March 22, 1962

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. TALMADGE. Mr. President, S. 2750 would amend title 42, United States Code Annotated, section 1971(b), which presently provides:

No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other per­ !>On to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate. As amended, this paragraph would (b) No person. whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such person to vote or to vote as he may choose in any Federal election, or subject or attempt to subject any other person to the deprivation of the right to vote in any Federal election. "Deprivation of the right to vote" shall include but shall not be limited to (1) the application to any person of standards or procedures more stringent than are applied to others similarly situated and (2) the denial to any person otherwise qualified by law of the right to vote on account of his performance in any examination, whether for literacy or otherwise, if such other person has not been adjudged incompetent and has completed the sixth primary grade of any public school or accredited private school in any State or Territory, the District of Columbia, or the Commonwealth of Puerto Rico. "Federal election" means any general, special, or primary election held solely or in part for the purpose of electing or selecting any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegate, or Commissioner from the Territories or possessions.

In addition to some minor changes in terminology, it will be noted that S. 2750 adds language relating to subjecting "any other person to the deprivation of the right to vote in any Federal election."

"Deprivation" is then defined to be · first, the application of standards or procedures more stringent than applied to others similarly situated, and second, the denial of the right to vote because of performance by the applicant in any literacy or other examination, when the applicant has completed the sixth primary grade in any public or accredited private school.

Insofar as regards the application of standards and procedures more stringent than applied to _ others similarly situated, S. 2750 does not add anything that is not already the law under existing decisions-United States v. Alabama, 192 F. Supp. 677, D.C. Ala. 1961; United States v. Association of Citizens Councils of Louisiana, 196 F. Supp. 908. D.C. La. 1961; United States v. McElveen, 180 F. Supp. 10, D. C. La. 1960, aff'd sub. nom.; United States v. Thomas, 362 U.S. 58, 4 L. Ed. 2d 535; Sellers v. Wilson, 123 F. Supp. 917, D.C. Ala. 1954.

Consequently, to this extent, S. · 2750 is not necessary.

However, with respect to the matter of literacy tests, S. 2750 undertakes to effectuate a revolutionary innovation in the law. Never before has Congress attempted to prescribe the qualifications for electors in Federal elections. S. 2750 now seeks to do exactly that.

In essence, s. 2750 would outlaw the use of literacy or other tests as to anyone who has completed the sixth grade, regardless of such person's individual qualifications. The applicant could be a moron or raving lunatic, and so long as he had not been adjudged incompetent and could show completion of the sixth grade, he legislatively would be declared competent to exercise the elective franchise.

The Constitution, article I, section 2. clause 1, provides:

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.

Article I, section 4, clause 1 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.

Article II, section 1, as amended by amendment 12, provides for election of the President and Vice President by a "number of electors equal to the whole number of Senators and Representatives to which the State may be entitled-", and it is provided that these electors shall be appointed by "each State" "in such manner as the legislature thereof may direct."

The 14th amendment, section 1, provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5 provides:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The 15th amendment declares:

Bzc. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on ac- it." count of - race, color, or previous condition of servitude.

SEc. 2. The Congress shall have power to enforce this article by appropriate legislation.

The 17th amendment, insofar as relevant, provides:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. The 19th amendment states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Congress is without power to prescribe qualifications for electors.

Every inquiry involving an assertion of Federal power by Congress must begin with a recurrence to certain fundamental propositions concerning the Federal system.

Ours is a dual or Federal system, wherein the members of the organized society possess dual citizenship. Consequently, the individual acquires certain rights by virtue of his National citizenship, and other rights by virtue of his State citizenship. United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588. The case was handed down by the Supreme Court in 1876.

In ascertaining whether any particular right springs from Federal or State sources, it is a cardinal rule, ably expressed by the U.S. Supreme Court in United States v. Harris, 106 U.S. 629, 27 L. Ed. 290, 292 (1883):

The Government of the United States is one of delegated, limited, and enumerated power. (Martin v. Hunter, 1 Wheat., 304; McCullock v. Maryland, 4 Wheat., 316; Gibbons v. Ogden, 9 Wheat.; 1. Therefore, every valid act of Congress must find in the Constitution some warrant for its passage. This is apparent by reference to the following provisions of the Constitution; section 1, of the first article, declares that all legislative powers granted by the Constitution shall be vested in the Congress of the United States. Section 8, of the same article, enumerates the powers granted to the Congress, and concludes the enumeration with a grant of power "To make all laws which shall be necessary and proper to carry into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States, or in any tioned. department or officer thereof." Article X, of the amendments to the Constitution, declares that "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."

Mr. Justice Story, in his commentaries on the Constitution, says:

"Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power and necessary to its execution. If it be, then it may be exercised by Congress. If not, then it may not exercise

Applying these principles to the present question, what do we find?

In the plainest language possible, article I, section 2 declares that electors for Members of the House of Representatives "shall have the qualifications requisite for electors of the most numerous branch of the State legislature."

When the method of selecting Senators was changed from election by the State legislatures to election by the people in the 17th amendment, section 1 thereof adopted language identical to article I, for it was provided:

The t lectors in each State shall have the qu a lifications requisite for electors of the most numerous branch of the State legislatures.

