I hope the Constitutional Amendments Subcommittee will refuse to report the antipoll tax amendment and that the full committee will back up the subcommittee.

Mr. Chairman, just this word and I am through. I think that all of us need be concerned about the maintenance of the system of government that our forefathers set up. They set up here a dual system of government, a Republic made up of a federation of sovereign States. There was a system of two spheres of government set up, the Federal, the State. A certain sphere was set off in which the Federal Government was to be absolutely supreme, another one was set off in which the State government was to be supreme. There was no overlapping of the two spheres in which both governments were to operate with concurrent authority.

I believe in that dual system of government. I believe it is the best way to get good governinent. It is the best way to keep government close to the people by keeping powers lodged in these sovereign States.

I want to continue that system. In my opinion, approval of the amendment before you would impair that system.

Mr FENSTERWALD. I received a statement today from Senator Lister Hill.

I have a letter from Senator Harry Byrd of Virginia which encloses a telegram which he has received from the Governor of Virginia stating that he would like to be heard on this matter, and he would like the attorney general of Virginia to be heard, but that they cannot possibly testify before the middle of September.

I have a statement from Senator A. Willis Robertson of Virginia which was originally prepared for delivery on the floor of the Senate, but which he has requested be placed in the record of these hearings.

I have a letter from Senator Stennis with regard to a request by the Governor of Mississippi who unfortunately is not going to be able to testify. I also have a telegram from you, Mr. Chairman, to Governor Coleman.

I have a letter from Senator Holland enclosing a letter from Dr. Darrell B. Carter of Harris County, Tex., with respect to this amendment, and a statement from J. B. Minnick of Arlington, Va.

Senator KEFAUVER. We will let all of these documents and letters be made a part of the record.

(The documents referred to are as follows:)

STATEMENT BY SENATOR LISTER HILL

Mr. Chairman and members of the subcommittee, I appreciate this opportunity to appear before your Subcommittee on Constitutional Amendments in opposition to Senate Joint Resolution 126, a resolution introduced by Senator Holland for himself and others, which would abolish the poll tax as a qualification for electors.

First, let me emphasize that, although my State of Alabama is one of the five remaining States that has retained a poll tax, I do not believe nor have I ever believed that a poll tax should be a prerequisite for voting. I am convinced, however, beyond any doubt that action to abolish the poll tax can be taken and should be taken only by the separate, individual, sovereign States. Proposals to abolish the poll tax, either by legislation or by constitutional amendment, have been under consideration in Congress for almost a quarter of a century. During that time, a number of States through their own initiative have abolished the poll tax.

I believe that if Congress should undertake at this time to establish the precedent of enacting into the Constitution itself the personal predilections of a temporary majority, then it shall have opened up a veritable Pandora's box of evils that might well come back to haunt you again and again. If the Congress shall now seek by a constitutional amendment to impose upon the States and the people its own qualifications for suffrage, then it shall have 45742 0-607

openly invited future Congresses to dictate with respect to other vital areas of the management of our State and local governmental affairs.

Since the adoption of our Constitution, all of our States at one time or another have carried in their constitutions or on their statute books a poll tax or some form of a property qualification for voting. During that time these requirements have been deleted from their constitutions and statute books by the people of the States themselves, and it is altogether fitting and proper that these actions be taken by the people of the States rather than by the Federal Government.

It was never intended by the Founding Fathers that the Federal Government should whittle away the rights of the people and of the States either by legislative fiat or by constitutional amendment. They recognized in that great convention in Philadelphia in 1787 that in constructing the basic document of our American Government they were making an almost irretrievable decision. They had fought through 8 long, bloody, desperate years of war to win the independence of the States and of the people from the British Crown. They knew that they represented States that were absolutely independent and free from any other sovereignty on this earth. The sovereignty of the States was full, complete, boundless, and absolute. Whatever portion of that sovereignty that they as the delegates to the Constitutional Convention yielded and gave up to the Federal Government, they gave it up carefully, deliberately, painstakingly, and reluctantly.

They carefully wrote into the Constitution sction 2 of article I, which provides: "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."

This provision of the Constitution means that once the qualifications and the status of the voters have been determined by the States, then the voters' right to cast their votes for Congressman or for Senator is a right dependent upon and guaranteed by the Constitution.

That the States alone have the power to determine the qualifications of their voters has been well established in the law by numerous Supreme Court decisions. In the case of Breedlove v. Suttles (302 U.S. 277, page 238 (1937), the Court passed on the validity of a Georgia statute making a poll tax a voting prerequisite to Federal and State elections. The Court, in holding that the poll tax was not prohibited by the privileges and immunities clause of the 14th amendment and was a proper qualification for voting for the States to impose, said:

"To make payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the 14th amendment. Privilege of voting is not derived from the United States, but is confered by the State and, save as restrained by the 15th and 19th amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate (Minor v. Happersett, 21 Wall. 162, 170 et seq.; Ex Parte Yarbrough, 110 U.S. 651, 664– 665; McPherson v. Blacker, 146 U.S. 1, 37–38; Guinn v. United States, 238 U.S. 347, 362). The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources (Hamilton v. Regents, 293 U.S. 245, 261)."

