January 29, 1960 (3)

As the Senato.r from Virginia in his magnificent address on yesterday brought out very clearly, there was not only this tremendous regard for the rights of the States and this excessive zeal and jealousy for the preservation of the sovereignty of the States in the Constitutional Convention in Philadelphia which brought forth the Constitution, but also, as we know, the Constitution to be effective, to come into being • . had to be ratified by conventions . in the several State~.

If we turn to the conventions in the several States, we find that great battles raged in most of them over ratification of the Federal Constitution. What was the question? The question was whether the delegates in Philadelphia had given , to the Federal Government too much power. The three most powerful States, . the three most influential States at that . time, were Virginia, New York, and Massachusetts. In their State conven- . tions, because of the fear that the Federal Government might be given too much power, that the States might be lodging too much power in the Federal Government, only 5:3 percent of the votes in those conventions were cast for ratification. So, since only 53 percent of the votes were cast for ratification, it will be realized that there was a rather close race.

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

M:r. HILL. I yield.

Mr. ROBERTSON. In the calling of the Virginia convention, in order to get as many delegates as possible, it was . stated that all the members - of the general assembly were eligible, and that delegates could be elected in addition to that number. Yet out of that group, which constituted nearly all of the political leaders of the State, the vote for ratification was only a majority of nine, and that was primarily due to the influence of George Washington.

Mr. HILL. No doubt if it had not been for the tremendous confidence of the people of Virginia in General Washington, Virginia would not have ratified the Constitution.

As the Senator stated on yesterday, and as I bring to the attention of the Senate today, two of the greatest pfttri- . ots of the Revolution-Patrick Henry, who sounded the tocsin of war and gave us the battle cry of the Revolution; and George Mason, who wrote the Virginia Bill of Rights-opposed ratification of the Constitution.

As Senators will recall, that great statesman of our time , Woodrow Wilson, said he would rather have been the author of the Virginia Bill of Rights than the author of any document ever penned by the hand of man. That bill of rights is not only the Bill of Rights we find today in the Constitution of the United States, but it is the bill of rights we find tn the constitutions of all the several States. It is the great guarantee of the rights of our people.

I have previously discussed the safeguards on which the delegates of the individual States insisted in order to protect their rights and to retain as much -as possible of their State sovereignty. After the delegates representing the sovereign States had finis , hed their work of writing the Constitut i on, putting in all the safeguards to insure the primary authority of the States, they closed the Constitution b ' y - writing into it - the ' declaration that the Constitutional Convention acted "by the unanimous consent of - the States" present. - They wanted the people to know at that time, and wanted all succeeding generations to know, including the Senators sitting here in the year of our Lord 1960, some 173 years after the Constitution was drafted, that it was the sovereign States which had drafted and formulated the Constitution.

As stated a moment ago, two of the foremost patriots of the Revolution, Patrick Henry and George Mason, who had done so much to win our independence from the British Crown, to win our freedom, opposed the ratification of the Constitution. They felt, as did many of their compatriots, that there might be too great a surrender of sovereignty on the part of the States, that there might be too much yielding of power to the Federal Government.

I emphasize these points because the history of the ratification of the Constitution shows · clearly that if the sovereignty of the States and the rights of the · states · had not been positively recognized in the Constitution, if all the safeguards and protections of their sovereignty and their rights had not been put into the Constitution, the . Constitution would . never have been ratified, and we would never have had a Federal Government.

We know, of course, that mankind has struggled through the centuries to break down arbitrary power. Sometimes it is difficult for us, living in free America, to realize the long struggle of _ mankind, century after century after century, to break arbitrary power. The high-water mark of the struggle to break down arbitrary power, to bring about the distribution of power, and place it in the hands of the people, was reached when our ancestors fought the American Revolution and broke the power of the British Crown over the people of the then Original Thirteen Colonies or States. The framers of the Constitution knew that the States, with their State governments, county governments, city governments, and town governments, w.ere the citadels of local self-government. They knew that their concept of government by the people required full and plenary recognition of the rights and the sov:ereignty of the States. If the people were to hold and exercise the power of the Government, there had to be recognition of the sovereignty of the States.

The people were fighting against a pool of centralized arbitrary power at the seat of government. They were fighting to keep the well springs of our system of government in the hands of the people-as I have said, in the local communities, the crossroads, the hamlets, and the towns. What woUld it have availed the people to break the tyranny of the British Crown had they themselves set up in Washington a - Government with central arbitrary power? They were determined, after all the sa . c­ rifices they had made, and all their bitter sufferings, to reserve the power in their own hands. I repeat, that to do this they knew that they had to maintain the sovereignty of the States, because within the States · and within the states alone, are the citadels of governmental power.

