March 24, 1962 (2)

On this point the Court said:

The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all, · the people participated to some extent, through their representatives selected in the manner specifically provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide.

Thus we have unmistakable evidence of what was republican in form within the meaning of that term as employed by the Constitution.

That is the language of the Court, Mr. President. . I am still quoting from the Court's opinion: ·

As has been seen (in the argument that has gone before) all the citizens of the States were not invested with the right of suffrage. In all, save perhaps New Jersey, this right was only bestowed upon men and not upon all of them. Under these circumstances, it is certainly now too late to contend that a government is not republican, within the meaning of this guaranty in the Constitution, because women are not made voters.

While the Court in this instance was considering particularly the limitations in the State governments which prevented women from voting, the opinion delivered by Chief Justice Waite cited other types of limitation as well.

The opinion, at page 172, contained this summary statement:

When the Federal Constitution was adopted, all the States, with the exception of Rhode Island and Connecticut, had constitutions of their own. These two continued to act under their charters from the Crown. Upon an examination of these constitutions we find that in no State were all citizens · permitted to vote . Each State determined for itself who should have that power.

Thus in New Hampshire, . "every male inhabitant of each town and parish with town privileges, and places unincorporated in the State , of 21 years of age and upwards, excepting paupers and persons excused from paying taxes at their own request," were its voters; in Massachusetts, "every male inhabitant of 21 years of age and upwards, having a freehold estate within the Commonwealth of the annual income of 3 pounds, or any estate of the value of 60 pounds"; in Rhode Island, "such as are admitted free of the company and society" of the Colony; in Connecticut, such persons as had "maturity in years, quiet and peaceable behavior, a civil conversation, and 40 shillings freehold or 40 pounds personal estate," if so certified by tl1.e selectmen; in New York, "every male inhabitant of full age who shall have personally resided within one of the counties of the State for 6 months immediately preceding the day of election • • • if during the time aforesaid he shall have been a freeholder possessing a freehold of the value of 20 pounds within the county, or have rented a tenement therein of the yearly value of 40 shillings, and been rated and - actually paid taxes to .. the State " ; in New Jersey, "all inhabit ants • • • of full age who are worth 50 pounds, proclamation-money , clear estate in the same, and have resided in this county in which they claim a vote for 12 months immediately preceding the election"; in Pennsylvania, "every freeman of the age of 21 years, having resided in the State for 2 years next before the election, and within that time paid a State or county tax which shall have been assessed at least 6 months before the election"; in Delaware and Virginia, "as exercised by law at present"; in Maryland, "all freemen above 21 years of age having a freehold of 50 acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of 30 pounds current money, and having resided in the county in which they offer to vote 1 whole year next preceding the election"; In North Carolina, for Senators, "all freemen of the age of 21 years who have been inhabitants of any one county within tee State 12 months immediately preceding the day of election, and possessed of a freehold within the same county of 50 acres of land for 6 months next before and at the day of election," and for members of the house of commons, "all freemen of the age of 21 years who have been inhabitants in any one county within the State 12 months immediately preceding the day of any election, and shall have paid public taxes"; in South Carolina, "every free white man of the age of 21 years , being a citizen of the State and having resided therein 2 years previous to the day of election and who hath a freehold of 50 acres of land, or a town lot of which he hath been legally seized and possessed fo:r at least 6 months before such election, or (not having such freehold or town lot), hath been a resident within the election district in which he offers to give his vote 6 months before such election, and hath paid a tax the preceding year of three shillings sterling towards the support of the government"; and in ' Georgia, "such citizen and inhabitants of the State as shall have attained to the age of 21 years, and shall have paid tax for the year next preceding the election, and shall have resided 6 months within the county."

I am still quoting from the decision of Mr. Justice Story. The Court said:

In this condition of the law in respect to suffrage in the several States it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared.

This is the first case of the U.S. Supreme Court on this point. I ask the Senators to listen to the other cases, because I shall go down the line from the first case to the most recent case, that of Lassiter against Northampton Board of Elections, decided by the Supreme Court as late as 1959. The Supreme Court has never deviated, as I propose to show, from the first case right down to the present, in holding in clear, express, and explicit terms, that the States have exclusive jurisdiction over fixing the qualifications of voters, and that there is nothing anywhere in the Constitution, by indirection, by implication, or in any other way, that can give this proposed power to the Federal Government.

The decision of the Court in the case of Minor against Happersett, insofar as applicability of the 14th amendment to voting privileges was concerned, was influenced, of course, by the important slaughterhouse cases, which had been decid e d just 2 years earlier, in 1872.

SLAUGHTERHOUSE CASES

It was these cases which drew a clear line between national citizenship and State citizenship and established that the privileges adhering to one did not necessarily apply to the other.

The State of Louisiana had passed a law to regulate slaughterhouses near New Orleans and suit was brought on the ground that this law discriminated against certain citizens who had previously engaged in business, and that it therefore violated the 14th amendment. More than a hundred pages in the reports-16 Wallace 36-were occupied by the Court's exhaustive analysis of the 14th amendment.

