior to that time, under these words:

"The right of suffrage in the election of members for both Houses shall remain as exercised at present; and each House shall choose its own Speaker, appoint its own officers, settle its own rules of proceeding, and direct writs of election, for the supplying intermediate vacancies." .

The acts of the earier assemblies under the colonial charter _ . ad prescribed not only taxpaying requirements but also property-owning requirements.

COLONIAL CHARTER

Delaware, Rhode Island, an . d Connecticut were all operating under colonial charters and had not adopted new constitutions. The qualifications of their electors were fixed by statute.

CONNECTICUT

That the Town Clerks in the several Towns in this Colony, shall enroll in their respective Offices the Names of all such Persons in their respective Towns as are or shall be admitted Freemen of this Corporation, which enrollments shall be made by the direction of the Authority and Selectmen of the Town, in the open Freemen's Meeting, legally Assembled. That all such inhabitants in this Colony as have accomplished the Age of Twenty-one Years, and have the Possession of Freehold Estate to the value of Forty Shillings per Annum or Forty Pounds personal Estate in the General List of Estates in that Year wherein they desire to be admitted Freemen; and also are Persons of a quiet and peaceable Behaviour, and civil Conversation, may, if they desire it, on their procuring the Selectmen of the Town wherein such Persons inhabit, or the major Part of them , to certify that the said Persons are Qualified as abovesaid, be admitted and made Free of this Corporation, in case they take the Oath provided by Law for Freemen; which Oath any one Assistant or justice of the peace is hereby impowered to administer in said Freemen's Meeting.

DELAWARE

SEC. 2. Provided always , That no inhabitants of this government, shall have right of electing or being elected, as aforesaid (election for members of assembly), unless he or they be natural born subjects of Great Britain, or be naturalized in England, or in this government, or in the province of Pennsylvania and unless such person or persons be of the age of twenty-one years or upwards, and be a freeholder or freeholders in this government, and have fifty acres of land · or more well settled, and twelve acres there­ · of cleared and improved, or be otherwise worth Forty Pounds lawful money of this government clear estate , and have been resident therein for the space of two years before such election: And that every man who shall give his vote without · being questioned as aforesaid, or that shall receive any reward or gift for his vote, or that shall give, offer or promise any reward to be elected, or shall offer to serve for nothing or less allowance than the law prescribes, shall forfeit Five Pounds, the one-half thereof to the Governor, and the other to him or them who will sue for the same in any court of record within this Government; and the person so elected shall be incapable to serve for that year.

RHODE ISLAND

SECTION 1. Be it enacted by the General As s embly , and by the authority thereof it is e , n ac t ed, That the freemen of each respective town in this State, at any of their town meetings, shall and they hereby have full power granted them, to admit so m a ny persons, inhabitants of their respective towns, freemen of their towns, as shall be qualified according to this act.

SEc. 2. And be it further enacted, That no person whosoever shall be permitted to vote or act as a freeman in any town meeting in this State, but such only who are inhabitants therein, and who at the time of such their voting and acting are really and truly possessed, in their own proper right, of a real estate within this State, to the full value of one hundred and thirty-four dollars, or which shall rent for seven dollars per annum , being an estate in fee-simple, feet a il , or an estate in reversion which qualifies no other person to be a freeman, or at least an estate for a person's own life, or the eldest son of such a freeholder: And that no estate of a less quality shall entitle any p e rson to the freedom of this State.

Mr. President, by the proposals presently before the Senate, the States would be prohibited from levying poll taxes . Enactment of either the joint resolution or the Javits bill would lay the foundations for corresponding proposals designed to deprive the States of the power to determine all other voter qualifications.

The so-called literacy test bill-S. 2750-is already very much with us. However, at a later date I shall discuss my objections to that.

The Senate must know by now the dangers involved in permitting the "Federal camel" fo get its nose under the " State tent." We have witnessed, for example, the interstate commerce clause stretched beyond recognition and the general welfare clause given a scope it never was intended to have.

Nevertheless, I want to emphasize that today we are not debating the merits of a poll tax, any more than wear~ debating the advisability of Georgia's extending the franchise to 18-year-olds or New York's requiring that its voters be able to read and write the English language. Rather, we are debating whether a State is to have the power to determine its voter qualifications. The issue is clear. ·

Whatever conceivable evils a poll tax could spawn, I submit that there are far greater evils in forcing increased u~i­ formity on the States, by transferring piecemeal to the Federal Government the power to determine voter qualifications at a time when our national leaders should be concentrating on measures which, to the contrary, would increase initiative and discourage uniformity.

Our Founding Fathers knew that uniform voter qualifications would not be satisfactory. They realized, as the Convention debate shows, that a provision limiting suffrage to freeholders, for example, would not receive every State's approval. As George Mason remarked: Does no other kind of property but land evidence a common interest in the proprietor? Does nothing besides property mark a permanent attachment? Ought the merchant, the moneyed man, the parent of a number of children whose fortunes are to be pursued in his own country, to be viewed as suspicious characters, and unworthy to be trusted with the common rights of their f-ellow citizens? (Elliot's Debates, vol. 5 , p. 387.)