A few minutes ago we we1e speaking about the State conventions, which met to ratify the Constitution. It is interesting to note that in those State conventions one of the first questions raisedand raised many times-was the very question we are discussing today, the question of section 2 of article I of the Constitution. To bring into being a Federal Union through the Constitution, it had to be ratified by at least nine of the States. -

In the Massachusetts convention, there was a "doubting Thomas" by the name of Dr. John Taylor , from the town of Douglass, Mass. He wanted to be very sure about this new Constitution. He wanted to make certain. He was fearful that section 4 of article I, the section with reference to the times, places, · and manner of holding elections-not the section with reference to qualifications-;­ might give Congress the power to describe property qualification for voters in the sum, as he expressed it, of · 100 pounds. He inquired of Mr. Rufus King, who, as we recall, was a member of the Constitutional Convention in Philadelphia, and was also a member of the Massachusetts State convention, whether under section 4, Congress could in any way go into the question of qualifications.

Mr. · King, . one of the leading members Of the Philadelphia Convention, had this to say:

The idea of the honorable gentleman from Douglass transcends my understanding, for the power of control given by this section-

That is, section 4- extends to the manner of election, not to the qu a lifications of the electors.

He made that answer because he knew that the qualifications were prescribed in section 2, and were the qualifications which the States themselves would make. In the Pennsylvania State convention Mr. James Wilson, who, as will be recalled, had been one of the outstanding men in the Constitutional Convention at Philadelphia, in the · writing of the Constitution, made this statement to the State convention:

In order to know who are qualified to be · electors of the House of RepresentativesThat is, the Federal HoUse of Representatives— are to inquire who are qualified to be electors o! the legislature of each State. If there be no legislature in the States there can be no electors of them. If there be no such electors, there is no criterion to know who are · qualified to elect Members of the House of Representatives. By this short, plain deduction the existence of the State legislatures is proved to be essential to the existence of the general government.

In other words, there must be action by the State legislature to have a Representative in the Federal L-egislature.

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

Mr. HILL. I yield.

Mr. ROBERTSON. Of course, that was the assurance given; but to go back to what Mr. Rufus King, a member of : the Constitutional Convention, said to the gentleman from Douglass, the gentleman from Douglass wanted to know if, under the Constitution, a property qualification might be required.

Mr. HILL. · He said a qualification of 100 pounds. . Mr. ROBERTSON. There was not · much inflation in those days. · I suppose a hundred pounds was a great deal of money then.

Mr. HILL. It was.

Mr. ROBERTSON. It would not be so much now.

Mr. HILL. No .

Mr. ROBERTSON. King said it transcended his understanding how anyone could be so dumb as to think that the Federal Government would have any control over property tests. Is not · that what he said, in effect?

Mr. HILL. Exactly,

Mr. ROBERTSON. He had not read the Javits bill, which seeks to abolish the property test in seven States.

Mr. HILL. The · senator is correct.

Mr. ROBERTSON. In addition to the poll tax. They are all in the same bill. There is no use trying to throw dust in our eyes on the point of the difference between the poll tax and the property test. They are all in the same bill.

Mr. HILL. They go to the same point. One would tax us on one flank, and the other would tax us on the other :flank. However, the objective is the same.

Mr. ROBERTSON. They are all in the same bill.

Mr. HILL. They are all in the same bill. As I read a few minutes ago. Mr. King, who had been in the Philadelphia Constitutional Convention, at the writing of the Federal Constitution, had this to say:

The idea of the honorable gentleman from Douglass transcends my understanding-

As the Senator says, in everyday parlance Mr. King could not understand how the gentleman could be so dumb.

Mr. ROBERTSON. That is correct.

Mr. HILL. Mr. King 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 election, not to the qualifications of the electors.

I may say to my friend from Virginia that, as we have noted earlier, the question arose in the Virginia. convention, vote. and Mr. Nicholas, one of the delegat e s, had something to say. As I recall, Mr. Nicholas was also a member of the Philadelphia Convention, which wrote the Federal Constitution. Certainly he was a member of the State convention. This 1s what Mr. Nicholas said:

If, therefore, by the proposed plan, i;t is left uncertain in whom the right of suffrage is to rest, or if it has placed that right in improper hands, I shall admit that it has a radical effect. But in this plan-

That is, in the Federal Constitutionthere 1s a fixed rule for determining the qualification of electors, and that rule, the most judicious that could possibly have been devised, because it refers to a criterion which cannot be changed.

The Senator from Virginia could not change it, in this Year of our Lord 1960. Mr. Nicholas went on to say: .

A qualification that gives: a right to elect representatives for the State legislatures gives also, by this Constitution , a right to choose representatives for the General Government.

The yardstick was prescribed. The yardstick which was fixed by the States should be the yardstick for the election of representatives :from the particular States. It was contemplated, as I have stated again and again, that it would be fixed that way, not only because they thought it was the wisest and best way to do it, and not only because they knew if they did not do it that way the Constitution would never be ratified and come into being, but also because they felt that, in doing it that way, it would be :fixed for all time to come, and could not, as Mr. Nicholas said, be changed.