In its opinion, the Court said:

The first section of the 14th amendment, to which our attention is more specially · invited, opens with a definition of citizenship-not only citizenship of the · United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It has been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided. But it had been held by this Court, in the celebrated Dred Scott case , only a few years before the outbreak of the Civil War, that a man of African descent , whether a slave or not, w a s not and could not be a citizen of a State or of the United States . . This decision, while it met condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the Negro race who have recently been made freemen were still not only not citizens but were incapable of becoming so by anything short of an amendment to the Constitution.

To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship o! the United States and also citizenship of a State, the first clause of the first section was framed.

That clause is the one reading-

All persons born and naturalized 1n the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The Court continued:

The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been subject to differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the . United States, and subject to its jurisdiction, citizens of the United states. That its main purpose was to establish the citizenship of the Negro there can be no doubt. The phrase "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.

The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citiZen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized 1n the United States to be a citizen of the Union.

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.

We think this distinction and its explicit recognition . in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.

The language is: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

It is a little remarkable, if this clause was intended as a protection to the citizens of a State against the legislative power of his own State, that the words "citizen of the State" should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change of phraseology was adopted understandingly and with a purpose.

Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such, the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment.

The first occurrence of the words "privileges and immunities" 1n our constitutional history is to be found in the fourth of the articles of the old Confederation.

It declares "that the better to secure and perpetuate mutual friendships and intercourse among the peoples of the different States of this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively."

In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section 2 of the fourth article, in the following words: "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States."

There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation we have some of these specifically mentioned and enough perhaps to give some general idea of the class of civil rights meant by the phrase.

Fortunately, we are not without judicial instruction on this clause of the Constitution. The first and the leading case on the subject is that of Corfield against Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1823.

"The inquiry," he says, "is, What are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental-which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: Protection by the Government with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may prescribe for the general good of the whole."

This definition of the privileges and immunities of citizens of the States is adopted in the main by this Court in the recent case of Ward against the State of Maryland, while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure.

Please notice that last phrase used by the Court:

They have always been held to be the class of rights which the State governments were created to establish and secure.

To continue quoting from the Court's opinion in the Slaughterhouse cases:

In the case of Paul against Virginia, the Court, in expounding this clause of the Constitution, says that the privileges and immunities secured to citizens of each State in the several States by the provision in question are those privileges and immunities which are common to the citizens of the latter States under their constitutions and laws by virtue of their being citizens.

The constitutional provision there alluded to did not create those rights, which it calls privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.

Note well that last statement of the Supreme Court:

Nor did it profess to control the power of the State governments over the rights of its own citizens.

But that is what the proposals now under consideration propose to do.

Continuing with our citation of the Court's opinion:

Its sole purpose was to declare to the several States that whatever those rights, as you grant or establish them to your own citizens, as you limit or qualify, or impose restrictions, on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

It would be the vainest show of learning to attempt to prove by citations of authority that up to the adoption of the recent amendments (that is, the 13th, 14th, and 15th) no claim or pretense was set up that those rights depended on the Federal Government for their existence or protection beyond the very few express limitations which the Federal Constitution imposed upon the Statessuch, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without . that of the Federal Government.

Was it the purpose of the 14th amendment, by the simple declaration that no State shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States to transfer the security and protection of rights which we have mentioned to the Federal Government? And where it declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow if the proposition of the plaintiff is sound.

For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation but that body may also pass laws in advance limiting and restricting the exercise of power by the States in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects and still further such construction would constitute this Court a perpetual censor upon all legislation of the States on the civil rights of their own citizens, with authority to nullify such as it did not approve, as consistent with those rights as existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, those consequences are so serious, so far reaching and pervading, so great a departure from the structure and spirit of our institutions, when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most o;rdinary and fundamental character, when in fact it radically changes the whole theory of the relations of the State and Federal Governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language - which expresses such a purpose too clearly to admit of doubt.

Then, after pointing out that the Federal Government does unquestionably have responsibility for protecting the privileges and immunities of citizens under certain circumstances, such as when they are on the high seas or within the jurisdiction of a foreign government, the Court said it did not see in the 13th, 14th, and 15th amendments "any purpose to destroy the main features of the general system" of our Government.

The opinion concluded:

Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States with powers for domestic and local government including the regulation of civil rights, the rights of person and of property was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States and to confer additional power on that of the Nation.

But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence we think it will be found that this Court, so far as it functionS' required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution or of any of its parts.

UNITED STATES AGAINST CRUIKSHANK

In 1876, the year after the case of Minor against Happersett was decided, Chief Justice Waite again emphasized the right as well as the obligation of the States to protect the privileges of their citizens.

In giving the Court's opinion in the case of United States v. Cruikshank (92 U.S. 542) he said:

The 14th amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, or from denying to any person equal protection of the law, but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guarantee against any encroachment by the State upon the fundamental rights which belong to every citizen as a member of society.

