March 27, 1962 (2)

The Senate resumed the consideration of the joint resolution (S.J. Res. 29) providing for the establishment of the former dwelling house of Alexander Hamilton as a national monument .

Mr. KEFAUVER. Mr; · President, · I compliment the distinguished · Senator from Florida for his very excellent statement and his long and persistent effort toward the adoption of a constitutional amendment containing the substance of S.J. Res. 58, which we are considering today. His address has been logical and persuasive, · and he has made an excellent and fair presentation of the issue and the problem dealt with by the proposed amendment. j ;

Mr. · President, I have the honor of serving as chairman of the Subcommit- tee · on Constitutional Amendments, which is a standing subcommittee of the Committee on the Judiciary. All pro- posed amendments to the Constitution, regardless of their subject matter, are referred to this subcommittee. Senate Joint Resolution 58, which was · introduced by the distingilished senior Senator from Florida, for himself arid 66 other Senators, is before this subcommittee. It would abolish the poll tax as a prerequisite for voting in Federal elections. Also pending in the subcommittee on the same subject is Senate Joint Resolution 81, introduced by the Senator from Pennsylvania [Mr. CLARK] and other cosponsors, which in only minor detail is different from the proposal sponsored by Senator HOLLAND.

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

Mr. KEFAUVER. I am happy to yield to the Senator f.rom Florida.

Mr. HOLLAND. I am happy to advise the Senator that I was glad to incorporate in the proposed amendment, now pending, the four words of difference between my original proposal and that of the distinguished Senator from Pennsylvania [Mr. CLARK], so that those words are now to be found in the proposal pending before the Senate.

Mr. KEFAUVER. I thank the Senator from · Florida. Upon examination I see that is true.

Mr. President, I am certain that I speak for the majority of the members of the subcommittee when I say that an amendment to the Constitution to abolish the poll tax as a prerequisite to voting is very much: needed and desirable. The attitude of the Subcommittee on Constitutional Amendments is evidenced by the fact that five of its six members are coSponsors of the Senator's amendment. as contained in Senate Joint Resolution . 58. In addition to myself, the Senator from Connecticut [Mr. DoDD], the Senator from Illinois [Mr. DIRKSEN], the Senator from New York [Mr. KEATnicJ, ' and ' the Senator from Hawaii [Mr. FoNcj are cosponsors. I should like · to outline briefly the recent legislative history of this amendment and the past efforts which have been made in its behalf in the Subcommittee on Constitutional Amendments.

In the 81st Congress Senate Joint Resolution 34, sponsored by the senior Senator from Florida, was reported favorably by the subcommittee on May 23, 1949, after public hearings had been held. On June 2, 1949, the Committee on the Judiciary voted to postpone its consideration indefinitely.

In the 83d Congress the subcommittee again held public hearings on this subject, and on May 23, 1954, it again reported this amendment · to the full Committee on the Judiciary, where no action was taken upon it. .

In the 84th Congress. public hearings were again held by the Subcommittee on Constitutional Amendments on the proposed poll tax amendment of the Senator from Florida [Mr. HoLLAND], and on June 14, 1956, it was again reported favorably to the Committee on the Judiciary. Again no action was taken there.

In the 86th Congress, additional public hearings were held in 1959 on the proposal of the Senator from Florida, and on September 1, 1959, it was reported favorably to the Committee on the Judiciary.

Although the Committee on the Judiciary did not act on the proposal, its provisions were nonetheless voted on by the Senate when it was offered as an amendment to another pending constitutional amendment under consideration.

Mr. President, the rather unusual procedure which attended this amendment in the 86th Congress is set forth in last year's annual report made by the Subcommittee on Constitutional Amendments for the Committee on the Judiciary. This is Senate Report No. 130 of the 87th Congress, 1st session. I ask unanimous consent that the portions of that report setting forth this legislative history on pages 2, 3, 4, and 10 be printed at this point in the RECORD.

There being no objection, the portions of the subcommittee's annual report were _ ordered to be printed in the RECORD, as follows:

ANTIPOLL TAX

On August 6, ~959, Senator HoLLAND introduced Senate Joint Resolution 126; by the end of the session, it had the cosponsorship of 67 Senators.

The text of the operative ' part o~ -the proposed amendment is so brief that it can be more succinctly quoted than described:

"ARTICLE-

"SECTION 1. The right of citizens of the United States to vote in any primary or other election for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax or to meet any property qualification.

"SEc. 2. Nothing in this article shall be construed to invalidate any provision of law denying the right to vote to paupers or persons supported at public expense or by charitable institutions.

"SEc. 3. The Congress shall have power to enforce this article by appropriate legislation." ·

Because of the broad . sponsorship and wide interest in the resolution, hearings on it were held on August 17 and 27, 1959. At that time, Senator Holland gave a comprehensive presentation on behalf of the cosponsors. Senators Case of South Dakota and Keating supported the resolution but directed much of their testimony toward the question of representation for the people of the District of Columbia. Senator Stennis testified in opposition to the resolution. ' The subcommittee also heard Mr. Clarence Mitchell, of the NAACP, and Mr. Joseph L. Rauh, of the ADA, who, although they favored the objective of the resolution, were of the opinion that a constitutional amendment was not required for its achievement.

On September 1, 1959, the subcommittee approved Senate Joint Resolution 126 without amendment and recommended to the Committee on the Judiciary that it be fa- · vorably reported.

