March 22, 1962 (5)

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. THURMOND. Mr. President, I welcome the opportunity once again to express my opposition to the proposed constitutional amendment which would abolish the poll tax as a prerequisite for voting. As I said earlier this week in my first talk on this proposal, if the poll tax is to be ebolished on the national level, this is the only way in which it can be done consistent with the Constitution. Even though I do not, and cannot, agree with my colleagues who are advocating this amendment, I must admit that their procedure is correct. However, recognizing the correctness of the procedure and agreeing with the end sought to be achieved are two entirely different matters. My opposition to this proposal stems from other considerations.

As I pointed out previously, Mr. President, South Carolina has done away with the poll tax as a condition of suffrage. During my term as Governor, and upon my recommendation, a constitutional amendment was submitted to the people and approved, thereby doing away with the poll tax as a prerequisite to voting. Even though I have opposed the poll tax as a prerequisite to voting in my own State, it does not follow that I must advocate its abolition on the national level, even by a proper device. Many people would argue that to oppose a proposal on the national level which one has advocated on the State or local level is inconsistent. Nothing could be more absurd. Such an argument reveals an abysmal ignorance of our Constitution and the principles for which it stands.

This is also an area in which the terms "liberal" and "conservative," as used to characterize a person's political philosophy, can be terribly misleading. It must be kept in mind that our Founding Fathers delegated specific realms of authority to the Central Government, and these were severely limited. All other powers not specifically delegated were reserved to the States or to the peoples thereof. It should logically follow, therefore, that the individual States were the repository of the majority of those powers normally exercised by governing bodies. Those were in addition to the powers specifically reserved to the States, such as that to require , certain qualifications for voters. These qualifiThe cations were adopted by the Central Government as necessary for suffrage in the election of national officials.

Strict adherence to the Constitution would allow a thoroughly dedicated legislator to advocate many proposals on the State level which would be unconstitutional on the national level. This might earn for him the label "liberal" in its generally accepted sense today. And, from all indications, a "liberal" is one who advocates more and more governmental action and intervention in almost every conceivable field of endeavor. The same elected , official, if elevated to a position in the Central Government, and still adhering strictly to the same Constitution, would be labeled a "conservative." This follows as a matter of course, because he would necessarily oppose measures which, while within the realm of power of the State, would be unconstitutional on the national level.

This is why the use of the terms "liberal" and "conservative" has no meaning, as those terms are applied in and of themselves. They must be construed within a proper framework of reference, with the Constitution always being considered as the focal point.

It is deplorable that the trend in government today is toward a stronger and more powerful Central Government. Many reasons are advanced in an attempt to justify this current trend. Upon close examination, however, these reasons are found to he of no consequence. The proposal presently before us, although being considered in its proper perspective, is but further evidence of this trend. If the rights of the States continue to be chipped away, our Constitution will have little, if any, meaning left. The danger of encroachment upon States rights was so important to our Founding Fathers that they went to great lengths to dispel the fright which it occasioned. No. XVII of the Federalist papers, which was written by Alexander Hamilton, was devoted to this very question. I should like to read that timely and timeless document, so that we may have the benefit of this wise man's counsel:

An objection, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America.

It may be said that it would tend to render the Government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the General Government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the Federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the National Government. But let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several States, would control the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities, than for the National Government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments, if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all Federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty.

The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the National Government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed.

It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object.

Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias toward their local governments than toward the Government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter. This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation.

The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford.

There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light--! mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence toward the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. The operations of the National Government, on the other hand, falling less 1m­ mediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment.

The reasoning on this head has been abundantly exemplified by the experience of all Federal constitutions with which we are acquainted and of all others which have borne the least analogy to them.

Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There wa-s a common head, chieftain, or sovereign, whose authority extended ov e r the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience to the persons of whom they held it. Each principal vassal was a kind of sovereign within his particular demesnes. The consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy.

When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered for the time, the purposes of a more regular authority. But in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy.

Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority.

This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependents by ties equivalent to those of kindred, rendered the aristrocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good will of the people, and with so important a support, will be able effectually to oppose all encroachments of the National Government. It will be well if they are not able to counteract its legitimate and necessary authority. The points of similitude consist in the rivalship of power , applicable to both, and in the concentration of large portions of the strength of the community into particular deposits, in one case at the disposal of individuals, in the other case at the disposal of political bodies.