The duty of protecting all its citizens in · the enjoyment of an equality of rights was originally assumed by the States, and it remains there. Th~ only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees and no more. The power of the National Government is limited to this guarantee.

The only question, then, would seem to be whether the right of voting without paying a poll tax, when , _ the State requires such payment, is such a fundamental right as the Court referred to.

, UNITED STATES AGAINST REESE

The Court removed any doubt on this point in another opinion handed down in 1876, following the Cruikshank case, to which I have referred. In the case of United States v . Reese (92 U.S. 214) the Court said:

The 15th amendment does not confer the right of suffr a ge upon anyone. It prevents the States, or the United States, however, from giv i ng preference in this particular to one cit i z e n of the United States over another on account of race. color, or previous condition of ser v itude. Before its adoption this could be done. It was as much with i n the power of a State to exclude citizens of the United States from voting on account o:f race, and so forth , as it was on account of age, property, or education. Now it is not. Please notice closely the last part of that statement. The Court said that before adoption of the 15th amendment a State had as much right to exclude a citizen from voting on account of race, color, or previous condition of servitude, as it had-and still has since passage of the ameJ.ildment--to exclude on account of age, property, or education.

EX PARTE YARBROUGH

We come next to 1884 and a case style . d Ex parte Yarbrough (110 U.S. 651). The unanimous opinion in this case was written by Mr. Justice Miller, the same distinguished jurist who wrote the opinion in the Slaughter House cases from which I previously quoted. This is a leading case which has been cited and relied upon by the courts in later cases involving the right to vote.

In this case Yarbrough and others were prosecuted for interfering with the exercise of the right to vote by certain qualified voters in an election of a Member of Congress from Georgia. They were charged with making violent attacks on those persons to prevent their voting. Yarbrough and the other defendants claimed they were not subject to Federal prosecution because the right to vote was conferred by the State.

In its opinion the Court said:

The States, in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for Members of Congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall vote for Members of Congress in that State.

I continue to read:

It adopts the qualification thus furnished as the qualification of its own electors for Members of Congress. It is not true, therefore, that electors for Members of Congress owe their right to vote to the State in any sense which makes the exercise of the right to depend exclusively on the law of the State. In short, in the Yarbrough case the Court held that the State may not prescribe qualifications for Members of Congress as such, but it does automatically d-etermine what their qualifications shall be when it fixes the . qualifications for electors of the popular branch of its own legislature. It is therefore clear that until the _ present Constitution be amended, the Federal Government cannot in effect :fix qualifications for electors for State legislatures by prescribing qualifications of those eligible te vote in national elections. Of course that is what it would amount to, and certainly under the Constitution the qualifications · have to be the same . No one, either here or anywhere else, has ever challenged that fact.

SWAFFORD AGAINST TEMPLETON

The case of Swafford v. Templeton 085 U.S. 487) involved the question of whether a person qualified to vote under State laws, who is wrongfully denied that right, has a cause of action for damages arising under the Constitution of the United States.

In answering this question in the affirmative, the Court referred to the Yarbrough case, and interpreted that opinion in this way:

That is to say, the ruling was that the case was equally one arising under the Constitution or laws of the United States, or from violation of a State law which affected the exercise of the right to vote for a Member of Congress, since the Constitution of the United States had adopted, as the qualification of electors for Members of Congress, those prescribed by the State for electors of the most numerous branch of the legislature of the State.

It will be noted that the Court says the Constitution adopts the qualifications prescribed by the State-not that Congress adopts them. And, since it is the Constitution that adopts them, Congress is without power to alter this adoption

GWINN AND BEAL AGAINST UNITED STATES

Again, in 1915 in the case of Gwinn and Beal v. U.S. (238 U.S. 347) Mr. Chief Justice White had this to say about the effect of the 15th amendment on State power (p. 362) :

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

NEWBERRY AGAINST UNITED STATES

The authority of the Federal Government to . regulate elections under article I, section 4 was further defined in 1921 in the case of Newberry v. U.S. (256 U.S. 232). Mr. Justice Pitney, speaking on behalf of Justices Brandeis, Clark, and himself, in a concurring opinion, which dissented on one main point in the case, said that . section 4 "does not confer a general power to regulate elections, but only to regulate 'the manner of holding' them. But · this · can mean nothing less than the entire mode of procedure-the essence, not merely the form of conducting elections."

And, in its majority · opinion in this case, the Court said:

,. We find no support in reason or authority for the argument that because the offices were created by the Constitution, Congress has some indefinite, undefined power over elections for Senators and Representatives not derived from section 4. The Government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.

Thus Congress may enact laws to protect the right to vote of those who are qualified by State law; but no power is expressly given, or given by necessary implication to say who shall be qualified to vote in the States. · -

BREEDLOVE AGAINST SUTTLES

The first case directly involving poll taxes to come before the Supreme Court for decision was that of Breedlove v. Suttles (302 U.S. 277) decided in 1937. In that case the plaintiff, a citizen of Georgia, attempted to vote in a State election and also in a Federal election held at the same time for a Representative in Congress. He was refused the right to vote in either election because he had not paid his poll tax. He then sued, contending the privilege of voting for Federal officials was one to which he was entitled, unrestricted by a tax unreasonably imposed through State invasion of his rights as a citizen of the United States.

