January 28, 1960 (4)

The Senate resumed the consideration of the joint resolution (S.J. Res. 39) to amend the Constitution to authorize Governors to fill temporary vacancies in the House of Representatives.

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

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk called the roll, and the following Senators answered to their names: Aiken Gruening McClellan Bartlett Hartke Mansfield Beall Hennings Prouty Brunsdale Hill Robertson Byrd, w. va. Holland Scott

Javits Sparkman

Case, S. Oak. Johnson, Tex . Talmadge Church Johnston, S . C. Thurmond Clark Jordan Wiley Cotton Keating Williams, Del. Dodd Kefauver Yarborough Frear Lausche Young, Ohio Green McCarthy

Mr. MANSFIELD. I announce that the Senator from New Mexico !Mr. CHAVEZ] the Senator from Tennessee, [Mr. GoRE], the Senator from Oklahoma [Mr. KERR], the Senators from Wyoming [Mr. McGEE and Mr. O'MAHONEY], the Senator from Oregon [Mr. Morse], and the Senator from Florida [Mr. SMATHERS] are absent on official business.

I further announce that the Senator from Michigan [Mr. McNAMARA] is absent because of a death in his family.

Mr. DIRKSEN . I announce that the Senator from Utah [Mr. BENNETT], the Senator from Indiana [Mr. CAPEHART], the Senators from Kansas [Mr. CARLSON and Mr. ScHOEPPEL], the Senators from Nebraska [Mr. CURTIS and Mr. HRUSKA], the Senator from Hawaii [Mr. FoNG], the Senator from Arizona [Mr. GoLDWATER], and the Senator from California [Mr. KucHEL] are necessarily absent.

The PRESIDING OFFICER (Mr. GRUENING in the chair). A quorum is not present.

Mr. MANSFIELD. Mr. President, I move that the Sergeant at Arms be directed to request the attendance of absent Senators.

The PRESIDING OFFICER. The question is on agreeing to the motion of the Senator from Montana.

The motion was agreed to.

The PRESIDING OFFICER. The Sergeant at Arms is instructed to execute the order of the Senate.

After a little delay, Mr. ALLOTT, Mr. ANDERSON, Mr. BIBLE, Mr. BRIDGES, Mr. BUSH, Mr. BUTLER, Mr. BYRD of Virginia, Mr. CARROLL, Mr. CASE of New Jersey, Mr. COOPER, Mr. DIRKSEN, Mr. DOUGLAS, Mr. DWORSHAK, Mr. EASTLAND, Mr. ELLENDER, Mr. ENGLE, Mr. ERVIN, Mr. FULBRIGHT, Mr. HART, Mr. HAYDEN, Mr. HICKENLOOPER, Mr. HUMPHREY, Mr. JACKSON, Mr. KENNEDY, Mr. LONG of Hawaii, Mr. LoNG of Louisiana, Mr. MAGNUSON, Mr. MARTIN, Mr. MONRONEY, Mr. MoRTON, Mr. MuNDT, Mr. MuRRAY, Mr. MUSKIE, Mr. NEUBERGER, Mr. PASTORE, Mr. PROXMIRE, Mr. RANDOLPH, Mr. RUSSELL, Mr. SALTONSTALL, Mrs. SMITH, Mr. STENNIS, Mr. SYMINGTON, Mr. WILLIAMS of New Jersey, and Mr. YOUNG of North Dakota entered the Chamber and answered to their names.

The PRESIDING OFFICER. A quorum is present.

Mr. ROBERTSON. Mr. President, first the junior Senator from Virginia would like to have the RECORD show that the decision that the quorum call which has just now been concluded should be a live quorum was made by the Senate leadership.

Before the junior Senator from Virginia discusses Senate bill 2868, introduced by the distinguished Senator from New York [Mr. JAVITS], he wishes to make a brief reference to the concluding remarks of the Senator from New York, who said that this incubus-referring to the poll tax in five State~can no longer be carried by the body politic of this Nation.

That reminded me of a reference in a speech against a poll tax bill in August of 1948, in which I referred to a qualification of the State of New York known as the literacy test, which was at that time-and I assume still is-the equivalent of a seventh-grade education.

I asked the distinguished Senator from New York if he was familiar with the Morse bill of last year, which sought to take from the States their clear constitutional right to fix the qualifications of voters. It would include, of course, the property test, the poll tax test, the educational test, and similar tests they desired to apply. I asked him if he recalled that the Senator from Oregon proposed in his bill last year to wipe out all literacy tests. He said he did not know anything about that.

Let me read from what I said on that subject 11 years ago:

I am also told that in order to register in New York one must pass a literacy test which is equivalent to a seventh-grade educ a tion . Suppose we w e re to apply that New York test to Virginia, Mississippi, and Florida. I do not like to make public confession of this, because in the district which I formerly , represented in the House, known as the Shenandoah Valley, there are a great many e l ementary schools , high schools, preparatory schools, and colleges. As farming areas go, it is a rather prosperous section, and as people go, the people of that section are fine people, and I am very proud of them. The chief recruiting officer in that area told me 2 ye a rs ago, when I complained of the !act t ha t the Army was taking so few boys from Virginia, that in that district 42 percent qf those who volunteered were rejected because they did not have the equivalent of a seventh-grade education. I said, "Then your tests must be too exacting, . and your standards must be too high. Those boys have plenty of common sense and courage. They know how to shoot, and they would make fine soldiers. The tests must be too severe." He replied, "No; the modern army has a great many newfangled scientific devices, and if the boys are not educated we cannot use them."

