The Purpose and Powers of the Senate, Part LXXXI: A Judicial Diversion

            Having witnessed, as previously discussed, the growth of a slow but mounting tide of support within Congress over the course of the 1950s and 1960s in favor of civil rights reform, Mississippi Senator James Eastland and his fellow segregationists in Congress had ample reason to feel as though their customary influence was definitively on the wane. And so it made perfect sense for men like Eastland, J. Lister Hill, and Richard Russell to begin to cast about for any argument and every argument that had even the slightest chance of arresting the various legislative initiatives increasingly being sponsored by their more reform-minded colleagues. Such was doubtless the reason Eastland was willing to speak with such apparently willful obliviousness during his portions of the Senate debate cited herein. “It is no small matter [,]” he said in reference to Senator Holland’s proposed amendment, “when the framework of the U.S. Constitution is bent and torn to accommodate a transitory purpose, no matter how worthwhile the proponents of that purpose deem the goal they seek to achieve may be.” The implication of this claim, of course, was that the abolition of the poll tax was too “transitory” a purpose to justify amending the Constitution. Such matters, Eastland and his Southern cohorts asserted time and again, were best left to the states. Indeed, the Mississippian went on to say, the states were already in the process of abolishing the poll tax itself. “Legislation to abolish payment of a poll tax has been kicking around the Congress for the last 25 years,” he thus affirmed, “and during this period of congressional debate a number of States, through their own initiative, have proceeded by State action to repeal the poll tax requirement.” Would it not have been the better part of prudence, then – not to mention respect for the sovereignty of the states – to simply allow this process to take its course rather than go to the trouble of attempting the passage of a constitutional amendment?

If the history of the United States and its constitution are any indication at all, the answer to the question could not be otherwise than a flat “no.” It was most certainly the case that many key amendments to the Constitution had been deployed at various points in the history of the American republic in order to abolish or alter a practice or institution of profound social, legal, or political significance. The aforementioned 13^th Amendment and its abolition of slavery would seem to be the most prominent example, of course. But similarly significant were the 12^th Amendment’s reforms to the way the Electoral College functioned, the 17^th Amendment’s transformation of the Senate into a popularly elected body, the 19^th Amendment’s guarantee of female suffrage, and the 22^nd Amendment’s application of term limits to the office of President. As meaningful as the subjects of these various amendments had been to the political, social, and legal culture of the American republic at the time of their approval, however, certain other amendments had also been approved whose purposes were– to borrow a term from Eastland – arguably somewhat transitory. That is to say, unlike slavery or presidential term limits, certain of the amendments that had been duly approved and ratified by Congress and the states addressed issues which were of rather…subjective importance to the moral, institutional, and political health of the nation. Consider, by way of example, the aforementioned 16^th Amendment.

Approved by Congress in 1909 and ratified by the requisite number of states in 1913, the 16^th Amendment stated, quite simply, that, “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” The members of the 61^st Congress had felt such an amendment to be necessary because the Supreme Court had struck down the most recent federal income tax legislation as unconstitutional by way of the Pollock v. Farmers' Loan & Trust Co. decision in 1895. Evidently, there were enough progressives among the Democrats and Republicans then seated in the House and the Senate who believed that tariffs were innately regressive to push past conservative resistance to the notion that those with the greatest wealth should also carry the greatest tax burden. But while the subsequent allocation of a federal income tax in 1913 certainly proved to be a significant event in the history of American political economy, the fact that there previously hadn’t been a national levy on incomes did not necessarily represent some manifest flaw or injustice that absolutely needed to be remedied if the United States was going to continue to function in line with its most essential principles and ideals. For one thing, there actually had been a federal income tax between 1861 and 1872. Intended to help finance the increasingly expansive military campaign undertaken by the Union during the American Civil War (1861-1865), the Revenue Acts of 1861 and 1862 and the succeeding Internal Revenue Act of 1864 established first a flat tax and then a progressive tax which cumulatively helped to raise multiple millions of dollars before being permitted to lapse in 1872. Considered a wartime measure first and foremost, these first forays into a federal levy on personal incomes were tolerated principally because those lawmakers who approved them and those citizens who were required to pay all understood that the nation’s future was at stake and that such measures were only temporary. And so, when its term of effectiveness expired, little more was said on the matter.

