March 26, 1962 (2)

On February 7, 1788, Massachusetts ratified the Constitution, and added to its report these words:

And, as it is the opinion of this convention, that certain _ amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of the commonwealth, and more effectually guard against an undue administration of the Federal . Government, the convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution. Thirdly-That Congress do not exercise the powers vested in them by the fourth section of the first article, but in cases where a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress, agreeable to the Constitution. (See Elliott II, supra, . p. 177.)

With the qualifications of voters definitely to be regulated by the States under the Constitution, still the people of Massachusetts were so concerned with the possible abuse of the -power of Congress . ess over the "time, place, manner." or procedure of an election that they wished it clearly understood that Congress · should assume the exercise of such power only in case · of extreme necessity, where neglect of duty by a State compelled it; As pointed out · on · several oc · occasions, that part of the Constitution dealing with the times, places, and manner of holding . elections and .so forth, dealt onlY with the mechanics of an election, not with the qualification of voters. That was reserved to the States, as I have been trying to demonstrate. The States them- ' selves, in ratifying the Federal Constitution, saw to it that the right to spell out the qualifications of their electors should be a prerogative of the State, and was not to be exercised by the Congress under any condition.

As I stated a while ago in answer to a question by the distinguished Senator from Texas fMr. TowER], these are speeches made in 1'788, interpreting the Constitution as we are now seeking to have it interpreted; . namely, that . the qualifications of voters must and .should be left to the States. · . No. 6 to . ratify · .the . Constitution w.as Georgia, January 2 • . 1788. _

No. 7 · was A Maryland . . , Among the amendments proposed .tG be-suggested . by the States was · the following: · 2. That the · Congress sha'll ' hav.e · no power to alter or change the ' time; plaCe, or man: . ner of holding ele . elections · .for . Senators of Representatives, unless a . .State shall neglect to make regulations, or to execute its regulations, or shall be prevented by invasion or rebellion, in which cases only, Congress may interfere. until the -cause be removed. (See Elliott II, supra, 1?· . 552.) · However, so many amendments we:re suggested that, through fear of obtaining no security at all for · the people, the . Constitution was ratified.

In speaking to the Maryland House of Delegates, · ates, Mr. James , McHenry, refer':' ring to the section in the Constitution providing that the qualifications of electors be the same as those -of electors for the State legislature, said:

To this ' section it was objected that if the qualifications of the . electors were the same as in the S't;ate governments, it would involve in the Federal system all the disorders of a democracy; and it was therefore contended, that none but freeholders, permanently interested in the Government ought to have a right of suffrage. The venerable Franklin opposed to this the natural rights of man-their rights to an immediate voice ln · the general assemblage of the whole . Nation, or to a right of suffrage and representation, and he instanced from general history and particular events the indifference -of those, to the pr.osperity and welfare of the States who were deprived · of ft. (Quote III Farrand, Records of the Federal Convention, p. 146.,

Also concerning section 4, he said:

It was thought expedient to vest the Congress with the powers contained in this section, which particular exigencies might require them to exercise, and which the immediate representatives of the people . can never be supposed capable of wantonly abusing to the prejudice of their co~s_tituentsconvention had in contemplation the possible events of insurrection. invasion, and even to provide against any disposition that might occur .hereafter · in . any particular State · to thwart the measures . of the General Gov- : ernment. (Farrand nr, supra, p. 14 ' 8.)

On May 23, 1788, Maryland ratified the Constitution. . South Carolina met in convention to consider the Constitution, May 12, 1788. Speaking of the much-debated fourth section of article I, giving Congress su- pervisory . power over the time, place, and manner of elections, Mr. Pinckney, who was- also one of the delegates to the Fed- . eral Convention, and in excellent posi- . tio;n to know the intention of · that body, said:

But if any State should attempt to fix a very inconvenient time for the election, and name (agreeably to the ideas of the honorable gentlemen) only one place in the State, or even one place in one o.f the five election districts, for the freeholders to assemble to vote . , anci the people should dislike this arrangement, they -can petition the General Government to redress this inconvenience, and to .fix times and places of election of Representatives in the State in a more convenient manner; for, as this house has a right · to fix the times and places of election, in each _ parish and -county, for - the . members of the house of representatives of this State, so the General Government has . a similar right to fix the times and places of election in each State for the . Members of the General House . of , Representatives. Nor is there .any real danger to be - apprehended from the exercise of .tbl& power, .. as · -it · cannot . be . supposed that any .State will · consent to .fix the · election .at inconvenient seasons and places in · any other State, lest she . herself should _ hereafter experience the same inconvenience; but it .is absolutely necessary that the Congress should have this superintending power, lest, by the intrigues of a ruling faction in . a State, the Members of the House of Representatives should not really represent the people of the State, and lest the same fac­ - tion, through partial State views, should altogether refuse to send representatives .of the - people to the Gener.al Government. (IV El- liott, supra, p. 303.)

When South Carolina ratified the Constitution, May 23, 1788, they added this · observation, or recommendation, to the ratification: ·

- And whereas it is essential to the preserv . a­ tion of the rights reserved to the several States, and the freedom of the people, '9n­ der the operations of a General Government, that the right o:t prescribing the manner, time and places, of holding the elections to the Federal Legislature should be forever inseparably annexed to the sovereignty of the several States, this convention doth declare that the same ought to remain to all posterity, a perpetual and fundamental right in the local, ex-clusive of the interference of the General Government, except in cases . where the legislatures of the States shall refuse or neglect to perform and fulfill the same, according to the tenor of the said Constitution. (I Elliott, supra, p. 323,) New Hampshire acted ninth of an the States, and we find no discussion there of the sections involving voting qualifications. However, we do find New . Hampshire, . equally .. watchful. recommending the · following . amendment, among others, to the-constitution:

n:t;. That Congress do not e;xercise the powers vested ln them by · the fourth section of the first article, but in cases when a State shall neglect or refuse to · make the regulations therein mentioned. (Elliott I, supra, p. _ 326.)

On September 17, 1'787, Virginia ratified the .Constitution. The Virginia convention was lengthy, the debates heated an · d protracted. Article I, section 2, providing that the electors of the delegates to the House of Representatives shall have the qualifications for electors of the more ~ numerous ' branch of the State ~ legislature, was read. ' Mr. George Nicholas spoke as follows-:-El1iott III, supra, pages 8, 9, 10!

Secondly, as it resp.ects .. the qualifications of the elected. 'It' has · ever been considered a -· great security to · liberty, that very few should be .excluded from the l'ight of being chosen to the Legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their State. It has been objected, that they ought to be possessed of landed estates; but, sir. when we reflect that most of the electors are landed men, we must suppose they will fix on those who are in a similar .situation with themselves. We find there is a decided majority attached to the landed interest; consequently, the . landed interest must prevail in the choice. . e. Should the State be divided into districts, Jn no one · can the mercantile inter-est by any means have an equal weight in the elec- tions; therefore, the former will .. be more fully represented in the Congress; and men of eminent abilities ar-e not excluded for the want of landed property . . There is another objection which has been echoed !_r , from 'One end of the continent to the other-that Congress may alter . the time, place, .and manner of holding elections; that they may direct the place of elections to be where it will be impossible for those - who have a right to vote, to attend; for instance, that they may order the .freeholders of Albemarle . to vote in the county of Princess Anne, or vice versa; or regulate elections, otherwise, in such , a manner as totally to defeat their purpose, and lay them entirely . under the influence - of - Congress. . _ _ . . 1 flatter . myself, that, from an attentive consideration of this power, it will clearly appear that it was essentially necessary to give it to Congress as, without it, there could have been .no security' for the General Government against the State legislatures . . What, Mr. Chairman, is the danger apprehended .in this case? If I. understand lt right, it must be that Congress might cause the elections to be held in the most inconvenient places, and at so inconvenient a time, and in ' such . a manner, as to give them the most undue influence over the choice, nay, even to prevent the elections from being held at aU-in order to perpetuate . themselves. But what would be the consequence of this measure? It would be this, sirthat Congress would cease to exist; it would destroy the Congress itself; it would absolutely be an act" of suicide; and therefore it can never be expected. · This alteration, · so much apprehended, must be made by law; that ts, with the concurrence of both branches of the legislature. . . · . _ Will the House of Representatives, . ives, the Members of which are cho.sen only !or 2 years, and who depend on · the people for th-eir reelection, agree to such an alteration? It ls unreasonable to suppose it.