A concise review of the even-:;s that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing p a pers.

Mr. President, it is indeed significant that this proposed constitutional amendment is to be substituted for a joint resolution to establish Alexander Hamilton's only home as a memorial to his memory. It creates a perplexing state of affairs when a proposal to honor this man, who wrote so eloquently in defense of States rights, is used as a vehicle to further encroach upon them. It is a sad commentary to the memory of Alexander Hamilton that this bill which would establish a memorial to his memory must be shunted aside for this purpose, even temporarily.

Before the Senate gives its approval to another constitutional amendment we must discuss every facet involved: This, of course, requires an investigation into the circumstances surrounding the enactment of other constitutional amendments. It ill becomes Congress to act irrationally or without proper consideration of other amendments which have been the object of much criticism. In my previous remarks on this proposal, I discussed at length the circumstances surrounding the enactment of the 14th amendment. Another excellent discussion of the dubious origin of the 14th amendment is contained in an article by Walter J. Suthon, Jr., which in effect is an amplification of an address Mr. Suthon delivered to the Louisiana Bar Association in 1953. This article appeared in the Tulane Law Review previous to the Supreme Court's decision in the school desegregation cases which were based on the 14th amendment. The article approaches the question more from a historical standpoint than from a legal standpoint. Mr. Suthon has this to say about the origin of the 14th amendment:

THE DUBIOUS ORIGIN OF THE 14TH AMENDMENT

The 14th amendment to the Constitution of the United States has loomed large in recent years in litigation before the U.S. Supreme Court involving contentions for restriction of State regulatory power and enlargement of Federal regulatory power. Under this amendment--and its companion, or satellite amendment, the 15th-the U.S. Supreme Court, in the past approximately 15 years, has repeatedly rendered decisions aimed at coercing racial integration and breaking down established systems of racial segregation in political, educational, social, economic and other fields in the Southern States-and in some instances outside the South.

It is not the purpose of this article to discuss the merits of segregation-or of its _ antitype, racial integration. These are que~­ tions upon which each of us has his _ or her own individual view, belief, and conviction, . based on what we think and how we think. What is to be discussed relate to the use of the 14th amendment by the U.S. Supreme Court . as an implement for invading the areas formerly reserved to State regulation, or to individual or group action, and for breaking down established systems of racial segregation and setting up compulsive racial interassociation-in effect compulsive racial integration. In this field, the "equal protection of the laws" clause and the "privileges or immunities" clause of the 14th amendment are those most frequently invoked in support of those legal attacks upon our fundamental way of life.

SCHOOL SEGREGATION CASES

There are now pending in the U.S . Supreme Court a group of cases involving attacks upon the constitutionality of our system of segregated public schools, and presenting demands that the segregation feature of this system shall be destroyed by judicial fiat. These cases seek the overruling of the established jurisprudence, predicated in a large measure upon a leading decision of the Supreme Court of Massachusetts, that a segregated system of public schools is constitutional, provided the educational facilities for each race are substantially equal.

The U.S. Supreme Court, after hearing arguments in these school segregation cases, and after several months of study and consideration following these arguments, has entered orders refixing these cases for further argument, now scheduled to take place in December. The orders for reargument specify certain issues on which the Court desires to hear discussion and to receive briefs. From this course of events, it appears quite possible that this Court is closely divided on these cases, and that the ultimate outcome may be determined by the presentation on reargument and in the additional briefs to be filed thereon.

The specification of issues, on which discussion is requested at the reargument, includes inquiries as to events contemporaneous with the framing, submission and ratification of the amendment. These specifications were probably prepared without any particular intent to invite exposure or discussion of the dubious origin of this amendment. Be that as it may, they involve study, consideration and evaluation of the legislative history of the amendment, and its dubious origin--one may justifiably say its worse than dubious origin-is an inseparable part of its malodorous legislative history.

AMENDMENT PROCEDURE ESTABLISHED BY ARTICLE V

Article V of the Constitution sets forth the procedure for amendment proposals and ratifications. The portion of article V pertinent to the amendment machinery utilized in this instance reads as follows:

"The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution • • • which • • • shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States."

As wm be observed, this amending process is a two-step process. Congress takes the first step-submission. The next step-ratification-must be the act of the Statesthe act of at least three-fourths of the States concurring in ratifications passed by their respective legislatures.