The effect of this language is clearly stated in Willoughby, "The Constitutional Law of the United States," pages 540-541:

A distinction is to be made between the right to vote for a representative to Congress and the conditions upon which that right is granted • • • the right to vote is conditioned upon and determined by State law. But the right itself, as thus determined is a Federal right. That is to say, the right springs from the provision of the Federal Constitution that Representatives shall be elected by those who have the right in each State to vote for the members of the most numerous branch of the State legislature. The Constitution thus gives the right but accepts, as its own, the qualifications which the States severally see fit to establish with reference to the election of the most numerous branch of their several State legislatures. Similarly, in Mathews, "The American Constitutional System," second edition, page 363, 1940, it is said:

Two provisions of the Constitution other than section 2 of - article I and the 17th amendment indirectly leave to the States powers over voting qualifications. The first is section 1 of article II which grants to the States the right to choose the manner of appointing Presidential electors. If elections are designated as the manner of appointing electors, the States have authority to determine what shall be the qualifications of voters in these elections. The second provision is the second section of the 14th amendment. This section of the amendment clearly recognizes the right of a State to adopt suffrage qualifications which exclude certain of its adult male citizens from voting. By this section the State is penalized for denying the right to vote to male citizens of 21 years of age for reasons other than participation in rebellion or other crime; but the right to deny the suffrage, meaning ordinarily the right to establish qualifications restricting the right to vote, is legally sanctioned. Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627, 629 (1875), decided prior to adoption of the 19th amendment, it was said, in upholding a Missouri statute denying the right of suffrage to women:

The Constitution does not define the privileges and immunities of citizens. For that case we 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 (Constitution, arts. 1 and 2). 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 (Constitution, arts. 1 and 3). Each State must appoint in such manner as the legislature thereof may direct, the electors to elect the President and Vice President (Constitution, arts. 2 and 2). 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 (Constitution, arts. 1 and 4).

The rationale behind this choice of language can be determined from an examination of contemporary authorities.

In the debates which took place in the constitutional conventions held in the original States for the purpose of ratifying the Constitution, it was pointed out that since elections for Congressmen would likely be held at the same time and as a part of elections for State officers, a hard and disagreeable situation would arise; an elector could vote for state officers, but would be held ineligible to vote for Congressman-a situation which would possibly arise had the Constitution sought to prescribe uniform voting qualifications or to authorize Congress to do so-5 Elliot's Debates, page Mr. Nichols of Virginia had this to say concerning article I, section 2, to I will consider it first, then, as to the qualifications of the electors. The best writers on . Government agree that, in a republic, those laws which fix the right of suffrage are fundamental. If, therefore, by the proposed plan, it is left uncertain in whom the right of suffrage is to rest, or if it has placed that right in improper hands, I shall admit that it is a radical defect; but in this plan there is a fixed rule for determining the qualifications of electors, and that rule the most judicious that could possibly have been devised, because it refers to a criterion which cannot be changed. A qualification that gives a right to elect representatives for the State legislatures, gives also, by this Con­ says: stitution, a right to choose representatives for the general government. As the qualifications of electors are different in the different States, no particular qualifications, uniform through the States, would have been politic, as it would have caused a great inequality in the electors, resulting from the situation and circumstances of the respective States. Uniformity of qualifications would greatly affect the yeomanry in the States, as it would either exclude from this inherent right some who are entitled to it by the laws of some States at present, or be extended so universally as to defeat the admirable end of the institution of representation (3, Elliot's Debates, p. 8).

Similarly, in the Federalist, No. 52, it was said:

The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the Convention, 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 !or 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. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States, as it would have 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 may 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 the rights secured to them by the Federal Constitution.

Beyond question, Hamilton considered that article I, section 4, conferred no authority on Congress to prescribe qualifications of electors. In the Federalist, No. 60, in combating the argument that Congress might exercise its power under this provision so as to secure the franchise only to the rich by discriminate selection of places ill which to hold elections. Hamilton replied:

The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the National Government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.

Another reason behind article I, section 2, was said to be the desire to achieve a mixed representation, which could not be obtained had uniform qualifications for electors been prescribed by the Constitution. In this regard, 1, "Story on the Constitution" fourth edition sections 585, 586, page 420, Without, therefore, asserting that such a mixed representation is absolutely and un- der all circumstances the best, it might be safely affirmed that the existence of various elements in a composition of the representative body is not necessarily inexpedient, unjust, or insecure, and, in many cases, may promote a wholesome restraint upon partial plans of legislation, and insure a vigorous growth to the general interest of the Union. The planter, the farmer, the mechanic, the merchant, and the manufacturer might thus be brought to act together, in a body representing each; and thus superior intelligence, as well as mutual good will and respect, be diffused through the whole of the collective body.

Some confusion on the question may arise from statements in numerous decisions concerning whether the right of suffrage with respect to Members of Congress is derived from State or Federal sources.

For example, in Minor v. Happerset, 21 Wall. 162, 22 L. Ed. 627 (1875), it was said that the right of suffrage was not a privilege and immunity of national citizenshiP-page 171-and "the Constitution of the United States does not confer the right of suffrage upon anyone"­ page 178.

Similar statements were made in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588, 592 (1876) ; Mason v. Missouri ex rel. McCofJery, 179 U.S. 328, 335, 45 L. Ed. 214 (1900); McPherson v. Blacker, 146 U.S. 1, 37, 36 L. Ed. 869 (1892) Breedlove v. Suttles, 302 U.S. 277, 283, 82 L. Ed. 252 (1937).

On the other hand, apparently contradictory statements may be found in such cases as Wiley v. Sinkler, 179 U.S. 58, 62, 45 L. Ed. 84 (1900); Swafford v. Templeton, 185 U.S. 487, 46 L. Ed. 1005 (1902) ; and U.S. v. Mosley, 238 U.S. 383, 59 L. Ed. 1355 (1915).