But let us admit, for a moment, that they will: w.hat would be 'the consequence of passing .such a law? It woUld be, . sir, that, after . the expiration of · the . 2 years . . at the next election they would either choose such men as would alter the law, or they would resist the Government. · Ari enlightened people will never suffer what was established · for their security to be perverted to an act of tyranny. It may be said, perhaps, that resistance would then become vain; Congress is vest.ed with the power of raising an army; to which I say, that if ever Congress shall have · an army sufficient for their purpose, and disposed to execute their unlawful commands, before they would act under this disguise, they would pull off the mask, and declare themselves absolute. I ask, Mr. Chairman, is it a novelty in · our Government? Has not our State legislature the power 9f fixing the time, places, and manner of holding elections? The possible abuse here complained of never can happen as long as the people of the United States are virtuous. As long as they continue to have sentiments of freedom and independence, should the Congress be wicked enough to harbor so absurd an idea as this objection supposes, the people will defeat their attempt by choosing other representatives, who will alter the law. If the State legislature, by accident, design, or any other cause, would not appoint a place for holding elections, then there - might be no election till the time was past for which they were to have been chosen; and as this would eventually put an end to the Union, it ought to be guarded against; and it could only be guarded against by giving this discretionary power, . to the Congress, of altering the time, place, and manner of holding the elections.

It is absurd to think that Congress will exert this power, or change the time, - place, and manner established by the States, it · the State will regulate them properly, o~ so as not to defeat the purposes of the Union. It is urged that the State legislature ought - to be fully and exclusively possessed of this power. Were this the case, it- mightly certainly defeat the Government. As the powers vested by this plan on Congress are taken from the State legislature, they would be prompted to throw every obstacle in the way of the General Government. It was then necessary that Congress · should have · this power.

I read from Elliott m, pages 8, 9, and Another strong argument for the necessity of this power is, that, if · tt was left solely to the States, there might have been as · many . times of choosing as · there are States. States having solely the power of altering or establishing the time of election, it might happen that there should be no Congress.

Not only by omitting to fix a time, but also by the elections in the States being at 13 different times, such intervals might elapse between the first and last election, as to prevent there being a sufficient number to form a house; and this might happen at a time when the most urgent business rendered their session necessary; and by this power, this great part of the representat-ion will be · always kept full, which will be a security for a due attention to the interest of the community; and also the power of Congress to make the times of elections uniform in all the States, wm destroy the continuance of any cabal, as the whole body o! Representatives will go out of office at once.

Governor Randolph, although he would not sign the Constitution at the time it was designed, defended it in an impassioned address.

Mr. Henry was equally impassioned in his plea to turn down the Constitution. Note what he says of section 4, article I, as outlined in Elliott m, page 60, as follows:

What can be more defective than the clause concerning the elections? The control given to Congress over the time, place, and manner of holding elections will totally destroy the end of suffrage. The elections may be held at one place, and the most inconvenient in the State; or they may be at remote distances from those who have a right of suffrage; hence 9 out of 10 must either not vote at all, or vote for strangers; for the most influential characters · will be. applied · to, to know who are the most proper to be chosen. I repeat, that the control of Congress over the manner, and so forth, of electing, well warrants this idea. The natural consequence will be that this democratic branch will possess none of the public confidence; the people will be prejudiced against representatives . chosen in such an injudicious manner.

Mr. Corbin, answering Mr. Henry, in part, said:

Do the people wish land only to be represented? · They have their wish: for the qualifications which the laws of the State require · to entitle a man to vote for a State representative are the qualifications required by this plan to vote for a Representative of Congress; and in this State, and most of the others, the possession of a freehold is necessary to entitle a man to the privilege of a vote.

This is from Elliott m, pages 110 and 111. I

Governor Randolph, also answering Mr. Henry, said:

The State will be laid off and divided into 10 districts: from each of these . a man is to be elected. He must be really the choice of the people, not the man who can distribute · the most gold; for the riches of Croesus would not avail. The qualifications of the electors being the same as · those pf the representatives for the State legislatures, and the election being · under the control of the legislature, · the prohibitory provisions against undue means of procuring votes to the ' State representation extend to the Fed­ · eral Representatives; the extension of the - sphere of election to so considerable a dis­ "trict will render it _ impossible for contracted influence, or · local : intrigues, or personal in- terest, to procure an election. Inquiries will be made, by the voters, into the characters of the candidates. Greater talents, · and a more extensive reputation, will be necessary to _ procure ~n election for the Federal than for - :the State representation. . The Federal Representatives must therefore be well known for- their integrity, and their knowledge of the country they represent. We shall have 10 men thus elected. What are they going yonder for? Not to consult for Virginia alone, but for the interest of the United - States collectively. wm not such men derive sufficient information from their own knowledge of their respective States, and from the codes of the different States?

That is from Elliott ill, page 125, line 24, to line 5, page 126. ·

Mr. Henry retorted , at length andre­ . sorted to bitter vituperative remarks.

He said:

I shall make a few observations to prove that the power over elections, which is given to Congress, 1s contrived by the Federal Government, that the people may be deprived of their proper influence in the Government, by destroying the force and effect of their suffrages. Congress is to have a discretionary control over the time, place, and manner of elections. The Representatives are to be elected, consequently, when and where they please. As . to . the time and place, gentlemen have attempted to obviate the objection by saying, that the time is to happen once in 2 years, and that the place is to be within a particular district, or in the respective counties. But how will · they obviate the danger of referring the manner- of election to Congress? Those illumined genii may see that this may not endanger the rights of - the people, but in my unenlightened understanding, it appears plain and clear that it will impair the popular weight in the Government. Look at the Roman history. They had two ways of voting-the one by tribes, and the other by . centuries. By the former, numbers prevailed; in the latter, riches preponderated. According to the mode prescribed, Congress may tell you that they . have a right to make the vote of 1 gentleman go as far as the votes of 100 poor men. The power over the manner admits of the most dangerous latitude. They may modify it as they please. They may regulate the number of votes by the quantity of property, without involving any repugnancy to the Constitution. I should not have thought of this trick or contrivance, had I not seen how the public liberty of Rome was trifled with by the mode of voting by centuries, whereby one rich man had as many vo s as a multitude of poor men. The pie eians were trampled on till they resisted. The patricians trampled on the liberties of the plebeians till the latter had the spirit to assert their right to freedom and equally. The result of the American mode of election may be similar.

Perhaps , I may be told that I have gone through the regions of fancy-that I deal in noisy exclamations and mighty professions of patriotism. Gentlemen may retain their opinions; but I look on that paper as the most fatal plan that could possibly be conceived to enslave a free people. If such be your rage for novelty, take it, and welcome; but you , never shall have my consent. My sentiments may appear extravagant, but I can tell you that a number of my fellow citizens have kindred sentiments and I am anxious, if my country should come into the hands of tyranny, to exculpate myself from being in any degree the cause, and to exert my faculties to the utmost to extricate her. Whether I am gratified or not in my beloved form of government, I consider that the more she has plunged into distress, the more it is my duty to relieve her. Whatever may be the result, I shall wait With patience till the day may come when an opportunity shall offer to exert myself in her cause. (Elliott III, pp. 175 and 176.)

Governor Randolph, in answering Mr. Henry, was sure that the language in article I, section 4, could not possibly be stretched to the extent visualized by Mr . . Henry. Governor Randolph felt that section 2 of article I, which says that the qualifications of electors shall be fixed by the States, was sufficiently clear to negative any possibility of the Federal Government taking over State elections. I quote from Governor Randolph's answer:

His (Mr. Henry's) interpretation of elections must be founded on a misapprehension. . The Constitution says, that the times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof, but the Congress may at any time, by law, make or alter such regUlations, except -as to the place o! choosing Senators. It says, in another place, "that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature." · Who would have conceived it possible to deduce, from these clauses, that the power of election was thrown into the hands of the · rich? As the · electors of the ~ Federal representatives are to have the same qualifications With those of the representatives of this State legislature, or, in other words, as the electors · of the one are to be electors of the - other, this suggestion is unwarrantable, unless - he - carries his supposition farther, and says that Virginia will agree to her own suicide-, by modifying elections in such manner as- to throw · w them into the hands of the rich. - The honorable gentleman has not given \IS a fair object to be attacked; he has not given us anything substantial to be examined. (Elliott UI, p. 202.)

Mr. John Marshall, speaking in behalf of the Constitution said: ~

If there be no impropriety in the mode of electing the representatives, can any danger be apprehended? They are elected by those who can elect representatives in the State legislature. (See Elliott, supra, p. 230.)

When article I, section 4, was read in its proper turn in the Virginia convention, having been previously discussed in general with the rest of the document— Monroe wished that the honorable gentleman, who had been in the Federal convention, would give information respecting the clause concerning elections. He wished to know why Congress had an ultimate control over the time, place, and manner of elections of Representatives, and the time and manner of that of Senators, and also why there was an exception as to the place of electing Senators. (Elliott III, supra, p. 366.)