That was in the Shenandoah Valley, one of the best areas in the State of Virginia . Of course, the precentage then, and since, in the 20 counties, where there are as many colored boys as there are white boys, of those who were rejected because they could not meet the seventhgrade test is far higher than 42 percent. Yet the distinguished Senator · from New York refers to a requirement of $1.50 a year, all of which goes to the schools, and from which Virginia is deriving nearly $2 million in revenue, as an incubus upon the body politic which can no longer be carried. But a literacy test, which would disqualify many foreigners who cannot speak English, is entirely proper. That is no incubus.

Because voters come and go, there is in New York a requirement to register before each election. It seems they are not trusted, for there is no provision for permanent registration. The requirement to register before each election disqualifies more prospective voters in the city of New York alone than does the failure to pay a poll tax in the entire State of Virginia.

The Senator from New York says the poll tax is an incubus and should be repealed. Although he is a brilliant lawYer, I feel he gave a demonstration today of the old maxim, "There are none so blind as they that won't see."

He knows the history of the Constitutional Convention in Philadelphia, and of the history of the ratifying conventions. He knows the explanation given in the Federalist Papers by both Alexander Hamilton and James Madisonthat we were creating a new Federal Union of sovereign States and that the Founding Fathers were determined to keep that Union from acting in a despotic manner. He knows that the sovereign States kept to themselves, and shall always keep to themselves, the right to determine the qualifications of electors.

The Senator from New York [Mr. JAVITS] knows of the legal decisions, and cites the 14th and 15th amendments to the Constitution. I will refer to a series of cases on both amendments to show that they have no relation whatever to the qualifications of voters.

Mr. RUSSELL. Mr. President, willthe Senator yield?

Mr. ROBERTSON. I yield to the distinguished Senator from Georgia.

Mr. RUSSELL. I am sure that my distinguished friend from Virginia, who is an eminent constitutionalist and scholar, is aware of the fact that the language to which he refers, giving the States the right to prescribe the qualifications of voters, is the only language that appears in the Constitution and in the amendments thereto in identical terms in two places.

Mr. ROBERTSON. Article I, section 2, and the 17th amendment.

Mr. RUSSELL. In the 17th amendment. So no argument can be made as to what the 14th and 15th amendments did, in the case of the election of Senators. If these amendments repealed the original power of article I, it was reinstated when the 17th amendment was adopted as to Senators.

Mr. ROBERTSON. Absolutely. There can be no question about it.

Mr. RUSSELL. So there can be no collision between the 15th amendment and the 14th amendment and the qualification in the original Constitution, because the last word on the subject was in the 17th amendment, wherein the identical language was approved by the States subsequent to the adoption of the 14th and 15th amendments. So, if the 14th and 15th amendments were contrary to the qualification power in article I, it was reaffirmed and reestablished when the 17th amendment was adopted as to the election of Senators.

Mr. ROBERTSON. I could not agree more fully with the Senator. I wish to ask my distinguished colleague from Georgia if he agrees with this: "There are none so blind as they that will not

Mr. RUSSELL. That saying is as old as Holy Writ, and I will be the last to dispute it.

Mr. ROBERTSON. As the Senator has pointed out, the 17th amendment carries the exact language he has referred to, adopted after the 14th and 15th amendments had been adopted. lt states that the "electors in each State shall have the qualifications of the electors of the most numerous branch of the State legislatures." But the amendment does not say anything about Congress determining the "times, place and manner of holding elections."

I conclude, therefore, that the Senator from New York hopes to change the Constitution in every respect. He urges that we should wipe out the power of establishing a property qualification as is done by seven States-many of them Northern States, such as Maine and Massachusetts. Virginia, of course abolished the property qualification long ago, and so did the State of the distinguished Senator from Georgia.

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

Mr. ROBERTSON. I yield.

Mr. RUSSELL. All of the Thirteen Original States had, in one form or another, a property qualification for the exercise of the franchise.

Mr. ROBERTSON. The Senator from Virgin i a now wishes to discuss the specific provisions of S. 2868, because we are put on notice that that is where the real fight is coming. We are told to repeal the poll tax by constitutional amendment is the legal thing to do, but that that process is too slow. Where does that leave us with respect to all the other constitutional · questions and civil rights questions which it is proposed to bring up before the session is over?

To amend the Constitution by legislative procedure is easier, it is argued. If we do that by the statutory method with respect to one civil right, then we will be confronted with the same situation when we consider the other rights which are not the subject of a constitutional amendment because they are reserved to the various States.

Mr. RUSSELL. Mr. President, will the Senator yield further?

Mr . ROBERTSON. I am glad to yield.