In the Wiley case, the Court declared: . The right to vote for Members of the Congress of the United States is not derived merely from the constitution and laws of the State in which they are chosen, but has its foundation in the Constitution of the United States.

Actually, the cases are not in conflict. They must each be read in the context of their particular facts. The cases were all harmonized in Ex Parte Yarbrough, 110 U.S. 661, 28 L. Ed. 274 (1884), which was a petition for habeas corpus attacking convictions under sections 5508- similar to 42 U.S.C.A. 1985-and 5520- now 18 USCA 594-of the Revised Statutes, the indictment alleging that defendants assaulted and beat a Negro citizen for having exercised his right to vote in an election for Representative to Congress. The Court upheld these statutes as applied to persons interfering with electors voting for Federal officials, as against the argument that since, as it was claimed, the right to vote was derived from the States, Congress could not protect it. In rejecting this contention, it was said:

But it is not correct to say that the right to vote for a Member of Congress does not depend on the Constitution of the United States.

The office, if it be properly called an office, is created by that Constitution and by that alone. It also declares how it shall be filled, namely: by election.

Its language is: "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 same qualifications requisite for electors of the most numerous branch of the State legislature" (art. I, sec. 2). The States in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for Members of Congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall vote for Members of Congress in that State. It adopts the qualification thus furnished as the qualifications of its own electors for Members of Congress.

It is not true, therefore, that electors for Members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State.

Counsel for petitioners, seizing upon the expression found in the opinion of the Court in the case of Minor v. Happersett, 21 Wall. 178 (88 U . S. XXII, 631), that "the Constitution of the United States does not confer the right of suffrage upon anyone," without reference to the connection in which it is used, insists that the voters in this case do not owe their rights to vote in any sense to that instrument.

But the Court was combating the argument that this right was conferred on all citizens, and there f ore upon women as well as men.

In opposition to that idea, it was said the Constitution adopts as the qualification for voters of Members of Congress that which prevails in the State where the voting is to be done; therefore, said the opinion, the right is not definitely conferred on any person or class of persons by the Constitution alone, because you have to look to the law of the State for the description of the class. But the Court did not intend to say that when the class or the person is thus ascertained, his right, to vote for a Member of Congress was not fundamentally based upon the Constitution, which created the office of Member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors.

In other words, the right to vote for a candidate for Congress is derived from Federal sources in the sense that the Federal Constitution creates the office, provides for election by the people, and authorizes Congress in article I, section 4, to alter the "times, places and manner of holding elections for Senators and Representatives." On the other hand, the right is a State right in the sense that the Constitution itself, in article I, section 2, and the 17th amendment, has referred the question of qualifications for elector - to State law.

In the Yarbrough case, the Court expressly recognized that-

The importance to the General Government · of having the actual election, the voting for those Members, free from force and fraud is not diminished by the circumstance that the qualifications of the voter is determined by the law of the State where he votes (p. 663).

Article I, section 2 expressly declares that electors for Congress shall have the same qualifications as electors for members of the most numerous houses of the State legislature-page 663.

Substantially the same explanation was given in United States v. Classic, 313 U.S. 299 , 85 L. Ed. 1368 (1941), where indictments were returned against Louisiana election officials for having altered and falsely counted votes cast in a primary election for nomination of candidates for Congress. The prosecution was brought under what is now title 18, United States Code Annotated, sections 241 and 242.

Observing that Louisiana statutes incorporated primaries as an integral part of its election process, the Court held the statutes applicable to the Louisiana primary, in effect disapproving a contrary holding in the Newberry case.

It was said:

The right of the people to choose, whatever its appropriate constitutional limitations, where in other respects it is defined, and the mode of its exercise is prescribed by State action in conformity to the Constitution, is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and .inhabitants of the State entitled to exercise the right.

While, in a loose sense, the right to vote for Representatives in Congress is sometimes spoken of as a right derived from the States, (see Minor v. Happersett, 21 Wall. (U.S.) 162, 170, 22 L. Ed. 627, 629; United States v . Reese, 92 U.S. 214, 217, 218, 23 L. Ed. 5{!3-565; McPherson v. Blacker, 14 _ 6 U.S. 1, 38, 39, 36 L. Ed. 869, 878, 879, 13 S. Ct. 3; Breedlove v. Suttles, 302 u . s. 277, 283, 82 L. Ed. 252, 256, 58 S. Ct. 205); this statement is true only in the sense th a t the States are authorized by the Cons ti tution, to legisl a te on the subject as provided by section 2 of article 1, to the extent that Congress has not restricted State action by the exercise of its powers to regulate elections under section 4 and its more general power under article 1, section 8, clause 18 of the Constitution to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.

And since the constitutional command is without restriction or limitation, the right, unlike those guaranteed by the 14th and 15th amendments, is secured against the action of individuals as well as of States.

At page 317, however, it was clearly stated that this authority was derived from article I, section 4, and see page 310, holding that the right to vote for Members of Congress is defined in article I, section 2, declaring that Representatives are to be chosen by the people, etc., subject to regulations prescribed by section 4.

However, the question as to qualifications for electors is not seriously disputed today.

In Ventre v. Ryder, 176 F. Supp . 90, 94 (D.C. La. 1959), the Court held:

Under our constitutional system, the qualifications of voters is a m a tter committed to the States, subject only to Federal constitutional restraints prohibiting discrimination on account of race, color . sex.

