March 24, 1962 (2)

(a) Owns, leases, hires, or is in the possession under a contract of purchase of, real property in such district liable to taxation for school purposes, but the occupation of real property by a person as lodger or boarder shall not entitle such person to vote, (b) Is the parent of a child of school age, provided such a child shall have attended the d i strict school in the district ln which the meeting is held for a period of at !ea s t 8 weeks during the year preceding such school meeting, or

(c) Not being the p a rent, has perm a nently res i ding with him a child of school age who sh a ll have attended the district school for a p e r i od of at le a st 8 weeks during the year pr e c e d in g such meeti n g.

School boards, school taxes, and school bond issues in New York are too important to be left to the ordinary voter. An interest in real property or a continuing responsibility for a child of school age is also necessary.

The poll tax is but a single requirement used as one of several qualifications in only :five States. Certainly the requirement that each voter must pay a poll tax does not create an irresponsible electorate; and as my colleague, the senior Senator from Virginia [Mr. BYRD], has observed, anyone who is unwilling to pay $1.50-less than the price of a ball game-for the privilege of participating in his State's government is not likely to improve it with his vote.

Mr. President, with each State following its own course toward the establishment of not only a broad but also an informed, responsible electorate, the Nation is better able to protect itself from the deficit-spending proposals advanced by liberals under the stimulus of political expediency.

We are not seeking for America , M r . President, the type of abortive democra c:; so apparent in the early stages of the French Revolution, when there was mob rule, followed by political, moral, and economic excesses of every conceivable kind. On the contrary, our aim is to create a responsible and informed elec· torate. The combination of an ever-expanding, increasingly productive public school system in every State and the institution of voter qualifications designed to reserve participation in elections to the civic-conscious and the informed, has enabled our Nation to boast of an electorate which each year, we like to believe, grows not only in quantity but, more important, in . quality.

I think it would be well for us to recall the words of Thomas Jefferson:

.· In every government on earth is some trace of human weakness, some germ of , corrup. tion and degeneracy, which cunning will discover, and wickedness insensibly, open, cultivate, and improve. Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositaries. And to render even them safe, their minds must be improved to a certain degree. This, in· deed, is not all that ~ is necessary, though it be essentially necessary.

Mr. President, Jefferson warned that the seeds of corruption are found in every government, and that the safe· ; guard is the people. .But he . also said · that in order to render even the people • safe, "Their minds must be improved to a certain degree."

In short, Mr. President, J . Jefferson said that it is necessary to educate the minds tion. of those who are to run the government. The faith of Jefferson in the benefits of education led him to establish the Uni- versity of Virginia at Charlottesville. George Washington was another Virginian who firmly believed in an informed electorate; in his Farewell Address he stressed the importance of education in preserving our republican . form of government.

Mr. President, to digress momentarily, it is not known by many persons that the Federal Government did not pay Washington any salary whatever during his service as Commander in Chief of the Army. At that time, although Virginia's finances were sorely depleted, the State did issue Washington $50,000 in 6 percent bonds. washington donated those bonds to a little school in my home county-a school called Liberty Hall Academy, the student body of which numbered approximately 100 boys. During the Revolutionary War these students served our country well; many of them lost their lives.

Washington was so appreciative of those boys. There was only one college in Virginia at that time, William and Mary in Williamsburg. In fact there were but a few in the whole Nation: Princeton, King's College, st. John's, and Harvard, to mention four. There were no public schools, only academies such as Liberty Hall. After receiving the . generous donation of Washington, this academy took the name of our country's Father, and became washington College. Today · it is Washington and Lee University.

George washington and Robert E. Lee-two great Americans and two firm · believers in the education of American youth.

An insurance company offered Lee a salary of $75,000. He replied that he could give the company his name only an d th a t 'd this was no t - f or sa e. I Lee took th e presi ency of little Washington College for a salary of $2,500 a year in order, as he said, that he might help train southern youth to rebuild the . ravaged South.

Mr. CASE of New Jersey. Mr. President, will the Senator yield?

Mr .. ROBERTSON. Under the rules I can Yield only for a questiOn.

Mr. CASE of New Jersey. Has not the Senator from Virginia overlooked the fact that Rutgers University, now the State University of New Jersey received its charter in 1766 and was 1'n a'cti've o eration during the Revolution? . Mr. ROBERTSON • . I ask the Sena- . tor's pardon for my oversight. Several years ago I spoke at Rutgers. I was impressed with the high caliber of the ment. ~chool-also its ancient buildings and IVy-covered walls. The university con- · ducts an outstanding school for banking· it was my privilege to speak on th t sub· t I . ~

subject. · WISh to overlook no compliments for the great State of New Jersey, which is celebrating its 300th anniversary.

Mr. CASE of New Jersey, _ Mr. President, will the Senator yield at that point?

Mr. ROBERTSON. I yield for _ a ques-

Mr. CASE of New Jersey. We hope to have the assistance Df the Senator in preparing for the celebration. We appreciate the Senator's membership on a committee, on the Federal · side, making arrangements for the · celebration, and we are most grateful for all he has done. We have a lively anticipation of favors from him yet to come.