When the amendment procedure set forth in article V of the Constitution is carefully analyzed, it will appear that the States have the primary or major and final function in the amending process, and the role of Congress therein, although substantial and important, is definitely of a secondary and preliminary nature. Indeed, an amendment proposal defeated in Congress may nevertheless be adopted exclusively by State action. This would occur upon the legislatures of two-thirds of the States applying for the calling of a convention to propose such an amendment, and upon the ratification of that amendment proposal by threefourths of the States.

Even when the amendment proposal is the product of a two-thirds vote of Congress, the final say-so rests entirely with the States. After the initial step of voting the amendment proposal, the only remaining function power. in the ratification procedure allocated to Congress by the Constitution is a minor one-the function of determining whether the States, in voting on ratification, shall act through their respective legislatures, or ' through conventions.

EVOLVEMENT OF ARTICLE V IN FEDERAL CONVENTION

The record of the evolution of article V, in the proceedings of the Federal convention of 1787, fully supports the view that Congress has no function at all to perform in that stage of the amending process which comes after submission of the proposal, i.e., during consideration of ratification by the States, and action thereon by the States. It is significant that, in the convention, a proposal for excluding the "National Legislature" entirely from the amending process, and leaving the whole of that process to the States, was seriously made and considered. There was never any corresponding proposal that the States be excluded entirely from the amending process or that this process should be entrusted entirely to Congress. Mason argued, in support of excluding the "'National Legislature" entirely from the amending process, that "they may abuse their power, and refuse their assent on that very account." Of course, that view in precisely that form did not finally prevail. However, it is significant that article V, as evolved and adopted, contains a safeguard against what Mason apprehended-a power in Congress to completely block an amendment proposal. This safeguard against possible congressional obstruction appears in the provision that two-thirds of the States may bypass a refusal of Congress to submit a particular amendment proposal, by voting through their legislatures for a convention to propose such an amendment.

As the proposed language of the provision for amendments began to take form, the sole method at first for initiating amendments was to be an application by the legislatures of two-thirds of the States for the calling of a convention for that purpose, the "Legislature of the United States" having merely the ministerial function of calling the convention upon such an application by the required number of State legislatures. Hamilton had a leading part in changing the language so as to perm! t Congress to have a power to propose a constitutional amendment. In arguing in favor of giving this power of initiating an amendment proposal to Congress, he said: "There could be no danger in giving this power, as the people would finally decide in the case." How remote was this Hamiltonian concept from the events of 1867 and 1868, when a rump Congress arrogated to itself the power to force ratification of a rejected amendment, through coercing ratifications by several of the rejecting States.

After Hamilton had made his point that Congress could be safely invested with a power of initiating amendment proposals, since that would not give it power of final decision on these proposals, the language of this provision was then and there worked out in substantially the final form of what later became article V. · This was done under the leadership of Madison and Hamilton, who thus collaborated on giving Congress a power (but not even an exclusive power) to initiate amendment proposals, with power of final decision as to ratification or rejection reserved to the States.

A power in the States to initiate amendment proposals, through action to that end by the legislatures of two-thirds of the States, was retained in this product of the joint work of Madison and Hamilton. As already noted, this affords a possibility for completely bypassing Congress on a constitutional amendment proposal, and prevents a congressional power to initiate amendment proposals from becoming a veto It should also be noted that, on this same occasion, the rather general language, which would apparently have required unanimity of action by the States for ratification, was amended so as to fix the proportion of the whole number of States required for ratification. Rejecting a motion to fix this proportion at two-thirds, the convention voted to require ratification by three-fourths of the States in order to effectuate an amendment. The significance of this choice of the larger of two proposed proportions as to the State action requisite for ratification is that the right to defeat an amendment proposal was thereby vested in a smaller proportion of rejecting States. It was this constitutional right of a group of rejecting States, sUfficient in number to defeat ratification of the 14th amendment, which was infracted by the unconstitutional action of Congress in coercing ratification by several of the rejecting States through the compulsions of the Reconstruction Act.

Evidently to safeguard, as far as possible, against the risk of an obstructive attitude on the part of Congress, the provision for Congress submitting amendment proposals on the applications of the legislatures of two-thirds of the States was changed to a requirement that Congress should call a convention for that purpose upon such a.n application from State legislatures. This proposal was made by Gouverneur Morris and Gerry, following a warning by Mason that Congress could be expected to use its power relating to the proposing of amendments to prevent the States from having an opportunity to ratify proper amendments.