Little more, that is, until the early 1890s, when the pro-free-trade wing of the Democratic Party hit upon the idea of reviving the income tax as a means of offsetting the cost of lowering tariffs on foreign goods like iron ore, coal, lumber, and wool. The resulting Wilson-Gorman Tariff (1894), while a far cry from what its principal supporters hoped it would be – protectionists Democrats had laden it down with amendments – nevertheless did include a relatively modest 2% tax on incomes over $4,000. And while opposition to the reintroduction of a federal income tax for the first time in over twenty years met with fairly stiff opposition in the Senate, the resulting bill was ultimately approved by Congress. Whereupon, in an effort to comply with the terms of the same, the Farmers’ Loan & Trust Company informed its various shareholders that it intended to pay the applicable taxes on their behalf while also providing to the Department of Internal Revenue the names of all such persons as were liable for being taxed. One such individual by the name of Charles Pollock – who owned, all told, only ten shares in the Farmers’ Loan & Trust – objected to this measure, sued to prevent payment, had his case initially dismissed, and eventually appealed to the Supreme Court. The Court handed down its decision on April 8^th, 1895, the substance of which, as aforementioned, was that the income tax included in the terms of the Wilson-Gorman Tariff was, in fact, unconstitutional. As laid out by Chief Justice Melville Fuller (1833-1910) in the attending majority opinion, because taxes on incomes derived from personal property like real estate or capital stock directly affected the value of said property, such taxes were, in practice, direct rather than indirect. And because the Constitution held – see Article 1, Section 2 – that any and all direct taxes had to be apportioned according to population, the tax that had been levied under the terms of Wilson-Gorman was accordingly null and void.

The rest of the story is relatively straightforward. The Pollock decision was widely unpopular, the result of which was a slow but steady campaign on the part of populists and progressive in both parties to pass an amendment to the Constitution allowing all incomes to be taxed by the federal government without having to be apportioned by population. And in 1909, just such an amendment was approved by Congress, the ratification of which led directly to the passage of the Revenue Act of 1913 and the levying – for the third time – of a federal income tax in the United States. Income taxes have been a principal source of federal revenue ever since, though their exact application remains a subject of debate both between and within the nation’s dominant political parties. None of this should be taken to say, of course, that income taxes were indispensable or inevitable within the context of the American political economy. The United States did not have to levy a federal income tax in 1862, or 1895, or 1913. The members of Congress who ultimately approved of the relevant legislation in each case obviously believed that such a measure was important, or useful, or necessary, but it isn’t as though income taxes were – or are – an indisputable requirement of modern statehood. A number of countries – Monaco, Antigua, Kuwait, the Bahamas, etc. – still don’t collect taxes on incomes at all. Granted, the economies of these kinds of low-tax countries tend to be highly specialized around either the extraction and sale of a particularly valuable commodity or the cultivation of “tax haven” status, but these represent choices rather than inevitabilities. Successive generations of American lawmakers could have decided to increase federal revenues by means other than taxing individual incomes. The United States economy would surely not have developed as it did in reality if the result of such decisions was to reaffirm the validity of tariffs, to be sure, but this isn’t to say that the result would necessarily have been the wrong one. Things simply would have been…different.

Nor would it be accurate to say, having decided to pursue the levying of a federal income tax, that American lawmakers at the dawn of the 20^th century had to pursue a constitutional amendment. Granted, the precedent established by the Fuller Court in 1895 was ostensibly binding upon any and all actions that might have been taken by Congress in response. That is to say, unless Congress was willing to directly defy a Supreme Court ruling – the result of which, at least in the interim, would surely have been a constitutional crisis – the legislators serving therein would have had no choice but to abide by the aforementioned finding in Pollock. Supreme Court precedent, of course, is only precedential until it isn’t. The Court can overturn or invalidate its own rulings. In fact, Pollock v. Farmers' Loan & Trust Co. was itself one such instance. Fourteen years earlier, in Springer v. United States (1881), the Court had responded to a petition on the part of a Democratic Congressman from Illinois named William Springer (1836-1903) that the income tax imposed by the Internal Revenue Act of 1864 was unconstitutional by finding that the plaintiff was decidedly in error.