Mr. Justice Butler, in the unanimous opinion of the Court, stated:

Payment of the tax as a prerequisite (to voting] is not required for the purpose of denying or abridging the privilege of voting. • • • Exaction of payment before registration undoubt · dly serves to aid collection from electors desiring to vote, but that use of the States' power is not prevented by the Federal Constitution. • • • To make payment of poll taxes a prerequisite , of voting is not to deny any privilege or immunity protected by the 14th amendment. Privilege of voting is not derived from the United States, but is conferred by the State and, save as restrained by the 15th and 19th amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate.

That is a direct quotation from the decision of the Supreme Court rendered in 1915. ( Then, after citing four leading cases including those of Minor against Happersett and Ex parte Yarbrough, the Court stated:

The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources.

A more recent case, Butler v. Thompson, D.C.E.D. Va., 97 F. Supp. 17, affirmed, 341 U.S. 937, decided in 1951, give~ the Virginia poll tax requirement and its administration by State officials, a constitutional "clean bill of health" similar to that bestowed on the State of Georgia by the Court in Breedlove against Suttles. I will review the Butler case later.

UNITED STATES AGAINST CLASSIC

We now come to the case of United States v. Classic, 313 U.S. 29.9 (1941).

This case is · somewhat similar to the Yarbrough case, involving prosecution of Classic and others for interfering with voters in a Louisiana primary election. The main point in the case was whether the constitutional protection applied to voters in a primary as well as to a general congressional election. The Court decided that it did.

But, the Court proceeded to cite the Yarbrough case, following the ruling in that case, in holding that the right to vote in either primary or general elections of Members of Congress was given only to persons qualified under State law to vote for members of the most numerous branch . of the legislature.

Mr. Justice Stone said:

Such right as is secured by the Constitution to qualified voters to choose Members of the House -of Representatives is thus to be exercised in conformity with the requirements of State law, subject to the restrictions prescribed by section 2 and the authority conferred on Congress by section 4, to regulate the times, places, and manner of holding elections of Representatives.

We look then to the statutes of Louisiana here involved to ascertain the nature of the right which under the constitutional mandate they define and confer on the voter. The Court also said in the case:

The right of the people to choose, • • • is a right established and guaranteed by the Constitution, and hence is one secured by it to those citizens and inhabitants of the State entitled . to exercise the right.

Then followed this paragraph, which mistakenly has been relied upon by advocates of Federal action:

While, in a loose sense, the right to vote for Representatives in Congress is sometimes spoken of as a right derived from the States (citing cases), this statement is true only in the sense that the States are authorized by the Constitution to legislate on tlie subject as provided by section 2 of article I, to the extent that Congress has not restricted State action by the exercise of its powers to regulate elections under section 4 and its more general power under article I, section 8, clause 18 of the Constitution "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

In other words, the office of Representatives in Congress was created by the Constitution, of course. But, the opinion still says that the States are authorized to legislate as provided by section 2, which is the only section that refers to qualifications of voters, and that this authority may be limited by the Federal J authority under section 4 which covers only times, places, and manner of holding elections.

I am aware, of course, that in the cases of Smith v. Allwright (1944) (321 U.S. 649) and Rice v. Elmore (C.C.A. 4th, 1947), 165 F. (2d) 387, in which certiorari was denied in 1948, 16 L.W. · 3314, the issue was raised of whether a State primary was an integral part of the State election machinery and whether denial of a right to participate in the primary was a denial of a constitutional or Federal statutory right for which redress could be sought through injunctive relief or damage. ·

But these cases merely emphasize the accepted fact that States may not deny the right to vote which is guaranteed by . the Constitution to those who are qualified. There is nothing in either of these decisions which contradicts the position taken by the Court in other cases, that the States have the authority to determine what are the qualifications.

PIRTLE AGAINST BROWN

Another case which may be mentioned is that of Pirtle v. Brown (118 Fed. (2d) 218). This grew out of the complaint of a citizen of Tennessee otherwise qualified, who was refused the right to vote in a special election to fill a vacancy in the House of Representatives because he had not paid his poll tax.

If there could be a more direct issue before the court than that, I do not know what it could be. That is the very issue before us now. He wanted to vote for a Member of Congress, and he had not paid his poll tax. The State officials said, "You cannot vote." The district court found against him. The decision was affirmed unanimously by the Sixth Circuit Court of Appeals, whose opinion followed closely the reasoning of Mr. Justice Butler in the Breedlove case.

The Supreme Court was asked to review the case, but, on October 13, 1941, the petition was denied, without any opinion or statement.

Inherent in our Government is the protection of minorities on certain vital issues.

The Court, however, denied the writ and thus placed its stamp of approval on the ruling in ' the Breedlove case even when no State election was involved.