It is also interesting to note that the final change, in the provision which was about to become article V of the Constitution, was the insertion, on motion of Gouverneur Morris, of the prohibition against depriving any State of its equal suffrage in the Senate, without its consent. As pointed out elsewhere in this article, a gross and wholesale violation of this plain constitutional provision, through the exclusion from the Senate of all persons holding credentials as Senators from the 10 Southern States, made it possible for the advocates of the amendment proposal to obtain in the "rump" Senate the two-thirds vote required to submit to the States the proposal for the 14tb amendment.

PROPOSAL OF THE AMENDMENT

The 14th amendment was proposed by Congress to the States for adoption, through the enactment by Congress of Public Resolution No. 48, adopted by the Senate on June 8, 1866, and by the House of Representatives on June 13, 1866. That Congress deliberately submitted this amendment proposal to the then existing legislatures of the several States is shown by the initial paragraph of the resolution.

This submission was by a two-thirds vote of the quorum present in each House of Congress, and in that sense it complied with article V of the Constitution. However, the submission was by a "rump" Congress. Using the constitutional provision that "Each House shall be the judge of the elections, returns, and qualifications of its own Members • • •" each House had excluded all persons appearing with credentials as Senators or Representatives from the 10 Southern States of Virginia, North Carolina, · south Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas, and Texas. · This exclusion, through the exercise of an unreviewable constitutional prerogative, constituted a gross violation of the essence of two other constitutional provisions, both intended to protect the rights of the States to representation in Congress.

Had these 10 Southern States not been summarily denied their constitutional rights of representation in Congress, through the ruthless use of the power of each House to pass on the election and qualifications of its Members, this amendment proposal would doubtless have died aborning. It obviously would have been impossible to secure a twothirds vote for the submission · of the proposed 14th amendment, particularly in the Senate, if the excluded Members had been permitted to enter and to vote. Of course, that was one of the motives and reasons for this policy of ruthless exclusion.

Assuming the validity of the submission of this amendment by a two-thirds vote of this "rump" Congress, there is no gainsaying the obvious proposition that whatever ‘‘contemplation” or "understanding" this "rump" Congress may have had, as to the intent, or the scope, or the effect, or the consequences of the amendment being submitted, was necessarily a "rump" contemplation or understanding. The 10 Southern States, whose · Senators and Representatives were all excluded from the deliberations of this "rump" Congress, could have · had no possible part in the development or formation of any "contemplation" or "understanding" of what the consequences and effects of the proposed · amendment were to be.

If the Supreme Court now finds that the Congress submitting the proposed amendment understood and contemplated that it would abolish segregation in the public schools, either immediately or ultimately, one naturally wonders whether the Supreme Court will then enforce this necessarily "rump" contemplation or understanding against the 10 Southern States who were deliberately and designedly excluded from any possible participation in these "rump" submission proceedings . .

When the 14th amendment was submitted, these 10 Southern States, which had been excluded from representation in Congress, · had existing governments and legislatures. Congress had sought to avoid extending any recognition to these existing State governments, and the legality of these governments, in what the radical majority in Congress termed the "rebel States," was disputed in some quarters. However, in practically all of these 10 States, these governments were the only governments then in existence and these legislatures, being the only legis· latures then existing in these States, were in June 1866 the only legislatures in these States to which the 14th amendment could be then submitted under the directive in the proposal resolution that the amendment be submitted "to the legislatures of the several States."

These State governments had received Presidential recognition and, through their legislatures, they had participated actively in the then recent ratification and adoption of the 13th amendment abolishing slavery. Indeed, ratification of that amendment by these legislatures in these Southern States had aided in making up the ratification of that amendment, abolishing slavery, by the required three-fourths of the States.