Springer’s contention was that since part of his income derived from the ownership of United States bonds, any levy upon said portion constituted direct rather than indirect taxation. And since direct taxation, according to the terms of the Constitution, could only be collected once apportioned among the states according to population, the Congressman avowed that he was not liable to pay under the terms of the 1864 act. As argued by Associate Justice Noah Haynes Swayne (1804-1884), however, this logic did not hold. His explanation was a lengthy one – delving, as it did, into the history and origins of the taxing power of Congress – but what it boiled down to was simple enough. According to the writings of James Madison (1751-1836) and Alexander Hamilton (1757-1804), two of the principal authors of the United States Constitution, direct taxes were only intended to apply to, “capitation or poll taxes, and taxes on lands and buildings, and general assessments, whether on the whole property of individuals or on their whole real or personal estate.” Since, as near as Swayne could tell, the tax in question was “not a tax on the "whole [...] personal estate" of the individual, but only on his income, gains, and profits during a year,” Springer’s argument was fundamentally without merit. Income taxes were indirect, regardless of the source of the income in question, the Internal Revenue Act of 1864 was constitutional, and Springer was liable to pay his share.

The fact that this seemingly binding precedent was overturned only fourteen years later by the Pollack ruling is, among other things, fairly revealing of how the United States Supreme Court actually functions. Consider, to begin with, the difference in composition between the group of justices that heard Springer and the group that heard Pollack. In 1881, Morrison Waite (1916-1888), a previously obscure Republican Party functionary, was serving as Chief Justice, which position he vacated only upon his death in 1888. Thereafter, until his own death in 1910, the Court was led by the aforementioned Melville Fuller. Among the Associate Justices that participated in the Springer case, three retired or died shortly thereafter – Nathan Clifford (1803-1881), Ward Hunt (1810-1886), and the aforementioned Justice Swayne – two died about a decade later – Joseph P. Bradley (1813-1892) and Samuel Freeman Miller (1816-1890) – and two were still serving on the Court – John Marshall Harlan (1833-1911) and Stephen Johnson Field (1816-1899). All of this is to say that, between 1881 and 1895, more than two-thirds of the Court had been altered while less than one third remained static, with the pivotal Chief Justice seat changing hands in 1888. Two-thirds on its own, of course, would have been a significant portion; more than enough to overrule the remaining justices who had voted in favor of the Springer ruling. And this is assuming that Field and Harlan would both adhere to their previous positions. In actual fact, Field did not, opting instead to join the majority in the Pollack case that declared a tax upon income derived from property to fall under the legal category of direct tax. This isn’t to say that Harlan was alone in his dissent, mind you. Associate Justices Edward Douglass White (1845-1921), Henry Billings Brown (1836-1913), and Howell E. Jackson (1832-1895) also declared themselves to be in opposition to the majority. But the intervening fourteen years had simply changed the Court too much to sustain a reaffirmation of the Springer finding.

The change in Chief Justice was arguably the most significant factor of all, however. Morrison Waite, while not necessarily possessed of any particular judicial philosophy, was at the very least well known for his ability to promote amity and cooperation among his fellow justices on the Court. If any particular jurisprudential personality were to be assigned to him, it would probably be that of someone who favored a fairly broad construction of federal regulatory power balanced with a fairly narrow reading of the rights and privileges of citizenship. Melville Fuller, on the other hand, was a laissez-faire capitalist who favored state power over federal power, corporate power over state power, and individual power overall. Indeed, he seemed to feel – if his various written opinions are any indication – that the Constitution existed primarily to protect the essential principle of private property. The significance of these differing philosophies is made clearest when one compares some of the assertions the two men made during their respective terms as the leading officer of the Court.

In his opinion in Munn v. Illinois (1876), for example – a case fundamentally having to do with government regulation of state commerce – Chief Justice Waite declared that while the social contract inherent to any written constitution, “does not confer power upon the whole people to control rights which are purely and exclusively private […] it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another.” Accordingly, he then went on to say, “government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good.” To Waite’s thinking, it seemed, the essential purpose of government was to protect and promote the “public good” – by which term one can presumably take to mean the maximum benefit for the maximum number of people. In consequence, he held that it fell within the sphere of authority of government to regulate not only the behavior of individuals in an effort to further the public good, but also to determine how their individual property might best be used to that very same end.