Mr. ROBERTSON. I thank the Senator from New Jersey for his complimentary remarks. The citizens of his great State took a fine statesman who was born in Virginia, elected him Governor, and then helped elect him President of the United States. I, of course, refer to Woodrow Wilson and shall quote from him before I conclude. Virginians will always _ be grateful to New Jersey for recognizing its citizens of outstanding ability.

Mr. CASE of New Jersey. On behalf of our State, may I thank the Senator, and, so far as I am concerned, he can put this in the RECORD in extenso, if he wishes.

Mr. ROBERTSON. As I was saying, the important thing for us to do is to expand the intelligence of our electorate. Mr. President, on page 2 of the March 23 edition of the Washington Post, there is an article entitled "Long Sessions Fail To Break Poll-Tax 'Filibuster' in Senate." The title alone is a gratuitous insult to those of us who have been trying to explain the constitutional principles involved in the question before the Senate. Not one of the 15 Senators who have spoken thus far has failed to address himself to the issue at stake. I do not think it is fair to inflame the public mind against the legitimate-indeed commendable-efforts of some Senators to engage in debate on a vital constitutional question.

The reporter makes the following statement:

While the southerners were blasting the amen dm · en t as an attack on States rightsNow that is objective, polite Ianguage-the article continues— group . of seven liberal organizations, including Americans for Democratic Action and the Anti-Defamation League, ironically :~:.!~e~wa.y at it too as an anti-civil-rights The liberal groups prefer the direct statutory approach for repealing the poll tax, as put forward in a substitute by Senator JACOB K . . JAVITS, _ Republican, of New York.

They particularly criticized section 2 of the Holland amendment providing that nothing should invalidate any provision of P- law denying the right to vote to paupers or . persons supported at public expense or by charitable institutions. They said this would encourage some States to red . efine a pauper to defeat the purpose of the _ amendHoLLAND said the language was identical with that which passed the Senate 2 years ago, and that the liberal groups, while opposing his amendment at that time, made no point about section 2. He said the language was. . suggested to him by the Library of congress, and was not aimed at paupers but at machine use of their votes.

The liberal organizations charged further . that the proposed amendment would not outlaw poll taxes in a direct election. They argued the States could abolish the system of voting for electors in favor of a . direct . election in order to get around the amendBesides ADA and the Anti-Dehniation . League, liberal groups , opposing the amend­ _ ment included the National Association for the Advancement of Colored People, the American Jewish Congress, the American Veterans' Committee, the International Union of Electrical Workers (AFL-CIO) and the United Automobile Workers (AFL-CIO). This summary of the attitude of the so-called liberal groups clearly shows the danger which our republican form of government faces.

I repeat a passage from the article: The liberal groups prefer the direct statutory approach for re:Pealing the poll tax, as put forward in a substitute by Senator _ JAcoB K. JAVITS , Republican, of New York.

This "direct statutory approach" is as I will show later, a clear and unequivo- cal attempt to amend our Constitution by a method unconstitutional in · itself . . Such tactics, I might add, have been the hallmark of these liberal groups for many years. Their insistence that Congress and the courts exceed the bounds of the Constitution has already resulted in the usurpation of substantial power from the States.

Referring again to the article in the Washington Post, I should like for Senators to be apprised of the extremeindeed fantastic-position which these liberal groups have taken. I repeat a paragraph from the article:

They particularly criticized section · 2 of the Holland amendment providing that nothing . should invalidate any provision of law "denying the right to vote to paupers or persons supported at public expense or by charitable institutions : " They said this would encourage some States to "redefine a pauper" to defeat ~ the purpose - of the . amendment.

Here we see the clear intention of these groups to extend the franchisewhich is a privilege and not a rightto the elements in every State, who, having little o - r no financial · cl'al responsr·- bility themselves, · can be expected to vote to support any proposal · which drives our · Federal Government further · and further into debt and nearer and nearer to national bankruptcy. I might add that these are the groups which have advocated and continue to advocate the distribution of the wealth of . our Nation in a manner strikingly similar to that proposed for the world by Karl Marx. . .

. Mr. President, there was never a more propitious time for us to examine the Constitution as it is interpreted by America's great statesmen.

- We · should consider the statement ot Woodrow Wilson m his book on constitutional government in the United . States, that "The question of th~ relation of ' the States to the Federal Government is the cardinal question o-f our con t't 1 ·

There can ~e rio doubt but that the Javits bill strikes at the very · heart of the doctrine of States rights. . IIl . a representative democracy the most valuable, the most precious right any State can possess is the right to control its own election laws. Take that right away and they become helpless pawns in the hands of a Federal bureaucracy.

No one man was more instrumental than George Washington in bringing the 13 States together in a Federal Union. No one realized more clearly than he that such a Union would not be self-preserving and that its future would be hazarded if concessions originally made in the interest of harmony and cooperation should later be overridden. Hence his plea in his farewell address for its preservation, just as timely now as when spoken, in his admonition:

The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasion of the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes.

He also said:

To preserve them must be as necessary as to institute , te them.