I might add that . in reading the notes of the Convention. Mr. Nicholas gave the members of the Richmond ratifying convention most positive assurance that the Federal Government could not and never would undertake to pass. upon and fix the qualifications of voters.

In North Carolina, Ml"' . .John steele, who was a member of the ratification convention, wished to make this matter absolutely clear. so there could never be any question in anyone's mind about what North Carolina was doing when it ratified the Constitution. Here is. what Mr. Steele said: .

Who are to vote !or them?

By that is meant. of course. who are to vote for Members: of the House of Representatives and for President and for Vice President. He then said:

Every man who has a right to vote for a representative to our legislature will ever have a right to vote for a Representative to the General Government. Does it not expressly provide-

By the word "it" he means the Constitution, of coursethat the electors 1n each State shall have the qualifications requisite for the most numerous branch of the State legislature?

Mr. Steele went on to say:

The power over the manner of elections does not . include that of saying who shall Of course, all of us should understand that. Section 2 of article I deals with the “who” of the electors. Section 4 of article I deals with the "how" of the elections.

Mr. Steele went on to say:

The Constitution-

Speaking of the Federal Constitution, of courseexpressly says that the qualifications are those which entitle a man to vote for a State representative. It is, then, clearly and indubitably fixed and determined who shall be the electors; and the power over the manner only enables them to determine how these electors shall elect-whether by ballot, or by vote-, or by any other w,ay.

The view expressed by Delegate John Steele, in the North Carolina convention . was confirmed by Delegate William R. Davis, who also had been a delegate to the Constitutional Convention in Philadelphia.

The meaning of section 2 of article I was so clear, that the question was not even raised in the conventions of Rhode Island, New Jersey, Delaware, and Georgia; and so far as the reports show, in New Hampshire, Connecticut, and Maryland no question was raised about the section. It was so clear that even a fourth-grade school child on reading it would know what. it meant.

Mr. President, with reference to the resolutions adopted by the several States in ratifying the Federal Constitution, . we find that in none of those resolutions was any question raised about section 2 of article I. · It was so clear that there was no question to be raised. It was ipse dixit; it spoke for itself. ·

However, it. is. interesting to note that in :referring to section 4 of article r .. by which certain powers . rs a.re given to the Co:ngres.s. with reference to the :fixing . of the times, places, and manner of holding elections, some 00: the ratifying resolutions did raise questions; and it. interesting to note that iD each case where such questions were raised, those States in their resolut.ions. ratifying the Constitution wished to make certain that Congress knew that they t~ that Congress should never exercise the power given under section 4 of article I unless the States had failed to function in prescribing the times, places, and manner of holding elections.

South Carolina, in its resolution of May 27, 1788, declared:

And whereas it is essential to the preservation of the rights reserved to the several States and the freedom of the people under the operations of the General Government that the right of prescribing the mann e r, time, and places of holding elections to the Federal Legislature should be forever annexed to the sovereignty of the several States, this convention does declare that the same ought to remain, to all posterity, a perpetu a l and fundamental right in the local government, exclusive of the interference of the General Government--

That is, the Federal Governmentexcept in cases where the legislatures of the States shall refuse or neglect to perform and fulfill the same, according to the tenor of the said Constitution.

All this shows how jealous the States were, how jealous the people were to preserve to the States and to the people their rights.

In 1865 a congressional joint committee was created to draft the 14th amendment. The chairman of the committee, which was composed of 15 members, was Senator William Pitt Fessenden of Maine. Since Senator Fessenden was in ill health, Senator Jacob M. Howard of Michigan, the ranking member, frequently assumed the chairmanship.

Among members of the joint committee, on the House side, were Roscoe Conkling, of New York; George M. Bout- · well, of Massachusetts; Henry T. Blow, of Missouri; and John A. Bingham, of Ohio. Mr. Bingham, I believe, is credited with being the actual draftsman or author · of the first section of the 14th amendment. Other members from the House were Justin s. Morrill, of Ver .. mont, and E. B. Washburne, of Illinois. · . I believe the record discloses that Kentucky had representation in the person of Representative Grider.

In the Senate the :first section was discussed by Senator Howard. On May 23, 1865, he had this to say:

The first section of the proposed amendment does not give to either of these classes the privilege of voting. The right of aufrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It 1s merely the creature of law. It has always been regarded in this country as a result of positive local law.

In other words, where the section speaks · of guaranteeing certain privileges and immunities, Senator Howard made it clear that those privileges and immunities did not apply to, had no . reference to, and did not in any way include any right of suffrage.