Chief Justice Fuller, writing for the majority in the aforementioned Pollock v. Farmers' Loan & Trust Co., could not have disagreed more. Whereas his predecessor seemed to take a relatively broad view of the purpose of government and the significance of its various powers, Fuller was fixated upon a very narrow definition of personal property and the right of the individual to dispose of the same almost entirely unimpeded by external forces. To that end – and in the midst of a lengthy disquisition upon the difference between direct and indirect taxation and the manner in which the Constitution treated each of them – Fuller asserted that he could find no meaningful distinction between, “the products of the farm and the rents of real estate” and that class of objects “which includes the property from whence the income proceeds [.]” Indeed, he went on to declare, “We find it impossible to hold that a fundamental requisition deemed so important as to be enforced by two provisions, one affirmative and one negative, can be refined away by forced distinctions between that which gives value to property and the property itself.” A tax upon private property, therefore – be it real estate, or bonds, or other such objects of investment – was, to Fuller, fundamentally of the same substance as a tax upon incomes – in the form of rents or dividends – derived from said property. As the Chief Justice quoted the aforementioned Alexander Hamilton as having said, property was little more than a fiction if one could not benefit from its use. And, “In many cases […] the income or annuity is the property itself.”

Within the context of debates about both the validity and the utility of federal regulation of personal property, note the fundamental difference between how these two men approached the question at hand. What most concerned Waite was the aforementioned public good. There were times, he admitted, that the private interest was under no obligation to give way to the popular will. But at the same time, he held it equally to be true that private action and private property could reasonably be made subject to government regulation for the specific purpose of reducing harm to individuals or communities. In the case of Munn v. Illinois, this meant that he found it to be an acceptable use of state authority for the legislature of the Prairie State to establish price controls for the storage and transportation of agricultural goods. Private firms may have been deprived of potential income as a result of such policies, but Waite asserted that the benefit to the community at large of allowing farmers to bring their products to market at a reasonable rate outweighed any individual harm that might have been claimed by freighting and storage firms as a result. Fuller, by contrast, was far more interested in the specific definitions of direct and indirect taxes under the auspices of the Constitution and the nature of private property as it related to the same than any larger questions about the public good. To his thinking, it seemed, such considerations were quite beyond the remit of the federal courts. “We are not here concerned with the question whether an income tax be or be not desirable,” he wrote,

Nor whether such a tax would enable the government to diminish taxes on consumption and duties on imports, and to enter upon what may be believed to be a reform of its fiscal and commercial system. Questions of that character belong to the controversies of political parties, and cannot be settled by judicial decision.

What it did fall to the Court to determine, Fuller went on to say, was whether or not a tax upon incomes derived from property was a direct tax or an indirect tax. And if it was found to be the former, to declare it, “being unapportioned, in violation of the constitution [.]”

            Putting aside the somewhat awkward logic of Fuller’s declared position – his claim that the utility of income taxes was best determined by politicians while at the same time declaring a political decision to that end to be null and void, for example – the contrast between his approach to government regulation of private property and Chief Justice Waite’s is nevertheless quite illuminating. Waite seemed to believe that government was meant to play a fundamentally active role in the life of the nation, specifically for the purpose of ensuring that more citizens than not were able to live comfortable and productive lives. And if, at times, this required the restriction of certain private behaviors or the regulation of certain private resources, this was merely the price one paid to live in a society. Fuller, on the other hand, seemed to take it as a given that government should only ever concern itself with ensuring that the basic rules of a given society – having previously been set – were strictly adhered to. Specifically, he believed the right to private property to be wholly inviolate and accordingly regarded any state action that in any way devalued said property to be constitutionally insupportable. Precisely how and to what extent a tax upon the income derived from a piece of private property actually affected the innate value of said property, Fuller did not make a point of explaining. Presumably, he considered the otherwise untaxable nature of property-derived income to be a major contributor to the monetary value placed upon said asset by the marketplace at large. Knowing that this income could be taxed, potential buyers of the same would accordingly value it lower than might otherwise have been the case. In consequence, a person possessed of a piece of land previously worth, say, five thousand dollars, might be forced to sell for the much lower price of three thousand dollars once it became clear to an interested buyer that the accompanying income would be subject to federal taxation.