Unfortunately, there is a parallel between the erosion of the power of the States and the increase in the percentage of those Americans who ask not what they can do for their country but what their country can do for them. Indeed, it is not unnatural that as power becomes centralized, individual initiative wanes; conformity increases; and · tyrannywhich our Founding Fathers understood so well-stands at the gates of our republican form of government.

I do not argue that there are no outmoded State statutes. I do, however, take issue with the proposition that, whatever the problem involved, the Federal Government is best qualified to bring about its solution. The framers of our Constitution, after crushing one tyranny, were not so naive as to lay the framework for the establishment of another.

As I have indicated, both Senate Joint Resolution 58 and Senate bill 478 are founded on the false premise that every citizen should have the right to vote. Clearly suffrage is, and must remain, a privilege subject to the qualifications which each State, in the best interest of its citizens, may elect. Furthermore, as I have pointed out, the abolition of poll tax requirements is a step in the direction of uniform voting qualifications to be imposed and enforced by the Federal Government. The unfortunate trends toward uniformity and Federal encroachment upon the rights of the States should not be encouraged.

Although both measures are objectionable on policy grounds, the bill, S. 478, has the particularly detrimental aspect of being clearly unconstitutional. - This bill would conflict with article I, section 2, of the Constitution, which provides that the qualifications of electors are to be prescribed by the States. Here are the provisions of the Constitution of the United States which are involved:

ARTICLE I

SEc. 2. 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.

SEC. 4. The times , places, and manner o:t 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.

If the imposition of a poll tax is a matter of the qualifications of a voter, it is controlled exclusively by the State under article I, section 2, and the Federal Government cannot under article I, section 4, prohibit the imposition of a poll tax under the guise of regulating the manner of the election. Accordingly, article I, section 4, of the Constitution 1866. is not a proper basis for S. 478.

Section 3 of this bill defines the imposition of a poll tax as an interference with the manner of holding elections and also states that poll taxes shall be deemed an abridgment of the right and privilege of citizens of the United States to vote for such officers, meaning Federal officials . This may be a reference to the 14th, 15th, and 19th amendments.

Court decisions have held that the 14th and 19th amendments do not preclude the imposition of a poll tax. Moreover, since the case of Butler against Thompson, below, has held that the Virginia poll tax is a valid exercise of the State's authority under article I , section 2, of the Constitution, neither in its terms nor its application violating the 15th amendment, S. 478 would be clearly unconstitutional.

Fortunately, the framers of the Constitution left us in no doubt on that subject, as the exclusive control of the States over voter qualifications is clearly shown in the Constitutional Debates and Federalist Papers.

DIFFERING QUALIFICATIONS OF T HE STATES A. THE CONSTITUTIONAL CONVENTION

At the outset, we should take note of the fact that in 1789 the States had rigorous and widely differing requirements for voting. These were summarized by Chief Justice Waite in his opinion in Minor v. Happersett, 21 Wall . 162 (1874) at page 172.

For example, the general requirement was ownership of property, usually real estate. In 1789 Georgia liberalized its requirements by extending the vote to those who had prepaid taxes, even though they did not qualify by property ownership. Other States followed suit. As the usual course men of 21 years of age enjoyed the franchise. Residence restrictions sometimes existed.

These di:fferences occasioned many debates in the Constitutional Convention on the possibility of uniform qualifications for voters. The dispute centered on whether the Constitution should limit the franchise to landowne r s or whether limitations should be left to the individual States. James Madison and Gouverneur Morris of Pennsylvania favored the former position. The argument was that landowners would be the safest depository of republican liberty. Moreover, they feared making qualifications dependent on the will ef the States not because the States would unduly restrict the electorate, but because they would be too generous in extending the privilege.

As presented by Oliver Ellsworth , of Connecticut, James Wilson, of Pennsylvania, and George Mason, of Virginia, the argument on the other side related to the diversity of existing State qualifications. They warned that the right of suffrage was a tender point carefully guarded in the State constitutions, and that tampering with it might wreck the new Government. They pointed out that it would be difficult to settle on a uniform rule for all States and that it would be awkward if the electors of the State legislatures and Congress were not the same-volume 5, Elliott's Debates, 385, At this point I would like to comment on a statement made last Monday by the distinguished author of the proposed constitutional amendment when my able colleague, the senior Senator from Virginia [Mr. BYRD], was speaking on the Senate floor against both the resolution and the bill.

The distinguished Senator from Florida said that his amendment would apply only to the election of a President, a Senator, or a Member of the House of Representatives; it would not in any way disturb the qualifications of the electors for all State officers. Of course, the senior Senator from Virginia promptly replied that it would be utterly impractical to have a dual voting list, one group qualified to vote for Federal officers and a different group qualified to vote for State officers.