Mr. RUSSELL. The Senator is aware of the fact that if it is possible to create by statute an alleged civil right in violation of the Constitution, then it · is a simple matter to take away by statute any constitutional right which any citizen of the United States may enjoy.

There was a time when I was very critical of some of my brethren in the Senate for undertaking to eliminate by statute the plain provisions of the Constitution . . However, in the light of the precedent set by the Supreme Court m 1954, when they changed the Constitution by Court decision-and I do not believe that the Court has as much power in that area as has Congress-! am constrained not to be quite so critical of some of my brethren for undertaking to change the Constitution by statute.

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

Mr. ROBERTSON. . I am glad to yield to the distinguished Senator from North Carolina. . Mr. ERVIN. As I recall, the Supreme Court, in a comparatively recent case, Breedlove against Suttles, held that a State has the constitutional power to impose a poll tax as a condition precedent to voting.

Mr. ROBERTSON. That is absolutely correct. I will cite that case later.

· Mr. ERVIN. Does not the Senator think that those who undertake to repeal the poll tax by statute, as distinct from a constitutional amendment, are manifesting a lack of confidence in the judicial stability of the Supreme Court?

Mr. ROBERTSON. One could well think so. The distinguished Senator from New York tried to justify himself by saying, "I am not claiming that the imposition of a poll tax is unconstitutional."

Of course, being a good lawyer, I · assume he knows how many cases, including a recent case in Virginia, Butler versus Thompson, have held that the poll tax was constitutional. But, he said, that does not mean that Congress cannot make it unconstitutional.

· In . the opinion of the Senator from Virginia, Congress cannot make anything unconstitutional without reference to the meaning of changing the Constitution. That is what is proposed here. An effort is being made to try to shade the meaning, so the proposal does not mean qualifications. J\n effort is being made to try to shade the meaning of fraudulent practices, which, the Senator from New York says, the Federal Government has a right to control; ipso facto, he says, the imposition of a poll tax causes fraudulent practices, because we have heard of fraud being committed under it. He says: We have a poll tax; fraud has been committed in connection with it; therefore, the poll tax is fraudulent.

I believe that is the kind of argument that Cicero would have called post hoc, ergo propter hoc: If one follows the other, the other is the cause.

In calling once again the poll tax an incubus upon the body politic of the United States, the Senator from New York says that we cannot wait for the legitimate processes of a constitutional change.

The Senator from Virginia, on the contrary, does not see that there is any necessity for change. In my opinion, we are getting along very well in Virginia, nor do we deny anyone proper rights. Moreover, other States which have poll taxes feel the same way. As the distinguished Senator from Georgia said to me today, those who do not have the problem are proposing a remedy. They therefore offer to tell us what to do about poll taxes, registrars and referees.

The proposal of the Senator from New York is very serious. I am sure that the 22 Senators who cosponsor the bill would realize that if they would take the time to read the history of the Constitutional Convention, the explanation of it by Madison and Hamilton, the debates in the ratifying conventions and the decisions of the Court as these issues came before it.

I ask them to consider seriously the issue because we swore as Senators to uphold the Constitution of the United states. ·

Far be it from the junior Senator from Virginia to . imply that any colleague would consider lightly that oath. But he does urge that they consider the principles and facts involved in such bills as this one before us.

We have a form of government which, as it is at present constituted, is older than any other in the world. It is the deliberate opinion of all who have commented on our prosperity, diversity of interests, and success as a Nation, that the only thing which has enabled us to hold together as a Nation longer than has any other form of government is the fact that we have given to the central government limited powers. We have reserved to the 48 States, now to the 50 States, powers not given to the Central Government. I am persuaded that we cannot encroach lightly upon the powers of the States and expect this wonderful experiment in representative democracy to survive.

Therefore, I say the Javits bill is a serious attack upon the rights of the States and should not be treated lightly by any Member of the Senate.

Mr. President, my purpose in taking the floor today is to point out the fallacies in the latest of a number of bills which seek to outlaw the poll tax. Specifically, my discussion will treatS. 2868, introduced on January 20 by the Senator from New York [Mr. JAVITS] for himself and other Senators.

Serious consideration of an amend­ lin a. ment to the Federal Constitution as proposed by S e nate Resolution 126 makes my task easier. · For it is my conviction that · the list of 66 Senators who have signed the resolution-known as the Holland resolution-is at least a demonstration of their own doubt of the constitutionality of such action by legislation. No less a person than Clarence Mitchell, of the NAACP, recognized this interpretation in his statement on Senate Joint Resolution 126 before the Subcommittee on the Judiciary-see hearings before subcommittee of the Committee on the Judiciary, on Senate Joint Resolution 126, 86th Congress, 1st session, August 17 and 27, 1959, page 71. The same fear was expressed by the Senator from New York [Mr : JAVITS] when he introduced S. 2868.

Let me add that, in my opinion, if such a result is to be effected, the proper means would be by constitutional amendment, rather than by legislative action . But I would not favor the result. I shall turn to S. 2868 and to such new developments as there may be in a subject that has been thoroughly debated for 20 years.