            Again, Chief Justice Fuller did not go into any such detail himself. The above only represents what one might reasonably surmise based on what little he did say on the matter in the cited opinion. Nevertheless, it would seem to represent a fairly plausible summary of what a jurist like Fuller believed deep down in his heart of judicial hearts. As far as he was concerned, one of the primary purposes of government – perhaps the primary purpose of government – was to protect the right of the individual to own private property and to enjoy the essential benefits thereof. Not only did this mean enforcing said ownership and punishing those who would act in violation thereof, but also refraining from any action that might negatively affect the value of privately-owned assets. But while this could not have been more divergent from the aforementioned views of Chief Justice Waite – someone who, it bears repeating, believed in the need for all involved parties to submit themselves to some degree to the needs of the public good – this did not necessarily mean that Melville Fuller was in error. Did he reverse a highly consequential Supreme Court ruling less than fifteen years after it was made? He most certainly did. Was he in error to do so? Well…yes and no. In hindsight – and certainly in the view of all those who supported the levying of a federal income tax at the time of the Pollock ruling in 1895 – Fuller had rather shortsightedly placed the narrow financial interests of property owners above the increasing need for the United States Government to expand its scope of action without unduly burdening those least able to contribute financially. But in doing so, Fuller hadn’t done anything more than what the Chief Justice of the Supreme Court always had done and always will do. That is, after having been appointed by a presumably sympathetic and supportive president – in this case, one Grover Cleveland (1837-1908) – and confirmed by the Senate, he proceeded to interpret federal statutes and the text of the Constitution alike through the particular lens of his own judicial philosophy. Some Chief Justices might have claimed to have done less, but few – if any – could be accused of doing much more.

            Such is the nature of the Supreme Court and its officers, of course. Once confirmed, every justice – and most notably, every Chief Justice – enjoys significant latitude to express and give substance to their personal understanding of American jurisprudence in general and the Constitution in particular through their contributions to oral arguments, their votes, and their written opinions. In theory, a Supreme Court Justice is entitled to do no more than render a determination upon what the law is and what it is not, whatever philosophy they might hold as to the purpose of the law notwithstanding. But in truth, every justice brings to every case placed before their attention the sum total of their beliefs, education, experiences, and predilections. They are not entitled to simply “make up” the law, of course. They cannot declare something to be true that has no basis whatsoever in statute law, case law, or the text of the Constitution. But the degree to which they can and do interpret the meaning of certain concepts, phrases, or even single words within the context of rendering a decision is, as aforementioned, quite substantial. The replacement of even a single justice can accordingly alter the character of the Court to no small extent, particularly if said justice represented a reliable “swing” vote or acted as the leader of an otherwise stable ideological faction therein. And the replacement of a Chief Justice can alter things even further. While the head of the federal judiciary is not entitled to a greater share of authority within conference – i.e., their vote weighs no more than that of a given Associate Justice – their institutional seniority grants them significant soft power that successive Chief Justices have utilized in order to shape the essential character of the Court during their respective tenures in office. By setting the agenda for the Court’s weekly meetings, for instance, the Chief Justice can exert a powerful influence over which cases are ultimately heard by the justices and which are denied. Likewise, being responsible for assigning authorship of the majority opinion whenever they find themself in the majority, the Chief Justice is able to determine how a given decision by the Court is both justified in legal terms and presented to the American public. As these determinations can in turn dramatically influence how a given precedent is subsequently interpreted and how the Court itself is publicly viewed, the Chief Justice can be said to hold unparalleled sway over how the Court’s various official actions impact American society as a whole. 

The Purpose and Powers of the Senate, Part LXXX: “Unwise, Unsound, Unreasonable”