The question of whether or not a voter is a qualified elector is a State matter to be determined by State law and State courts In Tullier v. Giordano, 265 F. 2d 1 (C.A. 5th, 1959), an injunction was sought against a Louisiana registrar, the charge being that he refused to register, by means of the literacy test imposed by State law, all voters not friendly to his political faction. The Court declared:

Under our Federal system the qualification of voters is left to the several States subject to some limitations imposed by the U.S. Constitution. As originally adopted, the Const i tution contained few provisions on the subject of voting rights.

The Court then referred to article I, sections 2 and 4; article II, section 1, and the 12th, 15th, 17th, and 19th amendments.

In Darby v. Daniel, 168 F. Supp. 170 (D.C. Miss. 1958), in upholding the Mississippi literacy test, it was said: · Any consideration of the constitutionality of the ch a llenged port i ons of the amendment begins with the fundamental fact that, under our constitutional system, the qualification of voters is a matter committed exclusively to the States (p. 176).

See also Pirtle v. Brown, 118 F. 2d 218 (C.A. 6th, 1941), certiorari was denied by the Supreme Court, and that is reported in 314 U . S. Supreme Court Reports, at page 621.

The question as to presidential electors was settled in McPherson v. Blacker, 146 U.S. 1, 36 Law Edition, page 869 (1892) which involved mandamus by nominees for presidential elector against the Michigan secretary of state, seeking to have declared unconstitutional a recent Michigan statute governing election of presidential electors. The new statute provided for the election by districts of presidential and vice presidential electors, and plaintiffs contended that the Constitution required the State to act as a unit, and not delegate to subdivisions the right to select electors.

The Court rejected this attack, holding that "the appointment and mode o1 appointment of electors belong exclusively to the States under the Constitution of the United States, referring to article II, section 1, clause 2-page 35.

No violation of the 14th or 15th amendments was found, as the right of suffrage was held to be derived from State citizenshiP-pages 37 and 38.

Cooley, writing on constitutional limitations, volume 11, pages 1360 and 1361, declares:

The whole subject of the regulation of elections, including the prescribing of qualifications for suffrage, is left by the national Constitution to the several States, except as it is provided by that instrument that the electo s for representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the St a te legislature, and as the 15th amendment forbids denying of citizens the right to vote on account of race, color, or previous condition of servitude.

It is also interesting to note that when the Constitution was being drafted, the committee on detail originally proposed giving Congress the power to fix the qualifications of electors in the following language:

The qualifications of electors shall be the same (throughout the States , viz.) with that in the particular States unless the legislature shall hereafter di r ect some uniform qualifications to prevail through the States: Citizenship, manhood, sanity of mind, previous residence for 1 year; or possession of real property within the State for the whole of 1 year, or enrollment in the militia for the whole of a year.

See Farrand, "The Records . of the Federal Convention," volume 2, pages 139- However, this provision was later deleted. See volume 2, pages 155, 613.

In Curtis, "History of the Constitution of the United States," volume 2, pages 194-200, it is said that the committee on detail evolved article I, section 2, so as to avoid the situation whereby an elector in one State could vote for highest State officers but not for Members of Congress, viz.:

Another difficulty which attended the adjustment of the right of suffrage grew out of the widely differing qualifications annexed to that right under the St a te constitutions, and the consequent dissatisfaction that must follow any effort to establish distinct or special qualifications under the National Constitution . In some of the States, the right of voting was confined to freeholders; in others-and by far the greater number-it was extended beyond the holders of landed property, and included many other classes of the adult male population; while in a few, it embraced every male citizen of full age who was raised at all above the level of the pauper by the smallest evidence of contribution to the public burdens. The consequence, therefore, of adopting any separate system of qualifications for the right of voting under the Constitution of th:} United States would have been that, in some of the States, there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State constitution might have enjoyed it in National elections.

The committee of detail, after a review of all these considerations, presented a scheme that was well adapted to meet the difficulties of the case. They proposed that the same persons who, by the laws of the several States, were admitted to vote for members of the most numerous branch of their own legislatures, should have the right to vote for the Representatives in Congress. The adoption of this principle avoided the necessity of disfranchising any portion of the people of a State by a system of qualifications unknown to their laws. As the States were the best judges of the circumstances and temper of their own people, it was certainly best to conciliate them to the support of the new Constitution by this concession (p. 200).

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

Mr. TALMADGE. I am delighted to · yield to the distinguished Senator from Alabama for a question.

Mr. HILL. Can the Senator conceive of a committee composed of more learned lawyers and more profound students of government or more distinguished and patriotic citizens of our Government than the Committee of Detail to which he has just referred?

Mr. TALMADGE. I do not think that at any time in the history of our Republic has there existed a more able group of men than those who drafted the Constitution. I will say, in further reply to my friend and colleague from Alabama, that, in my judgment, in most of the instances in which the Constitution has been changed it also has been weakened.

Mr. HILL. Was not that Committee of Detail comPOsed of men who had made great contributions toward winning the Revolutionary War and the winning of our independence?

Mr. TALMADGE. Yes. All of them were patriots of the highest order who had had prominent roles in the winning of independence from the mightiest nation on earth at that time. In the history of our country there has been no group of men more learned in the science of government and law than the framers of the Constitution of the United States.

Mr. HILL. Will the Senator yield further?

Mr. TALMADGE. I yield for a question.

Mr. HILL. Did not these men also realize that it would avail them little to win their independence from the British Crown if we were to establish here in Washington some form of totalitarian government, and not retain the power, the responsibility, and the duty of government in the people in the several States?