Andrew Jackson gave similar advice in his farewell address as President. He said: ·

My experience in public concerns and the observations of a life somewhat advanced confirm opinions long since imbibed by me, , that the destruction of our State governments or the annihilation of their control over the local concerns of the people would lead directly to revolution and anarchy and finally to despotism and military domination. Jackson also said in this address:

We behold systematic efforts publicly made to sow the seeds of discord between different parts of the United States and to place party divisions directly upon geographical distinctions; to excite the South against the North, and the North against the South-

Jackson made this statement over 125 year~ ago. I re.ad his words again:

We behold systematic efforts publicly made to sow the seeds of discord between different parts of the United States and to place party divisions directly upon geographical distinctions; to excite the South against the North, and the North against the . South.

Mr. President, when our New England brethren had fired "the shot heard 'round the world," Virginia's leaders did not hesitate to go to the help of our sister States. Why? Because that threatened the rights of the northern colonies. Fifty years after our unity had given us victory, a great Senator from Massachusetts named Daniel Webster addressed a group of Revolutionary War veterans at Bunker . Hill. When ' he made that memorable speech, what words did he have for Virginia? He did not say, "Let us take away from Virginia its constitutional right to leVY a · poll tax.” No. He said-

As long as the James · River flows by Jamestown Island, as long as the Atlantic washes Plymouth Rock, no vigor · of youth, ' no maturity of manhood will cause our Nation to forget those · early spots, that cradle that defended the infancy of our Republic.

And when the great Jefferson lay dying, what did he have to say about that gifted statesman; John Adams · of Massachusetts? He said:

Thank God, Adams stllllives.

It is those who would destroy this unity and mutual respect whom Jackson had in mind when he wrote over 125 years ago-I repeat again:

We behold systematic efforts publicly made to sow the seeds of discord between different parts of the United States and to place party divisions directly upon geographical distinctions to excite the South against the North, and the North against the South.

I continue quoting from Andrew Jackson: to force into the controversy the m:ost delicate and exciting topics upon which it is impossible that a large portion of the Union can . ever speak without strong emotions. Appeals, too, are constantly made to sectional interests, in order to influence election of the Chief Magistrate, as if it were desired that he should favor ' a particular quarter of the Country, instead of fulfilling the duties of his station with impartial justice to all.

But the Constitution cannot be maintained, nor the Union preserved, in opposition to public feeling .,_ by the mere exertion of the coercive powers confided to the General Government. The foundations must be laid in the affections of the . people; in the security it gives to life, liberty, character, and property, in every quarter of the country; and in the fraternal attachments which the citizens of the several States bear to one another, as members of one political family, mutually contributing to promote the happiness of each other.

Hence the citizens of every State should studiously avoid everything calculated to wound the sensibility or offend the just pride of the people of the other Statesrepeat those words:

Hence the citizens . of every State should studiously avoid everything calculated to wound the sensibility or offend the just pride of the people of the other States.

He said further: :

And they should frown upon any proceedings within their own borders likely to disturb the tranquility of their political brethren in other portions of the Union. In a country so extensive as the United States, and with pursuits so varied, the internal regulations of the several States must frequently differ from one another in important particulars; and this difference is unavoidably increased by the varying principles upon which the American Colonies were originally planted; principles which had taken deep root in their social relations before the Revolution, and, therefore, of necessity, influencing their policy since they became free and independent States. But each State has the unquestionable right to regulate its own internal concerns according to its own pleasure; and while it does not interfere with the rights . of the people of other States, . or the rights · of the Union, every State must be the sole judge of the measures proper to secure the safety _ y of its citizens and promote their happiness and all efforts on the part of the · people of other · States · to cast odium upon their . institutions, and all measures calculated . to disturb their rights of property, or put in jeopardy their peace and internal tranquillity, are in direct opposition to the spirit in which the Union was · formed and must endanger its safety.

Motives of philanthropy may be assigned for this unwarrantable interference; _ · and weak men may persuade themselves · for a moment that they are laboring in the cause of humanity, and asserting the rights of the human race; but everyone, upon sober reflections, :will see that · nothing but mischief can come from these improper assaults upon the feelings and rights of others. Rest assured that the men found busy in this work of discord are not worthy of your confidence · and deserve your strongest reprobation.

Andrew Jackson called a spade a spade, and I continue his words:

It is well known that there have been those . amongst us who wish to enlarge the powers . of the General Government and experience would seem to indicate that there is a tendency on the part of this Government to overstep the boundaries marked out for it by the Constitution Its legitimate authority is abundantly sufficient for all the purposes for which it was created, and its power being expressly enumerated, there - can be no justification for claiming anything .- beyond them. ·

Every attempt to exercise power beyond the se limits should be promptly and firmly opposed. For one evil example will lead to . other measures ~till more . mischievous; and if the principle , pre of constructive powers, or supposed advantages, or temporarY. circumstances shall ever be permitted to justify the assumption of a power not given by the Constitution, the General Government will before long absorb all the powers of legislation, and you will have in effect, but one consolidated Government.

From the · extent of our country, its diversified interests, different pursuits, and dif­ . ' ferent habits, it is too obvious for argument that a single consolidated Government would be wholly inadequate to watch over and protect its interests, and every friend of our free institutions should be always ' prepared to maintain unimpaired and in full vigor the rights and sovereignty of the States, and to confine the action of the General Government strictly to the sphere of its appropriate duties. · ·

Referring again to Woodrow Wilson and his ideas on constitutional government, we find him saying of- the relation · of the States to the Federal Gov- . ernment: · ent: .