This indicates that In 1865, when the Senate was considering the 14th amendment to the Constitution, the men who were its authors, proponents and advocates held fast to the same proposition in the matter of qualifications of electors which bad been expressed and had been so stoutly proclaimed in 1787 by the framers and authors of the Constitution of the United States.

As to section 2, Senator Howard saidand I am reading now from page 2766 of the Congressional Globe:

This section does not recognize the authority of the United States over the question of suffrage in the several States at all. It leaves the right to · regulate the elective franchise st . ill with the States and does not meddle with that right. - In closing the debate, on June 8, and just before the joint resolution was passed upon by the Senate, Senator Howard said, at page 3039 of the Congressional Globe:

We know very Well that the States retain the power which they have always possessed of regUlating the right of suffrage.

Remember, Mr. President, I am quoting the words of the man who, on this floor, was charged with the responsibility of piloting through the Senate the 14th amendment. In speaking, he was not only speaking for himself, but for the entire committee of 15 members who had worked with him and had jointly with him drafted the 14th amendment.

He proceeded to say:

We know very well that the States retain the power which they have always possessed 9f regulating the right of suffrage. It is the theory of the Constitution.

Says Senator Howard, speaking for the committee:

That right- - That is, the right of suffragehas :never been taken from them; no endeavor has ever been made to take it from them, and the theory of this whole amendment is to leave the power of regulating the suffrage with the people or legislatures of the States and not to assume to regulate it by any clause of the Constitution · of the United States.

Could any language be stronger than these words I have quoted from Senator Howard, spoken some 77 years after our Government came into being?

On this committee of 15 there was one Democratic Senator who happened to be tt~e Senator from Maryland, Senator Reverdy Johnson. He said:

I suppose that even the honorable Member from Massachusetts (Senator Sumner) will not deny that it was for Massachusetts to regulate her suffrage before 1789; and if it was, she has the power still unless she has agreed to part with it by devolving it upon the General Government. Is there a word in the Constitution that intimates such a purpose?

That is, the purpose of giving such a power to the Federal Government.

Who at that time, in 1787, denied that the State was clothed with the power of prescribing the qualifications for the most numerous branch of the State legislature? • • • The State and nobody _ else. ' The right of choosing the allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. Words could not have been adopted more obviously leading to the conclusion that, In the opinion of the writers of The Federalist—

Here the Senator - was quoting from The Federalist, as I should have saidthe States were to have the sole right of regulating the suffrage. There 1s nothing innate in the right of suffr:age.

Senator Henry Wilson, of Massachusetts, who later became Vice President of the United . States in the second administration of Ulysses s. Grant, said in the close of the debate:

The men who framed the Constitution made those State constitutions; they well knew what the qualifications were.

He added:

Every State constitution provides for electors, prescribes the qualification for suffrage. The laws of the States provided for qualifications of electors. Every State, from the adoption of the State constitution to this hour, has claimed the authority and exercised it to settle the questions pertaining to suffrage. They never supposed that the Federal Government had the power to change it. They never gave that power, and they never in tended to give that power.

The issue of voter qualification arose again in connection with the 17th amendment. It will be recalled that that amendment to the Constitution was adopted in 1913. That was 126 years after the ratification of the Constitution of the United . States. After 126 years, when the people of the United States saw fit to change their method of electing U.S. Senators, when they desired to have their Senators elected, not by the legislatures, as provided in the original Constitution, but directly by . the people themselves, what did they provide? They provided, in the 17th amendment, as follows:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for 6 years; and each Senator shall have one vote.

Then there is this language: _

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

The people adopted the same identical language for the qualification of electors for the U.S. Senate which was adopted for electors for Members of the House of Representatives at the very beginning. In other words, they ratified and reaffirmed the wisdom o - f the Founding Fathers and of the original States in providing that the qualifications of the electors for Members of the Congress should be the qualifications requisite for electors of the most numerous branch of the State legislatures. I think it can be said here that had the 17th amendment made any change in the fixing or determination of those qualifications, it would never have been ratified by the people of the United States. The people were determined that these qualifications should remain, to be fixed by the States.

Mr. President, I realize, of course, that it is difficult to cite Court decisions in opposing a constitutional amendment. Once such an amendment has been duly adopted, all legal questions are resolved. Yet in this instance I should like to call the Senate's attention to a number of dicta and legal opinions which support my contention that the proposed amendment contravenes the basic spirit of the Constitution. •

One of the great decisions was written by a great Justice of the Supreme · Court, at whose feet I was privileged to sit as a student when I was attending law school at Columbia University. I refer, of course, to then Justice and later Chief Justice Harlan F. Stone, of the . Supreme Court of the United States. In 1941, Mr. Justice Stone wrote, as a part of the Supreme Court's opinion in the case of United states v. Classic (313 u.s. 299):

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

We look then to the statutes of Louisiana here involved to ascertain the nature of the right which under the constitutional mandate they define and confer on the voter.