Mr. TALMADGE. I answer that question in the affirmative. In my judgment, our Founding Fathers were determined to preserve for themselves and their posterity for all time to come the liberties for which they had fought. In my judgment, that is the reason they created the dual system of government, which we seek to preserve; that is, the system embracing a federal government of limited jurisdiction and State governments exercising all power not delegated to the National Government.

Every time we adopt constitutional amendments and enact laws which transfer more power from the city halls, county courthouses, and State capitals of the Nation to Washington, D.C., we centralize our Government to a greater degree and take an additional step toward destroying the liberties our foreparents wrested from the British Crown for us.

Mr. HILL. Will the Senator yield for another question?

Mr. TALMADGE. I yield for a question.

Mr. HILL. Is it not true that when the rights and liberties of the people in the communities and small centers of population are destroyed and we move into centralized government, we are moving more and more toward totalitarianism?

Mr. TALMADGE. That is correct. I am sure my able colleague from Alabama will agree with me that there are hundreds of laws on the statute books of the respective States of which he and I would have disapproved had we served in the enacting legislatures. Notwithstanding that fact, I am likewise sure we would not have attempted to initiate constitutional amendments to make those States conform to our philosophy. For example, I do not think we should try to adopt uniform divorce laws or a uniform system of taxation. The States themselves are quite competent to make those judgments, for what might be wise in one State might be unwise in another. The people who reside in the individual States are better qualified to judge what is in their best interests than are persons living elsewhere.

I am sure the Senator from Alabama would know better what would be desirable in Alabama than would I, a resident of Georgia, despite the fact that we come from neighboring States, and our people have the same origin, and, in fact, once belonged to the same State. I think it would be presumptuous indeed for me, being from Georgia, to say to Alabama, "I think you did something wrong, and I am going to Washington to seek a constitutional amendment to compel Alabama to change its laws to conform to my notions of what they should be."

Mr. HILL. Is it not a fact that the Constitution of the United States as written bY the Founding Fathers has been the word of life to our dual system of government?

Mr. TALMADGE. There is no question about it; and every time we weaken the Constitution, we weaken our dual system of government. Every time we transfer more power to Washington, we take power away from Georgia, Alabama, New York, Alaska, Hawaii, and every other State in the Union. What we do is transfer power from the people who reside in the States and understand their problems and needs to a group of persons in Washington who do not understand those problems and needs.

Mr. BILL. Mr. President, will the Senator yield for another question?

Mr. TALMADGE. I am delighted to yield for a question.

Mr. HILL. Is it not true that the more power is vested in the people the more conscious the people will be of the duties, responsibilities, and obligations of citizenship, and that, therefore, the better citizens they will be?

Mr. TALMADGE. That is certainly true. I am sure the Senator knows of the problems which are encountered in trying to give a republican form of government to people who have lived under a totalitarian form of government. Some of the newly emerging nations have never known freedom and do not know how to handle liberty.

Government at the local level maintains the interest of the people in determining solutions to their problems. They better know what their problems and needs are than someone who is far distant from the scene and has not lived with them.

When we try to substitute centralized power for the rights of the people, we make a tragic mistake.

If the trend which has been going on in this country for the last quarter century continues, I shudder to think of the consequences. I think of the prediction of Lord Macauley a century ago that in the last half of the 20th century the American Government would be destroyed, not from without, but from within, as the result of the demands and machinations · of motivated pressure groups.

Mr. HILL. Mr. President, will the Senator yield further?

Mr. TALMADGE. I am delighted to yield for a question.

Mr. HILL. What the Senator had in mind was the surrender and the yielding and the destruction of local self-government, concentrating all power in one supergovernment?

Mr. TALMADGE. The Senator is entirely correct, and I thank him for his great contribution to this debate.

The power of the States to prescribe qualifications has not been abrogated by any amendment to the Constitution. The 14th amendment prohibits any State from denying equal protection. The 15th prohibits a State from abridging the right to vote because of "race, color, or previous condition of servitude."

The 17th amendment provides for election of Senators by the people, but in section 1 expressly adopts as qualifications for electors, the qualifications prescribed by State law for electors of the most numerous branch of the State legislatures.

Mr. HILL. Mr. President, will the Senator yield for another question?

Mr. TALMADGE. I am delighted to yield for a question.

Mr. HILL. Is is not true that there is no provision in the Constitution which the courts, in the past, have more jealously guarded or more highly respected than the provision in section 2, article I, that the fixing of the qualifications shall be in the States, in the hands of the peop 1 e o f th e St t a es ?

Mr. TALMADGE. That is certainly true. I am sure the distinguished senior Senator from Alabama shares my view that the present Supreme Court is not the greatest Supreme Court in the history of our Republic, nevertheless. as recently as 1959 , it handed the decision Lassiter against the Northampton County Board of Elections in which every member held that the State of North Carolina has a right to prescribe literacy qualifications for voting. Justice Douglas cited a number of cases establishing that that has been the law of our country from its beginning.

It is incomprehensible to me how anyone who ever has been exposed to a lawbook could believe that we could pass legislation to run roughshod over the Constitution of the United States and set up a Federal literacy standard for voting. In order to do that we would have to strike down many decisions of the Supreme Court, including the present - one. We would have to fly into the very teeth of the Constitution of the United States-article I, section 2 thereof, as well as the 17th amendment. That amandement, as the Senator from Alabama knows, restates the language found in article I.