REJECTIONS OF THE AMENDMENT

When the proposed 14th amendment was submitted to the legislatures of the several States, it needed to have ratification by 28 States, being three-fourths of the 37 States. While it was ratified rather promptly by most of the States outside the South, it was never ratified by California and it was rejected by the three border States of Kentucky, Delaware, and Maryland. It was also rejected, during the latter part of 1866 and the early part of 1867, by the legislatures of the 10 Southern States, including Louisiana, whose Senators and · Representatives have been excluded from seats in Congress. This created a situation which made impossible the ratification of the amendment unless some of these rejections were reversed. With 37 States in all, 10 rejections were sufficient to prevent the adoption of the amendment proposal. The 13 rejections, by the 10 Southern States and 3 border States, were more than sufficient to block ratification even if all other States finally ratified. The Louisiana Legislature, which rejected the 14th amendment early in 1867, had been elected under the Louisiana co nsti tution of 1864, and functioned under this constitution. It should be remembered that this co nstitu tion was not a product of the Confederacy, or of a reorganization of the State government by former Confederates after cessation of hostilities. The Louisiana constitution of 1864 was adopted by a convention held in New Orleans under the auspices of the Federal authorities, acting largely on suggestions and directions from President Lincoln. It was clearly a reestablishment and continuation of the Louisiana State government as it had existed before secession.

The rejection of the 14th amendment by this Louisiana Legislature is embodied in act 4 of 1867, a joint resolution adopted by both houses declaring "That the State of Louisiana refuses to accede to the amendment of the Constitution of the United States proposed as article 14."

This is the only action ever taken on the 14th amendment by a Louisiana Legislature exercising free and unfettered and uncoerced judgment and discretion as between ratification or rejection of the amendment proposal. The subsequent purported ratification of this amendment in Louisiana was by a legislature of a puppet government, created by the radical majority of Congress to do the bidding of its master, and compelled to ratify this amendment by the Federal statute which had brought this puppet government into existence for this specific purpose.

It is most interesting to read the proceed­ . ings of the Louisiana House of Representatives on February 6, 1867, whereby that body adopted the joint rewlution ordaining the refusal of Louisiana to ratify the proposed 14th amendment-the joint resolution which became act 4 of 1867. This journal shows, by the roll call, that 100 members voted out of a total House membership of 110-and that the unanimous vote was 100 against ratification and none in favor of it. This was the last opportunity for a free and uncoerced expression of views on this amendment proposal by the duly elected representatives of the people of Louisiana.

THE RECONSTRUCTION ACT

The scene shifts back to Washington. The Radicals have a majority, by over a two-thirds vote, in the "rump" Congress from which all representation of the 10 Southern States is excluded. They accomplish the passage of the Reconstruction Act of March 2, 1867. This act had, as one of its major objectives, the attainment of ultimate ratification of the 14th amendment through compelling and coercing ratification by the 10 Southern States which had rejected it.

The act dealt with these 10 Southern States, referred to as "rebel States" in its various provisions. It opened with a recital that "no legal State government" existed in these States. It placed these States under military rule. Louisiana and Texas were grouped together as the 5th Military District, and placed under the domination of an Army officer appointed by the President. All civilian authorities were placed under the dominant authority of the military government.

This act, as supplemented by subsequent amendments, completely deprived these States of all their powers of government and autonomy, until such time as Congress should approve the form of a reorganized St at e government, conforming to rigid and extreme specifications se. out in the act, and should have recognized the States as again entitled to representation in Congress.

The most extreme and amazing feature of the act was the requirement that each excluded State must ratify the 14th amendment, in order to again enjoy the status and rights of a State, including representation in Congress. Section 3 of the act sets forth this compulsive coercion thus imposed upon the Southern States.

The most apt characterization of this compulsive ~: ive provision, placing these States under military authority, there to remain until they complied inter alia with. this requirement of ratifying · the rejected 14th amendment, is found in a speech by Senator Doolittle, of Wisconsin, a northerner, and a conservative Republican. During the floor debate on the bill, he said:

"My friend has said what has been said all around me, what is said every day: the people of the South have rejected the constitutional amendment, and therefore we will march upon them and force them to adopt it at the point of the bayonet, and establish military power over them until they do adopt it."

Surely, the authors of our Constitution never contemplated or understood that ratification of a constitutional amendment proposal by a State could lawfully be compelled "at the point of the bayonet," and by subjecting all aspects of civil life in the recalcitrant State to continued military rule, until this State recanted its heresy in rejecting the proposed amendment, and yielded the desired ratification to the duress of continued and compelling force.

President Johnson vetoed the Reconstruction Act in an able message, stressing its harsh injustices and its many aspects . of obvious unconstitutionality. He justifiably denounced it as "a bill of attainder against 9 million people at once."