THE THEORY OF S. 2868 s. 2868 would make it unlawful to require any tax or to impose a property qualification as a prerequisite to voting in a national election, or to interfere with a person's registering or voting because of his failure to pay the tax or meet the qualification. The bill states that any such action "shall be deemed an interference with the manner of holding primaries or other elections for said national officers, an abridgment of the rights and privileges of citizens of the · United States, a tax on such rights and privileges, and an obstruction of the operations of the Federal Government." In his amendment, the Senator from New York seeks to spell out what he knows is not in the law. He calls it a "manner," when, of course, he is dealing with the qualifications of electors, rather than with the manner in which they shall vote.

It is a little difficult to discover the penalties the authors of the bill have in mind for future violators of the act. This is because, unlike former bills, there is no provision for injunction, fine, or imprisonment. In my opinion, the vagueness of S. 2868 on the subject · of remedies is a fitting companion of the weakness of its constitutional basis.

I would note here, however , that the present proposed legislation is less extreme than some. For instance, it does not seek to outlaw literacy or intelligence tests as did · a measure introduced last July 9; on the other hand, it does outlaw property qualifications, a step often not included in the other proposals.

In the words of its sponsor, the intent of the bill is not only to eliminate poll taxes in the five States where they remain, Alabama, Arkansas, Mississippi, Texas, and Virginia, but also to remove any other economic (property) qualific · a­ tion for voting. Thus, if passed, it would apply to statutes on the books of Florida, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont, and South Caro- . In my judgment, S. 2868 would be unconstitutional because it would conflict with the constitutional provisions that the qualifications for electors are to be prescribed by the States.

I am comforted to find that my doubt about the constitutionality of such bills is shared by the recent report of the U.S. Commission on Civil Rights, September 9, 1959. After discussing briefly the cases' arguments in issue, the report states at page 118:

The debate on these bills would thus seem to indicate that the constitutionality of Federal antipoll-tax legislation is at least doubtful.

That is the Commission which proposed the appointment of the r _ registrars. Coming from such a source, it is an admission indeed.

The theme that will prove dominant in my analysis is as follows: If it is established s hed by congressional action that Congress has the right to determine any qualification for voters in all elections, that principle can be applied to every form of qualification. Thereafter a temporary majority in the national legislature will be able to broaden or restrict the electorate to serve its own ends. It is because of this fear, that the National Government might be able to qualify the electors of. the States to keep itself in power; or conversely, that the States might combine to destroy the National Government, that led to the present constitutional provisions. As will become clear in a moment, such a danger was anticipated, debated, and provided for by the Founding Fathers.

Here are the provisions of the Constitution of the United States which are involved:

Representatives, article I, section 2: The House of Repre s entatives shall be composed of Members chosen every second - year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

The 17th amendment, relating to the election of Senators, was recently referred to by the distinguished senior Senator from Georgia [Mr. RussELLJ. It reads:

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 ha v e one vote.

Mr. President, mark you this. This was after the 15th amendment was adopted.

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

Representatives and Senators, article I, section 4:

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.

ANALYSIS OJ' THE ARGUMENT

The first question is whether the imposition of a poll tax as a prerequisite for voting is a matter of qualification of a voter, under article I, section 2, of the Con st i t ution, or whether it is a matter involving the "manner" of holding an election and covered by article I, section 4, of the Constitution. If the poll tax is a matter of qualification, then it is up to the State to determine what restrictions it wishes to impose, subject only to the condition that the State may not impose restrictions discriminating against prospective voters on the basis of race, color, or previous condition of servitude in violation of the 15th amendment, or against voters on account of sex in violation of the 19th amendment. If, on the other hand, the poll tax is a matter involving the "manner" of holding an election, then the Federal Government may, if it wishes, supersede the requirements imposed by the States.

Likewise, from time to time efforts are made to invalidate restrictions and discriminations in voting requirements on the ground that they violate the privileges and immunities, or equal protection, provisions of the 14th amendment.

In my opinion, the imposition of a poll tax is a matter of the qualifications of a voter, controlled exclusively by the State under article I, section 2, of the Cons t itution. Therefore, the Federal Government cannot under article I, section 4, of the Constitution, prohibit the imposition of a poll tax under the guise of regulating the "manner" of the election. Accordingly, article I, section 4, of the Constitution is not a proper basis for S. 2868, section 1 of which defines the imposition of a poll tax as an interference with the "manner" of holding primaries and elections for national officers.

· As will be demonstrated, the Supreme Court has made it clear that poll _ taxes and other qualifications imposed by the States are based on article I, section 2, and are solely within the control of the State. ·

Moreover, Congress does not have any power to regulate even . the "manner" of appointing electors for President and Vice President. Thus, if it be conceded that the qualifications of electors for these office~ did relate to the manner of holding elections, the bill before the Senate would be unconstitutional. Article II, section I, of the Constitution is explicit when it provides that "each State - shall appoint, in such manner as the legislature thereof may direct," the electors for President and Vice President.

So when S. 2868 tries to supersede that language, it is in the teeth of the words of the Constitution itself.

Section 1 of S. 2868 also states that poll taxes shall be deemed an abridgment of the right and privilege of citizens of the United States. This may be a reference to the 14th, 15th, and 19th amendments.