There is no principle of law in America today clearer than that providing that the qualifications for voters shall tion. be determined by the States.

Mr. HILL. Mr. President, will the Senator yield for a question?

Mr. TALMADGE. I yield to my friend from Alabama for a question .

Mr. HILL. Is it not true that the 17th amendment was adopted in 1913?

Mr. TALMADGE. The Senator is correct. It was proposed, I believe, in 1912, and ratified in 1913.

Mr. HILL. Mr. President, will the Senator yield for another question?

Mr. TALMADGE. I am delighted to yield for a question.

Mr. HILL. Is it not true that that was some 126 years after the adoption of the original Constitution, and that the people, after 126 years, reaffirmed and ratified and reemphasized the proposition that the qualifications of electors should be fixed by the States?

Mr. TALMADGE. The senator is entirely correct. I also would point out that that was some 50 years subsequent to the adoption of the 14th and 15th amendments which some of our "bleedin hearts" like to cite as authority for Congress passing any legislation it sees fit in that field.

If we take the fundamental premise of law that the later law prevails, then it follows that the 17th amendment would prevail if it were in conflict with the 14th or 15th. But it is not in conflict because the 14th amendment was written merely to prohibit discrimination, and the 15th amendment to enfranchise the former slaves. There is no conflict between any of these provisions because they relate to totally different things.

Mr. mLL. Mr. President, will the Senator yield for another question?

Mr. TALMADGE. I am delighted to the yield to my friend for a question.

Mr. HILL. Is l ·t not true, as the Sen- or ator has made very clear arid emphasized, that even before the 17th amendment was adopted, the courts, in a great it number of cases, had held that neither United the 14th amendment nor the 15th 85 amendment took away from the States just their right to prescribe qualifications, ex- cision cept in the very limited sense of the 14th amendment and the 15th amend- had ment? It is not true that the general part power to fix the qualifications was in and the States and remained in the States?

Mr. TALMADGE. The Senator has stated it correctly. In fact, the land- cided mark Happersett case went directly to ment that point. The case arose when a lady from Missouri sought to invoke the 14th upheld amendment as authority for women to was vote. The Supreme Court held unani- Court mously that the Federal Government has frage no voters of its own, but rather adopts State voters qualified under State law. What I have stated has been the law ever since. It has never been overruled does by any Supreme Court, either the mod- anyone ern or the old version thereof.

The 19th amendment declares that the in right to vote shall not be denied or abridged by the United States or any still State on account of sex. ·

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

Mr. TALMADGE. I yield for a ques- tion.

Mr. HILL. Is it not true that many cisions fine and honorable men and women ferred fought the battle for women’s ' s suffrage, fact but in no instance did any of them sug- . gest that the battle could be won by powers legislative enactment? Rather, all recognized that the only Wf!S it could be · Mr. won was by constitutional amendment.

Mr. TALMADGE. No attempt was ever made to win the battle through legislative enactment. It was clear that the only way to enlarge the list of elec- met tors within the respective States was to write amend the Constitution of the United gave States, and the fight proceeded on that . very basis from its inception. Its advocates ing knew that no statutory method could be by deduced from the 14th amendment or not any other provision of the Constitution, because the language was clear in two and places that the voters should be those . who were authorized to act as electors . for the most numerous branch of the ment. legislature in the respective States.

These amendments do not confer the States right to vote on anyone. They are neg- ence ative in character only, and merely declare that certain things cannot be con- could sidered in defining the right to vote.

In Newberry v. United States, 256 U.S. power 232, 248, 65 L. Ed. 913 0921), the Su- was preme Court held that prior to the 17th amendment, article I, section 4, defined the sole authority of Congress over elec- tion? tions f.or Congress and the Senate. It was said: tion. We find no support in reason or authority for the argument that because the offices study were created by the Constitution, Congress the has elections some for indefinite, Senators undefined and Representatives power over were e not derived from section 4. The Govern- the ment, then of the United states, can claim to no powers which are not granted to it by to

Constitution, and the powers actually granted must be such as are expressly given, given: by necessary _ implication.

Insofar as the Newberry case held Federal law inapplicable to primaries, undoubtedly has been superseded by

States v. Classic, 313 U.S. 299,

L. Ed. 1368 (1941), but the principle enunciated was not affected, the decision the Classic case having been predicated upon the fact that State law there made the primary an integral of the State election machinery, in practice, it had become the only meaningful election. In Minor v. Happersett, supra, deafter adoption of the 14th amendment, attack on Missouri statutes denying women the right to vote was as against claim that such law in violation of the amendment, the declaring that the right of suris not a privilege and immunity of national citizenship (p. 171), and it was further said:

The Constitution of the United states not confer the right . of suffrage upon

(p. 178).

Ex parte Yarbrough, supra; decided

1884, the · court recognized that the matter of qualifications of voters was left to the states (110 u.s. at 663).

Mr. HILL. Mr. President, will the Senator yield for a question? ,

Mr. TALMADGE. I yield for a ques-

Mr. HILL. Is it not true that the deto which the Senator has reare predicated on the absolute that after the Colonies won their independence from the British Crown, all were in the people in those Colonies? TALMADGE. That is entirely correct.

Mr. HILL. There was no Federal Government, and it was only when representatives of the Colonies, the delegates, in the Philadelphia Convention to our Constitution, that the Colonies to the Federal Government certain limited and specific powers, reservto themselves, as clearly emphasized the lOth amendment, that all powers expressly delegated to the Federal Government were reserved to the States to the people; is that not true?