Notwithstanding this able message, the act was promptly passed over his veto by the required two-thirds majority in each House. Military rule took over in the 10 Southern States to initiate the process of conditioning a subjugated people to an ultimate acceptance of the 14th amendment.

JUDICIAL REVIEW UNSUCCESSFULLY SOUGHT

Relief from the oppressive and unconstitutional features of the Reconstruction Act was sought in vain in the courts. Three times the Supreme Court found some reason for not deciding these constitutional issues. Unlike the present Court, which was alert to protect three minor Government officials against salary-blocking legislation by Congress, interpreted as constituting a bill of attainder against these individuals, the Court of 1867-68 seemed to feel no urge to review the constitutional merits of the solemn charge of President Johnson that the Reconstruction Act constituted a bill of attainder against 9 million people. This is all the more amazing since the two leading precedents on the enforcement of the constitutional prohibition of bills of attainder, cited and followed in United States v. Lovett, were decisions of the Court of 1867-68.

The decisions wherein grounds were found for avoiding a ruling on the constitutionality of the Reconstruction Act leave the 1m- . pression that our highest tribunal failed in these cases to measure up to the standard of the judiciary in a constitutional democracy. If the Reconstruction Act was unconstitutional, the people oppressed by it were entitled to protection by the judiciary against such unconstitutional oppression.

In Mississippi v. Johnson, the Court expressed definite apprehension that an injunction against the execution of the Reconstruction Act by the President, on grounds of unconstitutionality, might result in con- - gressional impeachment of the President for obeying the mandate of the Court.

In Georgia v. Stanton, the Court declined to entertain a suit assailing the constitutionality of the Reconstruction Act, on the ground that the issues raised were political and not justiciable. The opinion frankly describes in the language below the issues as to which the Court held that a State is without any protection in a court of law.

In ex parte McCardle, the Court permitted Congress to evade a judicial determination of the constitutionality of the Reconstruction Act, by repealing a statutory provision as to appellate jurisdiction after the appeal had been lodged, and even after the case had been argued and submitted for decision. Again the opinion leaves the impression that the Court preferred not to be obliged to pass on the merits of the constitutional issue.

COERCED RATIFICATIONS OF THE AMENDMENT

As a result of these decisions, enforcement of the Reconstruction Act against the Southern States, helpless to resist military rule without the aid of the judiciary, went forward unhampered. Puppet governments were founded in these various States under military auspices. Through these me a ns, the adoption of new State constitutions, conforming to the requirements of Congress, was accomplished. Likewise, one by one, these puppet State governments ratified the 14th amendment, which their more independent predecessors had rejected. Finally, in July 1868, the ratifications of this amendment by the puppet governments of 7 of the 10 Southern States, including Louisiana, a , gave more than the required ratification by three - fourths of the Stat e s, and resulted in a joint resolution adopted by Congress and a Proclamation by the Secretary of State , both declaring the amendment ratified and in force.

It is interesting to speculate upon what might have been the course of events if our Supreme Court of 1867-68 had met these charges of unconstitutional action in the enactment and enforcement of the Reconstruction Act in the direct manner which characterized the judicial performance of the Supreme Court of the Union of South Africa in the recent "Coloured Vote Case." The Malan Government had enacted certain legislation restricting the rights of colored voters, which clashed with the assertedly "entrenched clauses" of the Constitution of South Africa. Twice the case went to the Supreme Court of South Africa, and twice that Court upheld the constitution on the merits of the issues and pronounced the unconstitutionality of the offending legislation. For this fine judicial work, it has been highly commended.

When Georgia v. Stanton is compared with the recent South African decisions, one cannot escape the impression that the difference between the cases is the difference between meeting and evading (even though the evasion be perhaps unconscious) an issue which ought to be met and decided.

ATTEMPTED JUSTIFICATIONS OF COERCION

The supposed constitutional justification of the Reconstruction Act , most frequently asserted by its supporters, was the view that such legislation would come within the power of Congress under the guarantee of "a republican form of government" to each State by the United States.