. It is difficult to discuss · so critical and fundamental a question calmly and without party heat or bias when it has come once more, as it has now, to . an acute stage. Just because it lies at the heart of our constitutional system to decide it wrongly is to alter the whole . structure and operation of our - Government, for good or for evil, and one would wish never to see the passion of party touch it to distort it. A sobering sense of responsibility should fall upon everyone who handles it. No man should argue it this way or that for party advantage. Desire to bring the impartial truth to light must, in such a case, be the first dictate alike of true . statesmanship and of true patriotism. Every man should seek to think of it and to speak of it in the true spirit of the founders of the Government and of all those who have spent their lives in the ef- . fort to confirm " its · just principles both in · counsel and in action.

Continuing his discussion, Wilson said that-

The . principle . iple · pf • the . division of powers between State and Federal Governments is a very simple one when stated in the most general terms. It is that the legislatures of the States shall have control of all the general subject matter of law, of private rights of every kind, of local interests, and of everything that directly concerns their people as . communities-free choice with regard to all matters of local regulation and development, and · that Congress shall have control only of such matters as concern the peace and the commerce of the country as a whole.

He ·· said · we _ are apt ' to think : of · o _ our American political system' as distingu,ished bY , its central struc~ur~!ts President and Congress and . _ courts which ·- the Constitution set up—but "as a matter of fact, it is distinguished by its local structure, by the extreme vitality of its parts. It would be an impossibility without its division of powers."

From the first-

Wilson sa:idAmerica has been a nation in the making. It has · come to maturity by the stimulation of no central force or guidance, but . by an aboundingly self-helping, self -sufilcien t energy in its parts, which severally . brought themselves into existence and added themselves to the - Union, pleasing first of all themselves in the framing of their laws and constitutions, not asking leave to exist and constitute themselves, but existing first and asking leave afterward, self-originated, selfconstituted, self-confident, self-sustaining, veritable communities, demanding only recognition. . Communities develop not by ex- ternal but by internal forces. Else . they ·- do not live at all. Our Commonwealths have not come into existence by invitation, like plants in a tended garden; they have spru.ng up of themselves, irrepressible, a sturdy spontaneous product of the nature of men nurtured in a free air.

It is this spontaneity and variety-

He continuedthis independent and irrepressible life of its communities, that has given our system its extraordinary elasticity, which has preserved it from the paralysis which has sooner or later fallen . upon every people who have looked to their central government to patronize and nurture them.

Later in the same lecture Wilson said that- ·

The division of powers between the States and the Federal Government effected by our Federal Constitution was the normal and natural division for this purpose. Under it the States possess all the ordinary legal choices that shape a people's life. Theirs is the whole of the ordinary field of law; the regulation of domestic relations and of the relations between employer and employee, the determination of property rights and of the validity and enforcement of contracts, the definition of crimes and their punish- ~ent, the definition of the many and subtle rights and obligations which lie outside the fields of property and _ contract, the establishment of the laws of incorporations and of the rules governing the conduct of every kind of business. The presumption insisted upon by the courts in every argument with regard to the powers of the Federal Government is that : it' has no power not explicitly granted it by the Federal Constitution or reasonably to be inferred as the natural or necessary accom­ · panlment of the powers there indisputably · conveyed to It.

Woodrow Wilson was a great teacher of history and of government. When I was a young boy in the history class I · was studying Woodrow Wilson's "The State," and also Bryce's "American Commonwealth." From those two great writers I got the impulse to devote my life to public service. I have been a follower of Woodrow Wilson ever since, and I take pleasure in quoting him here today, because I think that next to Thomas Jefferson he has been one of the greatest expounders of democracy we have ever had. · He continued · in · his lecture:

But the presumption with regard to the powers of the States they have , ve always held to be of exactly the opposite kind. It is that the States of course possess every power that Government has ever anywhere exercised, s ed, except only those powers which their own constitutions or the Constitution of the United States explicitly or by plain inference withhold. They are the ordinary governments of the country; the Federal Government is its instrument only for particular purposes.

Wilson also said :

The remedy for ill-considered legislation by the St a tes, the remedy alike for neglect and mistake on the part _ of their several governments, lies not outside the States, but within them. The mistakes which they themselves correct will sink deeper into the consciousness of . their people than the mistakes which Congress may rush In to correct for them. thrusting upon them what they have not learned to desire. They will either themselves learn their mistakes, by such intimate and domestic processes as will penetrate very deep and abide with them in convincing force, or else they will prove that what might have been a mistake for other States or regions of the country was no mistake for them, and the country will have been saved its wholesome variety. In no case will their failure to correct their own measures prove that the Federal Government might have forced wisdom upon them . • • •

Moral and social questions originally left to the several States for settlement can be drawn into the field of Federal authority only at the expense of the self-dependence and efficiency of the several communities of which our complex body politic is made up. Paternal morals. morals enforced by the judgment and choices of the central authority at Washington, do not and cannot create vital habits or methods of life unless sus- tained by local opinion and purpose, local prejudice and convenience-unless supported by local convenience and interest; and only communities capable of taking care of themselves will. taken together, constitute a nation capable of vital action and control. You cannot atrophy the parts without atrophying the whole. Deliberate adding to the powers of the Federal Govern­ " ment by sheer judicial authority, because the Supreme Court can no longer be withstood or contradicted in the States, both saps the legal morality upon which a sound constitutional system must rest, and deprives the Federal structure as a. whole of that vitality which has given the Supreme Court itself its increase of power. It is the alchemy of decay.