A few moments ago, I referred to the -1951 Virginia case of Butler against Thompson. If , there has been any doubt regarding the right of a State to set the payment of a poll tax as a qualification for voting, _ this case surely must expel such doubt. · ·

In Butler v. Thompson, · D.C.E.D. Va., 97 F. Supp. 17, a special three-judge court reviewed the constitutionality of the Virginia poll tax as a prerequisite for voting. The decision of this special court was affirmed in 341 U.S. 937.

Judge Dobie, speaking for the threejudge court, the language of which the Supreme Court endorsed by its affirmation of the decision, had the following to say:

The decisions generally hold that a State statute which imposes a reasonable poll tax as a condition of the right to vote does not abridge the privileges or immunities of citizens of the United States which are protected by the 14th amendment. The privilege of . voting is derived from the State and not from the National Government. The qualification of voters in an election for Members of Congress is set out in article . I, section 2, clause 1 of the Federal Constitution - which provides that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of . the State Legislature. The Supreme Court in Breedlove v. Suttles, 302 U.S. 277, 283, 58 S. Ct. 205, 82 L. Ed. 252, held that a poll tax prescribed by the Constitution and statutes of the State . of Georgia did not offend the Federal Constitution.

Accordingly, the Supreme Court, by its affirmation of Judge Dobie's language, held that the Virginia poll tax statute did not violate either the 14th amendment or the 15th amendment and, furthermore, was valid under article I, section .. 2 .of the Constitution. -

- More recently-as · late as 1959-the Supreme · Court in Lassiter . r v. · Northampton Board of Elections, 360 · U.S. 45, upheld a North Carolina voting qualification, in this instance a literacy test.

In upholding North . Carolina's _ literacy test qualification, Mr. Justice Douglas said at page W:

The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, Pope v. Williams, 193 U.S. 621, 633; Mason v. Missouri, 179 U.S. ' 328, 335, absent of course the discrimination · which the Constitution condemns. Article I, section 2, of the Constitution in its provision for the election of Members of the House of Representatives and the 17th amendment in its provision for the election of Senators provide that officials will be chosen "by the people.” Each provision goes on to state that "the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature." So while the right of suffrage is established and guaranteed by the Constitution (Ex parte Yarbrough, 110 U.S. 651, 663-665; Smith v. Allbright, 321 U.S. 649, 661-662) it is subject to the imposition of State standards which are not discrimina- ' tory and which do not contravene any restriction that Congress. acting pursuant to its constitutional powers, has imposed. See United States v. Classic, 313 U.S. 299, .315.

Clearly, when Justice Douglas cites article I, section 2 of the Constitution, he is emphasizing that the right of the States to determine voter qualifications remains unaltered. When he refers · to "State -Standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed," he is merely affirming the universally accepted principle that no State can deny a citizen the right to vote because of race, creed, color, or . sex, and that Congress under article I, section 4 of the Constitution may regulate "the times, places, and manner of holding elections."

I realize, of course, that the amendment proposed by the distinguished Sen­ · ator from Florida [Mr. HOLLAND] is a constitutional means of altering our present form of government. Consequently, such a proposal obviously cannot be unconstitutional. However, it !Seems that whenever a proposal to abolish the poll tax by a constitutional amendment appears for consideration on the floor of Congress, a bill designed to accomplish the same result--such as the Javits bill-is never far behind. Although the policy objections which I have enumerated and will discuss further are applicable to both the proposed amendment and the bill, the constitutional objections-as Senators, I am sure, must realize-are reserved to the latter. I h _ have cited an unbroken line of cases, Federal and State, all of which clearly and unanimously hold that the right to fix qualifications is vested by the Constitution in the States. It has been argued at times that the cases are not in point because Congress has not legislated on the poll tax and when it does legislate, its regulation · will be paramount. · How foolish, since the Congress has no power -except that conferred upon it by the Constitution. . In this i.nstance the power not only is not conferred, it is expressly reserved - ved by the States in the Constitution. ·· The principle which must be applied was well stated by Chief - Justice Marshall in the case of Hodgson & Thompson v. Bowerbank (1809) (5 Cranch 303) when in discussing legislation dealing with judicial power he said:

Turn to the article of the Constitution of the United States, for the statute cannot extend jurisdiction beyond the limits of the Constitution.

The framers of the Constitution familiar with the constitutions of the several States and the tax requirements they included, wrote into article I, section 2, a provision that the qualifications for electors for Members of Congress should be the same as the qualifications for the electors for the most numerous branch of the State legislatures. Thus reserving to themselves that power, the States likewise bound the Congress, as much so as if the Constitution had expressly said: "The Congress shall pass no bill concerning the qualifications of persons voting for Representatives in Congress."

That there · should be no doubt, in future years, of that fact, there was written into the lOth amendment this reminder:

The powers not delegated to the United States by the Constitution, nor prohibited by 1t to the States are reserved to the States respectively or to the people.

CARTER AGAINST CARTER COAL CO.