On February 2, 1960, the Senate took up discussion of Senate Joint Resolution 39, to authorize Governors to fill temporary vacancies in the House of Representatives. As an amendment to the resolution, Senator HoLLAND p,roposed the substantive portions of Senate Joint Resolution 126 regarding the poll tax; this amendment was adopted by a vote of 72 yeas to 16 nays. Then Senator KEATING proposed the adoption of an amendment (cosponsored by Senator BEALL and Senator CASE of South Dakota) which contained the substantive portions of Senate Joint Resolution 138 regarding the enfranchisement of the District of Columbia; this amendment was adopted by a vote of 63 yeas to 25 nays. The resolution, as amended, was adopted by a vote of 70 yeas to 18 nays. (The debate in the Senate can be found beginning at p. 1715 and ending on p. 1765 Of the CONGRESSIONAL RECORD, VOl. 106, pt. 2.) The text of the resolution, as passed by the Senate, is as follows: "Resolution proposing amendments to the Constitution of the United States to authorize Governors to fill temporary vacancies in the House of Representatives, to abolish tax and property qualifications for electors in Federal elections 1 and to enfranchise the people of the District of Columbia

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following articles are hereby proposed as amendments to the Constitution of the United States, and any one of which shall be valid to all intents and purposes as part of the Constitution only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

"'ARTICLE-

'On any date that the total number of vacancies in the House of Representatives ' exceeds half of the authorized membership thereof, and for a period of sixty days thereafter, the executive authority of each State shall have power to make temporary appointments to fill any vacancies, including those happening during such period, in the representation from his State in the House of Representatives. Any pe ' person temporarily appointed to fill any such vacancy shall serve until the people fill the vacancy by election as provided for by article I, section 2, of the Constitution.

"'ARTICLE-

'SECTION 1. The right of citizens of the United States to vote in any primary or other election for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax or to meet any property qualification.

"'SEc. 2. Nothing in this · article shall be construed to invalidate any provision of law denying the right to vote to paupers or persons supported at public expense or by charitable institutions.

"'SEC. 3. The Congress shall have power to enforce this article by appropriate legislation.

" 'ARTICLE--

" 'The people of the District constituting the seat of the Government of the United States shall elect, in such manner and under such regulations as the Congress shall provide by law-

" 'a number of Delegates to the House of Representatives equal to the number of Representatives to which they would be entitled if the District were a State with such powers as the Congress, by law, shall determine; and

"'a number of electors of President and Vice President equal to the whole number of Senators and Representatives in the Congress to which the District would be entitled if it were a State; such electors shall possess the qualifications required by article II of this Constitution; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of · the election of President and Vice Preesident, to be electors appointed by a State; and they shall meet in the District and cast their ballots as provided by the twelfth article of amendment.' "

On February 3, 1960, Senate Joint Resolution 39 (as amended by the Senate) was referred to the Committee on the Judiciary of the House of Representatives, and this committee reported it favorably, with amendments, on May 31, 1960 (H. Rept. 1698). The resolution was taken up on the floor of the House on June 14, 1960, and passed as amended. The House eliminated from the resolution the proposed amendments with respect to filling vacancies in the House (i.e., the original S.J. Res. 39) and the poll tax (i.e., the original S.J. Res. 126). The House .. also amended the proposal with respect to the enfranchisement of the District of Columbia. The text of Senate Joint Resolution 39 ; as amended by the House, is as follows: "Joint resolution proposing amendments to the Constitution of the United States to authorize Governors to fill temporary vacancies in the House of Representatives, to abolish tax and property qualifications for electors in Federal elections, and to enfranchise the people of the District of

Columbia

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein) , That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to au intents and purposes as part of the Constitution only if ratified by the legislatures of threefourths of the . several States within seven years from the date of its submission by the Congress:

" 'ARTICLE--

" 'SECTION 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

"'A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

"' . '&:c. 2. The Congress _ shall have power to enforce this article by appropriate legislation.’

" Amend the title so as to ~ 'Joint resolution proposing .an a.mendment _· to the Constitution of the United States granting representation in the electoral college to the District of Columbia.' "

on June 16, 1960, the Senate agreed to the . House amendments, " and- on June ·· 17, 1960, Senate · Joint Resolution 39, as-amended was presented to the Administrator of General Services for presentation to the several States !or ratification. .

Mr. KEFAUVER. Mr. - President, when Senate Joint Resolution 58 was referred · to the Subcommittee on Constitutional.Amendments last year, I felt that it could be favorably r,eported · by the subcommittee without further hearings. My feeling was due to the numerous hearings which had been held on the amendment- in -the past, its · wide support among the Members of the Senate, and the relatively simple and straightforward nature of the amendment. Tile subcommittee was not unanimous in this opinion, however; and as a .matter of ~ courtesy hearings were again held on : the subject . . Both Senate Joint Resolution 58 and Senate Joint Resolution 81 were included · in the- extensive hearings · which the subcommit- tee . held during - the 1st session of the 87th , Congress on proposed amendments concerning the Federal elections system. The . printed -- record . -of the hearings reached 5 ' volumes and 1,060 · pa.ges. The subjects dealt with .!. were ~ electoral ·· col- lege refor-m, presidential primaries, and quali:fications for . voting, including 18- year-old voting, residence requirements; and · poll taxes. _ After the hearings were initially . completed, supplemental hearings were held at the request of some Senators in order that they might present views . in opposition to the poll tax amendment. It was not until September 8, 1961, all who wanted to be heard had been given full and complete opportunity and the hearings were :tina:J1y closed. The chairman of both national political parties, the Honorable WILLIAM E. J,\J:ILLER, of the Republican Party, and the Honorable John M. Bailey, of the Democratic Party, testified on this subject. Both strongly supported a constitutional amendment to . abolish poll taxes as a prerequisite for voting in Federal elections. Assistant Attorney General Nicholas deB. Katzenbach testified that he spoke for the President of the United States in urging swift approval and ratification of the constitutional amendment proposed by Senate Joint Resolution 58.

When the 2d session of the 87th Congress convened, these poll tax proposals were, of course, still pending in the subcommittee - and the printed record of the supplemental hearings on poll taxes was not received · by the subcommittee until January . 26, 1962. The subcommittee has not met since that date but it - was my intention that it would · consider the poll tax amendment at its next meeting. However, Mr. President, I believe the committee system has served its legitimate purpose several times on this particular subject. No useful purpose would be served by . deferring action - on this amendment. The hearings held by the subcommittee in . the present . and past Congresses · h&ve be~n - widely. distributed and · many · Members of - the Congress · an d th public ~ · ad f e pu · C' have m e use · o , them. . The issue .is a cle~ and straightifo:rward one. It bas been thoroughly heard and discussed and debated more than enough over the past 12 years. I, .therefore, strongly . urge my colleagues to join me in - voting - in .favor of the amendment proposed by 'the · distinguished senior .~ Senator . 'from Florida.