            As a follow-up to J. William Fulbright’s relatively canny and pragmatic approach to the debate on Spessard Holland’s proposed anti-poll-tax amendment, the return of Senator James Eastland to the conversation during the March 14^th Senate session makes for something of an unfavorable contrast. With exceptions, Senator Fulbright had argued in opposition to the amendment primarily from a place of practical concern for his state’s welfare. The poll tax, he explained, supplied a huge portion of Arkansas’s education budget and its loss – in the absence of a federal education bill – would accordingly cause great suffering to the Natural State’s student population. He said other things as well – that the poll tax wasn’t really a burden, that discussing it was a waste of time, etc. – but one assumes that his highest priority was that which he offered first and foremost. It was almost certainly not worth continuing to withhold the franchise from a large swath of Arkansas’s Black population in the name of ensuring that the children of that state received a better education than they might otherwise, of course. But at the very least, Fulbright refrained from making very many grandiose or melodramatic statements as to his sense of personal outrage. He opposed eliminating the poll tax, to be sure, but mostly because he felt that the negative effects outweighed the positive. And he notably did not declare that the fate of the federal union itself hung in the balance. The same could not be said of Mississippi Senator James Eastland.

From the jump, Eastland’s tone was decidedly one of outrage. “The back-door avenues that are employed in presenting civil rights measures to the Senate” he began, “are abhorrent to orderly legislative processes.” This was all too typical as an opener for a senator with a bone to pick. Whatever Eastland’s personal objections to Mississippi’s poll tax being summarily invalidated might have been – one can be sure, at least, that they were racially motivated – the man led with an appeal to the processes and traditions of the upper house. It wasn’t that he found fault with the content of the proffered reform so much as the manner in which it had been thrust upon the Senate’s attention. Improperly, that is to say; disrespectfully; even illicitly. And wasn’t that sort of behavior an offense to every member of the Senate, regardless of party? Wasn’t common respect for the rules the bedrock upon which the Senate functioned? Eastland surely would have said so – indeed, he more or less did say so – in spite of the fact that the issue of civil rights had already shown itself to arouse greater enthusiasm among the various members of the Senate than the comparatively dry and proscriptive concept of strict adherence to precedent and procedure. The examples that Eastland provided ironically seemed to bear this out.

“We went through this ordeal in 1957 [,]” he said, “when a House-passed bill was taken from the table and presented to the Senate without referral to a Senate committee.” The bill in question was almost certainly that which became the Civil Rights Act of 1957, the first of its kind approved by Congress in over eighty years. And while it was true that the original measure had been introduced onto the floor of the Senate following its approval by the House without first passing through a committee of the former, this was by far the least memorable incident attached to the bill in question. The Southern Senators of the 85^th Congress who objected to the passage of this particular piece of civil rights legislation did not do so because it had been introduced into the upper chamber improperly. Nor did South Carolina Senator Strom Thurmond attempt to filibuster the bill for a record twenty-four hours and eighteen minutes out of an abiding respect for the rules of parliamentary procedure. The Civil Rights Act of 1957 aroused the opposition that saw it substantially neutered – and the support that saw it finally approved – because of its contents and its objectives, not the manner in which it was passed. For one thing, it established the aforementioned Commission on Civil Rights, a body which – if the commentary of J. Lister Hill and James Eastland are any indication – continued to provoke the ire of Southern members of the Senate fully five years after its creation. It also made voter intimidation a federal crime and changed federal jury selection rules to make it possible for Black people and women to serve as jurors no matter where a given trial was being held. One can be sure that both of these measures displeased Southern segregationists and resulted in their opposition to the bill to a far greater degree than did its supposedly improper introduction onto the floor of the upper house.

“At the beginning of each Congress for the past 8 years [,]” Eastland continued, “we have been confronted with the attempt […] to have rule XXII changed or obliterated without referral of the matter in controversy to the proper committee of the Senate for its study and report.” Rule XXII, in point of fact, is the Senate standing procedure for invoking cloture that was first adopted in 1917. Without getting into a great deal of terribly dry and technical “parliamentese,” what it states is essentially that at any time during the course of a debate, any senator can present a motion to the chair – signed by sixteen additional senators – which then triggers a cloture vote, the success of which depends on the support of “three-fifths of the Senators duly chosen and sworn [.]” Bearing this in mind, what Eastland was accordingly implying was that for the eight years leading up to 1962 – which is to say, since 1954 – someone(s) had been endeavoring to either change or eliminate the cloture rule – thus altering the basic dynamic of the filibuster – in a supposedly improper manner. His emphasis, of course, was on the manner of the thing. That it was being attempted “without referral of the matter in controversy to the proper committee of the Senate for its study and report” was the issue. A cursory evaluation of the facts would suggest otherwise, however. Eliminating Rule XXII would not have injured Senator Eastland or his fellow Southerners to any significant degree. It was created for the specific purpose of allowing filibusters to be stopped if a sufficiently large percentage of the Senate’s membership deemed such a course to be appropriate. Without it – as was the case prior to 1917 – a given senator would be able to carry on a filibuster indefinitely, the only end results being either the withdrawal of the relevant measure or their physical inability to continue. And since Southern senators had shown themselves over the course of the 20^th century to be by far the most frequent filibusterers in the upper chamber – chiefly in aid of foiling pro-civil rights legislation – the loss of Rule XXII would have been an aid to their cause if anything.