Whatever justification for other portions of the Reconstruction Act may or may not be found in this constitutional provision, there could clearly be no sort of a relationship between a guarantee to a State of "a republican form of government" and an abrogation of the basic and constitutional right of a State, in its legislative discretion , to make its own choice between ratification ~r rejection of a constitutional amendment proposal submitted to the State legislatures by the Congress of the United States. To deny to a State the exercise of this free choice between ratification and rejection, and to put the harshest sort of coercive pressure upon a State to compel ratification, was clearly a gross infraction-not an effectuation-of the constitutional guarantee of "a republican form of government."

Beyond this, the whole idea that article IV, section 4, could confer upon Congress power to alter the governmental structure of a State-particularly a governmental structure of the general type existing in the Thirteen Original States at the time of the adoption of the Constitution-has been most effectively refuted by Madison. Writing in the Federalist, No. 43, Madison poses two questions respecting the provision for a guarantee to each State of "a republican form of government”:

"It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves . "

He then proceeds to give his answers to these questions , and he answers the second question:

"The authority extends no further than to a gu a r a ntee of a republican form of government, which supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the Federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the Federal guarantee for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican constitutions; a restriction which , it is presumed, will hardly be considered as a grievance."

Elsewhere in the s a me number of the Federalist, Madison reiterates his basic concept that article IV, section 4, unquestionably recognizes the then existing State , governments as republican in form, and protects them ag a inst innovations or changes of a nonrepu blican character.

It is interesting to note that the Supreme Court, in Minor v . H a ppersett , enunciated a doctrine completely in accord with ~adisoni a n ideology that the type of government, existing in the original States when the Constitution was adopted, established a standard for the meaning of the term "republican form of government" in this constitutional provision.

COERCED RATIFICATION IN LOUISIANA

The enactment of the legislature of the puppet government of Louisiana which ratified the 14th amendment is embodied in Act 2 of 1868. The legislative journals of that session reflect the presence and dominance of the military , all as provided for and contemplated by the Reconstruction Act.

The House Journal shows that on June 29, 1868 , Colonel Batchelder opened the session by calling the roll and reading an extract from the order of General Grant. The Senate Journal for the same date shows the reading of instructions from General Grant to the commanding officer of the 5th Military District emphasizing the supremacy of the power of the military over the provisional civilian government. It was under these auspices that the coerced ratification of the 14th amendment in Louisiana was accomplished.

Even under the puppet government, created in Louisiana pursuant to the Reconstruction Act, the ratification of the 14th amendment in Louisiana was not unanimous . In the Senate on July 9, 1868, the vote on ratification was 20 yeas and 11 nays. The record contains a protest by Senator Bacon against voting upon ratification under duress imposed by the Reconstruction Act, and an unavailing appeal by that legislator for an opportunity for a free and unrestrained vote.

FORCED RATIFICATION REQUIRES REEXAMINATION OF PURPORTED ADOPTION OF THE AMEND•

MENT

The fact that ratification in the Southern · states came finally, as a coerced result, through the legislatures of the puppet governments created by the Reconstruction Act, after rejection of the amendment by the prior State legislatures, can pose a very serious question in relation to one of the issues upon which the Supreme Court invited discussion on the reargument. This of course refers to the request by the Court for discussion of what understanding or contemplation of the scope of the amendment was had by the St a te legisl a tures which rati fi ed it.

Such an inquiry may be proper as to a legislature which, free to ratify or reject determined of its own volition to ratify: But to give effect, as against the Southern States now, to whatever extreme and sweeping notions of the broad scope of the 14th amendment may have been expressed by the puppet legislators, who used their power under the Reconstruction Act to vote in favor of ratification States really opposed to ratification, would be a perversion of history and a contradiction of plain fact.

Even if plain coercion, under the Reconstruction Act, be not regarded as nullifying the ratification votes of the Southern States, recorded by puppet legislators obeying the orders of their masters , these puppet legislatures e s have no power to speak on matters of l e gi s l a t i ve intent , ex post f a c t o, for the S ta tes which they misrepresented in voting for r a t i fic a tion. These States, as soon as they were free of Federal coercion, repudia ted and disestablished these puppet governments, and all that went with them.

But the attack upon the legality of the coerced ratifications of the 14th amendment . by the Southern States, under the compulsions of the Reconstruction Act, goes beyond the question of whether the puppet governments, which went through the form of . voting these enforced ratifications were authorized to authentically express 'the "contemplation" or "understanding" of the Southern States as to the scope and operative force of the amendment. The question arises-upon an analysis of the provisions of article V and upon a study of the history of the evolvement of this article in the Federal Convention of 1787-whether these coerced ratifications should be decreed null and void , as the product of an usurpative incursion by Congress into an area-the ratification-or-rejection process-from which it is clearly excluded by article V.