I am confident . that I speak for the peOple of my State . when I reaffirm my: .own · personal : position of - long standing on this subject.

Although Tennessee's poll tax was not -totally and officially · eliminated until .an -amendment to · the State- constitution was adopted in 1953, it had been dead as a practical matter for a number of years before. - · Since 1871; Tennessee's constitution had required a poll tax but it authorized the legislature to make exceptions to its payment and by 1937 its payment was subject to several exemptions and limitations as to age. In 1943, -the legislature attempted to repeal the poll tax in its entirety but the Supreme Court of · Tennessee - held the repealing act. to be unconstitutional In · 194:9, the Tennessee Legislature greatly diminished tlli.pr.actical importance Df the poll tax by laws which abolished its payment as a requirement for voting in primary -elections, exempted women and former :servi.c'emen from its · payment and which made . the poll tax collectible only for l year . following - delinquency.

A further act of the legislature in 1951 provided that only poll taxes which were lawfully assessed for the year 1871 had .to be paid in order to vote. Then in 19.53, the total elimination of the poll tax was confirmed by express amendment of the constitution of Tennessee. Mr. President, I favor generally proposals which would · expand the franchise and remove obstacles to the exercise o! suffrage. I believe it is repugnant to our democratic principles to place a tax on voting. Also, our history shows that the vitality of our democracy has increased in direct proportion to participation in voting and the effectiveness of the people's voice in the election of their public officials. The constitutional amendments following the War Between the States, women's suffrage, the direct election of Senators and the recent extension of the vote in presidential elections to citizens of the District of Columbia, are aU milestones on the road t9 the fulfillment of our ideal of government of, by, and for the people. The · adoption of the amendment now under consideration will be another advancement toward a more full and perfect democracy.

Mr. President, the Committee on the Judiciary - approved and filed . with the Senate on March 15 its annual report on the subject of constitutional amendments, which is made for the full committee by the Subcommittee on Constitutional Amendments.

In large part, the basis of the report was · prepared - by a very able attorney and constitutional counsel from Tennessee • . Mr. James C. Kirby, Jr. He is counsel for the Subcommittee on Constitutional Amendments • . and baa done excellent work · on . an of the proposed constitutional · amendments. . · This is · Senate Report No. ' 1305. · It contains a section on the subject of poll taxes which mentions some of'the highlights of the hearings held by tl;le sub­ .committee during the 1st session of the 87th Congress. It also discusses briefly the question of whether Congress - should proceed by simple legislation or by constitutional amendment to deal with this question. I ask unanimous consent that this .section of Senate Report No. 1305 be printed at this point in the RECORD. . · There -being · no objection, the portion of Senate Report No. 1305 of the annual report of the Committee on the . Judiciary on constitutional amendments, was ordered to be printed in the RECORD, as follows:

POLL TA:j[ES

On February · 28. 1961, Senate Joint Resolution 58 was introduced by Senator HoLLAND, for himself and 66 cosponsoring Senators. Its text is as follows:

"ARTICLE-

" SECTION 1. The right Of Citizens Of the United States . to vote in any primary or other election for electors for . President or Vice President, or !or Senator or Representa-: tive _ .iJ>. ... c _ Congress, shall . not be denied or abridged by the United · States or any State by reason of failure to pay any Poll . tax or other tax or to meet any property · qualification. · ·

"SEC : --2'. Nothing ' in -this ·· article - shall be construed · to invalidate any provision of law denying - the right to vote . to - paupers -. or per­ sons supported at public expense or by: charitable institutions.

"SEC. 3. The Congress shall have power . to enforce this article by _ appropr,iate legislation : " · ·

A similar resolution, Senate Joint Resolution 81. was later introduced . by . Senator CLARK, for himself and six cosponsors. Two sponsors of Senate Joint Resolution 81 had not been sponsors of Senate Joint Resolution 58, thus making. a . total . of . 69- Senators sponsoring proposed . amendmen.ts aimed at poll taxes.

The principal difference in the two resolutions is that Senate Joint - Resolution 58 applies to presidential primary elections only if candidates for the office of presidential elector are the candidates in the primary. Senate Joint Resolution 81 goes further and applies to such primaries whether electors, convention delegates, or the presidential candidates themselves are on th~ ballot. Neither proposed amendment would apply to State and local elections. ·

A . resolution identical · to Senate · Joint Resolution 58 (S.J. Res. 126) was approved by the Subcommittee on Constitutional Amendments during the 86th Congress. While it was pending in the Committee on the Judiciary. the Senate voted to add its provisions by floor amendment to a pending resolution concerning appointment of Representatives (S.J. Res. 39). This was done by a vote of 72 yeas to 16 . nays. The resolution. after it was amended to contain three separate articles of amendment to the Constitution, was · finally adopted - by a vote of 70 to 18. However, the House of Representatives approved only the article of amendment concerning presidential elections in the District of Columbia.

Both Senate Joint Resolution 58 and Senate Joint Resolution 81 were included in the hearings conducted by the Subcommittee on Constitutional . Amendments. · Senator I:IoLL~ND, Sen , a~or CLARK, Senator . KEATING, and · Senator YARBOROUGH testified personally in support of one or both resolutions. Senator HoLLAND pointed in particular to the increase in voter registration in his home State of Florida after elimination of its poll tax. Senator YARBoROUGH pointed that his State of Texas ranked 44th in the Nation in voter participation, a fact which · he attributed in part to its poll tax.

· Mr. Brendan Byrne, director of the American Heritage Foundation, introduced figures which showed that the five States which still have poll taxes are among the seven lowest in voter participation. He also stated that poll tax deadlines are generally months ahead of election day when interest in voting is lowest.