If Rule XXII was merely changed, however – to lower the threshold for a successful cloture vote to a simple majority from a supermajority, for example – Eastland and his colleagues would have found themselves suddenly robbed of much of their power. As it then stood, a minority of senators – forty-one of one hundred – could arrest the passage of any piece of legislation or constitutional amendment they desired simply by refusing to yield the floor to any outside their number. Granted, there were less than forty-one senators who represented Southern states in 1962. And some, like Kentucky and Maryland, were represented by relatively reform-minded Republicans. But the nature of inter-party politicking made it so that Southern Democrats did not need to control all forty-one of those seats themselves. As long as enough Northern Democrats remained disinclined to publicly rebuke their Southern compatriots – and as long as enough Southern Republicans remained disinclined to upset their less reform-minded constituents – then a Southern-led filibuster could successfully be maintained by the active participation of relatively small number of senators. Decreasing the support required to achieve cloture, of course, would necessarily increase the number of senators potential filibusterers would need in their corner. Around thirty Southern senators, it had been shown, were historically capable of both maintaining solidarity amongst themselves and attracting the support of a further ten to fifteen compatriots for the purpose of mounting a successful filibuster. But it had yet to be proven whether that same cohort of thirty could secure even the passive support of twice that number of their compatriots. Certainly, it was possible that a group of Southern senators opposed to civil rights legislation might still find a way to engineer a successful filibuster according to this more challenging calculus. But it most definitely would have been a fair bit more difficult. And in the short term, practically speaking, it might even have proven impossible.

Bearing all of this in mind, one might reasonably assert that what really concerned Senator Eastland was not that certain of his colleagues were attempting to advance a particular legislative agenda without proper regard for the rules and traditions of the upper chamber but rather that recent events therein had been trending decidedly away from a status quo that tended to favor his personal convictions. In 1957, for the first time in some eight decades, Congress had approved a piece of federal civil rights legislation. A Southern senator had attempted a filibuster and that filibuster had failed. Three years later, in 1960, another civil rights act was passed, largely in order to plug the loopholes that had been written into its immediate predecessor. And all of this had played out against the backdrop of Supreme Court-ordered public-school desegregation and what Eastland described as continuous attempts by certain members of the Senate “to have rule XXII changed or obliterated without referral of the matter in controversy to the proper committee of the Senate for its study and report.” The heady days of the 1930s and 1940s, it seemed, when the phrase “civil rights” was hardly ever spoken aloud in Congress and supporters of reform quaked in fear of the unassailable power of the Southern filibuster, were well and truly a thing of the past. Congress and the courts were slowly but surely bending towards a fundamental reformation of civil rights law in the United States and there seemed to be little more that Southern legislators like James Eastland could do but wave their arms and make long speeches about tradition and decorum and “orderly legislative processes.”

But if this was truly all that remained for Eastland and his Southern comrades – to complain, and lament, and shout in an attempt to hold back the tide of history – one can be sure that that is what they would do. As a case in point, consider the remainder of the Mississippian’s remarks during this particular section of the debate on Senator Holland’s proposed anti-poll tax amendment. Having opened by protesting the supposedly slipshod and unseemly manner by which the contemporary supporters of civil rights reform had pursued and were continuing to pursue their various objectives, Eastland then proceeded to rattle off several more reasons – none of which had much to do with the substance of the proposal at hand – why he felt Congress was better off concerning itself with just about anything else. First, he lamented the tremendous waste of time and energy which he believed any discussion of civil rights legislation represented. “It now appears [,]” he said,

That every time the workload of the Senate slows down a little bit, the bone of civil rights would be flung into the pit of the Senate, so that time can be again consumed by making Southern States the whipping boy of proposed punitive actions, whether they be by legislative proposals or constitutional amendments. This country is today confronted with many grave and serious problems far reaching in nature. Many observers deeply and sincerely feel that 1962 is a year that will mark a milestone and a developing point in the history of mankind. The nature of these problems demands the greatest possible degree of bipartisan consideration. In many respects the future course of the United States for generations to come is wrapped up in the decisions that must be made in regard to the President's proposed trade development plan.