Thus far in our history only two limitations on the right of the States to fix the qualifications for electors have been written into the Constitution by way of amendment. The 15th amendment took away the power of the States to exclude persons from participation in elections on account of race, color, or previous condition of servitude. The 19th amendment took away the power of the States to exclude persons from participation in elections on account of sex.

I strongly oppose the principle contained in Senate Joint Resolution 126 on the ground that favorable consideration of the resolution would further limit the right of the States to determine the qualifications of their electors. This is a right of the States that ought to be preserved for their exclusive determination. 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 could enable the people of our country to long endure and abound in the joy of the priceless legacy which a heroic young nation had won at the cost of much sacrifice and loss of life.

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 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.

U.S. SENATE,

COMMITTEE ON FINANCE,

August 21, 1959.

Mr. BERNARD FENSTERWALD, Jr.,

Subcommittee on Constitutional Amendments,

Senate Judiciary Committee,

Washington, D.C.

MY DEAR MR. FENSTERWALD: I have received your letter of August 20. Both the Governor of Virginia and the attorney general are anxious to testify in opposition to the antipoll tax amendment (S.J. Res. 126).

Enclosed is a copy of a telegram sent to Senator Eastland by Gov. J. Lindsay Almond.

This is a matter that will vitally affect our State, and I do hope an opportunity will be given to the Governor of Virginia, as well as the Governors of other States affected, to testify.

With best wishes, I am,

Cordially yours,

Hon. JAMES O. EASTLAND,

U.S. Senator,

Washington, D.C.:

HARRY F. BYRD.

I wish to register my opposition to the proposed constitutional amendment to outlaw poll taxes as a requirement for voting. I trust that the Senate Judiciary Subcommittee will not report this, or other similar civil rights proposals, until full opportunity for hearing is given the States that will be affected thereby. I should like the opportunity to appear before the committee, and for the Honorable A. S. Harrison, Jr., attorney general of Virginia, to appear, in opposition to such a constitutional amendment. Because of my previous commitments, and court engagements of the attorney general, we cannot make such an appearance until the middle of September. This matter is too important to be hurried and could well be carried over to the next session of the Congress.

In event a constitutional amendment were adopted by the States outlawing poll taxes as a requirement for voting in Federal elections, such amendment should not be made effective for a minimum of 2 years following the adoption of the amendment. It would take Virginia at least 2 years in which to enact such legislation as would be required by reason of such a change in the Constitution of the United States. Payment of poll taxes is one of our greatest safeguards to pure elections. In event of the repeal of the poll tax, Virginia would have to provide for annual registration, or some other means to determine those persons currently entitled to vote in elections, and who are residents of the State.

I cannot stress too much the dislocation that would be caused by such an amendment to the Constitution of the United States, and, if adopted, the importance of granting poll tax States time in which to adjust their election machinery. The honest government that Virginia has enjoyed has been due in no small measure to our election laws, which insure that only qualified, informed, and interested residents of Virginia participate therein. We have relied on annual payment of poll taxes and the list of those who pay such taxes as one of our greatest safeguards.

GOVERNOR OF VIRGINIA.

STATEMENT SUBMITTED BY A. WILLIS ROBERTSON, A Senator FROM VIRGINIA (Originally prepared for delivery on the floor of the U.S. Senate) POLL TAX AND THE CONSTITUTION

Mr. President, about this time each year there is much talk about the need for Congress to pass so-called civil rights legislation.

I do not recognize any such need. On the contrary, I feel there is an urgent need for relief from efforts to impose on the Southern States legislation designed to capture votes of potent minority groups in other parts of the country.

Some bills of the type to which I am referring are comparatively harmless political gestures. Some are sincerely proposed by idealists who lack knowledge and understanding of local problems in an area of the country with which they are not familiar. But these well-intentioned bills may do serious harm by increasing tensions and disrupting existing programs aimed at correcting the very things which they purport to remedy.

My greatest concern, however, has been with bills which, regardless of their direct impact for good or evil, undermine the foundation of our inherited form of government. These bills contain high-sounding promises to protect the rights of individuals, but they would do so by invading the rights of the States and their political subdivisions which were recognized by the Constitution as a first line of defense for the liberties of the people.