The limitation . n on the powers of Congress was defined with clarity by the Supreme Court in the case of Carter v. Carter Coal Co. (298 U.S. 238) in which the Court said: ·

The general rule with regard to the respective powers of the National and the State Government under the Constitution is not in doubt. The States were before the Constitution; an~. consequently, their legislative powers antedated the Constitution. Those who framed and those who adopted that instrument meant to · carve from the general mass of legislative powers, then possessed by the States, only such portions as it was thought wise to confer upon the Federal Government; and in order that there should be no uncertainty in respect to what was taken and what was left the national powers of legislation were not aggregated but enumerated-with the result that what was not embraced by the enumeration remained vested in the States without change or impairment. Thus, "when it was found necessary to establish a National Government for national purposes," this Court said in Munn v. Illinois (84 U.S. 113, 124), "a part of the powers of the States and the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers o! the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people.” While the States .are not sovereign in the true sense of that term, _ but only quasi-sovereign, yet in respect of all powers reserved to them they are supreme--"as independent of ~he General Government as that Government within its sphere is independent of the States." · And, since every addition to the legislative power to some extent detracts from or invades the power of the States it is of · vital · moment t;b,a t, in order to p _ r . preserve the fixed balance intended by the Constitution; the powers of the General Government be not so extended as to . embraCe any riot Within tlie · express terms · of tlie several · grants · or the · implications necessary - to be drawn therefrom.

It is no longer open to question that the General Government, unlike . the States, possess . no inherent power in respect of the internal affairs of the States and emphatically not with . regard tO legislation. The question in respect of the inherent power of that Government as to the external affairs of the Nation and in the field of international law is a wholly different matter which it is not necessary now to discuss.

While it may be said that the value of the case I have just cited is limited as a precedent by subsequent decisions questioning the validity of the conclusion then reached by the Court, the reasoning on the particular point we have under discussion remains valid.

This was recognized by the Court when it said as late as 1945 in the case of Screws v. U.S. (325 U.S. 91):

The 14th amendment did not alter the basic relations between the States and the National Government. United States v. Harris (106 U.S. 629; in re Kemmler, 136 U.S. 436 , 448): Our National Government is one of delegated powers alone.

So it seems clear that the power to fix qualifications of voters, expressly reserved to the States by the Constitution, cannot be said to be abrogated by some implied power of Congress.

Now let us take a look at the · Javits bill in the light of the constitutional history which I have so far developed.

The second section of s. 478 states that-

SEc. 2. It shall be unlawful for any State, municipality, or other governmental authority or any subdivision thereof, or for any person, whether or not acting on behalf of any State, municipality, other governmental authority or subdivision thereof, to levy, collect, or require the payment of any poll tax or other tax or to impose a property qualification as a prerequisite for registering to vote or voting in any primary or other election for President, Vice President, elector for President or Vice President, or Senator or Member of the House of Representatives, or otherwise to interefere with or prevent any person from registering to vote or voting in any such election by reason of such person's failure or refusal to pay or assume the obligation of paying any poll tax or other such tax or meeting any property qualification. Any such levy, collection or requirement, and any such tax or property qualification, shall be invalid and void insofar as it purports to disqualify any person otherWise qualified from voting at such primary or other election.

I should first like to call -attention to the fact that the bill is made to apply to the choice of electors for President and Vice President, in the very face of the fact that the Constitution reserves to ' the States the exclusive power - of determining the manner in which its electors shall be chosen and confers no power whatsoever on Congress to legislate on this subject.

Section 1 of article n of the Constitution provides: ·

Each State shall appoint, in , such manner as the legislature thereof may direct, anumber of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.

Under this provision, States do not have to hold elections to choose Presidential electors, and in the early days of the Nation some States had their legislatures choose electors, some chose them by districts and some by other methods, although at present the accepted method is to have the choice made by ballot of the whole electorate.

M'PHERSON AGAINST BLACKER

Any doubt as to the latitude given the States in making their choice is removed by examination of the language used by the Supreme Court in the case of M c­ Pherson v. Blacker (146 U.S. 1, 27, 35) where Mr. Chief Justice Fuller said:

The Constitution does not provide that the appointment of electors shall be by . popular vote, nor that the electors shall be voted for upon a general ticket, nor that the- majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively, to define the method of effecting the object.

Mr. Chief Justice Fuller also said in his opinion in this case:

In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States. They are, as remarked by Mr. Justice Gray In re Green (134 U.S. 377, 379 (33 :951, 952)) "no more officers or agents of the United States than are the members of the State legislatures when acting as electors of Federal Senators, or the people of the States when acting as the electors of Representatives in Congress." Congress is em- . powered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States, but otherwise the power and jurisdiction of the State is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and Federal influence might be excluded.

In this case the Court also quoted, with approval, from a report of the Senate Privileges and Elections Committee made in 1847, in which it was stated that:

It is no doubt competent for the legislature to authorize the Governor, or the supreme court of the State, or any other agent of its will to appoint these electors.