Wilson concluded his lecture . with the assertion that-

We are certified by all political history of the fact that centralization is not vitalization. Moralization is by life, not by statute; by the interior impulse and experience of communities, not by · fostering legislation which is merely the abstraction of an experience which may belong to a nation as. a whole or to many parts of it without having yet touched the thought of the rest . anywhere to the quick. The object of our Federal system is to bring the understandings o! constitutional government home to the people of every part of the Nation to make them part of their consciousness as they: go about their daily tasks. If we cannot sue~ cessfully effect its adjustments by _ the nice local adaptations of our older practice, we have failed as constitutional statesmen.

When I quote Woodrow Wilson, I am quoting · a g . great statesman who . was . a liberal of' his day. The so-called liberals of this generation could learn much from · wilson. They would learn, for one thing, that the erosion of constitUtional government is a · sure step to despotism. ·

Let us consider the history of the poll tax and its association with the privilege of voting.

A point sometimes overlooked is that the poll tax came into being in this country not as a device for restricting suffrage, but as a liberalizing measure to increase the number of those eligible to vote.

When the Federal Constitution was adopted in 1789, only Vermont had universal suffrage. The general requirement for voting was ownership of property, usually real estate. The men who framed our Constitution knew that the State constitutions adopted by Delaware, Maryland, and New Jersey in 1776, by Georgia in ~ 777, and by Massachusetts in 1780, all contained provisions that voters must be males, at least 20 years of age, who possessed a freehold 6r estate. In 1789, the year after it had ratified the Constitution, the · State of Georgia liberalized its requirements by extending the vote to those who had prepaid taxes, even though they did not have the property-ownership qualification. Other States took similar action and the adoption of the poll tax was quite generally recognized as the first major step in expansion of the suffrage.

Specifically, we find the Pennsylvania constitution of 1776, section 6, limited the vote to freemen 21 years and over, resident for 1 year next before the election, and who had paid taxes during that time. This qualification as to taxes was expanded by the State's 1790 constitution.

The New York constitution of 1777, article VII, in describing qualifications of electors, included the phrase "and been rated and actually paid taxes to this State.” This was retained in the 1801 revision.

The North Carolina constitution of 1776, article VIII, specified residence of 12 months before an election, and added, "and shall have paid public taxes."

The South Carolina constitution of 1778 provided prepayment of taxes as an alternative to landownership as a voting qualification.

It must be observed, too, that the men who drafted the Constitution did not overlook, but carefully considered, the various restrictions placed on voting at the time.

CONVENTION DEBATES

Thus, in the debates at the Constitutional 0 Convention, as reported by Elliott, we find James Madison suggesting that there be a definite statement of qualifications placed in the Constitution, and · expressing the opinion that the · free- holders of the country-landownerswould be the safest depository of republican ' liberty.

It was recognized, however, that the qualifications fixed by the States were not all the same, and that a uniform rule would require changes in their basic laws which might hinder ratification of the Constitution. Consequently, the Committee of Detail, on August 6, 1787, recommended that, “the qualifications of the electors shall be the same, from time to time, as those of the electors of the several States, of the most numerous branch of their own legislatures"-volume 5, Elliott's Debates, page 377.

The proposal of the Committee on Detail which I have just mentioned touched off a long debate, in which Gouverneur Morris, of Pennsylvania, advocated a uniform rule in the Constitution limiting the franchise to landowners. He objected to making the question of qualifications dependent on the will of the States, not because he thought they would unduly restrict the electorate, but because he feared they would be too generous in extending the privilege.

Oliver Ellsworth, of Connecticut, warned, however, that the right of suffrage was a tender point, ca:refully guarded in the State constitutions, and that tampering with it might wreck the new National Government.

James Wilson, of Pennsylvania, also took issue with Morris. He said it would be difficult to settle on a uniform rule for all States, and he pointed in particular to the possibility that a disagreeable situation might arise if electors of the State legislature and Congress were not the same. -

"It would be very hard and disagreeable," Wilson said, as reported by Madison, "for the same persons, at the same time, to vote for representatives in the State legislature, and to be excluded from a vote for those in the National Legislature" (5 Ell. Deb. 385).

George Mason, of Virginia, also contended for the very point I am stressing today-that a power to alter the qualifications of voters would be a dangerous power in the hands of the National Legislature. Once th~ principle is established that the Congress can make such changes, the power used at one time to expand the electorate may be used at another to restrict it, and, theoretically at least, the restriction could be carried so far that we would have a despotism. Mr. Mason called attention to the fact that eight or nine States already had abolished landholding qualifications, although most of them continued to require some material evidence of the citizen's responsible interest in his Government.