Court decisions have held that the 14th and 19th amendments do not preclude the imposition of a poll tax. Moreover, the case of Butler against Thompson, discussed later, has held that the Virginia poll tax is a valid exercise of the State's authority under article I, section 2, of the Constitution, and neither in its terms nor its application violates the 15th amendment. s. 28 68 , in finding that all poll taxes abridge that · amendment, would not be constitutional.

In the same section of the bill is a congressional finding that poll taxes are a tax on "such rights and privileges." For the sake of argument, let us assume that such "privileges of U.S. citizens" to vote, as proponents of the · bill assert, do in fact exist. Nevertheless, reasonable taxes may be imposed to raise money for the support of government.

The Breedlove case, which I shall discuss later-which case was mentioned earlier today by the distinguished Senator from North Carolina [Mr. ERVINlpoints out that so long as the statute appears to be bona fide, and that payment as a condition to voting appears a reasonable method of collection, the tax law is not forbidden by the Constitution. These taxes as well as property qualifications are also deemed by S. 2868 to be "an obstruction of the operations of the Federal Government."

I admit I am perplexed as to what operations are intended by this clause, except by referring to the Federal Constitution. For it is that instrument which defines the scope of Federal and State powers. Therefore, we will later read it in detail to discover how it defines these so-called voting operations of the National Government. · The aim in succeeding parts of my speech is to reveal the history of State power over voter qualifications, as shown by the constitutional debates and the Federalist papers, and then to develop the court decisions which prove the assertions above. Fortunately, the framers of that document left us in no doubt on the subject.

DIFFERING QUALIFICATIONS OF THE STATE

A. The Constitutional Convention

At the outset, we should take . note of the fact that in 1789 the States had rigorous and widely differing requirements for voting. These were summarized by Chief Justice Waite in his opinion in Minor v. Happersett, 21 Wall. 162 0874), at page 172. The general requirement was ownership of property, usually real estate. In 1789 Georgia liberalized its requirements by extending the vote to those who had prepaid taxes, even though they did not qualify by property ownership. Other States followed suit. Thus, the adoption of the poll tax was not a device for restricting suffrage, but one of liberalization.

Specifically, at the time the Thirteen Original States · formed the Union, the provisions of six State constitutions and the colonial charters of Rhode Island and Connecticut, in referring to a poll tax, as in New Hampshire, or to a property tax requirement, used either the word "qualifications" or the word "qualify" as applicable to those requirements for voting. For language of those documents , see hearings before a subcommittee of the Committee on the Judiciary on Senate Joint Resolution 126, 86th Congress, 1st session, August 17 and 27, pages 23-29.

The s e differences occasioned many d e bates in the Constitutional Convention on the · possibility of uniform qualific at io n s for voters.

In examining the records of the Convention, it is well to keep in mind that three principal problems were involved: First. The first and most important question was whether the Representatives should be chosen by the people or by the State legislatures. This threshold issue was resolved in favor of popular election in the Committee of the Whole and the decision was sustained by the formal action of the Convention. Second. Once popular election had been voted, the next question was what qualifications should . be required of electors for Representatives, and whether Congress should be given any power to change the qualifications as so .established. The committee of detail decided to define the qualifications of electors in the Constitution itself and to deny to Congress any power to change the definition. While some members of the Convention favored setting forth in the Constitution even more detailed qualifications for electors, the report of the committee -of detail was adopted by the Convention.

Third. The next question was the extent to which the States and Congress should participate in regulating the times, places, and manner of holding elections for Senators and Representatives. The committee of detail gave the subject to the State legislatures in the first instance, with a power of revision in Congress. With some modifications, this plan was adopted by the Convention.

Popular suffrage

The decision to provide for Representatives to be chosen "by the people"' rather than by State legislatures was an important one for the history of popular suffrage. Moreover section 2, article I, finally evolved:

ARTICLE I

SEC. 2. The House of Representatives shall be composed of Members chosen every second year "by the people" of the several States, · and the electors in each State shall have the qualifications requisite for electors of the "most numerous branch" of the State legislature. ·

The quoted words also assured a broad popular base.

Nevertheless, in my opinion, too much emphasis has been laid upon this decision of the Committee of the Whole, popular suffrage, and on the words "by the people." An example of this emphasis may be found in the U.S. Commission's Report on Civil Rights-page 5, footnote 9.

To my understanding, on the contrary, the full import of the final wording of this section means the following:

As a definition of an electorate the phrase "by the people" would be entirely unsatisfactory, for it includes every living human being, even the infant in the cradle, wholly incapable of participating in an election. No State today undertakes to define its electorate as simply "the people" without any further specification.

Moreover, if the phrase "by the people" had been intended to define an electorate, then the concluding clause of article I. section 2, "and the electors of the most numerous branch of the State legislature" would have been meaningless, unnecessary, and out of place. The most numerous branches of the State legislatures in 1787 were elected by the people. .If the phrase "by the people" was sum• ciently definite so as to designate the electorate for Representatives, it was also definite enough to define the electorate for the most numerous branches of the State legislatures. If this was the case, the framers would have produced a clause that read something like this: · The House of Representatives shall be composed of Members chosen every second year by the same people who choose the most numerous branches of the State legislatures. The Constitution uses a different term than "by the people" to define the electorate, or the group of individuals, who shall participate in the choice of Representatives. The term is "electors."