The Court said further:

Whenever Presidential electors are appointed by popular election, then the right to vote cannot be denied or abridged without invoking the penalty (of having State representation reduced as provided in the 14th amendment) , and so of the right to vote !or Representatives in Congress, the executive and judicial officers of the State, or the members of the legislature thereof. The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State. There is no color for the contention that under the amendments every male citizen of the United States has from the time of his majority a right to vote for Presidential electors.

It should be apparent, then, that even if justification could . be found in the Constitution _ for the proposed legislation as applied to elections for Members of Congress, the same authorization could not be made to apply to the choice of electors of President and Vice President. Clearly, even the limited . power given by section 4 of article I to deal with the times, places, and manner of elections, cannot refer to the electors, who do not have to be chosen at an election at all, if the State should prefer some other manner of sel~ction.

So, the ground which is attempted to be covered by this bill indicates how far the enthusiasm of its sponsors has led them astray from constitutional principles.

That the departure of the authors of the bill from the intent of the framers of the Constitution is not entirely unconscious is also indicated by the clause in section 1 of the bill stating that requirement of a poll tax payment as a prerequisite to vote-- is not and shall not be deemed a qualification of voters or electors • • • within the meaning of the Constitution, but is and shall be deemed an interference with the manner of holding primaries and elections for said national officers, an abridgment of the rights and privileges of citizens of the United States, a tax on such rights and privileges, an obstruction of the operations of the Federal Government, and an impairment of the republican form of government.

We have here what amounts to a confession by the authors of the bill that they cannot invade the right to fix qualifications of voters, which is so plainlY given to the States by article I, section 2. So they try by a legislative declaration to remove the poll-tax requirement from the definition of the word "qualification" and then, by another declaration to brand it as "interference" with the manner of holding elections and other provisions of the Constitution thereby bringing it into a realm where Federal authority could be asserted.

There are two questions to be considered here. First, is the poll-tax requirement such a qualification as was contemplated by the framers of the Constitution and which is permissible under article I, section 2? And second, can the Congress usurp a power which always has been conceded to belong to the courts by attempting to define and interpret the meaning of the wording of our Constitution merely to justify an extension of its own powers?

On the first point, we know that Webster defines "qualification" as "a condi· tion precedent that must be complied with for the attainment of a status, the perfection of a right, and so forth, as the qualification of citizenship."

And "qualified voter" is defined as "one who possesses certain specific qualifications for voting, especially as to citizenship, age, and residence, and sometimes also as to literacy and ownership of property."

I can find no merit in the argument 'Of those who attempt to say that when the authors of our Constitution wrote in the word "qualification" they had in mind only moral or intellectual qualities which would make the citizen competent to vote intelligently.

As I previously pointed out in this discussion, the possession of property or the prepayment of taxes was a prerequisite to voting in most of the States at the time the Constitution was adopted. And, in the Federalist--No. 60-Alexander Hamilton applied the word “qualification” in this connection when he spoke of "prescribing qualifications of property, either for those who may elect or be elected." Hamilton immediately added that-

This forms no part of the power to be conferred upon the National Government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon another occasion, are defined and fixed in the Constitution; and are unalterable by the legislature.

The same understanding of the term "qualifications" is evident among those who participated in the constitutional convention debates. Thus (in Elliott's Debates, vol. 5, p. 385) we find that in discussion of article I, section 2, Mr. Gouverneur Morris moved to amend by striking out "beginning with the words 'qualifications of electors' , " so as to "restrain the right of suffrage to freeholders." Continuing this discussion of a property ownership requirement for voters, Mr. Wilson thought it would be difficult to form any uniform rule of qualifications for all States. Mr. Mason observed that some of the States had "extended the right of suffrage beyond the freeholders," and that a power to alter the qualifications would be a dangerous power in the hands of the Legislature-Congress. James Madison was undecided whether the constitutional qualification ought to be freehold, but said the right of suffrage ought to be left to be regulated by Congress. .

This interpretation of qualifications of voters has continued to be accepted to the present time.

I submit, therefore, that the Congress would be violating an elementary principle of law if it undertook, as this bill proposes to do, to enlarge its own powers by changing the meaning which the word "qualification" has achieved both by popular acceptance and judicial interpretation.

This is exactly the kind of action I believe Thomas Jefferson had in mind when he said:

In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chain.s of the Constitution.

The bill's assertion that what the framers of the Constitution plainly recognized as a qualification for voting is not a qualification at all, is a legally unjustified twisting of language.

I think we are justified in observing, too, that a poll tax prerequisite for voting is more of a fancied than an actual injustice.

The registration-before-voting requirement in New York State disqualifies more potential voters in New York City alone than the poll tax does in the en- tire State of Virginia. If the larger the vote, the better the government, why place any restriction on voting? It is neither a small poll tax payment nor registration that results in the failure of many people to vote. It is indifference to public affairs. Vast campaign funds are spent in every election in an effort to overcome that indifference.