Mr. TALMADGE. The Senator from Alabama and I are in complete agreement. fact there was no Federal . Government at all until the 13 s - sovereign which had won their independence in convention and created it delegating to it the limited powers it; exercise. Then, as the Senator stated, by the lOth amendment the that was not expressly _ delegated further limited.

Mr. HILL. Mr. President, will the Senator yield further for another quesMr. TALMADGE. I yield for a quesMr. HILL. Is it not evident from a of a report of the proceedings of various State conventions which h ld to ra t'f 1 Y th e Cons t' 1tution that paramount question was, "We want know how much power you are giving the Federal Government. How much power are we delegating now? We want to keep most of the power in our own States, in the hands of our own people." -

Was that not the paramount question?

Mr. TALMADGE. The Senator is entirely correct. Not only was that one of the principal questions, but also another one was who should have the right to vote. The question was clarified in every State ratifying convention.

I am sure that the Senator is aware of the fact that even after the drafters of the Constitution went to great lengths to provide a limitation on Federal power, there was considerable dissension throughout the country about its adoption. One of the dissenters was Patrick Henry who maintained that there had been too much delegation of power. The question was resolved by men like George Mason, who agreed that the objections of Patrick Henry and others should be met by submitting a bill of rights at the very first Congress. Had it not been for that fact, there would never have been a United States of America.

Mr. HILL. Mr. President, will the Senator yield for another question?

Mr. TALMADGE. I yield to my friend from Alabama.

Mr. HILL. Is it not true that Patrick Henry was joined in his opposition to the Constitution by George Mason of Virginia, who was the author of the Virginia bill of rights, from which came the Bill of Rights for our Federal Constitution and the bill of rights which we find in practically all State constitutions today?

Mr. TALMADGE. The Senator is entirely correct. George Mason was the father of the first 10 amendments. Whenever I contemplate these so-called civil rights controversies, I recall that George Mason settled them all by guaranteeing our rights in the Federal Constitution's Bill of Rights.

Mr. HILL. Mr. President, will the Senator yield further?

Mr. TALMADGE. I yield for a question.

Mr. HILL. Is it not true that Woodrow Wilson, a great scholar and student of government, said that he would rather have been the author of the Virginia Bill of Rights than any other document penned by the hand of man?

Mr. TALMADGE. My recollection is that Woodrow Wilson did make that s · statement. The fact that he was one of our greatest historians makes his assertion all the more significant.

Every legitimate right known to man is written in the Constitution of the United States, primarily in the first 10 amendments. They are rights which are all inclusive and are enforcible in the courts.

In U.S. v. Munford, 16 F. 223 (C.C. Va. 1883). it was held that Congress power under the 15th amendment was limited to matters involving racial discrimination.

In Lackey v. United States, 107 F. 114, cert. den. 181 U.S. 621, section 5507 of the Revised Statutes, derived from the Enforcement Act of 1870, was declared unconstitutional. This statute - sought to make unlawful the bribing of voters in a purely state election, without · any requirement that such action be based on race or previous condition of servitude. The Court noted that Congress power under the 15th amendment was limited to State action. It was said that the amendment confers no right to vote on anyone, but merely forbids discrimination by the State based upon race (p. 118). Moreover, the amendment does not protect the Negro against any obstruction of his right to vote, unless such obstruction was because of his race. Similarly, in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588, 592 (1876), it was held:

In Minor v. Happersett, 21 Wall. 178 (88 U.S. XXII, 631), we decided that the Constitution of the United States has not conferred the right of suffrage upon anyone, and that the United States have no voters of their own creation in the States. In U.S. v. Reese just decided (ante, 563), we hold that the 15th amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in the exercise of that right on account of race, etc., is. The right to vote in the States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States; but the last has been.

In United States v. Reese, 92 U.S. 214, 23 L. Ed. 563 0876), an indictment was brought under section 4 of the Enforcement Act of 1870 06 Stat. 140) against Kentucky election officials for refusing to receive and count the vote of a Negro in an election for municipal officials, section 4 providing for the punishment of anyone who by force, bribery, threats, et cetera, hinders, delays, or obstructs a citizen from doing any act required to be done in order to qualify him to vote. Upon argument, the Government abandoned consideration of all claims not dependent upon the 15th amendment. Noting that the 15th amendment does not confer the right of suffrage on anyone (p. 594), the Court concluded that section 4 was not limited to the authority of the 15th amendment; that is, obstructions based upon race, color, et cetera, but purported to apply to any obstruction. So being, section 4 is unconstitutional, and the Court finds itself unable to limit it to deprivations based on race, as its terms do not admit of separability, and any attempt to so do would render it so vague as to leave the accused uncertain of its scope.

In Guinn v. United States, 238 U.S. 347, 362, 59 L. Ed. 1340 0915), the Oklahoma "grandfather clause" was declared unconstitutional, which in effect imposed a literacy test against Negro voters, but exempted white voters. The Court was clear to point out, however, that neither the 14th nor 15th amendment had affected the power of the States to prescribe qualifications not dependent upon race. It was said:

Beyond doubt the amendment does not take away from the State governments In a general sense the power over suffrage which has belonged to those governments from the beginning, and without the possession of which power the whole fabric upon which the division of State and National authority under the Constitution and the organization of both governments rest would be without support, and both the authority of the Nation and the State would fall to the ground. In fact, the very command of the amend• ment recognizes the possession of the general power by the State, since the amendment seeks to regulate its exercise as to the particular subject with which it deals.