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 governments 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.

Again, we see the framers of the Constitution intent on the protection of the provision for election by the States, in the event of their negligent failure to provide therefor. At all times they conceded the States' rights to provide for voting qualifications in their own limits more suitably than Congress could.-

When Virginia finally ratified the Constitution they added a list of amendments which they suggested and sought. Among these was the following:

16. That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for Senators, or Representatives, or either of them except when the legislature of any State shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same. (Elliott III, supra, p. 661.)

Again we see a State convention desiring that the meaning of the framers be put into unquestionably plain language.

New York, the lOth State to act, ratified the Constitution July 26, 1788. Apparently, as in most of the State conventions, section 2 of article I, met with approval, as there was no fault to be found with the provision that the qualifications of the electors should be the same as for those of the most numerous branch of the State legislature. But again we :find dissatisfaction with the , possibilities of abuse latent in section 4 of article I:

Mr. Jones rose and observed that it was a fact universally known that the present Confederation had not proved adequate to the purposes of good government. Whether this arose from the want of powers in the Federal head or from other causes, he would not pretend to determine. Some parts of the proposed plan appeared to him imperfect or at least not satisfactory. He did not think it right that Congress should have the power of prescribing or altering the time, place and manner of holding elections. He apprehended that the clause might be so construed as to deprive the States of an essential right, which, in the true design of the Constitution, was to be reserved to them. He, therefore, wished the clause might be explained and proposed, for the purpose, the following amendment: "Resolved, as the opinion of the committee that nothing in the Constitution, now under consideration shall be construed to authorize the Congress to make or alter regulations, in any State, respecting the times, places or manner of holding elections for Senators or Representatives, unless the legislature of such State shall neglect or refuse to make laws or regulations for the purpose, or, from any circumstance, be incapable of making the same, and then only until the legislature of such state shall make provision in the premises."

The Honorable Mr. Jay said that, as far as he understood the ideas of the gentleman, he seemed to have doubt with respect to this paragraph, and feared it might be misconstrued and abused. He said that every government was imperfect, unless it had a power of reserving , itself. Suppose that, by design or accident, the States should neglect to appoint representatives; certainly there should be some constitutional remedy for this evil. The obvious meaning of the paragraph was that, if this neglect should take place, Congress should have power, by law, to support the Government and prevent the dissolution of the Union. He believed this was the design of the Federal Convention. (Elliott II, supra, p. 325.)

Mr. Smith expressed his surprise that the gentleman should want such an ex­ member. planation. He conceived that the amendment was founded on the fundamental principles of representative government. As the Constitution stood, the whole State might be a single district for election. This would be improper. The State should be divided into as many districts as it sends Representatives. The whole number of Representatives might otherwise be taken from a small part of the State, and the bulk of the people, therefore, might not be fully represented. He would say no more at present on the propriety of the amendment. The principle appeared to him so evident that he hardly knew how to reason upon it until he heard the arguments of the gentlemen in opposition.

Mr. DUANE. I will not examine the merits of the measure the gentleman recommends. If the proposed mode of election be the best, the legislature of this State will undoubtedly adopt it. But I wish the gentleman to prove that his plan wm be practicable and will succeed. By the constitution of this State, the representatives are apportioned among the counties, and it is wisely left to the people to choose whom they will, in their several counties, without any further division into districts. Sir, how do we know the proposal will be agreeable to the other States? Is every State to be compelled to adopt our ideas on all subjects · ? If the gentleman will reflect, I believe · he will be doubtful of the propriety of these things. Will it not seem extraordinary that any one State should presume to dictate to the Union? As the Constitution stands, it will be in the power of each State to regulate this important point. While the legislatures do their duty, the exercise of their discretion is sufficiently secured. Sir, this measure would carry with it a presumption which I should be sorry to see in the acts of this State. It is laying down as a principle that whatever may suit our interest or fancy should be imposed upon our sister States. This does not seem to correspond with that moderation which I hope to see in . an the proceedings of the convention.

Mr. SMITH. The gentleman misunderstands me. I did not mean the amendment to operate on the other States. They may use their discretion. The amendment is in the negative. The very design of it is to enable the States to act in their discretion, without the control of Congress. So the gentleman's reasoning is directly against himself.

If the argument had any force, it would go against proposing any amendment at all, because, says the gentleman, it would be dictating to the Union. What is the object of our consultations? For my part, I do not know, unless we are to express our sentiments of the Constitution before we adopt it.

It is only exercising the privilege of freemen; and shall we be debarred from this? It is said it is left to the discretion of the States. If this were true, it would be all we contend for. But, sir, Congress can alter as they please any mode adopted by the States. What discretion is there here? The gentleman instances the constitution of New York as opposed to my argument. I believe that there are now gentlemen in this house who were members of the convention of this State, and who are inclined for an amendment like this. It is to be regretted that it was not adopted. The fact is, as your constitution stands, a man may have a seat in your legislature who is not elected by a majority of his constituents. For my part, I know of no principle that ought to be more fully established than the right of election by a majority.

Mr. DUANE. I neglected to make one observation which I think weighty. The mode of election recommended by the gentleman must be attended with great embarrassments. His idea is that a majority of all the votes should be necessary to return a I suppose a State divided into districts. How seldom will it happen that a majority of a district will unite their votes in favor of one man? In a neighboring State, where they have this mode of election, I have been told that it rarely happens that more than one-half unite in choice. · The consequence is they are obliged to make a provision, by a previous election, for nomination and another election for appointment, thus suffer- ing the inconvenience of a double election. If the proposition was adopted, I believe we should be seldom represented-the election must be lost. The gentleman will, therefore, I presume, either abandon his project or propose some remedy for the evil I have described.

Mr. SMITH. I think the example the gentleman adduces is in my favor. The States of Massachusetts and Connecticut have regulated elections in the mode I propose, but it has never been considered inconvenient, nor have the people ever been unrepresented. I mention this to show that the thing has not proved impracticable in those States. If not, why should it in New York?

After some further conversation Mr. Lansing proposed the following modification of Mr. Smith's motion:

"And that nothing in this Constitution · shall be construed to prevent the legislature of any State to pass laws, from time to time, to divide such State into as many convenient districts as the State shall be entitled to elect Representatives for Congress, nor to prevent such legislature from making provision that the electors in each district shall choose a citizen of the United States, who shall have been an inhabitant of the district for the term of 1 year immediately preceding the time of his election, for one of the Representatives of such State.

"Which being added to the motion of Mr. Jones the committee passed the succeeding paragraphs without debate, till they came to the second clause of section 6." (Elliott II, · supra, pp. 327, 328, 329.)

On July 26, 1788, the ratification of the Constitution was effected, accompanied by - a number- of suggested amendments, among which was the one specifically defining those occasions on which Congress might exercise any power over the "time, place, and manner" of elections, a8 follows:

That the . Congress shall not make or al-ter any regulation in any State respecting the times, places, and manner of holding elections for Senators or Representatives, unless the legislature of such State shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same, and then only until ttie legislature of such State shall make provision in the premises; provided that Congress may prescribe the time for the election of Representatives.

North Carolina remained reluctant and refused to ratify the Constitution until a convention of States was called and certain proposed amendments adopted. Again no exception was taken to section 2 of article I:

(The first clause of the fourth section was read.)

Mr. SPENCER. Mr. Chairman, it appears to me that this clause, giving the control over the time, place, and manner of holding elections to Congress, does away with the right of the people to choose the Representatives every second year, and impairs the right of the State legislatures to choose the Senators. l; wish this matter to be explained.

Governor J . oHNSON. Mr. Chairman, I confess that I . am a very great admirer of the new C . Constitution, but I cannot comprehend the reason of this part. The reason urged is that every government ought to have the power of continuing itself, and that, 1f the Gene;ral Government had not this power, the State legislatures might neglect to regulate elections, whereby the Government might be discontinued. As long as the State legislatures have it in their power not to choose the Senators, this power in Congress appears to me altogether useless because they can put an end to the General Government by refusing to choose Senators. But I do not consider this such a blemish in the Constitution as that it ought, for that reason, to be rejected. I observe that every State which has adopted the Constitution and recommended amendments has given directions to remove this objection, and I hope, 1f ' this State adopts it, she will do the same.