At the conclusion of this debate the Morris proposal to limit the ballot to freeholders was defeated by a vote of seven States to one and the committee plan was adopted without a dissenting vote. Its language was changed only slightly, and became that part of section 2 of article I of the Constitution which reads:

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

Nowhere in the original body of the original Constitution will be found a restriction on the discretion of the States in fixing the qualifications of voters. There are some restrictions in the 14th, 15th, and 19th amendments. But, as I shall show, these restrictions do not cover the point at issue.

The thinking of the men who wrote our Constitution is indicated not only by the Convention debates, but also by contemporary writings and statements.

We find, for example, that Thomas Jefferson favored payment of taxes as an alternative to holding land as a qualification for voters. In his draft for a proposed Constitution for Virginia, written in June 1776, while he was in Philadelphia as . a member of the Continental Congress, Jefferson proposed:

All male persons of full age . and sane mind, having a freehold estate in (one-fourth of an acre) of land in any town or in ( 25) acres of land in the country, and all persons resident in the colony who shall have paid scott and lot to government the last (2 years) shall have right to give their vote in the election of their respective representatives.

In this same draft, incidentally, Jefferson proposed that-

No person hereafter coming into this country shall be held within the same in slavery under any pretext whatever.

That, Mr. President, was proposed ')y Thomas Jefferson for the Virginia Constitution in 1776, and it was proposed to be written into the Federal Constitution in Philadelphia in 1787. It was primarily the State of Massachusetts and other maritime States that were bringing the slaves into the South which objected to that being written into the Constitution as proposed by the representatives from Virginia, and they said that if that were put into the Constitution they would · walk out of the convention before any constitution had been agreed to.

Jefferson gave a further exposition of his ideas on suffrage in his 1873 draft for a Constitution for Virginia in which he proposed:

All free male cit i zens of full a.ge, and sane mind, who for one year before shall have been resident in the county or shall through the whole of that time have possessed therein real property of the value of---; or shall for the same time have been enrolled in the militia, and no others shall have a right to ­ vote for delegates for the said county, and for senatorial electors for the d i strict.

FEDERALIST INTERPRETATION

As has already been indicated, the members of the Constitutional Convention were conscious of the need to satisfy the people of the various States on this touchy subject of suffrage rights and it was one of the subjects which received attention in the Federalist papers which gave the most extensive contemporary exposition of the Constitution.

In No. 52 of the Federalist, written by either Madison or Hamilton, it was pointed out that the Constitution made the qualification for Federal electors the same as those of the electors of the most numerous branch of the State legislature.

The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.

The Federalist author continued:

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

Mark the following words of the paragraph in the quotation:

To have reduced the different qualifications in the different States to one uniform rule would probably have been as dissat i s­ factory 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 constitu­ tions in such a manner as to abridge rights secured to them by the Federal Constitution. Then, in the 54th Federalist, which also may have been written by either Madison or Hamilton, it was remarked: The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who w111 be included in the census by which the Federal Constitution apportions the Representatives.

Discussing the subject of qualification of electors further in the 59th Federalist Hamilton wrote: ' It will not be alleged that an election law could have been framed and inserted in the Constitution which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed; that it must either have been lodged wholly in the National Legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reawn, been preferred by the convention. They have submitted the regulation of elections for the Federal Government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient · and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.

Note that Hamilton, always an advocate of strong Central Government and fearful of State encroachments, in attempting to win support for the compromise provisions of the Constitution which he had helped to frame claimed no more than that the national authority might int e rpose itself in the regulation of elections when "necessary to its safety."

He argued that g1vmg the exclusive power of regulating elections for the National Government to the State legislatures would leave the existence of the Union at their mercy, since they could annihilate it simply by refusing to hold any election for national officials. Turning then to the other side of the picture, he said:

Suppose an article had been introduced into the Constitution empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power and as a premeditated engine for the destruction of State governments?

Mind you, that is the great Alexander Hamilton, of New York, speaking.

I continue to read from his statement: The violation of principle in this case would have required no comment--

That is Alexander Hamilton, speaking about an effort of the Congress to fix the qualifications of voters.

The violation of principle, in this case, would have required no comment; and to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the National Government, in a similar respect, to the pleasure of the State governments. An impartial view of the matter cannot fail to result in a conviction, that each ~ as far as possible, ought to depend on itself for its own preservation.

Alexander Hamilton said that the Federal Government would depend for its preservation upon section 4, by which the Congress may regulate the times, places, and manner of holding elections to make sure that all the States have such elections; and that the States would preserve their integrity and sovereignty under section 2 of article I, which gives them the power of fixing the qualifications of voters, subject only to the restriction that they cannot impose on the electors or voters for Federal offices any different requirements than they impose on those who they say are qualified to vote for the most numerous branch of the State legislature.

Continuing his discussion in the 60th Federalist, Hamilton said that with the House of Representatives being elected directly by the people, the Senate by the State legislatures, and the President by electors chosen for the purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

As to the Senate he said:

It is impossible that any regulation of time and manner, which is all that is proposed to be submitted to the National Government in respect to that body ; can affect the spirit which will direct the choice of its members. Further on in the same paper, discussing fears that elections might be manipulated in the interest of the "rich and the well born," Hamilton said the only way of securing such preference would be by prescribing qualifications of property either for those who may elect or be elected.

He continued:

This forms no part of the power to be conferred 1,1pon 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.