The question then arises as to what aggregation of individuals constitutes the group known as electors. The Constitution is specific:

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

The electors for Representatives are the groups of individuals who have the qualifications requisite to voting for Representatives. The electors, or qualified voters, in each State are defind by the Constitution as those individuals who "have the qualifications requisite for electors of the most numerous branch of the State legislature."

The very simplicity of this section tends to mislead one to take the view that the States establish the qualifications of electors for Representatives. As the U.S. Supreme Court pointed out in United States against Classic:

In a loose sense, the right to vote for Representatives in Congress is sometimes spoken of as a right derived from the States (313 u.s. 299, 315 (1941)).

Careful analysis shows this is not true. The Constitution itself defines the qualifications of electors for Representatives and does so in imperative language, "the electors shall have."

Article I, section 2, does not give the States any power to decide who shall vote for a U.S. Representative. A State has no power to deny the right to vote for a U.S. Representative to a · person who is qualified to vote as an elector for the most numerous branch of that State's own legislature. Similarly, a State has no power to give the right to vote for a U.S. Representative to a person who is not qualified to vote as an elector for the most numerous branch of that State's o:wn legislature. A State is simply with- out any power in the premises.

Just as clearly, article I, section does not give the Congress, or any other branch of the Federal Government, any power to decide who shall vote for a U.S. Representative. Congress has no power to deny the right to vote for a U.S. Representative to a person who is qualified to vote as an elector for the most numerous branch of that State's own legislature. Similarly, the Congress .has no power to give the right to vote for a U.S. Representative to a person who is · not qualified to vote as an elector :for · the most ·· numerous branch of that State's own legislature. . Congress is simply without any power in the premises.

The long and short of the matter is that neither the States nor the Congress has any power over the qualifications of electors for U.S. Representatives, since this subject has been completely covered in the Constitution.

Qualifications in the committee of detail

Once popular · election had been voted, the next question was what qualifications should be required of electors for Representatives, and whether Congress should be given any power to change the qualifications as so established. The committee of detail decided to define the qualifications of electors in the Constitution itself and to deny to Congress any power to change the definition. While some members of the Convention favored setting forth in the Constitution even more detailed qualifications for electors, the report of the committee of detail was adopted by the Convention.

On July 24 the Convention named a Committee of Detail to report a Constitution conformable to the resolutions adopted by the Convention. Among the resolutions referred to this committee of detail were the following:

Resolved, That the Members of the first branch of the Legislature of the United States ought to be elected by the people of the several States.

Resolved, That the Members of the second branch of the Legislature of the United States ought to be chosen by the individual legislatures (2 Farrand 129).

The papers of this committee show the development of what came to be article I, section 2, clause 1, and article I, section 4, clause 1, of the Constitution.

Among the papers of the committee of detail is the final draft, designated document IX by Farrand, in handwriting by James Wilson and emendations by Rutledge. It contains the following provisions:

The Members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be--

Then these words were strickenprescribed by the legislatures of the several States, but these provisions concerning them may, at any time be altered and superseded by the Legislature of the United States--

And these words were substitutedthe same from time to time as those of the electors, . . in the . several States, . . of the . most numerous branch of their own legislatures. 'The times and places and the manner of holding the elections of the Members of each House shall be prescribed by the legislatures of each State; but their provisions - concerning them may, - at any time, be altered-

The words · "or superseded" were stricken out hereby the Legislature of the United States.

This final draft of the committee - of detail is of unusual significance because it show.s that the · committee considered and deliberately struck out of its . report a. provision giving Congress the power to alter and supersede the qualifications of electors as prescribed by the legislatures of the several States. Instead, the committee defined the qualifications of electors in the Constitution, denying the power to both the States and the Congress.

I am reading the genesis of the present language. I am showing the Senate that the framers of the Constitution considered doing what we are considering doing today. Those men who wrote the Constitution struck out that language.

If those who do not think this was the best instrument of government ever devised by the hand of man want to ment. change it, they are free to do so. Let us not do it, however, by a bare majority of Congress that can, on another occasion, by another majority, change it again.

Mr. President, except for changes in orthography, the final draft of the committee of detail was printed and delivered to the Convention on August 6 (2 Farrand 176, 177). This report read as follows:

SEc. I. The Members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures. SEC. I. The times and places and the manner of holding the elections of the Members of each House shall be prescribed by the legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States (2 Farrand 178-179).

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

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

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

"It would be very hard and disagreeable," Wilson said, as reported by Madi:­ son, "for the same persons, at the same time, to vote for Representatives in the State legislature, and to be excluded from a vote for those in the National Legislature"-5 Ell. Deb. 382.