Mr. SPENCER. Mr. Chairman, it is with great reluctance that I rise upon this important occasion. I have considered with some attention the subject before us. I have paid attention to the Constitution itself, and to the writings on both sides. I considered it on one side as well as on the other, In order to know whether It would be best to adopt it or not. I would not wish to insinuate any reflections on those gentlemen who formed it. I look upon it as a great performance. It has a great deal of merit in it, and it is, perhaps, as much a.s any set of men could have done.

Even if it be true, what gentlemen have observed, that the gentlemen who were delegates to the Federal Convention were not instructed to form a new constitution, but to amend the confederation, this will be immaterial, . if it be proper to be adopted. It wm be of equal benefit to us, if proper to be adopted in the whole, or ln such parts as will be necessary, whether . they were expressly delegated for that purpose or not. This appears to me to be a reprehensive clause; because · it seems to strike at the State legislatures, . and seems to take away that power of elections which reason di~­ tates they ought to have among themselves. It apparently looks forward to · a . c,qnsoli~a- tion of the Government of the United States, when the State legislatures may entirely decay away.

This is one of the grounds, · which have induced me to make objections to the new form of government. It appears to me that the State governments are :.:1ot sufficiently secured, and that they may be swallowed up by the great mass of powers given to Congress. If that be th~ case, such power should not be given; for, from all the notionS which we have concerning our happiness and well-being, the State governments are the basis of our happiness, security, and prosperity. A large extent of country ought to be divided into such a number of States as that the people may conveniently carry on their own goVernment. This w111 render the government perfectly agreeable to the genius and wishes of the people. If the United States were to consist of 10 times as many States, they might all have a degree of harmony. Nothing would be wanting but some cement for their connection. On the contrary, if all the United States were to be swallowed up by the great mass of powers given to Congress, · s, the parts that are more distant in this great empire would be governed with less energy. It would not suit the genius of _ the people to assist in the government. · Nothing would support government, in such a case as that, but military coercion. Armies would be necessary in different parts of the United States.

The expense which they would cost, and the burdens which they would render necessary to be laid upon the people, would be ruinous. I know of no way that is likely to produce the happiness of the people, but to preserve, as far as possible, the existence of the several States, so that they shall not be swallowed up.

It has been said that the existence of the State governments is essential to that of the General Government, because they choose the Senators. By this claus'e, it is evident that it is in the power of Congress to make any alterations, except as to the place of choosing Senators. They may alter the time from 6 to 20 years, or to any time; for they have an unlimited control over the time of elections. They have also an absolute control over the election of the Representatives. It deprives the people of the very mode of choosing them. It seems nearly to throw the whole power of election fu.to the hands of Congress. It strikes at the mode, time and place of choosing Representatives. It puts all but the place of electing Senators in the hands of Congress. This supersedes the necessity of continuing the State legislatures. This Is such an article as I can _ n give no sanction to, because it strikes at the foundation of the governments on which depends the happiness of the States and the General Government. It is with reluctance I make the objection. I have the highest veneration for the characters of the framers of this Constitution. I mean to make objections only which are necessary to be made. I would not take up time unnecessarily. As to this matter, it strikes at the . foundation of everything. I may say more when we come to that part which points out the mode of doing without the agency of the State legislatures.

Mr. IREDELL. Mr. Chairman, I am glad to see so much candor and moderation. The liberal sentiments expressed by the honorable gentleman who spoke last command my respect. No time can be better employed than endeavoring to remove, by fair and Just reasoning, every objection which can be made to this Constitution. I apprehend that the honorable gentleman is mistaken as to the extent of the operation of this clause. '

He supposes that the control of the Gen­ eral Government over elections looks forward .to a consolidation of the States, and that the general word .. time" may extend to . 20, or any number of years. In my humble opinion ·_ this clause does by · no means warrant . such a construction. We ought to compare other parts with it. Does not the Constitution say that Representatives shall be chosen every ' second year? The right of choosing them, therefore, reverts to the people every second year. No instrument of writing ought to be construed absurdly, when a rational construction can be put upon it. If Congress can prolong the election to any time they please, why is it said that Representatives shall be chosen every second year? They must be chosen every second year; but whether in the month of March, or January, or any other month, may be ascertained, at a future time, by regulations of Congress. · The word "time" refers only to the particular month and day within the 2 years. I heartily agree with the gentleman, that, if anything in this Constitution tended to the annihilation of the State government, instead of exciting the admiration of any man, it ought to excite the resentment and execration. No such wicked intention ought to be suffered. But the . gentlemen who formed the Constitution had no such object; nor do I think there is the least ground for that jealousy. The very existence of the General Government depends on that of State governments. The State legislatures are to choose the Senators. Without a Senate there can be no Congress. The State legislatures are also to direct the manner of choosing the President. Unless therefore there are State legislatures to direct that manner, no President can be chosen. The same observation may be made as to the House of Representatives, since, as they are to be chosen by the electors · of the most numerous branch of each State legislature, if there are no State legistures, there are no persons to choose the House of Representatives. Thus it is evident that the very existence of the General Government depends on that of the State legistures, and of course that their continuance cannot be endangered by it.

(At this point Mr. BURDICK took the chair as Presiding Officer.)

Mr. ELLENDER. Mr. President, I continue the reading:

An occasion may arise when the exercise of this ultimate power in Congress may be necessary; as, for instance, if a State should be involved in war, and its legislature could not assemble--as was the case of South Carolina, and occasionally of some other States, during the late war-it might also be useful for this reason-lest a few powerful States should combine, and make regulations concerning elections which might deprive many of the electors of a fair exercise of their rights, and thus inJure the community, and occasion great dissatisfaction. And it seems natural and proper that every government should have in itself the means of its own preservation. A few of the great States might combine to prevent any election of representatives at all, and thus a majority might be wanting to do business; but it would not be so easy to destroy the Government by the nonelection of Senators, because one-third only are to go out at a time, and all the States will be equally represented in the Senate. It is not probable this power would be abused; for, 1f it should be, the State legislatures would immediately resent it, and their authority over the people will always - be extremely great.

These reasons induce me to think that the power is both necessary and useful. But I am sensible, great jealousy has been entertained . concerning it; and as perhaps the danger of a combination, in the manner I have mentioned, to destroy or distress the General- · Government, is not very probable, 1:t may · be better to incur the risk, than occasion any discontent by suffering the clause to continue as it now . stands. I should, therefore, not object to the recommendation of an amendment similar to that of other States that this power in Congress should only be exercised when a State legislature neglected or was disabled from making the regulations required.

Mr. SPENCER. Mr. Chairman, I did not mean to insinuate that designs were made, by the honorable gentlemen who composed the Federal Constitution, against our liberties. I only meant to say that the words in this place were exceedingly vague. It may admit of the gentleman's construction; but it may admit of a contrary construction. In a matter of so great moment, words ought not to be so vague and indeterminate. I have said that the States are the basis on which the Government of the United States ought to rest, and which must render us secure. No man wishes more for a Federal Government than I do. I think it necessary for our happiness; but at the same time, when we form a government which must entail happiness or misery on posterity, nothing is of more consequence than settling it so as to exclude animosity and a contest between the general and individual governments. With respect to the mode here mentioned, they are words of very great extent. This clause provides that a Congress may at any time alter such regulations, except as to the places of choosing Senators. These words are so vague and uncertain, that it must ultimately destroy the whole liberty of the United States. It strikes at the very existence of the States, and supersedes the necessity of having them at all.

I would therefore wish to have it amended in such a manner as that the Congress should not interfere but when the States refused or neglected to regulate elections.

Mr. BLOODWORTH. Mr. Chairman, I trust that such learned arguments as are offered to reconcile our minds to such dangerous powers will not have the intended weight. The House of Representatives is the only democratical branch. This clause may destroy representation entirely . . What does it say? "The times, places, and manner of holding elections for Senators and Representatives shall be ' prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators." Now, sir, does not this clause give an unlimited and unbounded power to Congress over the times, places, and manner of choosing Representatives? They may make the time of election so long, the place so inconvenient, - and the manner so oppressive that it will entirely destroy representation. I hope gentlemen will exercise their own understanding on this occasion and not let their judgment be , led away by these shining characters, · for whom, however, I have the highest respect. This Constitution, if adopted in its present mode, must end in the subversion of our liberties. Suppose it takes place in North Carolina; can farmers elect them? No, sir. The elections may be in such a manner that men may be appointed who are not representatives of the people. This may exist, and it ought to be guarded against. As to the place, suppose Congress should order the elections to be held in the most inconvenient place in the most inconvenient district; could every person entitled to vote attend such a place? Suppose they should order it to be laid off into so many districts and order the election to be held within each district; yet may 1;10t their power over the manner of election enable them to exclude from voting every description of men they please? The democratic branch is so much endangered that no arguments can be made use of to satisfy my mind to it. The honorable gentleman has amused us with learned discussions and told us he will condescend to propose amendments.