He was referring, of course, to this body. Alexander Hamilton wrote as clearly as English language could be expressed that the power to pass on the qualifications of voters was left expressly by the Constitution to the States, and he stated that such powers are unalterable by the legislature.

The clear distinction Hamilton made, in explaining that the Federal Government might regulate the time, the place, and the manner of holding elections but could not change the qualifications of the electors, was also recognized and emphasized by others.

RATIFYING CONVENTION DEBATES

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

The idea of the honorable gentleman from Douglass transcends my understanding; for the power of control given by this section extends to the manner of elections, not the qualific a tions of the electors.

And James Wilson, who had warned in the Federal Convention of the difficulty that might result if qualifications of State and National electors were differ­ said: ent, had this to say in the Pennsylvania convention:

In order to know who are qualified to be electors of the House of Representatives, we are to inquire who are qualified to be electors of the legislature of each State. If there be no legislature in the States, there can be no electors of them; if there be no such electors, there is no criterion to know who are qualified to elect Members of the House of Representatives. By this short, plain deduction, the existence of State legislatures is proved to be essential to the existence of the General Government.

In the Virginia convention, Wilson Nicholas, one of the delegates, said:

If, therefore, by the proposed plan, it is left uncertain in whom the right of sufr a ge 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 quau;. fications 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 Constitution, a right to choose Representatives for the General Government.

All those who are familiar with what happened in the ratifying convention at Richmond know how Patrick Henry fought the ratification of the Constitution on the ground that it gave the Federal Government too much power; and this is one oi the things that the question was raised about: Can the Federal Government pass on the qualifications of the voters; or can Virginia, as in the past, fix those qualifications, and the Federal Government just determine the time s , places, and manner, if it wishes to do so, of holding those elections, where those who have the right to vote under the State law can then freely participate?

Wilson Nicholas was a member of the Philadelphia convention. He came back to Richmond and explained the meaning of what had been done at Philadelphia. He gave the members of the Richmond ratifying convention most positive assurance that the Federal Government could not and never would undertake to pass upon and fix the qualifications of voters. Even with that assurance, Mr. President, the Constitution was ratified in Virginia by a majority of only eight votes. I am very proud of the fact that I had two ancestors in that convention, Col. James Gordon, of Lancaster, and his son, James Gordon, Jr., close friends of Madison. I am proud they voted to ratify the Constitution, and I am glad to stand here and inform the Senate what the men who ratified it had in mind when they did so, and how wrong it would be to ignore the intentions of the framers of the Constitution and the intentions of those who participated in the convention and to override the States and to assume a right which they themselves have, and then take the step of pulling out one stone of the foundation of our constitutional representative democracy.

Again, in explaining the plan to the North Carolina convention, John Steele Every man who has a right to vote for a representative to our legislature will ever ha v e a right to vote for a Representative to the General Government. Does it not expressly provide that the electors in each St a te shall have the qualifications requisite for the most numerous branch of the State legislature? Can they, without a most manifest violation of the Constitution, alter the qu a lifications of the electors: The power over the manner of elections does not include that of saying who shall vote. The Constitution expressly says that the qualific a tions are those which entitle a man to vote for a State representative. It is, then clearly and indubitably fixed and determined who shall be the electors; and the power over the manner only enables them to determine how these electors s hall electwhether by ballot, or by vote, or by any other way.

Mr. President, one would think that the Senate had just been confronted with the question as to whether we could change the qualifications of electors; but John Steele, as I recall, was a delegate from North Carolina to the Philadelphia constitutional convention, and he re- turned to his State convention to explain the meaning of what had been done at the Philadelphia convention. The members of the State ratifying convention wished to know whether the Federal Government could change this . procedure. He said to them, I repeat:

Can they, without a most manifest violation of the Constitution, alter the qualificat i ons of the electors?

KEEPING FAITH WITH STATES

Mr. President, these excerpts from the debates in the ratifying conventions point to the correctness of the conclusion reached by Mr. Jesse F. Orton, New

York attorney and student of constitutional law, who said in a brief on this subject prepared several years ago:

This sentence (in art. I, sec. 2, saying electors shall have the same qualifications as electors of the most numerous branch of State legislatures), the only one on "qualifications," was obviously a material representation and also a solemn pledge, that each ratifying State would be permitted, as in !act it was commanded, to use in electing its Representatives the same qualifications used in electing the larger branch of its legislature. • • • This provision in section 2 of article I was definitely understood by each State as such a pledge and absolute assurance. Every State ratified the Constitution upon that express condition, many times repeated during the period of ratification.

Those are not my words; those are the words of a very distinguished attorney from New York pity.

He goes on to say:

Few historical facts are more conclusively established than the fact that this pledge was made for the express and avowed purpose of obtaining the consent of the States to the adoption of the Constitution. It was repeated and emphasized in the Federalist, written chiefly by Madison and Hamilton, and in other writings and oral statements for the sole purpose of securing ratification. In the ratifying conventions it was used to satisfy any "doubting Thomas" that the States were absolutely protected in their power to control the suffrage in the election of Representatives.

Without this assurance, consent would have been refused by many of the States. With it, ratification was obtained in Massachusetts, New York, and Virginia by a vote of less than 53 percent of members present and voting.