George Mason, of Virginia, also contended for the very point I am stressing today-that a power to alter the qualifications of voters would be a dangerous power in the hands of the National Legislature. Once the principle is established that the Congress can make such changes, the power used at one time to expand the electorate may be used at another to restrict it, and, theoretically at least, the restriction could be carried so far that we would have a despotism. Mr. Mason called attention to the fact that eight or nine States already had abolished landholding qualifications, although most of them continued to require some material evidence of the citizen's responsible interest in his Government. the conclusion of this debate the Morris proposal to limit the ballot to freeholders was defeated by a vote of seven States to one and the committee plan was adopted without a dissenting vote. Its language was changed only slightly, and became that part of section 2 of article I of the Constitution which reads:

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

This ended the debate on the qualifications of voters. The people were to elect the Representatives; the qualifications of electors were to be the same as those prescribed by the States for the most · numerous branch of the State legislatures .

This debate reveals the importance of the theme I earlier mentioned, that the Central Government must not be given the power to perpetuate itself by controlling electorate qualifications.

Manner of holding elections

On August 9 the . Convention considered article VI, section 1, of the report of the committee on detail, which read as follows:

The times and places and manner of holding the elections of the Members of each House shall be prescribed by the legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States.

The debate which followed shows clearly the scope the Convention intended that this provision should have. The debate is reported in Madison's Journal as follows:

Mr. Pinckney and Mr. Rutledge moved to strike out the remaining part, viz "but their provisions concerning them may at any time be altered by the Legislature of the United States." The States they contended could and must be relied on in such cases.

Madison pointed out that the necessity of a Central Government supposes that the State legislatures will sometimes fail or refuse to consult the common interest at the expense of their local conveniency or prejudices.

This view of the question seems to decide that the legislatures of the States ought not to have the uncontrolled right of regulating the times, places, and manner of holding elections. • • • It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, and all vote for all the Representatives; or all in a district vote for a number allotted to the district; these and many other points would depend on the legislatures. • • • Whenever the State legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.

I digress to mention a little point of colonial history in Virginia. What Madison was concerned about was that the legislature might do this if the Federal Government did not have any power over the times, places, and the manner of holding elections.

The enemies of James Madison, who led the fight for the ratification of the Philadelphia Constitution, redistricted his home of Orange and carried the district clear down to Richmond, with the intention of defeating him in his race for election to the U.S. House of Representatives. His opponents came pretty close to defeating Madison under the provision about which I am talking and which it was said might sometimes be abused. That was an early illustration, the first I know, of gerrymandering, when the opponents of ratification did it. The provision only carried by a majority of nine in the convention, and the opponents retaliated against the chief architect, the man who promised to carry out the intention of the convention by proposing for adoption the Mason bill of rights and the 9th and lOth amendments. They were to resolve the doubts raised by Patrick Henry and Mason, that we were framing a new instrument of oppression of · the States and the people thereof. His opponents almost gerrymandered Madison out of political life. Mr. King then said:

If this power be not given to the National Legislature, their right of judging of the returns of their Members may be frustrated. No probability has been suggested of its being abused by them.

The motion of Mr. Pinkney and Mr. Rutledge to remove control by the Federal Government did not prevail.

On the motion of Mr. Read the word . "their" was struck out, and "regulations in such cases" inserted in place of "provisions concerning them." The clause then reading "but regulations, in each of the foregoing cases may at any time, be made or altered by the Legislature of the United States." This was meant to give the National Legislature a power not only to alter the provisions of the States, but to make regulations in case the States should fail or refuse altogether.

Those are Madison's notes I . have quoted:

Article VI, section 1, as thus amended was agreed to (be sent to the convention) (2 Farrand 239-42; see also 2 Farrand 229, 244). · The committee of style reported back the Constitution, with only slight changes in phraseology in these provisions, on September 12 (2 Farrand 582, 585, 590, 592). When the report was considered, the Convention made one change in article I, section 4, reported by Madison in the following language:

Article I, section 4: "Except as to the places of choosing Senators" added nem: con: to the end of the first clause, in order to exempt the seats of government in the States from the power of Congress (2 Farrand 613).

In this form these provisions of the proposed Constitution were approved and submitted to the States for ratification (2 Farrand 651, 65.3).

In summary, the records of the Federal Convention of 1787 show that the Convention was closely divided on whether there should be popular election of Representatives. After popular election was accepted, the Convention divided on the extent to which the qualifications of electors should be written into the Constitution and whether Congress should be given any power in the premises.

I am sure Senators remember the words of Benjamin Franklin when he proposed this solution:

In this emergency, when w _ e are groping 1n the dark, as it were, to discover political truth, and · scarce able to perceive it when presented to us, why has it not once occurred to us to ask the Father of Light to illuminate our understanding?

That indicates not only the great wisdom but also the great statesmanship of the best qualified group of men who ever sat down to frame a constitution in the history of the world. They had studied history all their lives, and they came forth with one of the greatest documents in all political history. Yet we think we can lightly amend it, - or pass an act of Congress, forgetting our oaths to support the Constitution. That is the -thing that makes this issue so vital to me, and to the future of our Nation.

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

Mr. ROBERTSON. I yield.

Mr. TALMADGE. I compliment my distinguished friend and colleague from Virginia on the able and scholarly speech he is making on this subject. · _ My own State of Georgia repealed the poll tax 15 years ago, but I do not think that necessarily means that Virginia or any other State might to repeal its poll tax merely because the State of Georgia has done so.