Another case to which I call attention is the case of Minor v. Happersett (21 Wall. 162), decided on March 21, 1875, a case which the di-stinguished Senator from Virginia [Mr. RoBERTSON] cited yesterday. In that case the · extent of the distinction between the rights of a citizen of the United states and the rights of a citizen of a State with regard to voting was laid down and explained. Chief Justice Waite of the Supreme Court declared that the fact that the right to vote could not grow out of citizenship alone was clear when one considered who was a citizen of the United States. He said that everyone born here is a citizen of the United States; and therefore if voting depended on citizenship, every child, every pauper; every criminal, every person born here would have the right to vote.

The opinion in this case contained the summary statement:

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

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

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

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

The general rule . with regard to the re- . spective powers of the National and State Governments under the Constitution is not in doubt. The States were before the Constitution; and, consequently, their legislative powers antedated the Constitution. · Those who framed and those who adopted that instrument meant -to carve from the general mass of legislative powers, then possessed by the States, only such portions a s it was thought wise to confer upon the Federal Government ; and in order that there should be no uncertainty in respect to what was taken and what - was left the national pow­ 1 - ers of legislation were no t aggreg a ted but enumerated-with the result that what was not embraced by the enu m eration remained vested in the States without change or impairment. Thus , "when it w a s found necessary to establish a National Government for national purposes , " this Court said in Munn v. Illinois (84 U.S. 113 , 124), "a part of the powers of the States and the people of the States was granted to the United States and the people of the United States. This gr a nt operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegated to the United St a tes or reserved by the people." While the St a tes are not sovereign in the true sense of that term, but only quasi-sovereign, yet in respect of all powers reserved to them they are supreme--"as independent of the General Government as that Government within its sphere is independent of the States." And, since every addition to the legisl tive a power to some extent detracts from or invades the power of the States it is of vital moment that, in order to preserve the fi x ed b a l a nce intended by the Constitution, the powers of the General Government be not so extended as to embrace any not within the ex p ress terms of the several grants or the implications necessary to be drawn therefrom.

It is no longer open to question that the General Government , unlike the States, possesses no inherent power in r e spect of the internal affairs of the States and emphatically not with regard to leg i slation. The question in respect of the inherent power pf that Government as to the external affairs of the Nation and in the field of international law is a wholly different matter which 1t is not necessary now to discuss.

Mr. President, I . should now like to call the attention of the Senate to a few words to be found in Cooley's Constitutional Limitations, eighth edition, Carrington, volume 2. Mr. Cooley, a great and universally accepted authority on the Constitution, declared:

Among the absolute, unqualified rights of the States is that of regulating the elective franchise; it is the found a tion of State authority; the most important political function exercised by the people in their sovereign capacity. Whilst "the right of the people to participate in the legislature is the best security of liberty and foundation of all free government , " yet it is subordinate to the higher power of regulating the qualifications of the electors and the elected. The original power of the people in their a g gregate political capacity, is delegated in the form of suffrage to such persons aa they deem proper for the safety of the commonwealtb; Brightly Election cases (Anderson v. Baker (32, 33, 34, 23 Md. 531)).

Every constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the State to alter, abolish, and modify the form of its own government according to the sovereign pleasure of the people. In fact, the people of each State have gone much further and .settled a far more critical question by decid· ing who shall be the voters entitled to approve and reject the constitution framed by a delegated body under their direction ( 1 Story, Constitution, ch. 9, sec. 581).

Then Mr. Cooley says:

From this it wm be seen how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognized in practice (ibid.). In no two of the s e State constitutions will it be found that the qualifications of the voters are settled upon the same uniform basis, so that we have the most abundant proofs that among a free and enlightened people convened for the purpose of establishing their own forms of government and the rights of their own voters the question as to the due regulation of the qualifications has been · deemed a matter of mere State policy, and varied to meet the wants, to suit the prejudices , and to foster the interests of the m a jority.

The exclusive right of the several States to r e gulate the exercise of the elective franch i se and to prescribe the qualifications of voters was never questioned.

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

Mr. HILL. I yield.

Mr. ROBERTSON . . Is it not true, may I ask; of the distinguished Senator from Alabama, who studied law under th a t great jurist, Harlan F. Stone, that in all his study of this vital constituti tional question, which he is so ably discussing today, he has never found a c o urt d e cision or a commentator on constitutional law, such as Mr. Cooley, whom he has just quoted, who has held otherwise than that under the Constitution the qualifications of electors are absolutely under the control of the States, subject to the limitation that there cannot be one test for the members of the most numerous body of the State legislature, and a different test for Federal officials?

Mr. HILL. It must be the qualifications prescribed by the States for the members of the most numerous branch of the State legislature, and there is not one authority to be found anywhere in the court decisions, or among the students of our constitutional system or any writer on constitutional government, which in any way dissents from that proposition.