- Chairman John M. Bailey, of the Democratic Party, and Chairman WILLIAK E. MILLER, of the Republican Party, both testified in support of . a constitutional amendment on this subject. Assistant Attorney General Nicholas deB. Katzenbach of the Department of Justice, speaking for the President · of the United States, said of the poll tax:

"Today it operates unduly to restrict the rights of national citizenship by disenfranchising thousands of white and Negro voters. It is an arbitrary condition which bears no reasonable relation to a citizen's fitness to vote. It tends to discredit us abroad.

"The President is unequivocally opposed to the poll tax. He earnestly hopes that early action will be taken by the Congress on this measure, and that it will be ratified by the States without delay."

Senator STENNIS testified personally in opposition to the proposed amendments and statements in opposition were filed for the record by Senator Hn.L, Senator SPARKMAN, and Senator RoBERTSON.

Some feel that Congress has the power to deal with the poll tax by simple legislation without a constitutional amendment. The Constitution provides that qualifications for voting for Senators and Representatives shall be the same in each State as those for electing the most numerous branch of the State legislature, but Congress is empowered to regulate the manner of such elections. Is poll tax payment a qualification for voting or does its payment go only to the manner of elections? This question was discussed at length in the printed hearings and the preponderance of legal opinion expressed to the subcommittee is that poll taxes are qualifications for voting and can thus be eliminated at the Federal level only by constitutional amendment.

Presidential elections present a di:fferent question and o:ffer less basis for statutory action. The Constitution provides only that each State shall appoint electors in such manner as its legislature may direct. There is no requirement that presidential electors even be chosen by: popular election and they were frequently appointed directly by State legislatures in our early history. Congress is not given the power to regulate either voting qualifications or the manner of elections. The 1961 report of the Civil Rights Commission includes a recommendation that Congress enact legislation which apparently would be broad enough to outlaw poll-tax payment as a prerequisite for voting in all elections. However, it is not entirely clear from the report that poll taxes are an object of this particular recommendation. Its exact text is as follows:

"Recommendation 1: That Congress, acting under section 2 of the 15th amendment and sections 2 and 5 of the 14th amendment, (a) declare that voter qualifications other than age, residence, confinement, and conviction of a crime are susceptible of use, and have been used, to d e ny the right to vote on grounds of race and color; and (b) enact legislation providing that all citizens of the United States shall have a right to vote in Federal or State elections which shall not be denied or in any way abridged or interfered with by the United States or by any State for any cause except for inabtuty to meet :reasonable age or length-ofresidence requirements uniformly applied to all per.sons within a State. legal confinement at the time of registration or election, or conviction of a felony; such right to vote to include the right to register or otherwise qualify to vote, and to have one's vote counted (Book 1, 1961 U.S. Commission on Civil Rights Report, p. 139) ."

This recommendation is not based upon any power in Congress to regulate Federal elections but is instead based upon Congress power to implement the 14th and 15th amendments. It would thus apply to local, State, and Federal elections. To implement this recommendation, insofar as poll taxes are concerned, Congress would have to make a legislative finding that poll taxes are administered in a discriminatory manner. In this connection, it should be noted that the Subcommittee on Constitutional Amendments heard no evidence that collection of the poll tax is administered discriminatorily in any of the five States which still have it. Regardless of the actual purpose or effect of the tax as to particular groups' voting, witnesses on both sides of the question apparently assumed that it is imposed and assessed on all persons, regardless of race or color, with the result that any person who fails to pay it is ineligible to vote. 1

Arguments can be made that Congress has the power to eliminate poll taxes as a prerequisite for voting in all Federal elections by legislation. However, such a statute would certainly be challenged by litigation which could be protracted and uncertain. As a safe and certain method, constitutional amendment is preferable.

Both Senate Joint Resolution 58 and Senate Joint Resolution 81 were pending in the Subcommittee on Constitutional Amendments at the close of the 1st session of the 87th Congress.

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

Mr. KEFAUVER. I am very happy to yield to the distinguished Senator from Florida.

Mr. HOLLAND. I greatly appreciate the kind things that the Senator has had to say about the Senator from Florida. But above and beyond that, I am grateful for his courtesy, his kindness, and his consideration in holding hearings on this subject, in recommending to the full committee favorable action on my amendment, and in every way furthering prospects of the taking up and submission of the constitutional amendment. I am exceedingly grateful to him, and I wish the RECORD to show my appreciation.

Mr. KEFAUVER. I wish to express my appreciation to the Senator from Florida. 1 The Commission's finding of fact upon di.scriminatory application of voting qualifications does not specifically mention poll taxes. Its exact text is:

"A common technique of discriminating against would-be voters on racial grounds involves the discriminatory application of legal qualifications for voters. Among the qualifications used in this fashion are requirements that the voter be able to read and write, that he be able to give a satisfactory interpretation of the Constitution, that he be able to calculate his age to the day, and that he be of 'good character . . •" (Book 1, 1961 U.S. Commission on Civil Rights Report, p. 137, finding No. 9 . )

The Commission's 1959 report develops a historical argument that the poll tax was instituted in many Southern States to discourage Negro voting (1959 Report of Civil Rights Commission, p. 31). ·

I' think everyone knows the issue quite well, but during the 7 or 8 years that I have been chairman of the subcommittee, we have heard every witness who had any testimony to offer on the proposed poll tax amendment, as we have done with respect to all other amendments. All the testimony, communications, articles, papers, and dissertations by eminent constitutional lawyers have been incorporated in the record which has been distributed to Senators during several Congresses. I believe that no constitutional amendment has been presented to the Senate on which there has been wider discussion or more testimony adduced than the amendment sponsored by the Senator from Florida which is now before the Senate.

Mr. MANSFIELD. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. ' MANSFIELD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The VICE PRESIDENT. Without objection, it is so ordered.