Does the Senator believe that the Congress has demonstrated · any superior knowledge as to now the affairs of Vir- ginia or Oregon should be conducted, as compared with the knowledge possessed by the General Assembly of Virginia or of the State of Oregon?

Mr. ROBERTSON. The Senator from Virginia, as a college boy, studied Woodrow Wilson and read his books. He was a Woodrow Wilson delegate to the State convention at Norfolk in · 1912, and he thought that Woodrow Wilson, as a political philosopher, was about as near to Thomas Jefferson as anyone in modern times. The junior Senator from Virginia thought that no one could be more correct than Woodrow Wilson when he said:

I do not want a smug lot of experts to sit down behind closed doors in Washington and play providence for me.

That summarizes his . statement, the principle of which I am trying to emphasize. We would not have had a Federal Government if we had not been willing to protect the rights of the States.

Of course, the States can handle their domestic affairs better than can the Cen- tral Government in Washington. - As Thomas Jefferson said, whenever we must be told from Was,hington when to sow and when to reap, we shall lack for bread. I could not agree with my friend fron Georgia more completely. Certainly the Congress has not shown any superior wisdom over that of the states in conducting the domestic affairs of the country.

Mr. TALMADGE. Does not the distinguished Senator feel that the legislatures of the 50 States of the Union are closer to the people, and are better qualified to judge what laws they should have regarding their election machinery, than any agency that operates through compulsion, be · it by means of a constitutional amendment, legislation, or otherwise, from Washington, D.C.?

Mr. ROBERTSON. I could not agree more completely. That was one reason I was so emphatic in my support in 1950 of the Senator's senior colleague [Mr. RussELL] for the Presidency. He had . St t • h f serve d as Spea k er o f IS h a e s house 0 representatives. He was probably the youngest man who had ever served in that capacity. He knew county government. He knew the legislature. He had served as Governor and had served in the National Legislature. He knew this Government from the grassroots on up. He knew enough so that as President he would not have tried to run every little precinct from Washington and tell it what to do. ,

Mr. TALMADGE. Mr. President, will the Senator further yield?

Mr. ROBERTSON. I yield.

Mr. TALMADGE. Is it not true that the more remote government is from the people, the less responsive it is to the will of the people?

Mr. ROBERTSON. The Senator is absolutely correct.

Mr. TALMADGE. when we centralize all regulatory power in the Central Government, far removed from the people, that is the beginning of dictatorship, under which , the people cannot control the Government, but rather are controlled by the Government?

Mr. ROBERTSON. The Senator is correct. The great bulwark against any drift into socialism, and eventually from socialism into dictatorship, is the rights of the 50 sovereign States. When we break those down, we destroy the great protection the framers of our Constitution intended for the preservation of the Republic as a representative form of government.

The final decision was to deny Congress all power. Qualifications of electors were defined in terms of an objective standard-the qualifications fixed by the people of the several States for electors for the most numerous branches of their own egis atures. Over strong opposition Congress was given power to regulate times, places-except as to Senatorsand manner of holding elections.

As has been indicated, the members of the Constitutional Convention were conscious of the need to satisfy the people of the various states sensitive on the :subject of suffrage rights. It was · there- fore one of the subjects which received close attention in The Fe~eralist Papers written at the time to convince the State conventions to adopt the Constitution.

B. The Federalist

In No. 52 of the Federalist, it was written-we think perhaps by Hamilton:

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

The Federalist author continued:

lt was incumbent on the Convention, therefore, to define and establish this right in the Const i tution. To have left it open for the occasional regulation of the Congress would have been improper for the reason just ment i oned. To have submitted it to the legislative discretion of the states, would ' have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the state -governments that branch of the Federal Government which ought to be dependent on the people alone.

I call attention to the following · words of the paragraph in the quotation:

To have reduced the different qualifications in the different states to one uniform -rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the Convention.

The provision made by the Convention -appears, therefore, to be the best that lay within their option . .It must be satisfactory to every State, because it is comformable to the standard already established, or which may be established by the State itself. It will be safe to the United States because, being fixed by the state constitutions, it 1s not alterable b,Y the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge rights secured to them by the Federal Constitution. Then, in the "Fifty-fourth Federalist," it was remarked:

The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States Is it not true that the difference is very material.

c. Ratifying conventions

La er, at the Massachusets ratifying convention, in answer to a query as to whether Congress might prescribe a property qualification for voters, Mr. Rufus King, a member of the Federal Convention, said:

The idea of the honorable gentleman from Douglass transcends my understanding; for the power of control given by this section extends to the manner of elections, not the qualifications of the e.lectors.

And James Wilson, who had warned in the Constitutional Convention of the difficulty that might result if qualifications of State and national electors were different, had this to say in the Pennsylvania convention:

In order to know who are qualified to be electors of the House of Representatives, we are to inquire who are qualified to be electors of the legislature of each State. If there be no legislature in the States, there can be no electors of them; 1f there be no such electors, there .is no criterion to know who are qualified to . elect Members of the 'House of Representatives. By this short, plain deduction, the existence of State legislatures is proved to be essential to the existence of the Ge . General Government.