Mr. ROBERTSON. As the distinguished Senator from Alabama has pointed out, Mr. Nicholas told the Virginia convention that this principle was so permanently and positively imbedded in the Constitution that it could never be changed.

Mr. HILL. That is exactly what Mr. Nicholas told the Virginia convention; and the Senator from Virginia, who is a great student of the history of Virginia, has told us how close the vote was in that constitutional convention, held in Richmond, Va., on the question of whether the State of Virginia would ratify the convention. Undoubtedly, but for the very able, positive, definite, clear, unequivocal assurance given to the convention by Mr. Nicholas, the Virginia convention would not have ratified the Constitution.

Mr. ROBERTSON. With all due deference, they asked him a little more than that. They said, "In addition to that assurance, will you put into the Constitution this amendment: That all powers not delegated to the Federal Government nor prohibited to the States shall be reserved to the States or to the people thereof?"

In other words, they had spelled out what the Federal Government should do, and they wanted to make it so clear, when James Madison, Nicholas, and others had assured them that the Constitution had left to them the sole control of ·. the qualifications of the electors, that they wanted the lOth · amendment to provide that that right shall never be changed.

Yet we are now asked to repudiate Mr. Nicholas.

Mr. HILL. That is correct.

Mr. ROBERTSON. We are asked to repudiate Ellsworth, Madison, Alexander Hamilton; to repudiate everybody who ever said anything about what the Constitution meant; to repudiate all the courts; to repudiate all the commentators on the Constitution; and to vote to change the Constitution . in this respect by wiping out not only the poll tax, but also the property requirements of the sovereign States.

Mr. HILL. That is exactly the question before us. Shall we set ourselves up, as the Senator says, to repudiate all those distinguished men who brought this Government and its Constitution into being, and under which we have enjoyed greater freedom, greater independence, and a higher quality of justice than is enjoyed by any other nation and which have built the mightiest nation this world has ever known?

I observe across the aisle our friend, the distinguished senior senator from Colorado [Mr. ALLOTT]. I pay tribute to him as one of the most profound students in the Senate. He is a great student of the history of our country and a great student of the Constitution of the United States.

Mr. President, Mr. Cooley continues:

The right to 'Vote is not of necessity connected with citizenship. The rights of the citizen are rights, such as liberty of person and of conscience, the right to acquire and possess property, all of which are distinguishable from the political privilege of suffrage.

Senators will notice that Mr. Cooley there departs from the use of the word "right" and uses the word "privilege"; not even conceding that there is any right to suffrage; that it is a privilege conferred by government, and under our Federal system conferred by the States. The history of the country shows that there is no foundation in fact for the view that the right of suffrage is one · o~ the "privileges ~ or iilllJlunities of ~iti.;. zens." ' . . . "

Mr. President, iil opposing · the antipoll-tax resolution, we who · oppose it, we who fight so bitterly against it are not only fighting for the protection of the rights of the States, but we are also fighting to save our dual form of government--to save the · American Republic.

In the very beginning, article I, section 2, vested in the State - governments the power over suffrage. Without the possession of this power in the States, the whole structure upon which the division of State and national authority under the Constitution and the organization of both governments rests would be without support, and the authority of both State and Nation would fall to the ground. Surely, after more than 170 years of the tried and proven wisdom, of the tried and proven effectiveness of this section, i:t is most unfortunate that now this question, which . strikes' - at the very foundation stones of our dual system of government and which would tear down the very structure of our Government, should be injected into the Senate of the United States. It is no time for the consideration of a : matter so serious, so important, so fundamental to the lives, the liberties, and the rights of the people of the United States. The matter should be laid aside and no further consideration given to such a fundamental proposal striking at the ve:ry base of the temple of American rights and American freedom . .

The poll tax is rapidly losing favor throughout the United States. Today only five States have such a tax. In my own State of Alabama there has been a recent reduction . of the tax cumulative f . feature · from 24 years to 2 years. This means . that the poll tax can at no time amount to more than $3. Any contention that a tax . in - this amount constitutes a real barrier to voting is patently ridiculous.

I do not see any reason why Alabama or the other remaining States which have a poll tax should abolish it before the . people of the States have come to the conclusion, without pressure or harassment, that the tax is undesirable or impractical. Meanwhile, I should like to remind my . colleagues of the Senate that the poll tax has a long and quite respectable history, that it was supported by England's g _ greatest liberal, John Stuart Mill, and that Judge Thomas M. Cooley, in his work on constitutional law, said:

· Many of the States admit no one to · the privilege of suffrage unless he is · a taxpayer. • • * To require the payment of a capitation (poll) tax is p.o denial of suffrage; it is demanding · only the preliminary performance of' public duty, and may be classed, as may also presence . at the · polls, with registration; or the observance of any other preliminary to insure . fairness and protect against fraud (:p. 26.:H.