Mr. RUSSELL. Mr. President, in accordance with the notice that I gave to the Senate on the day this matter was first suggested, in the form in which it is presented to the Senate, I desire to make a point of order against the resolution of the Senator from Florida [Mr. HoLLAND] and the majority and minority leaders undertaking to submit to the legislatures of the several States what purports to be an amendment to the Constitution of the United States.

I take the position that the Constitution itself prescribes the method by which it may be amended, and that the pending proposal does not appear in the Constitution as a means whereby a proposed constitutional amendment may _ be submitted to the several States. I further submit that in the 173 years since the Constitution of the United States was first ratified and approved, no attempt whatever has ever been made to so distort the constitutional process. This is the first time in 173 years that an effort has been made to use a piece of proposed general legislation as a vehicle for amending the Constitution of the United States and submitting that amendment to the several States.

The Constitution provides, in article V, the method for its amendment. I desire to read this article, which is the only reference made in the Constitution anywhere to a means whereby it may be amended. It reads:

ARTICLE V

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Const i ­ tution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided, That no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth section of the first article, and that no State without its consent, shall be deprived of its equal suffrage in the Senate.

Mr. President, this article of the Constitution sets apart from the ordinary provisions dealing with the legislative powers of Congress a method whereby the Constitution of the United States might be amended. Throughout the Constitution are various clauses defining the powers of Congress. Those powers give to the Senate its unique status as a legislative body having nothing comparable with it anywhere in any other government. Only in article V does the Constitution provide for the method whereby the Constitution may be amended. It does not contain a provision-and there is nothing in the Rules of the Senate, and no precedent in the 173 years that Congress has been operating under the Constitution-to make use of a piece of general legislation which partakes of an entirely different nature, and is covered by other sections of the Constitution-sections which deal with the signature of the President to general legislation, and the fact that if he does not sign the proposed legislation in 10 days, it will become law in the absence of his signature; and the further fact that Congress may override the Presidential veto by a two-thirds vote of both Houses. All those provisions are found in other sections of the Constitution . Only in article V is found the method of amending the Constitution.

In article V we find the language to which the great interest of Congress should be devoted. Yet instead of a resolution in the form prescribed or indicated in article V, and followed for the 173 years that Congress has been meeting, an attempt is made to utilize a piece of proposed legislation, respectable enough in itself, proposing a memorial to a great American who has not yet had any memorial erected in his honor; but which requires the ordinary legislative process requiring the signature of the President or else a vote on the part of Congress to override a veto by the President.

Mr. President, the amendment of the Constitution of the United States is a procedure which is solely between the Congress and the several States. This is the only process from which the President of the United States is completely excluded. Nothing in the Constitution ­ indicates that the President shall even see a proposed amendment of the Constitution. He has no authority to veto it. There is no requirement that he approve it. Nothing in the Constitution indicates that it shall even · be brought to his attention.

Yet the Senate is undertaking to add to article V of the Constitution, without any authority to do so, a third method of amending the Constitution, by saying that a proposed amendment to the Constitution can be appended to the joint resolution now under consideration.

Mr. President, this is wholly unconstitutional procedure. Nothing in the Constitution warrants it. Nothing in the precedents of the Senate justifies it, although over . the years we have had almost every precedent of which the mind of man can conceive.

This is the first time the Senate has undertaken to add a new provision to article V; to undertake to amend the Constitution in an entirely different fashion from that which is prescribed in the Constitution itself.

In my opinion, under ordinary circumstances, the Senate would not tolerate such a procedure as this for 5 minutes. Ordinarily we would ask, What goes on in the Senate of the United States that it should undertake to use a piece of proposed general legislation to get at and to change the form of our basic organic law, the charter of all our liberties?

I remind the Senate that when the distinguished Senator from M;ontana [Mr. MANSFIELD], our majority leader, first gave notice of this procedure, he told the Senate that he intended to call up a House bill-I do not have the number of it before me; the Senator from Montana is here, and he may recall itrelating to a minor claim, and to use that measure as a vehicle for amending the Constitution of the United States. But when the leadership thought that over, they changed their minds. After it was discussed a little, they concluded that it was wholly probable that the House of Representatives would not even accept from the Senate a bill, bearing a Senate number or a House number, proposing an amendment to the several States to amend the Constitution, but not in the manner prescribed in article V.

Then the leadership made a careful search of the Senate Calendar. They were seeking a joint resolution so that they could at least, perhaps, get inside the door of the House of Representatives , if the Senate proved itself so indifferent to its rules and precedents as to rush in and permit any such procedure as this. So they found on the calendar Senate Joint Resolution 29, a legislative measure dealing with a monument to Alexander Hamilton.

There are plenty of means, and the Senate rules provide any number of legitimate ways, to bring before the Senate proposed amendments to the Constitution without violating the Constitution and · undertaking to set up a new provision of article V by procedural action on the floor of the Senate. Nothing in article V justifies this procedure. Mr. President, I submit that this procedure which undertakes to use a Senate joint resolution as a means of submitting an amendment to the Constitution of the United States, · is wholly ultra vires and unconstitutional, and that this proposal should be rejected and the subject approached in the same manner as is provided by the Constitution or the laws or the rules which have been enacted thereunder.

There is nothing in the rules of the Senate, there is nothing in the precedents of 173 years, there is nothing in any statute to be found anywhere in the statute books, and there is not a line in the Constitution of the United States that would jusify the procedure which is undertaken here, today. l submit, Mr : President, that it is wholly unconstitutional.

Mr. HOLLAND. Mr . . President, will the Senator from Georgia yield?

Mr. RUSSELL. I yield.

Mr. HOLLAND. What rule of the Senate does the Senator contend is violated by this proposal?

Mr. RUSSELL. I did not say any rule of the Senate is violated by it. I said the Constitution is violated by it. The Senate itself has never dealt with this matter . Even in its wildest dreams, the Senate could never imagine that any resort would be made to such an unorthodox procedure as this one, in order to get such a matter as this before the Senate. Therefore, the Senate did not adopt a rule in that connection.