Historically we have seen that the payment of a poll tax as a prerequisite to voting came into use in this country as a liberal alternative to the requirement that a citizen should be a landholder or property owner. It was regarded with some distrust by some of our Founding Fathers who feared that the colonist who owned nothing and so had little to lose might not hesitate to vote for irresponsible officials who would bankrupt the Government. It was defended, however, by those who recognized that in an undeveloped country there were those who had not had an opportunity to acquire many worldly goods but who deserved a voice in the Government. These liberals of their day were willing to trust the right of franchise to anyone who had made even a nominal contribution to the cost of maintaining his Government.

It still may be worth while for us to remember that John Stuart Mill, the English philosopher and economist, in his Considerations on Representative Government, not only recommended a direct capitation tax as a qualification !or voting, but also suggested that a voter should be able to read and write and do simple problems in arithmetic.

Also the distinguished American jurist, Judge Thomas M. Cooley, in his work on constitutional law, published in 1880, said:

Many of the States admit no one to the privilege of suffrage unless he is a taxpayer. • • • To require the payment of a capita- tion (poll) tax is no denial of suffrage; it is demanding only the preliminary perform· ance of public duty, and may be classed, as may also presence at the polls, with regis- tration, or the observance of any other preliminary to insure fairness and protect against fraud (p. 263) .

Incidentally, Judge Cooley, writing before the Yarbrough case was decided, forecast the position taken by the supreme Court by saying in his book:

The Constitution of the United States confers the right to vote upon no one. That right comes to the citizens of the United States, when they possess it at all, under State laws, and as a grant of State sovereignty.

Mr. President, it seems to me less logical to attack the poll tax, which denies the vote to those who are financially able to make a small annual contribution to public education, but refuse to do so, than it would be to attack the restrictions which States have placed on paupers, who might be glad to qualify if they had the money.

Perhaps it will be said that the man who has no money and is dependent on the State for his support should not be entrusted with the responsibility of choosing officials; but if so, is there not even better reason for denying the ballot to those who have the money but are too indifferent to meet the requirements set up by their State laws? _

Mr. President, the Javits bill is not only unconstitutional and illogical, but--like the proposed Holland amendment-it is highly undesirable.

These proposals are dangerous in principle, because they serve as another step in the direction of submerging the sovereignty of the States in an overpowering Central Government. They open the gates for an unlimited invasion of the powers which the Constitution carefully reserved to the States.

Thus, if we by statute or by amendment provide that a State cannot require prepayment of a poll tax by voters, there is no logical reason why we may not choose at a later date to lower the voting age to 18 or 16 or 12-or perhaps eliminate the length of residence requirements and restrictions on absentee voting. The question is simple, Dq we want the Federal Government to determine the qualifications of voting? To permit it to determine any qualification is to lay the foundation for permitting it to determine all qualifications.

We must keep in mind that the power to enlarge the electorate includes the power to restrict it. Many peoples have despotism forced upon them. Must we embrace it of our own free will?

Mr. President, since our Constitution was adopted, warnings have been sounded of the dangers of upsetting the delicate balance between the States and the Federal Government, and the legislative, the judicial, and the executive branches.

Because the warnings of Andrew Jackson and others were not sufficiently heeded, we found ourselves plunged into a fratricidal war. Our Nation and our constitutional Government survived that conflict but only at a terrible price. And, incidentally, the States against which the pending legislation is directed still are paying installments on that price in the form of retarded economic development. But, we have survived to the present and we know that history records no instance of an overnight destruction from within of a form of government which has existed for more than a century and a half. The process always has been slow and it has always been insidious. The leaders advocating the change have always concealed their direct purposes and the masses have accepted the change in the mistaken belief that they were going to get in the future something better than they had in the past.

Let us not be so misled now. Let us not do something which might pull a ­ cornerstone from the base of our constitutional liberty.

;Let us heed the words of Daniel Webster, speaking on the 100th anniversary of the birth of George Washington when he said:

Other misfortunes may be borne, or their effects overcome. If disastrous war should sweep our commerce from the ocean, another generation may renew it; if it exhaust our Treasury, future industry may replenish it; if it desolate and lay waste our fields, still, under a new cultivation, they will grow green again and ripen to future harvests. It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should ­ fall, and its gorgeous decorations be all covered by the dust of the valley. All these might be rebuilt. But who shall reconstruct the fabric of demolished government? Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skillful architecture which united national sovereignty with State · rights, individual security and public prosperity? No, if these columns fall, they will be raised not again. Like the Coliseum and the Parthenon, they will be destined to a mournful, a melancholy immortality. Bitterer tears, however, will flow over them, than were ever shed over the monuments of Roman or Crecian art, for they will be the remnants of a more glorious edifice than Greece or Rome ever saw, the edifice of constitutional American liberty.

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

Mr. ROBERTSON. I yield.

Mr. HILL. Will the Senator from Virginia permit me to warmly congratulate him on his very scholarly, erudite, and magnificent address today?

Mr. ROBERTSON. The distinguished Senator from Alabama is far too gracious in his praise, but I appreciate his comment very much.

Mr. President, I yield the floor.