The poll . tax may be controversial, but the controversy can by no means be regarded as , settled. . J.t ca.n, however, be regarded as academic, since the outcome will " riot materially affect " th~ political or economic conditions of any State of the Union. -

I suggest, Mr. President, that making this academic issue the subject of a - constitutional amendment amounts to belittling that great document, the Constitution of the . United States, which owes much of its greatness and timelessness to its authors' uncompromising concentra­ · tion on essentials.

The resolution before us constitutes yet another step in the recent headlong and heedless rush to further diminish the sovereignty of the States.

Let me recall to the Senate what President Andrew Jackson said in his farewell address:

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

In discussing the necessity for · the unity of the · United states, Andrew Jackson continued:

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

Hence .. the citizens of every State should studiously avoid everything calculated to wound the sensibility or offend the just pride of the people of the other States . . And they should frown upon any proceedings within their own borders likely tO disturb the tranquillity of their political brethren in other portions of the Union. In a country so extensive as the United States, and with pursuits so varied, the internal regulations of the several states must frequently d.iffeifrom one another in important particulars; and ' this difference ' is unavoidably increased by the · varying · principles upon which the American Colonies were originally planted; principles which had taken deep root in their social relations before the Revolution, and, therefore, of necessity, influencing paid. their policy since they became free and independent States. But each State has the unquestionable right to regulate its 0\Vn internal concerns according to its own · n pleasure; and while it does not interfere with the rights of the people of other States, or the rights of the Union, every state must be the sole judge of the measures proper to secure the safety of its citizens and promote their happiness and all efforts on the part of the people of other States to cast odium upon their institutions, and all measures calculated to disturb their rights ef property, or put in jeopardy their peace and internal tranquillity, are in direct opposition to the spirit in which the Union was . formed and must endanger its safety.

Motives of philanthropy may be assigned for this unwarrantable interference; and weak men may persuade themselves for a moment that they are laboring in · the cause of humanity, and asserting the rights of the human race; but everyone, upon sober re fiootions, w111 see that nothing but mischief can come from ' these ' improper assaults upon the feelings and rights of others. Rest as- sured that the men . found busy in this work of discord are not worthy of your confi-:­ dence and . deserve your strongest reprobation.

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

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

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

Mr. ROBERTSON. Mr. President, will the Senator from Alabama yield?

Mr. HILL. I yield.

Mr. ROBERTSON. Is it not a fact that that great Democratic President, Andrew Ja . Jackson, by keeping the Federal Government within its legitimate bounds and by refusing to encroach upon the rights and privileges of the respective . sovereign States, not only produced an era of great harmony and prosperity, but also was able to pay off · every dollar of the national debt?

Mr. HILL. Indeed so; history shows that he made that great record. As the distinguished Senator from Virginia has said, not only did there then develop an era of great harmony and prosperity, but the national debt was . then fully

Mr. ROBERTSON. And, as the junior Senator from Alabama [Mr. SPARKMAN] has just whispered to me, Andrew Jackson did not have the advantage of an income tax, either.

Mr. HILL. Indeed he did not; in fact, about the only revenue then available to the Federal Government was that from customs or import taxes. The modern sales taxes did not exist at that time.

Mr. ROBERTSON. Yes; the only revenue then available to the Federal Government was that from tariffs, only. ·

Mr. HILL. That is correct. -

Mr. ROBERTSON. Mr. President, I wish to take this opportunity warmly to commend my distinguished friend, the Senator . to~ from Alabama, for the splendid, presentation he .is making here th~ afternoon of a vital principle of constitutional government.

As I said earlier in the afternoon, I hope that all our colleagues who were not able to be in the Chamber today will read in the CONGRESSIONAL RECORD the splendid speech · of the Senator from Alabama, before they vote on the Javits bill.

Mr. Hll.JL. Mr. President, let me thank my distinguished friend, and tell him how deeply I appreciate his words. I particularly appreciate them inasmuch as they come from one who on yesterday made so magnificent and masterful address on- this very subject.

Mr. President, at this time let me point out to the Senate that a later President, a great scholar and teacher of our system of government, also expressed thoughts that we can ignore only at our peril. Woodrow Wilson said:

It 1s difficult to discuss so critical and fundamental a question calmly and without party heat or bias when it has come once more, as it has now, to an acute stage. Just because it lies at the heart of our constitutional system to decide it wrongly is to alter the whole structure and operation of our Government, for good or for evil, and one would wish never to see the passion of party touch it to distort it. A sobering sense of responsibility should fall upon everyone who handles it. No man should argue it this way or that for p a rty advant a ge. Desire to bring the impartial truth to light must , in such a case, be the first dictate alike of true statesmanship and of true patriotism. Every man should seek to think of it and to speak of it in the . true spirit of the founders of the Government and of all those who have spent their lives in the effort to confirm its just principles both in counsel and in action.