There are other rules of the Senate which provide for legitimate, constitutional means of getting proposed constitutional amendments before the Sen- · ate; and the absence of a rule prohibiting this course is indication to me that the Senate has never found it necessary . to undertake to alter article V of the - Con- · stitution, which prescribes the means by which the Constitution may be amended.

Oh, Mr. President, I am aware that of late we have become somewhat a Dr. Jekyll and Mr. Hyde body. Most of the time we are Dr. Jekyll; we proceed according to the rules. But when we get into a certain type of legislation, then we become Mr. Hyde, and then we do not care whether the;re is anything in the Constitution or in the laws or in anything else to justify the course we propose; disregarding all of that, when a man from one of the minority groups says, "Put it through," we find a way to put it through without regard to the rules. But most of the time we observe them.

Once I thought of suggesting that we have two sets of rules-one set which would apply to ordinary legislation, and the other set to apply to legislation of the type called civil rights legislationfor we know we use different sets o . f rules in those circumstances. So I thought it would be well for the Senate to have two different sets of rules. But, after reflection, I conclu“ed that would be a waste of time , for if the new rules did not conform to the purposes of the group of those who favor such legislation, the new rules would be kicked out the window just as fast as the old rules were; so we might just as well leave the rules as they are.

But I think that in order to justify our positions, sometimes, and our rather irrational action, we might follow rule XL-I believe we now have 40 Senate rules-by a rule XLI, stating about ~ follows: "Provided • . That none of these rules shall be considered to apply in any case in which an organization of professional do-gooders claiming a membership of a million voters shall declare that any resolution, motion, legislation, or other proposal involves a question of minority rights. In all such cases, neither any rule, precedent, law, nor constitutional provision shall be binding or shall be cited in an effort to restrain th e Se n a te from an immediate vote or the Presiding · Officer from declaring all points of order out of order."

Mr. HOLLAND. Mr. President, will the Senator from Georgia yield further to me?

Mr. RUSSELL. I yield.

Mr. HOLLAND. I note the following provision in article V-the only part of article V which is applicable to this procedure:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution.

Is there anything in the proposed amendment which would avoid the necessity, as recited in the amendment, for two-thirds of both Houses to find that the amendment should be proposed?

Mr. RUSSELL. Yes, there is, because the proposal the Senator from Florida is undertaking to amend does not deal with an amendment to the Constitution. Instead, it deals with a proposal to purchase a memorial to Alexander Hamilton. Therefore, the Senator from Florida is seeking by legislative legerdemain to change a joint resolution which is legislative in character into a joint resolution which proposes an amendment to the Constitution of the United States. But the Con s titution does not provide that any action such as that shall be taken by the Senate.

The Senator from Florida has asked about the rules; and heretofore I have stated that although the Senate may do vain things, never before has the Senate ever conceived that there could be such an undertaking as this to amend the Constitution in any such fashion.

Mr. COOPER. Mr. President, will the Senator from Georgia yield?

Mr. RUSSELL. I am glad to yield to the Senator from Kentucky.

Mr. COOPER. I should like to ask a question; but. first, I wish to say that I support the principle of the Holland amendment; but I, too, want the Senate to do what is constitutional and I want my vote to accord with the Constitution. The Holland amendment, if properly offered is a constitutional means of achieving the aim of abolition of the poll tax. I shall not vote for the statutory method if it is offered as a substitute, for I do not think it would be constitutional.

But to address myself to the point the Senator from Georgia has raised. I shall state a hypothetical case, and perhaps the Senator from Georgia will be willing to elaborate it: Let us assUme that a joint resolution to which a constitutional amendment had been offered as an amendment were one of controversy. Is it not possible that a Member of this body could be placed in the dif ftcult position, in which he would want to vote for the constitutional amendment, but would be opposed to the legislative matter in the joint resolution, to which the constitutional amendment had been offered as an amendment?

Let me go one step further-and this, also, is · purely a hypothetical question. Suppose the original bill or joint res• olution were one of substance which might be controversial; and suppose a constitutional amendment were offered as an amendment to the measure, and the measure as thus amended were passed by both Houses and were sent to the President of the United States. Let us assume that the President found that he could approve of the legislative matter but that he was very seriously opposed to the constitutional amendment, or vice versa. Would not the President be placed in a difficult position-if he desired to veto the measure because of his opposition to a section which was clearly legislative-and in doing so would raise constitutional questions as to the validity of the constitutional amendment?

Mr. RUSSELL. Mr. President, the Senator from Kentucky has raised a very interesting hypothetical question, particularly in the latter part of his question, which I shall undertake to answer first.

In the first place, in my opinion an amendment to the Constitution is not in order as ~n amendment to any piece of general legislation; and I think a point of order that an attempt to amend a piece of general legislation by means of an amendment in the nature of an amendment to the Constitution of the United States, but also leaving in the original measure any other provision, would be held by any parliamentarian to be completely out of order-in other words, that an attempt to deal in one part of a piece of general legislation with an ordinary statutory enactment, and in another part to deal with an amendment to the Constitution, would be out of order.

In this case, an attempt is made to avoid that, and to put this proposal in order by striking out all after the enacting clause-which in my opinion does not in any way cure the difficulty, for fundamentally the measure is identically the same as it would have been if an attempt had been made to append a constitutional amendment as an amendment to the Alexander Hamilton National Monument joint resolution. I think it would be just as unconstitutional and just as out of order in the one event as it would be in the other.

I am not sure that I understand the first part of the question asked by the Senator from Kentucky. I believe he undertook to refer to a Senator's conscience. I wish to say I have enough trouble dealing with my own conscience, so that I am not inclined to attempt to undertake to deal with the conscience of any other Senator.

Mr. COOPER. My question is this: If I should be opposed to the legislative matter in such a resolution as is before us, and if it also included a constitutional amendment which I favored, then I and other Members of Congress, when asked to vote on the resolution, would be placed in a difficult position. Similarly, as I have said, if the process of amending the Constitution is employed, the President could be asked to sign or veto a measure, the legislative part of which he opposed and the constitutional amendment which he has no power to sign. It seems to me my question is an extension of one of the points the Senator from Georgia has made.