In section 4, after providing: "The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof," Lt was provided that "the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators." This grant of power to set at naught the election laws passed by the States in obedience to this command in section 4 met with more violent and angry protests probably than any other provision in the Constitution. Section 4 undoubtedly lost many votes of delegates who otherwise would have voted for ratification. If Congress had been given similar power to set at naught the action of the States with respect to qualifications, there is little doubt that nine States would not have ratified and the proposed Union would not have been formed.

All that, Mr. President, was a quotation from this distinguished lawyer in New York.

Certainly there is nothing equivocal about the language of article I, section 2, which says those who vote for national officers in each State shall have the same qualifications as those who vote for members of the most numerous branch of the State legislature. And section 4 of article I is precise in limit­ · ing the control of Congress to the times, places, and manner of electing Senators and Representatives.

The significance of these limitations is reinforced by the fact · that as late as 1912, when the 17th amendment was proposed by Congress, providing for popular election of Senators, language was used identical to that of article I, section 2. This amendment says:

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

This, mind you, Mr. President, was adopted after more than a century of experience with the suffrage provisions contained in the Constitution and also after there had been ample time to observe operations of the newer poll taxes which were adopted between 1875 and 1908.

It is a matter of record, however, that when the 17th amendment was debated in Congress, no issue was raised on the right of the States to determine the qualification of electors. But, on the contrary, serious consideration was given to a proposal to take away from Congress, by amendment, the authority to alter the times, places, and manner of holding elections.

Searching elsewhere than in article I for constitutional justification for abolishing the poll-tax requirement, supporters of such legislation have sometimes cited article IV, section 4, which says:

The United States shall guarantee to every State in this Union a republican form of government.

Analysis of this section as it was understood by those who wrote it tends, however, to strengthen rather than weaken the position of those who claim the States have a legitimate right to require tax payments as a prerequisite to voting.

In considering article IV, section 4, in No. 43 of the Federalist, Mr. Madison frankly raised the question whether or not the guarantee of a republican form of government might not "become a pretext for alteration in the State governments, without the concurrence of the States themselves."

Answering his own question, he said: If the general government should interpose by virtue of this constitutional authority, it wm be, of course, bound to pursue the authority. But the authority extends no further than to a guarantee of a republican form of government, which supposes a preexisting government of the form which is to be guaranteed. So 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.

Those are the words of James Madison, explaining the meaning of that section of the Constitution. It will be noted that Madison believed that the guarantee applied to the forms of government existing in the States at the time the Constitution was written, and as I already have . e indicated, these governments included property or tax qualifications on the right to vote.

In Willoughby's authoritative book on the Constitution (1, 2d ed., 215) we also find him saying this with respect to article IV, section 4 :

It wm be noticed that the Constitution does not itself · define the term "republican form of government ' ." It has, however, always been an accepted rule of construction that the technical and special terms used in the Constitution are to be given that meaning which they had at the time that instrument was framed. This is but reasonable, for, in default of anything to the contrary, those who drafted the Constitution are to be presumed to have intended the words which they used to have that meaning they knew them to have. For a definition, then, of "republican government" we must discover what, in 1787, such a political form was considered to be. Certainly we may say that the governments of the Thirteen Original States as they existed at the time the Constitution was drafted must have been considered as illustrating the republican type. Furthermore, the constitutions of all those States which have been admitted to the Union since 1787 must be regarded as having been impliedly considered republican by Congress at the time of the giving of its assent to their entrance into the Union. Also, discussing article I, section 4, in the Virginia ratifying convention, Mr. Madison explained:

It was found impossible to fix the time, place, and manner of the election of Representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State governments, as being best acquainted with the situation of the people, subject to the control of the General Government, in order to enable it . to produce uniformity and prevent its own dissolution.

And, considering the State governments and General Government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former and the general regulations to the latter. Were they exclusively under the control of the State governments, the General Government might easily be dissolved. But if they be regulated properly by the State legislatures, the congressional control will very probably never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the Constitution. This, it will be noted, deals only with the times, places, and manner of holding elections and not with qualifications of voters since, under the provision of article I, section 2, a State could not attempt to dissolve the General Government by disqualifying voters without automatically dissolving its own government.

COURT DECISIONS

Now, let us see what our courts have had to say about the dividing line between State and Federal powers as applied to voters and elections.

After the adoption of the 14th amendment a woman in Missouri, where the right to vote was limited to males, sued the registrar because he refused to put her name on the list of voters. She contended she was a citizen of the United States under the amendment and that the State could not abridge her right as such a citizen to vote for Presidential electors.

In this case, reported as Minor v. Happersett (21 Wallace 162) and decided in 1875, the Supreme Court denied her claim. The Court held that since she was a citizen, born of citizen parents before the amendment, her status with respect to voting was not changed by it, because the right to vote before the amendment was not necessarily one of the privileges or immunities of citizenship. This was demonstrated by the necessity for the 15th amendment, which protected the Negro from being excluded from voting because of his color but did not affect his wife, who remained debarred on account of sex. It took the later 19th amendment to remove that - The 14th amendment, the Court said, "does not confer the right of suffrage upon anyone."

Another issue raised in this case was whether or not the State, in refusing to allow. women to vote, had failed to _ provide the republican form of government guaranteed by article IV, section 4.