It is inconceivable to me, for example, that the cause of real civil rights would be promoted by the proposal in title III which was eliminated from the bill passed in 1957, to select certain individuals and give them a privilege denied to others, of calling on the Attorney General of the United States to handle civil suits for them at the expense of the United States and to obtain on their behalf court orders under which other citizens might be sent to jail without the constitutional right of a trial by jury. My views on the importance of the right of trial by jury and the dangers of tampering with that right were outlined at some length on this floor in June and July of 1957 and I hope those statements, and others made during the same period will be reviewed and considered if there is any effort to revive the iniquitous title III.

My purpose today is to put on the record objections to an equally, though possibly less obvious, threat to our constitutional liberty. This threat is contained in proposals to nullify article I, section 2 of the Constitution, which gives to the States the power to fix qualifications of voters, and the 10th amendment which says powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The type of proposal to which I am referring varies from a form which would prohibit the imposition of a poll tax as a prerequisite to voting to the broad form of a bill which would prohibit use of any tax, property, educational, or intelligence test as a qualification for voting.

The straight anti-poll-tax bills may seem unimportant to some, because so few States are involved. It may be said those States can adjust to the prohibition, just as have other States which once used the tax as a voting qualification and then abolished it, but the important point to be observed is that if we establish, by congressional action, the principle that Congress has the right to determine any qualification of voters in all elections, that principle can be applied to every form of qualification unless the Supreme Court protects the constitutional rights of the States. Thereafter a temporary majority in the Congress will be in a position to broaden or restrict the electorate to serve its own ends and States rights which were the great balancing factor in our constitutional system will cease to function.

Because I am so deeply concerned about the possibility of that ultimate result, I want to take no chance that a poll tax provision will be thoughtlessly inserted as part of the "flesh" which proponents have said they would use to clothe their "skeleton" civil rights bill. And because the subject is a technical one, which requires reference to debates in the Constitutional Convention and State ratifying conventions, contemporary comments by the authors of the Constitution and later interpretations by the courts, I want to place some pertinent material on record now with the hope that Members of the Senate will study it before any proposal of this kind actually is brought up for action.

I may say that what I shall offer today is merely a brief summary of the material I have assembled on this subject, but I hope the outline will indicate

so clearly the trend of all the authorities that it will not be necessary to present it in full.

During recent years there has been a definite trend to encroach upon the rights of the States but nowhere is the infringement of powers reserved to State governments more direct than in the area of voting qualifications. Since 1939 there have been varying attempts at such encroachment made by anti-poll-tax bills. These proposals, by seeking to outlaw the poll tax, restrict State authority to defining voting qualifications. An early example was based on the assumption that the poll tax requirement resulted in fraudulent political practices. The most extreme bill, introduced in the Senate last month, forbids a State to impose a qualification of any poll or property tax, or even a literacy or intelligence test. The following analysis uses S. 2000, a less extreme measure, merely as a typical example on which to base a study of the fallacies of such legislation generally. This analysis will supplement the complete discussion of earlier bills which I made on the floor of the Senate on August 2, 1948, recorded on pages 9753-9773, Congressional Record. My conclusion now, as it was then, is that in view of the unconstitutional nature of anti-poll-tax legislation, the only proper course for abolition of the tax would be by State action or constitutional amendment.

THE THEORY OF 8. 2000

S. 2000, one of the proposed Federal anti-poll-tax bills, would make it unlawful to collect any tax as a prerequisite to voting in a national election or to interfere with a person's voting in a national election because of his failure to pay a poll tax. The bill states that any such action "shall be deemed an interference with the manner of holding such elections, an abridgment of the right and privilege of citizens of the United States to vote for such officers, and an obstruction of the operations of the Federal Government." The bill would authorize application to a district court for an injunction against a violation or for an order compelling compliance.

In my judgment, S. 2000 would be unconstitutional because it would conflict with the constitutional provision that the qualifications for electors are to be prescribed by the States. Here are the provisions of the Constitution of the United States which are involved:

'ARTICLE I

"Section 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.

"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 chusing Senators."

If the imposition of a poll tax is a matter of the qualifications of a voter, it is controlled exclusively by the State under article I, section 2, and the Federal Government cannot under article I, section 4, 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. 2000.

Section 3 of this bill defines the imposition of a poll tax as an interference with the manner of holding elections and also states that poll taxes shall be deemed an abridgement of the right and privilege of citizens of the United States to vote for such officers, meaning Federal officials. 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, since the case of Butler v. Thompson, below, has held that the Virginia poll tax is a valid exercise of the State's authority under article I, section 2, of the Constitution, neither in its terms nor its application violating the 15th amendment, S. 2000 would be clearly unconstitutional.

Fortunately, the framers of the Constitution left us in no doubt on that subject, as the exclusive control of the States over voter qualifications is clearly shown in the "Constitutional Debates" and "Federalist Papers."