Mr. RUSSELL. Mr. President, I do not think it would be constitutionally possible to undertake to amend the Constitution of the United States by means of an amendment to an ordinary statutory provision. So such an attempt would be wholly out of order; and I think the Chair would, of his own accord, raise that point if no Member of th~ Senate did; namely, that a constitutional amendment cannot be added to a legislative statute; and the proposal to tie a suggested constitutional amendment to some legislative provision would, in my opinion, be null and void-and would be when it was sent to the President or wherever it went.

It would also be contrary to any rule of procedure of which I have any knowledge. I do not think that condition could possibly arise. We have it here today in this proposal; only the proponents are not proposing to leave in Alexander Hamilton at all; they are - wiping him out completely and entirely, - but are undertaking to take the Alexander Hamilton Senate joint resolution number as a means of proposing to the . States a constitutional amendment, . and that is the very point of order I am making here-that they are using a legislative vehicle as a measure covering a constitutional amendment, and the Constitution of the United States does not permit any such procedure.

Mr. MILLER. Mr. President, will the Senator yield for an inquiry?

Mr. RUSSELL. Yes, I yield for that purpose.

Mr. MILLER. Is it the contention of the Senator from Georgia that if the amendment by the Senator from Florida is adopted, it is not then a constitutional amendment requiring a twothirds vote by both Houses of Congress? Is that the Senator's contention?

Mr. RUSSELL. I frankly had not projected it that far, because I do not think it can constitutionally be offered as an amendment to the Constitution in that way.

Mr. MILLER. May I ask, as a matter of a hypothetical question, whether it would be the Senator's opinion?

Mr. RUSSELL. I would think, having had a moment to tum it over in my mind, that if it were attached t.o a legislative proposal it would take only a majority vote to pass it, if the Senate · wanted to violate all its procedures and article V of the Constitution of the United States; but I would hope, if we were so remiss in our duties and so voted, that perhaps the Members of the other body would look at the matter and say, "We do not think this is proper procedure," and would consign it to one of the cubbyholes which are used for some of these matters. Or, if they were so far derelict as to approve it, I would hope the President of the United States would have the courage to say, "This is improper procedure, and I therefore send it back to Congress with my disapproval."

Mr. MILLER. Mr. President, will the Senator yield so I may ask the Senator from Florida a question?

Mr. RUSSELL. I will be happy to yield provided I do not lose the floor.

Mr. MILLER. May I ask the Senator from Florida if it is his opinion that, if his amendment is adopted, it would r:equire a - - two-thirds vote ot both · Houses of Congress?

Mr. HOLLAND. It cer-tainly would. The text of the resolution so provides. The rule laid down in article V of the Constitution does not go so far as to provide what vehicle shall be . used by Congress. · It simply says · Congress, by two- thirds vote in both Houses, may accept - the amendment. · · ·

- My information and belief is that there is no requirement at all as to the vehicle or resolution number, so long as the body of the resolution is there. · It prescribes definitely that it must be approved by two-thirds of the Members of each House before it can be submitted to the several States. There is no doubt . at all in my mind that that is the situation.

Mr. MILLER . . I thank the Senator from Florida.

· I wonder if the Senator from Georgia will yield so I may ask a parliamentary question of the Chair. ·

Mr. RUSSELL. I will be glad to yield for that purpose. . ·

. Mr. . MILLER. Mr. . President, we have now been given the opinions of two of our distinguished Senators, which seem to be · in conflict. The question I wish to ask the Chair is whether or not, if the Holland amendment is adopted, · a two-thirds vote by the . Senate will be required.

The VICE PRESIDENT. The Chair is of the opinion .. that a . -two-thirds vote would be required.

Mr. MILLER; I thank the · senators and the Chair.

· Mr. COOPER. Mr: President, will the Senator yield?

The . VICE PRESIDENT. Does the Senator from Georgia yield to the Senator from . Kentucky?

- · Mr. - RUSSELL. I yield.

Mr: COOPER. · If Senate Joint Resolution · 29 is passed by the Senate and the House in the form before us--with the Alexander Hamilton resolution stricken-would it be necessary for . the President to sign it?

Mr. RUSSELL. Under my view, it would have no validity whatever, because an ordinary resolution would be used that requires only a majority vote. I would like to propound to the . Chair .. a parliamentary inquiry. If the Holland amendment were not in it, what vote would . it take to pass the Alexander Hamilton resolution?

The VICE PRESIDENT. vote. . - -

Mr. RUSSELL. I think nothing · can better - illustrate the constitutional question that - is involved, A legislative vehicle is being undertaken to adopt a constitutional amendment.

Mr. COOPER. Is it · contended that Senate Joint Resolution 29, if passed as now before the Senate, would require the signature of the President? ·

Mr. RUSSELL. As written now, of course it would require the signature of the President. There is no doubt about it. · Even - the distinguished Senator from Florida and the Parliamentarian will agree with that. . -_

I am glad to propound a parliamentary inquiry, whether, if Senate Joint Resolution 29 passes in . the form - ~ which it now stands, it would require the signature of. the President. ·· · · · · · · ·

· The VICE PRESIDENT. It would.

Mr. - RUSSELL, That illustrates the fact that this procedure · is unconstitu- tional. We are adopting an absurd, farfetched, irrational, unreasonable, and unconstitutional method of undertaking to get this amendment. It justifies the point of order I have made that it is wholly unconstitutional to undertake to adopt a provision which requires a twothirds vote and which does not go to the President by using a resolution which requires only a majority vote and which the . President must approve or disapprove. · ·

Mr. CURTIS. Mr. President, will the Senator yield? ·

Mr. RUSSELL. I yield.

Mr. CURTIS. For the purpose of a parliamentary inquiry?

Mr. RUSSELL. Yes - , for that purpose.

The VICE PRESIDENT. · The Senator will state the parliamentary inquiry.