The principle of the division of powers between State and Federal governments is a very simple one when stated in the most general terms. It is that the legislatures of the States shall have control of all the general subject matter of law , of private rights of every kind, of local interests , and of everything that directly concerns their people as communities-free choice with regard to all matters of local regulation and development. Woodrow Wilson said we tend to think of our American political system as distinguished by its central structure-its President and Congress and courts set up by the Constitution-but "as a matter of fact, it is distinguished by its local structure, by the extreme vitality of its parts. It would be an impossibility without its division of powers."

He also said:

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

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

Let us also pay very close attention, Mr . President, to the following words of the late President Wilson:

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

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

And still closer to our time, Franklin D. Roosevelt, while Governor of New York, had this to say on the proper relationship between the States and the Federal Government:

Fortunately for the stability of our Nation, it was already apparent (when the Constitution was adopted) that the vastness of our territory presented wide geographical and climatic differences which gave to the States wide differences in the nature of their industry, their agriculture, and their commerce. • • • Thus, already it was clear to the framers of our Constitution that the life. greatest possible liberty of self-government must be given to each State, and that any national administration attempting to make all laws for the whole Nation, such as was wholly practical in Great Britain, would inevitably result at some future time in a dissolution of the Union itself.

The preservation of this home rule by the States is not a cry of jealous Commonwealths seeking their own aggrandizement at the expense of sister States. It is a fundamental necessity if we are to remain a truly united country.

The whole success of our democracy has not been that it is a democracy wherein the will of a bare majority of the total inhabitants is imposed upon the minority, but because it has been a democracy where through a division of government into units called States the rightS and interests of the minority have been respected and have been given a voice in the control of our affairs. • • • To bring about government by oligarchy masquerading as democracy it 1s fundamentally essential that practically all authority and control be centralized "in our National Government. The individual sovereignty of our States must first be destroyed, except in mere minor matters of legislation. We are safe from the danger of any such departure from the principles on which this country was founded just so long as the individual home rule of the States is scrupulously preserved and fought for whenever they seem in danger.

I have been quoting Franklin D. Roosevelt. After outlining the rights granted by the Constitution to the Federal Government, he said:

As the individual is protected from possible oppression by his neighbors, so the smallest political unit-the town is in theory at least, allowed to manage its own affairs, secure from undue interference by the larger unit of the county, which in turn is protected from mischievous meddling by the State. The whole spirit and intent of the Constitution is to carry this great principle into the relations between the National Government and the governments of the States.

Let us remember that from the very beginning, differences in climate, soil, conditions, habits, and modes of living in States separated by thousands of miles rendered it necessary to give the fullest individual latitude to the individual States. Remembering that the mining States of the Rockies, the fertile savannas of the South, the prairies of the West, and the rocky soil of the New England States created many problems, introduced many factors in each locality, which have no existence in others, it is obvious that almost every new or old problem of government must be solved, if it 1s to be solved to the satisfaction of the people of the whole country, by each State in its own As I have said, when the Founding Fathers gave up a portion of the sovereignty of the States to the Federal Government, they did so with a great deal of trepidation, and they did so only with the firm conviction that it was unity alone-unity of purpose, unity of resolve, and unity in their mutual dedication to human liberty, that unity about which Andrew Jackson spoke in his farewell address-that could enable the people of our country to long endure and abound in th,e joy of the priceless legacy which a heroic young Nation had won at the cost of much sacrifice and loss of At this momentous hour in the history of America and of the world, the objective for which we must strive with all of our fervor and determination is unity.

Let us be done, Senators, with this measure before us, which can only distract and misguide our people, which separates and divides us, and which opens the way for the destruction of fundamental rights of the States and the fundamental rights of the people of all the United States.

Let us stand united, strong, and resolute in our unity; let us support squarely the rights of the people of the United States and the rights of the States of the United States, that our Government may be preserved. Let us stand squarely upon the Constitution of the United States-rock of freedom, ageless and enduring foundation of our rights, our hopes, and our democratic faith.

ORDER FOR ADJOURNMENT UNTIL MONDAY AT NOON

During the delivery of Mr. HILL's remarks,

Mr. DffiKSEN. Mr. President, will the Senator from Alabama yield, in order that I may make a motion, if there is agreement that in yielding for this purpose he will not lose the floor, and that the motion which I intend to make shall appear in the RECORD at the conclusion of his remarks?

Mr. HILL. Yes, Mr. President, with that understanding, I yield for that purpose.

'Ille PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DIRKSEN . . Then, Mr. President, let me state that I am authorized by the acting majority leader to move that when the Senate concludes its session today, it adjourn until Monday, at 12 o'clock noon. · Mr. President, I so move.

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

The motion was agreed to.