As I have said, the very awkward, cumbersome nature of dual voting lists, to which the senior Senator from Virginia referred, was apparent to the Convention delegates and indeed figured prominently in the Convention's rejection of the dual voting list alternative. In addition, during the Convention debates, Ellsworth, Wilson, and Mason argued also that a . power to alter the qualifications of voters would be a dangerous power in the hands of the National Legislature. Once the principle is established that the Congress can make such changes, the power used at one time to expand the electorate might be used at another to restrict it, and, theoretically at least, the restriction could be carried so far that there would result a despotism.

Mr. President, here I would like to refer to the fact that the proposal of the distinguished Senator from Florida [Mr. HoLLAND], to alter the Constitution by constitutional means has been criticized by the NAACP and the Americans for Democratic Action as being too slow and too cumbersome. They contend that the result could be accomplished much more quickly by an act of Congress, passed, of course, by a majority, and signed by the President.

I say , Mr. President, we are dealing with a provision which was very maturely discussed before it became an integral part of the Constitution; namely, the provision to leave the determination of voter qualifications to the States.

As I have indicated, the members of the Constitutional Convention were conscious of the need to satisfy the people of the various States sensitive on the subject of suffrage ri g ht s. It was , th e refore, one of the subject s which received close attention in the Federalist Papers written at the time to convince State conventions to adopt the Constitution.

B. THE FEDERALIST

In No. 52 of the Federalist , it was pointed out that the Constit ut ion m a de the qualification for Federal electors the · same as those of the electors of the most numerous branch of the State legislature:

The definition of the right of suffrage is very justly regarded as a fund a mental a r­ ticle of republican government.

The Federalist author continued:

It was incumbent on the convent i on, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States would have been improper for the same reason, and for the additional reason that it would have rendered too dependent on the State governments that branch of the Federal Government which ought to be dependent on the people alone.

The following words of the paragraph should be noted:

To have reduced the different · nt qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the States as it would h a ve been difficult to the Convention.

The provision made by the Convention appears, therefore , to be the best that lay within their option. It must be satisfactory to every State because it is conformable to the standard already established, or which m a y be established, by the State itself. It will be safe to the United States because, being fixed by the State constitutions, it · is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge rights secured to them by the Feder a l Constitution.

Then in the 54th Federalist, it was remarked:

The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the St at es the difference is very material. .

C. RATIFYING CONVENTIONS

Later , at the Massachusetts ratifying convention, in answer to a query as to whether Congress might prescribe a property qualification for voters, Mr. Rufus King, a member of the Federal Convention, said:

The idea of the honorable gentleman from Douglass transcends my understanding; for the power of control given by this sect i on extends to the manner of elections, not th e qu a lifications of the electors.

And James Wilson, who had warn e d in the Constitutional Convention of the difficulty that might result if qualifications of State and National electors we r e di f ­ ferent, had this to say in the Penns y l­ vania convention:

In order to know who are qualified to be electors of the House of Representatives , w e are to inquire who are qualified to be electors of the le g islature of each State. If t h er e be no legisl a ture in the St a tes, there c a n be no electors of them; if there be no such electors , there is no criterion to know who a re qualified to elect Members of the House of Representatives . By this short , pl a in deduction, i on , the existence of S ta te legislatur e s is proved to be e s sential to ~he existence of t he Gener a l Government.

Those "familiar with the Virginia :r;aU : ­ fying convention know .. that Patrick H e nry opposed the ratification , of the Constitution on the ground that it gave the Federal Government too much power. One issue was whether the Fed­ . eral Government could pass on the · qualifications of the voters or whether Virginia, as in the past, could fix those qualifications. If the · latter, the Federal Government would merely determine the times, places, · es, and manner, if it wished to do so, of holding those elec- . tions, but those who had the right to vote under the State law would then freely participate.

Wilson Nicholas, a member of the Virginia convention, gave the members positive assurance that the Federal Government could not · and never would undertake to pass upon and fix the qualifications of voters.

Virginia agreed to ratify only on the assurance that the first session of the Congress would propose bill-of-rights amendments to the Constitution and even went a step further when the Convention named a committee headed by Gov. Edmond Randolph and including · James Madison and John Marshall, to draft a form of ratification that would include certain reservations as to States rights.

The resolution reported by that committee and adopted by the Convention said:

The powers granted under the Constitution, being derived from the people o! the United States, be resumed by them whensoever the same shall be perverted to their injury or oppression, and at their will • * *. In explaining the voting plan to the North Carolina convention, John Steele, like Wilson Nicholas, said:

Can they, without a most manifest violation of the Constitution, alter the qualifica- .. tions of the electors: The power over the manner of elections does not include that of saying who shall vote. The Constitution expressly says that the qualifications are those which entitle a man to vote for a State representative. It is, then clearly and indubita;bly fixed and determined who shall be the electors; and the power over the manner only enables them to determine how these electors shall elect-whether by ballot, or by vote, or by any other way.