Mr. · cURTIS. If the resolution were to be amended by the - H · Holland amendment: it has been stated. it would require a two-thirds vote for passage. My question is, Will it require a two-thirds vote to adopt the · Holland amendment to Senate Joint Resolution 29? ·

The VICE PRESIDENT. Only a majority vote is required in acting upon an amendment.

Mr. CURTIS. Will the Senator yield for one other parliamentary inquiry?

Mr. RUSSELL. Yes.

Mr. CURTIS. There are two parts to the Holland amendment, one to strike out and the - other to insert. Th . e question is , Can a vote be had on each one?

The VICE PRESIDENT. The Chair is informed by the Parliamentarian that a met. division could be had on section 1 and section 2.

Mr. CURTIS. I did not . understand the ruling of the Chair.

The VICE PRESIDENT. The Chair is informed by the Parliamentarian that a division of the question could be obtained on section 1 arid section 2. .

- Mr. CURTIS. That does not answer my question. My question is, Could we have a division of the motion as stated in the preamble, having a separate vote on that part which strikes out, and a separate vote on the language to be inserted? A majority The VICE PRESIDENT. The Parliamentarian informs the Chair that a motion to strike and insert is not divisible, under the rules.

Mr. RUSSELL. Are there any precedents of the Senate on that · point?

Mr. President, while the Parliamentarian looks up precedents I wish to conclude · my argument by saying that I make the point of order that this pro- posal to amend a regular legislative proposal, which requires a majority vote and which would go to the President for his approval or disapproval; by a constitutional amendment, which requires a twothirds vote and which would not go to the President for his approval or disapproval, is wholly unconstitutional and that it should . be so declared, and that this matter . should . b~ · brought ~P · in a way iJ1 _ keeping with the · Constitution of the United states. ·

. The VICE PRESIDENT. The Chair has 'two ·· questions before it. The first relates to the language:

If the question in debate · contains · several propositions, any _ Senator may have the same divided, except a motion to strike out and in _ insert, which shall not be divided. The Senator from Georgia asked if there were any precedents. Rule XVIII covers the subject adequately.

The Senator from Georgia further raises a que.stion of the constitutionality of the matter before the Senate. Under the precedents of the Senate, whenever a · question is raised _ by ~ Senator concerning the constitutionality of any matter it is the duty of the _ presiding officer, : instead of ruling upon the question, to submit It to the Senate for its determination. Therefore, in accordance with this line of precedents · and practice ' iri · the Senate, the Chair submits to the Senate the following question: "Is the point of order of the Senator from Georgia well taken?" · ·

Mr. MANSFIELD . . Mr. President, I think it is clear that the proposal of the Senator from Florida is entirely · in accord with the Constitution of the United States and with the Senate rules. On the · question of . final adoption ' of Senate Joint Resolution 29, as amended by the Holland substitute, two-thirds of the Senate must vote in the affirmative if the resolution is tO be agreed to. The same will be true in the House of Representatives. The joint . resolution, as thus amended, will then be ' submitted to · the several States · for · ratification. Therefore, all the requirements of the Constitution and. of our rules will have · been Mr. President, I move that the . question of constitutionality as raised by the distinguished Senator from Georgia be laid on the table, and I ask for the yeas and nays. ·

. The VICE PRESIDENT. The question is on the motion, which is not debatable. Is there a sufficient second?

The yeas and nays were ordered.

The VICE PRESIDENT. The question is on agreeing to the motion of the Senator from Montana to lay on the table the point of order raised by the Senator from Georgia [Mr. RussELL]. The yeas and nays have been ordered, and the clerk will call the roll.

The Chief Clerk called the roll.

Mr. HUMPHREY. I announce that the Senator from Minnesota [Mr. McCARTHY], the Senator from Colorado [Mr. CARROLL], the Senator from Alaska [Mr. BARTLETT], and the Senator . from Tennessee [Mr. Gore] are absent on official business. ·

I further announce that, if present and voting, the Senator from Minnesota [Mr. McCARTHY], the Senator from Colorado [Mr. CARROLL], and . the Senator . from Alaska [Mr. BARTLETT] would each vote

Mr. KUCHEL. I . announce that the Senator. from Utah [Mr. BENNETT], the Senator from . Maryland [Mr. - BUTLER], and the Senator · from · Indiana [Mr. CAPEHART] . are necessarily absent.

The Senator from South Dakota [Mr. CASE] is absent because of illness. If present and voting, the Senator from Utah [Mr. BENNETT] WOuld VOte "yea." The result was announced-yeas 58, nays 34, as follows:

[No. 31 Leg.)

YEAS-58

Allott Hartke Murphy Anderson Hayden Muskie Beall Holland Neuberger Bible Humphrey Pastore Boggs Jackson - Pearson Burdick Javits Pell Bush Keating Proxmire Byrd, W . Va. Kefauver Randolph Cannon Kuchel Saltonstall Carlson Lausche Scott Case, N.J. Long, Mo. Smathers Church Long, Hawaii Smith, Mass. Clark Long, La. Symington Dirksen Magnuson Wiley Dodd Mansfield Williams, N.J. Douglas McGee Williams, Del. Engle McNamara Yarborough Fong Metcalf Young, Ohio Gruening Monroney Hart Moss

NAYS-34

Aiken Hickenlooper Prouty Byrd; Va. Hickey Robertson Chavez Hill Russell Cooper Hruska Smith, Maine - cotton Johnston Sparkman Curtis Jordan Stennis Dworshak Kerr Talmadge Eastland McClellan Thurmond Ellender Miller Tower Ervin Morse Young, N.Dak . Fulbright Morton Goldwater Mundt

NOT VOTING

Bartlett Capehart Gore Bennett Carroll McCarthy Butler Case, S . Dak .

So Mr. MANSFIELD'S motion to table Mr. RussELL's point of order was agreed

The VICE PRESIDENT. The question is on agreeing to the amendment offered by the Senator from Florida [Mr. HoLLAND] to strike out all after the resolving clause, as amended, and inserting in lieu thereof certain words.