I hope the Representatives of North Carolina will never swallow the Constitution till it is amended.

Mr. GoUDY. Mr. Chairman, the invasion of these States is urged as a reason for this clause. But why did they not mention that it should be only ' in cases of invasion? But that was not the reason, in my humble opinion. I fear it was a combination against our liberties. I ask, when we give th.em the purse in one hand and the sword in the other, what power have we left? It will lead to an aristocratical government and establish tyranny over us. We are freemen, and we ought to have the privileges of such. Governor JOHNSTON. Mr. Chairman, I do not impute any impure intentions to the gentlemen who formed this Constitution. I think it unwarrantable in anyone to do it. I believe that were there 20 conventions appointed, and as many constitutions formed, we never could get men more able and disinterested than those who formed this; nor a constitution less exceptionable than that which is now before you. I am not apprehensive that this article will be attended with all the fatal consequences which the gentlemen conceives. I conceive that Congress can have no other power than the States had. The States, with regard to elections, must be governed by the articles of the Constitution; so must Congress. But I believe the power, as it now stands, is unnecessary. I should be perfectly satisfied with it in the mode recommended by the worthy member on my right hand. Although I should be extremely cautious to adopt any constitution that would endanger the rights and privileges of the people, I have no fear in adopting this Con-stitution, and th . en proposing amendments. I feel as much attachment to the rights and privileges of my country as any man in it; and if I thought anything in this Constitution tended to abridge these rights, I would not agree to it. I cannot conceive that this is the case. I have not the least doubt but it will be adopted by a very great majority of the States.

For States who have been as jealous of their liberties as any in the world have adopted it, and they are some of the most powerful States. We shall have the assent of all the States in getting amendments. Some gentlemen have apprehensions that Congress will immediately conspire to destroy the liberties of their country. ' The men of whom Congress will consist are to be chosen from among ourselves. They will be in the same situation with us. They are to be bone of our bone and flesh of our flesh. They cannot injure us without injuring themselves. I have no doubt but we shall choose the best men in the community. Should different men be appointed, they are sufficiently responsible. I therefore think that no danger is to be apprehended.

Mr. McDowELL. Mr. Chairman, I have the highest esteem for the gentleman who spoke last. He has amused us with the fine characters of those who formed that government. Some were good, but some were very imperious ; aristocratical, despotic, and monarchial. If parts of it are extremely good, other parts are very bad.

The freedom of election . is one . of the greatest securities we have for our liberty and privileges. It was supposed by the members from Edenton, that the control over elections was only given to Congress to be used in case of invasion. I differ from him. That could not have been their intention, otherwise they could have expressed it. But, sir, it points forward to the time when there will be no State legislatures-to the consolidation of all the States. The States will be kept up as boards of elections. I think the same men could make a better constitution; for good · government is not the work of a short time. · They only had their own wisdom. Were they to go now they would • have the wisdom of the United States. Every gentleman who must reflect on this must see it. The adoption of several other States is urged. I hope every gentleman stands .-for himself, wm act according to his own judg- ment, and will pay no respect to the adop:­ tion by the other States. It may embarrass us in some political difficulties, but let us attend to the interest of our constituents. Mr. Iredell answered, that he stated the case of invasion as only one reason I out of many for giving the ultimate control over elections to Congress. I read further:

Mr. DAVIE. Mr. Chairman, a consolidation . of the States is said by some gentlemen to have been intended. They insinuate that this was the cause of their giving this power of elections. If there were any seeds in this Constitution which might, one day, produce a consolidation it would, sir, with me, be an insuperable objection, I am so perfectly convinced that so extensive a country as this can never be managed by one consolidated government. The Federal Convention were as well convinced as the Members of this House, and the State governments · were absolutely necessary to the existence of the Federal Government. They considered them as the great mass pillars on which this political fabric was to be extended and supported; and were fully persuaded that, when they were removed, or should molder down by time, the General Government must tumble into ruin. A very little reflection will show that no department of it - can exist without the State governments.

Let us begin with the House of Represent: atives. Who are to vote for the Federal Representatives? Those who vote for the State representatives. If the State government vanishes, the General Government must vanish also. This is the foundation on which this Government was raised, and without which it cannot possibly exist.

The next department is the Senate. How is it formed? By the States themselves. Do they not choose them? Are they not created by them? And will they not have the interest of the States particularly at heart? The States, sir, can put a final period to the Government, as J was observed by a gentleman who thought this power over elections unnecessary. If the State legislatures think proper, they may refuse to choose Senators, and the Government must be destroyed. ·

Is not this Government a nerveless mass a dead carcass, without the Executive power? Let your representatives be the most vicious demons that ever existed; let them plot against the liberties of America; let them conspire . against its happiness-all their machinations wm not avail if not put in execution. By whom are . their laws and projects to be executed? By the President. How is he created? By electors . appointed by the people under the direction of the legislatures-by a union of the interest of the people and the State governments. The State governments can put a veto, at any time, on the General Government, by ceasing to continue the Executive power. Admitting the Representatives or Senators could make corrupt laws, they can neither execute them themselves, nor appoint the Executive. Now, sir, I think it must be clear to every candid mind, that no part of this Government can be continued after the State governments lose their existence, or even their present forms. It may also be easily proved that all Federal governments possess an inherent weakness, · which continually tends to their destruction. It is to be lamented that all governments of a federal nature have been short lived. \

Such was the fate of the Achaean League, the amphictyonic council and other ancient confederacies; and this opinion is confirmed by the uniform testimony of · all history. There are instances in Europe of confederacies subsisting a considerable time; but their duration must be attributed to circumstances exterior to their government. · The Germanic confederacy would not exist a moment, were it not for fear of tlie surrounding powers, and the interest of the Emperor. The history of this confederacy is but a series of factions, dissensions, bloodsh . ed, and civil war. The confederacies of th · e Swiss, and United Netherlands, would long ago have been destroyed, from their imbecility, had it not been for the fear, and even the policy, of the bordering nations. It is impossible to construct such a government in such a manner as to give it any probable longevity.

But, sir, there is an excellent principle in this proposed plan of federal government, which none of these confederacies had, and to the want of which, in a great measure, their imperfections may be justly attributed-! mean the principle of representation. I hope that, by the agency of this principle, if it be not immortal, it will at least be long lived. I thought it necessary to say this much to detect the futility of that unwarranted suggestion, that we are to be swallowed up by a great consolidated government. Every part of this Federal Government is dependent on the constitution of State legislatures for its existence. The whole, sir, can never swallow up its parts. The gentleman from Edenton, Mr. Iredell, has pointed out the reasons of giving this control over elections to Congress, the principle of which was, to prevent a dissolution of the Government by designing States. If all the States were equally possessed of absolute power over their elections, without any control of Congress, danger might be justly apprehended where one State possesses as much territory as four or five others; and some of them, being thinly peopled now, will daily become more numerous and formidable. Without this control in Congress, those large States might successfully combine to destroy the General Government. It was therefore necessary to control any combination of this kind.

Another principal reason was, that it would operate in favor of the people, against the ambitious designs of the Federal Senate. I will illustrate this by matter of fact. The history of the little State of Rhode Island is well known. An abandoned faction have seized on the reins of government, and frequently refused to have any representation in Congress. If Congress had the power of making the law of elections operate throughout the United States, no State could withdraw itself from the national councils without the consent of a majority of the Members of Congress. Had . this been the case, that trifling State would not have withheld its representation. What once happened may happen again; and it was necessary to give Congress this power, . er, to keep the Government in full operation.

This being a Federal Government, and involving the interest of several States, and some acts requiring the assent of more than a majority, they ought to be able to keep their representation full. It would have been a soleCism, to have a government with out any means of self-preservation. The confederation is the only instance of a government without such means, and is a nerveless system, as inadequate to every purpose of government as it is to the security of the liberties of the people of America. When the councils of America have this power over elections , they can, in spite of any faction in any particular State, give the people a representation. Uniformity in matters of election is also of the greatest consequence. They ought all to be judged by the same law and the same principles, and not to be different in one State from what they are in another. At present, the manner of electing is different in different States. Some elect by ballot, and others viva voce. It will be more convenient to have the manner uniform in all the States. I shall now answer some observations made by the gentleman from Mecklenburg. He has stated that this power over elections gave to Congress power to lengthen the time for which they were elected. Let us read this clause coolly, all prejudice aside, and determine whether this construction be warrantable. This clause runs thus: The times, places, manner, of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing Senators. I take it as a fundamental principle, which is beyond reach of the general or individual said: governments to alter, that the Representatives shall be chosen every second year, and that the tenure of their office shall be for 2 years; that Senators be chosen every siXth year, and that the tenure of their office be for 6 years. I take it also as a principle, that the electors of the most numerous branch of the State legislatures are to elect the Federal Representatives.