Thus the authority over suffrage which the States possess and the limitation which the amendment imposes are coordinate and one may not destroy the other without bringing about the destruction of ~oth.

The effect of the 14th, 15th, 17th, and 19th amendments is well stated in an article entitled "Voting Rights," 3 Race Rel. L. R. 371, 372 0958), viz:

The effect of these constitutional provisions, however, it not to confer on any person a Federal right to vote. The State, not the Federal Government, is still primarily responsible for voting rights; but once the State purports to give any person or class the elective franchise, the Federal constitutional and statutory provisions immediately and automatically operate to limit the power of the State to determine whether it wUl withhold the franchise from any person or groups of persons. Thus, upon the adoption of the 19th amendment, all State constitutional and statutory provisions withholding the elect! ve franchise from women solely because of their sex were immediately null and void. See People ex rel. (Murray v. Holmes, 341 Ill. 23, 173 N.E. 145 (1931); Annot., 71 A.L.R. 1332 (1931)). It would seem, therefore, that the States are free to establish any requirement they may deem wise, as long as these requirements are not discriminatory nor based on sex, race, color or previous condition of servitude. As a consequence, voting rights may, and often do, vary from State to State.

Congress possesses no power to prescribe qualifications by virtue of article I, section 4, clause 1. This clause 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 Chusing Senators.

It would be enough to say that since article I, section 2 makes express reference to qualifications of electors by adopting those applicable to State legislatures, and since the 17th amendment makes similar provision as to Senators, these specific provisions will necessarily control over the more general language of article I, section 4, even assuming the latter to be otherwise applicable, which as will be hereafter s~own, it definitely is not. See 50 Am. Jr. 371, section 367, setting forth the rule _ that specific provisions of a document control as against more general ones, which, without the specific, · would be included in the general.

Certainly, the reference to "time" and "place" in article I, section 4, has no relevancy here.

With respect to “manner,” this word generally has reference to the procedure or the way of doing a thing, and does not define who is qualified to do it. In re KoelhofJI3r's Estate, 25 A. 2d 638, 644, 20

N.J. Misc. 139; State v. Adams, 2 Stew. 231, 242 (Ala.).

People v. Guden, 75 N.Y.S. 347, 349 0902), holds:

The manner of election does not go to the question of what body of electors shall elect. Livesley v. Litchfield, 83 P. 142, 144, 47 Or. 248, 114 Am. St. Rep. 920 (1905), held:

The authority given by section 7 of article 6 to prescribe the time and manner in which municipal officers may be elected or appointed does not, we think, include the power to determine what shall constitute a legal voter.

The Court then quoted from People v. English,' 139 Ill. 622, 29 N. E. 678 (1892)

The Constitution having thus made provision for such officer, and for his and her "election", and having prescribed, in section 1 of article 7 (Ill. Canst.), the qualifications essential to entitle a person to vote at any election, it must be presumed that it was and is the true intent and meaning of the instrument that no person shall have the right to vote for a county superintendent of schools who does not possess such qualifications. • • • Said section 5 (art . 8) provides, not only that the qualifications, powers, duties, compensation, and term of office of the county superintendent of schools shall be prescribed by law, but also that the time and manner of election of such superintendent shall be prescribed by law. What is meant by the expression manner of election? Was it intended thereby to give to the legislature the power of prescribing the qualifications which would entitle persons to vote at any election for such county superintendent? The word "manner" is usually defined as meaning way of performing or executing, method, custom, habitual practice, etc. • • • (It) indicates merely that the Legislature may provide by law the usual, ordinary, or necessary details re- quired for the holding of the election.

In Newberry v. United States, 256 U.S. 232, 250, 257, 65 L. Ed. 913 0921) the Court, in speaking of article 1, section 4, stated:

Sundry provisions of the Constitution indicated plainly enough what its framers meant by election and the manner of holding them . ·

Following which the Court enumerated a list of provisions, all of which were purely procedural in nature. Reference was . made to Hamilton's statement in the Federalist, No. 60, to the effect that the qualifications of electors, unlike other matters, could not be altered.

Mr. ROBERTSON. Mr. President, will the Senator from Georgia yield for a question?

Mr. TALMADGE. I yield for a question.

Mr. ROBERTSON. The distinguished Senator from Georgia has just referred to the discussion in the Federalist Papers concerning whether the section dealing with the time and manner of holding elections extended to the qualifications of electors. Is it not true that Alexander Hamilton and all others who had any part whatever in framing the Constitution and procuring its ratification made it crystal clear that the section relating to the time and manner of holding elections had nothing whatever to do with the retained powers of the State over the electors?

Mr. TALMADGE. The Senator is entirely correct. As a matter of fact ; I was just before reading Alexander Hamilton's very words on that subject. In dealing specifically with the language as to "manner of holding," Hamilton wrote in the Federalist, No. 60: ·

M a ny things are prerequisite to elections or may affect their outcome-voters, education , means of transportation, health, public discussion, immigration, private animosities, even the face and figure o! the candid at e; but authority to regulate the manner of holding them gives no right to control any of these.

Nothing could be clearer. The point of law not only was established by the framers of the Constitution but also every court in the United States, both Federal and State, passing on the language, has held time after time that the language of section 4 of article II, relating to the time and manner of holding elections, goes to procedure only, and not to who shall vote in the election.

Mr. ROBERTSON. Mr. President, will the Senator from Georgia yield for another question?

Mr. TALMADGE. I yield to the Senator from Virginia for a question.