To permit Congress to have a dec i sive and controlling part in the final decision on ratification or rejection of a constitutional amendment proposal, after Hamilton had secured the reluctant assent of the Convention to letting Congress have merely a power to initiate amendment propos a ls , on his solemn representation that "the people would finally decide," would constitute a clear disregard of the plain intent of the Founding Fathers concerning the meaning and effect of article V. Beyond this, congressional coercion, intruding into and upon the ratification process, amounts to a gross breach of faith with the obvious understanding had between Madison and Hamilton when, following Hamilton's frank avowal that the power of final decision in an amendment proposal should be vested in "the people," these two great statesmen cooperated in setting up the amendment procedure whereby, on an amendment proposal submitted by Congress to the legislatures of the several States, the people of each State, speaking through its legislature, have the "final decision" on ratification or rejection.

One who says that such questions are · political and not justiciable, must necessarily mean that a political body, actuated by political motives and effectuating political objectives, should have and exercise a final power, not judicially reviewable, to change the plain meaning of a constitutional provision, and to disregard its obvious intent and purpose, as demonstrated by the history of its evolvement.

The adversary or the skeptic might assert that, after a lapse of more than 80 year~. it is too late to question the constitutionalit;y or validity of the coerced ratifications of the 14th amendment even on substantial and serious grounds. The ready answer is that there ls no statute of limitations that will cure a gross violation of the amendment procedure laid down by article V of the Constitution.

Precedents are not wanting for the successful assertion of constitutional rights which have been flouted or ignored over long periods of time. In Erie Railroad Company v. Tompkins, the Court, on a constitutional point, reversed its jurisprudence of more than 90 years standing, dating back to Swift v. Tyson. This was done on the expression of the view that a doctrine involving statutory construction would not be reexamined and upset after that lapse of time, but that the true doctrine on the constitutional point, once resolved, must be given effect regardless of lapse of time.

This principle should apply here. If the coerced and enforced ratifications of the 14th amendment by the Southern States in 1868, compelled by congressional duress offending against the Constitution itself, constitute an infraction of the amendment procedure ordained by article V of the Constitution, these enforced ratifications are just as violative of the provisions of article V in 1953 as they were in 1868.

Also worthy of note in this connection is the holding in 1895 that the levying of an income tax by the Federal Government without apportioning that tax among the States as a direct tax, violated the taxingpower provisions of the Constitution of the United States-although, 30 years prior to this judicial vindication of what the majority of the Court deemed to be fundamental and true constitutional provisions, the Federal Government had levied and collected income taxes for several years on a large scale, and had financed a major and successful war of vital consequences to a very considerable extent out of revenues so obtained.

In a recent case terminating the exclusion of Negroes from restaurants in the District of Columbia, the Court found still operative, and ordered enforced, a statutory enactment dating back to the early 1870's, which had lain dormant during practically the whole period of time since its enactment, and which had been variously regarded by lower courts in the case as having been repealed by codification or implication in 1877 or in 1901. Upon a demonstration now that article V of the Constitution was violated and flouted by the 1868 coerced ratifications of the 14th amendment, the true rule for this amendment process, ordained by article V, is entitled to receive from the judiciary the same respectful consideration and orderly enforcement as was recently accorded the revivified 1873 enactment of the shortlived local legislature of the District of Columbia.

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

Mr. THURMOND. I Yield for a question.

Mr. mLL. Is it not true that no provision of the Federal Constitution has been more jealously guarded or highly respected by the courts than the proVision of section 2 of article I?

Mr. THURMOND. I concur with the able and distinguished Senator from Alabama on that expression.

Mr. HILL. Is it not also true that 126 years after the adoption of the Constitution with section 2, article I, the people again adopted the exact provision of section 2. article I, in the 17th amendment to the Constitution, which is the amendment providing for the direct election of U.S. Senators?

Mr. THURMOND. The Senator is precisely correct. I think his statement promulgates the idea and substantiates the thought that the people must have intended the law to be as it appears in the Constitution.

Mr. MANSFIELD. Mr. President, has the Senator concluded his speech?

Mr. THURMOND. Yes.