Congress has ultimately no power over elections, but what is primarily given to the State legislatures. If Congress had the power of prolonging the time, and so forth, as gentlemen observe, the same powers must be completely vested in the State legislatures.

I call upon every gentleman candidly to declare, whether the State legislatures have the power of altering the _ time of elections for Representatives from 2 to 4 years, or Senators from 6 to 12; and whether they have the power to require any other qualifications than those of the most numerous branch of the State legislatures; - and also whether · they have any other power · over the manner of elections, any more than the tlle mere mode of the act of choosing; or whether they shall be held by sheriffs, as contradistinguished from any other officer; or whether they shall be by votes, as contradistinguished from ballots, or any other way. If gentlemen will pay attention, they will find that, ln the latter part of this clause, Congress has no power but what was given to the st . States in the part of the same clause : They may alter the manner of holding the election, but cannot alter the tenure of their office. They cannot alter . the nature of elections; for it is established, as fundamental principles, that the electors of the most numerous branch of the State legislature shall elect the Federal Representatives, and that the tenure of their office shall be for 2 years; and likewise, that the Senators shall be elected by the legislatures, and that the tenure of their office shall be for 6 years. When gentlemen view the clause accurately, and see that Congress · have only ' the same power which wa.S in the State legislature, they will not ~e alarmed. The learned doc• tor on my right, Mr. Spencer, has also said that Congress might lengthen the time of elections. I am willing to appeal grammatical construction and punctuation. Let me read this, as it stands on paper.

Here he read the clause different ways expressing the same sense:

Here, in the first · part of the clause, this power over elections is given to the States, and in the latter part the same power is given to Congress, and extending only to the time of holdi;ng, the place of holding, and the manner . of . holding th~ elections. Is this not the plain, literal, and grammatical construction of · the clause? Is it · possible to put any other construction on it, without departing from the natural order, and without deviating - ng from the general mean . ing of the words, and every rule of grammatical construction? Twist it, torture it, as you may, sir, it is impossible to fix a different sen-se upon it. The worthy gentleman from New Hanover, whose ardor for the liberty of his country I wish never to be damped, has insinuated that high characters might in:fluence the members on this occasion. I declare, for my own part, I wish every man to be guided by his own conscience and understanding, and by nothing else. Every man has not been bred a . politician, nor studied the science of government; yet, when a subject is explained, if the mind is unwarped by prejudice, and not in the leading strings of other people, gentlemen will do what is right. Were this the case, I would risk my salvation on a right decision. (Elliott IV, supra, p. 50.)

Note particularly what Mr. Davie They cannot alter the nature of the elections; for it is established as fundamental principles, that the electors of the most numerous branch of the State legislature shall elect the Federal Representatives. Continuing with Mr. Davie's remarks: This clause, sir, has been the occasion of much groundless alarm and has been the favorite theme of declamation out of doors. I now call upon the gentlemen of the opposition to show that it contains the mischiefs with which they have alarmed and agitated the public mind, and I defy them to support the construction they have put upon it by one single plausible reason.

The gentleman from New Hanover has said, in objection to this clause, that Congress may appoint the most inconvenient place in the most · inconvenient district, and make the manner of election so oppressive as entirely to destroy representation. If this is considered as possible, he should also reflect that the State legislatures may do the same thing. But this can never happen, sir, until the whole mass of the people become corrupt, when all parchment securities will be of little service. Does that gentleman or any other gentleman who has the smallest acquaintance with human nature or the spirit of America suppose that the people wm passively relinquish privileges or suffer the usurpation of powers unwarranted by the Constitution? Does not the right of electing Representatives revert to the people every second year? There is nothing in this clause that can impede or destroy this reversion; a.nd although the particular time of year, the particular place in a county or a district, or the particular mode in which elections are to be held, as whether by vote or ballot, be left to Congress to direct, yet this can never deprive the people of the rights or privilege of election. He has also added that the democratical branch was in danger from this clause; and with some other gentlemen took it for granted that an aristocracy must a.rise out of the General Government. This, I take it, from the very nature of the thing, can never happen. Aristocracies grow · out of the combination of a few powerful families, where the country or people upon which they are to operate are immediately under their influence, whereas the interest and influence of this Government are too weak and t:oo much diffused ever to bring about such an event. The confidence of the people, acquired by a wise and virtuous conduct, is the only influence the members of the Federal Government can ever have. When aristocracies are formed, they wm arise within the individual States. It is, therefore, absolutely necessary that Congress should have a constitutional power to give the people at large a representation in the Government in order to break and control such dangerous combinations. Let gentlemen show when and how this aristocracy they talk of is to arise out of this Constitution. Are the first members to perpetuate themselves? Is the Constitution to be attacked by such absurd assertions as these, and charged with defects with which it has no p088lble connection? (Elliott IV, supra, p. 66.)

Mr. Maclaine said:

Mr. Chairman, I thought It very extraordinary that the gentleman who was il.a.st on the floor should say that Congress could do what they please with respect to elections, and be warranted by this clause. The gentleman from Halifax, Mr. Davie, has put that construction upon it which reason and commonsense will put upon it. Lawyers will often differ on a point of view, but people will seldom differ about so very plain a thing as this (Elliott IV, supra, pp. 68, ti9).

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

Mr. ELLENDER. I yield.

Mr. ERVIN. Is the Senator aware of the fact that the Supreme Court of the United States has upheld the literacy test in North Carolina and the literacy test in Mississippi, and that the circuit court of appeals for the Senator's circuit has upheld the literacy test prescribed by the law of Louisiana and the Supreme Court of the United States has refused to grant certiorari. to review that decision?

Mr. ELLENDER. I am aware of it;

Mr. ERVIN. The Senator is aware, is he not, that under the first section of the third article of the Constitution all of the judicial power of the United States is vested in the Federal courts?

Mr. ELLENDER. The .Senator is correct.

Mr. ERVIN. And the Senator is also aware, is he not, that under the first article of the Constitution all of the legislative power is vested in the Congress, and Congress has no power except the legislative power?

Mr. ELLENDER. That is correct.

Mr. ERVIN. I will ask the Senator from Louisiana if he agrees with me in this analysis of the three bills which undertake to nullify, by simple legislative action, the literacy tests of all the States and to substitute a Federal standard in lieu thereof; namely, these bills say, in effect, that although the Federal courts, wbieh possess the judicial power of the United States, have adjudged that the State literacy tests represent a constitutional exercise of the power of the States which adopted them, and although the Federal courts, which possess all of the judicial power of the United States, have expressly held that these literacy tests do not violate the 14th or 15th or 19th amendment---

Mr. ELLENDER. Or any article of the Constitution.

Mr. ERVIN. Nevertheless, according to the proposal, Congress, by a simple legislative act, has the power to say that the Federal courts were all at sea on this subject, and that these literacy tests are all unconstitutional, notwithstanding the decisions of the Federal courts to the contrary?

Mr. ELLENDER. It is a · great pity that those who are assembled in the Senate do not consider those decisions, particularly if any effort is to be made to have the Congress apply the sixth grade literacy test to which the Senator refers. mind. I have often said that when any issue becomes . involved in politics, those dealing with it seem to lose their sense of reason, irrespective of what the courts have had to say on the provision. There is no question that the matter has been settled by the highest law of the land, by the Court, yet in the face of that there are people who desire to keep the pot boiling by offering various things which they term ' 4 civil rights."

I have been in the Senate for 26 years, and I do not know of a session in which the Congress was not faced with some kind of a civil rights proposal. As I said the other day, if only the laws on the statute books, both State and Federal. were enforced, there are now plenty of laws-all that are necessary-to permit Negroes, or in fact anybody who is qualified, to vote in any State in this Union.

Mr. ERVIN. Does the Senator agree with me in the observation which I made last week, that there are more laws on the Federal statute books to enforce the rights of all qualified citizens to vote than there are laws of any other subject?

Mr. ELLENDER. There is no doubt about that. Notwithstanding that fact, there are people in politics who wish to make a little hay while the sun shines, so that they can get the folks back home stirred up, so that they will vote for them. They offer these acts, and they are all called civil l"'ights acts. Why they are called that I do not know, but that is what they are termed.

I cannot understand that, particularly when it is asked that the Congress act by passing a law rather than through a proposed constitutional amendment. I believe those people know, deep down, such a procedure is not constitutional.

These questions have been passed upon. Notwithstanding that, as I said, certain people like to come to Congress and keep things stirred up, so that back home their constituents may rally behind them, to reelect them at the next election.

Mr. ERVIN. Does the Senator agree with me ln the conviction that section 2 of article I of the Constitution is one of the simplest provisions in the entire Constitution and that it would be almost impossible for any person to imagine a clearer way to say that the only persons who shall be eligible to vote for Senators and Representatives in Congress are those who are eligible to vote for members of the most numerous branch of the state legislature of the State in which the election is to be held?

Mr. ELLENDER. Not only that, but the courts have passed on the issue very often. I have been reading, for the past hour, speeches made by members of the Convention which drafted our present Constitution, in which they put on the language the same interpretation as we are putting on today. Those speeches were made in 1788, soon after the Constitution was adopted. There is no question taat we are on solid ground and that the right to prescribe the qualifications for voting is something left to the States. There 1s no doubt about that. There never has been any doubt in my

Still, as I say. there are a lot of people who like to keep the pot boiling back home, who bring in various proposals trying to change this and that. though deep doWn they ought to know, as the Senator has pointed out, there are enough laws on the statute books now and that the laws. if enforced, would carry out what they seek to do.

Mr. President, I continue reading the discussion which took place in the various State conventions when the Constitution was finally adopted by the States:

Mr. STEELE. Mr. Chairman, the gentleman has said that the five Representatives which this State shall be entitled to send to the General Government, will go from the seashore. What reason has he to say they will go from the seashore? The time, place, and manner of holding elections are to be prescribed by the legislatures. Our legislature is to regulate the first election, at any event. They will regulate it as they think proper. They may, and most probably will, lay the State off into districts. Who are to vote for them? Every man who has a right to vote for a representative to our legislature will ever have a right to vote for a Representa· tive to the General Government. Does it not expressly provide that the electors in each State shall have the qualifications requisite for the most numerous branch of the State legislature?

That conforms to the question just asked by my good friend from North Carolina. This is a colloquy which took place over 160 years ago.

Can they, without a most manifest violation of the Constitution, alter the qualifications of the electors? The power over the manner of elections does not include that of saying who shall vote: The Constitution expressly states the qualifications 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 shall elect-whether by ballot, or by vote, or by any other way. Is it not a maXim of universal jurisprudence, of reason and commonsense that an instrument or deed of writing shall be so construed as to give validity to all parts of it, if it can be done without Involving any absurdity? By construing it in the plain obvious way I have mentioned, an parts will be valid (Elliott, 4 supra, p. 71).

These words should be italicized and underscored in our minds. They state absolutely, that under the Constitution as written, Congress can never constitutionally regulate the qualifications of electors. I agree wholeheartedly with Mr. Steele's interpretation of article I of our Constitution. Yet in spite of this clear and unequivocal reservation to the States of the right to fix the qualifications of electors, the Congress has been besieged in recent years with proposals to supplant the States and place this power in the hands of the Federal Government. The proposal to abolish State poll-tax requirements is one example of the legislation I refer to. Certainly our Founding Fathers had no intention of having the States• judgment as to what qualifications an elector should have superseded by the judgment of the Federal Government.

I believe I have quoted sufficiently from the statements of those who took an active part in drafting the Constitution, and in having it ratified by the Thirteen Colonies, to refute any arguments to the contrary. The right of the States to restrict suffrage to freeholders, or to deny suffrage to persons who had been convicted of crimes, and so forth, was never disputed; therefore, I ask, how could the Congress today pass legislation abolishing the poll-tax requirements of certain States, without doing violence not only to the express language of the Constitution, but to the obvious and clearly enunciated wishes of our Founding Fathers? Likewise, Mr. President, how can we now, today, be contemplating the enactment of the right to vote bill presently before us, which would enable the Attorney General to disregard State laws establishing administrative remedies for assuring all qualified persons of the right to vote? Can Senators not see that this provision, when coupled with the provision for Federal injunctive powers also found in the pending measure, will result in the Federal judge who grants the injunction substituting his judgment-that is, the judgment of the Federal Government-for the judgment of the registrar of voters or other State or local election officer; that is, the judgment of the State government, as to the qualification of the voter? Is this not a clear violation of the constitutional requirement in article I, section 2, that the States shall establish the qualifications of electors?

I may be a little off the ground in the last statement I made, but I do not anticipate that the proposed amendment to the pending bill that will be offered by the Senator from Florida [Mr. HoLLAND] will be the only amendment. Others will come. As I told my good friend from Florida, if assurance could be given that there would be no more civil rights measures related to voting, and we could lay down our oars if his amendment were agreed to, I would cheerfully join hands with him. But there seems to be no end to the proposals. No matter what we do, we are always confronted with more and more civil rights measures. So far as I am concerned, I will stand by the Constitution and the methods with which we have lived for the past 170 years.

Now, Mr. President, reverting to the debates surrounding the ratification of the Constitution, we find that the North Carolina convention suggested the following amendment:

That Congress shall not alter, modify or interfere in the time, places, or manner of holding elections for Senators and Repre· sentatives, or either of them, except when the legislature of any State shall neglect, refuse or be disabled by invasion or rebellion to prescribe the same. (See Elliott, 4, supra, p. 249.)

The convention adjourned August 4, 1788.

On May 29, 1790, Rhode Island ratified the Constitution, and listed a number of proposed amendments; among these That Congress shall not alter, modify, or interfere in, the times, places, or manner, of holding elections for Senators and Rep· resentatives, or either of them, except when the legislature of any State shall neglect, refuse, or be disabled, by invasion or re· bellion to prescribe the same, or in case when the provision made by the State is . so imperfect as that no consequent election is had, and then only until the legislature of such State shall make provision in the premises. (Elliott, I, supra, p. 336, amendment II.)

I turn now to examine the amendments to our Federal Constitution as they affect section 2 of article I which says, again, that the electors of Representatives to Congress shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

Some amendments have affected suffrage problems. I shall list first the amendments and then discuss them.

Section 2 of article XIV says that as to any State which denies the right to vote to any male citizen over 21 years of age except for participation in rebellion, or other crime, the basis of representation therein shall be proportionately reduced. This regulation in itself recog· nizes the right of the State to deny such right if it wishes. ·

Article XV, which deals with Negro suffrage, is as follows:

SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

SEC. 2. The Congress shall have power to enforce this article by appropriate legislation." (Proposed by Congress on February 26, 1869 (915 Stat. L. 346), and ratified by three-fourths of the States by February 3, 1870.)

Article XVII, election of Senators:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for 6 years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Article XIX, woman's suffrage:

SEC. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

SEC. 2. Congress shall have power to enforce this article by appropriate legislation. (Proposed by Congress June 5, 1919 (41 Stat. L. 362), and ratified by three-fourths of the States by August 26, 1920.)

Article XV, as we all know, came on the heels of the Civil War, and as a result thereof. It is rather significant, to my mind, that even at that time Congress made no attempt to interfere by legislation with the right of the States to establish qualifications of ' electors, · and recognized that an amendment to the Constitution was the only method of modifying or limiting that right constitutionally. That is, with the Civil War a recent memory, and the subject of former slavery still a bitter topic, with the abolitionists riding high and the victorious North contending only with carpetbag governments of the worst type in the as yet unreconstructed South, Congress still knew its limitations sufficiently to realize that the qualifications of electors had been left to the State government entirely by the Constitution and the only way to vary such qualifications or affect them at all was to amend the instrument. The amendment itself is specifically self-limiting in scope and leaves the rest of the field in the State's hands. Though the sovereignty is in the people, as a practical fact it resides in those persons who by the constitution of the State are permitted to exercise the elective franchise . The whole subject of the regulations of elections, including the prescribing of qualifications for suffrage, is left by the National Constitution to the several States, except as it is provided by that instrument that the electors for representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State legislature, and as the 15th amendment forbids denying to citizens the right to vote on account of race, color, or previous condition of servitude. Participation in the elective franchise is a privilege rather than a right, and it is granted or denied on grounds of general policy; the prevailing view being that it should be as general as possible consistent with the public safety. Aliens are generally excluded, though in some States they are allowed to vote after residence for a specified period, provided they have declared their intention to become citizens in the manner prescribed by law. The 15th amendment, it will be seen, does not forbid denying the franchise to citizens except upon certain specified grounds and it is a matter of public history that its purpose was to prevent discriminations in this regard as against persons of African descent (Cooley, Constitutional Limitations, p. 752).

While I shall discuss later some decisions on the subject of the 15th amendment, and also shall go into detail on the State constitutions, I should like here to quote a general statement concerning conditions between 1812 and 1867 concerning the Negro vote:

Race: Increasing race prejudice had well nigh eliminated the Negro as an elector. All but six States had written "white" in their constitutions: Massachusetts, New Hampshire, Vermont, Rhode Island, Maine, and New York. However, in the latter State, in order to vote, the Negro must own $250 worth of property on which he had paid the taxes and reside in the Commonwealth "2 years longer than was required of a white man." It is alleged that public opinion was so averse to his voting even in the New England States that the Negro was kept away from the polls in all but two. Chancellor Kent says that the Negro really voted in Maine alone. At least it is a significant fact that New Hampshire ( 1857) and Vermont (1858) found it necessary to enact laws that Negroes should not be excluded from the polls. Therefore, it fell out that just before the Negro was to have suffrage granted him as a special favor by the 15th amendment he was kept from the exercise of the elective franchise most completely. The aforesaid amendment was revolutionary in more ways than one; it struck the word "white" from the constitutions of over 30 States. As an indication of what was to become a local, though intensely bitter race and suffrage problem about the middle of the follOWing period, note that Oregon in 1857 disfranchised Chinese. Yet the general race test disappeared (McCulloch, Suffrage and Its Problems, p 47) .

Speaking of the period immediately following the Civil War, McCulloch says: Period of problems: This period inherited three growing problems: The question . of Negro suffrage, deadlocked In the preceding period, at once became paramount as a postwar measure; the .agitation for woman - suffrage, stllled during the time of civil strife, was renewed by its zealous advocates; the tendency to allow aliens to vote, on mere declarations of intent to become citizens was increased notably. During the epoch some sort of solution is attempted for each of these problems.

At the outset of the period the elective franchise was secured for the Negro by constitutional amendment. The 13th amendment bad made him a man instead of a chattel. The 14th amendment conferred citizenship upon him and incidentally endeavored to insure the ballot to him by providing that when any male citizens over 21 years of age were excluded from the elective franchise (except for crime) the basis of representation of said State in Congress should be proportionately reduced. This incidental treatment of the problem of Negro suffrage not p.romising satisfactory results, more direct and drastic means were found. The 15th amendment (1870) provided that the right of citizens of the United States to vote shall not be denied or abridged on account of race, color, or previous condition of servitude. Ther . Therefore, the out and out race test for suffrage was displaced irrevocably. However, it should be noted that suffrage was still a Commonwealth matter. The United States, through congressional action or court decision could interfere in questions affecting the elective franchise only when the provisions of the 14th and 15th amendments were violated. (McCulloch, supra, pp. 51 and 52.)

In the struggle to preserve the Union, which incidentally freed the slaves, the North experienced at least a partial change of sentiment. Especially as the difficult work of reconstruction wore on, the expedient of giving the newly made freemen the ballot gained ground. Yet even in 1865 the Republican Party was opposed to the extension of the franchise to the Negroes. Neither Lincoln nor Johnson proposed such a measure. But finally Sumner's plan prevailed as a party policy. Argument: The Negro was still in subjection, while the South had been freed from slavery; the ballot would make him free indeed. In fact at that time, it seemed to be · a choice between maintaining an army at the South or securing the ballot for the Negro; the latter was regarded as the lesser of two evils. The weapon proved a boomerang. (McCulloch, supra, pp. 80 and 81.)

The radical Republicans insisted on the Negro becoming an elector in the South, while he was disfranchised in the vast maJority of the Northern Commonwealths. The North threw theories and prejudices to the winds and sought to find a practical solution of the vexing question, "What to do with the Negro?" The 13th amendment destroyed slavery; the 14th made the Negro a citizen, but not a voter. Finally the 15th sought to secure the elective franchise for and to him, in spite of race prejudice and existing adverse and discouraging conditions. Shellenbarger, who proposed a substitute prohibiting any disfranchisement of males 21 years of age, except for crime, pointed out that this amendment would suggest other disqualifying tests than race, color, and so forth. Subsequent events have shown that this desperate expedient was futile. While the amendment secured temporarily the widest extension of the elective franchise to the Negro, it was extreme and unwise.

What was secured !or the Negro by the 15th amendment? It did not confer suffrage upon him nor upon anyone. The States were st111 left wide latitude aside from its inhibitions. It merely prevented discrimination on account of race, color, or previous condition of servitude. However, it has been held to confer suffrage lndlrectljr; In extending the franchise to any class of Inhabitants, Negroes may not be excluded. To secure a decision under the 15th amendment it has been held that the indictment must specify that the elector was excluded because he was a Negro-just such an inference Is not sufficient. While power is conferred upon Congress to legislate upon the subject of Commonwealth elections, this may not be done except when an otherwise qualified voter is denied that privilege because of race, color, or previous condition of servitude. Hence, the redress formerly secured by this amendment was not so sweeping as would at first appear.

The suffrage issue was : injected into a Mississippi case, but the Supreme Court upheld the decisions of the State court; while in a Virginia contention the Court refused to assume jurisdiction. The decision in the case of an Alabama Negro, wherein it was held by the Supreme Court that that tribunal did not have jurisdiction, maintained that the offense, and hence a remedy, was political rather than judicial. The inference was that recourse must be had through Congress acting under the 14th amendment. There has been little likelihood of such action. However, the recent decision declaring the Oklahoma grandfather clause unconstitutional is a departure from precedent. It would seem that the 15th amendment is to become more effective. The disappearance of shifty and temporary expedients, used under the guise of legality to disfranchise the Negro in the South should be welcomed. Even the South seems to accept this view of this matter.

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

Mr. ELLENDER. I yield for a question.

Mr. STENNIS. The Senator's speech has covered many major points in a wide field. I should like to have his opinion on one subject which I think is fundamental. The Senator is familiar with the provisions he has · so ably discussed concerning the mandate of the Federal Constitution itself that the States shall select and pass upon the qualifications of electors, and that the Constitution prescribes that they shall be the same as those for the most numerous branch of the State legislature. Does not the Senator think, from his knowledge of history and the Constitutional Convention, that this salient feature was one of the principal socalled compromise agreements which really led to the adoption of the Constitution itself?

Mr. ELLENDER. There is no doubt at all in my mind, as I have read the debates at the Convention and the debates which took place at all the State conventions with reference to the ratification of the Constitution, that that was one of the main items discussed. The Senator is exactly correct in saying that except for the fact that the States themselves retained the right and the power to decide who shall or shall not vote, and to spell out the qualifications, the Federal Constitution would never have been adopted. There is no dispute about that.

Mr. STENNIS. Is it not true that that is the basic reason, reinforced by the fact that that principle had always been brought forward in connection with this subject matter? · ·

Mr. ELLENDER. That is correct.

Mr. STENNIS. Is not that the basic reason why the Constitution, certainly in spirit as well as in fact, is a compact and, except under the most extreme conditions, politically sacred ground, so to speak, and should not be disturbed?

Mr. ELLENDER. The Senator is correct. As I pointed out in response to the questions asked by the distinguished Senator from North Carolina [Mr. ERviN], some Members of Congress like to use civil rights as a means of inducing the people back home to vote for them. In other words, they use civil rights as a means of showing that they are trying to do something for certain minority groups as a means of attracting their votes.

I have been a Member of the Senate for more than a quarter of a century. Never have I attended a session of Congress when we did not have some socalled civil rights legislation to contend with. All such measures are presented by some Members to excite the folks back home. It occurs to me that if all the laws which have been passed by Congress on the subject of the electorate of the States were enforced, there would be no need of any further so-called civil rights legislation.

Mr. STENNIS. The Senator's State has seen fit, under its power to prescribe qualifications for voters, to change its law, and no longer has a poll tax. From his many years of public service, both here and in his home State, does not the Senator believe it is a basic principle of our dual system of government that this question should be left to each State for its own decision, rather than to have the other States, by a constitutional amendment, simply sweep the others off the board, contrary to the wishes of their people? · Mr. ELLENDER. The Senator is cor- rect. Only five . States · have not taken such action. Every State must pass upon this question and decide whether it wants a poll tax or not; whether it wants to have its people know how to read or write or to own property if they have the privilege of voting. The right to spell out qualifications for voters or electors has always been left to the State, and I hope it will remain there.

Mr. STENNIS. Another illustration is that one great State, New York, requires its voters to be able to read the English language. Even if the Senator from Louisiana did not agree with that requirement as being a sound measure, would it not shock him to think of trying to impose his will on the State of New York and make that State change its requirement anyway?

Mr. ELLENDER. I would not impose it on New York.

(At this point Mr. SMITH of Massachusetts took the chair as Presiding Officer.)