In point of fact, the “trade development plan” to which Eastland referred in such reverent tones was almost certainly the Trade Expansion Act, signed into law in October of 1962. And while certainly not a trifling thing – it gave the President the authority to impose tariffs on the recommendation of the Commerce Secretary alone and helped pave the way for a fairly significant round of negotiations under the auspices of the General Agreement on Tariffs and Trade – one could hardly describe the results of this law’s passage as effecting “the future course of the United States for generations to come” while maintaining a straight face. International trade was – and is – important. But so were – and are – the essential rights and privileges of the American citizen. It was certainly possible that Eastland truly believed the impact of international trade upon the future prospects of the United States of America to be of greater import in the spring of 1962 than whether or not every citizen inhabitant of Alabama, Arkansas, Texas, Virginia, or Mississippi was legally permitted to vote. But it does seem rather unlikely, given the circumstances. As a senator, Eastland was never someone who particularly troubled himself with the vicissitudes of foreign policy or foreign trade. On the contrary, he spent twenty-one of his thirty-six years in the upper chamber as the Chairman of the Judiciary Committee, where he necessarily spent far more time considering judicial nominations and engaging in oversight of the Department of Justice than speculating on the potential impact of a given piece of trade legislation. Bearing this in mind, it seems likely Eastland was casting about for an excuse to wring his hands when he issued the complaint cited above rather than expressing anything like genuine concern.

The Senator from Mississippi chose to continue with this train of argument, however, and in doing so arguably gave voice to the true nature of his objections to the proposed anti-poll-tax amendment. “No good purpose [,]” he went on to say,

Can be served in again making a handful of people-five States-containing less than 12 percent of the population of the United States, the subjects and victims of a proposed constitutional amendment that is unwise, unsound, unreasonable, and contrary to the historic practices and procedures that have existed in this country since the Colonies were first established on the coast of the Atlantic seaboard.

The five states in question, it seemed, were not only the collective subject of the proposed anti-poll tax amendment but also its prospective victims. Eastland had earlier indicated that the nature of his objection was personal as much as it was procedural when he claimed that the “bone of civil rights” was really only being used to make “Southern States the whipping boy of proposed punitive actions, whether they be by legislative proposals or constitutional amendments.” Was Holland’s amendment objectionable because it was being pursued with undue haste and in contravention to various Senate regulations or was it objectionable because it unfairly attacked a small group of Southern states – “containing less than 12 percent of the population” – in a way that was “unwise, unsound, unreasonable, and contrary to the historic practices and procedures that have existed in this country since the Colonies were first established on the coast of the Atlantic seaboard [?]” While the Mississippian seemed to have decided in advance – alike with certain of his Southern compatriots – that a procedural approach was likelier to meet with success than one which relied solely on arousing sympathy, he nevertheless appeared incapable of not squeezing at least a little moral indignation into what was otherwise intended to be a sober call for adherence to established Senate procedure.

            And it was just as well that Eastland chose not to emphasize the supposed plight of the five Southern states whose electoral practices were at that moment under discussion. What little he did have to say on the subject was vague, unconvincing, and fundamentally lacking in substance. The issue of civil rights, he said, was being used to make the South “the whipping boy of proposed punitive actions,” as though the only reason anyone might have proposed the abolition of the poll taxes that were still in place in Alabama, Arkansas, Texas, Virginia, and Mississippi in 1962 was as a form of punishment. Punishment for what, exactly, Eastland failed to say. Perhaps he didn’t know himself. What he did seem to be certain of, however, was that this small group of Southern states was set to be victimized by the terms of the proposed amendment in the event that it was ratified. Obviously, this kind of claim entirely failed to grant the premise that it was the citizens living in these states whom the poll tax laws prevented from voting that were actually being victimized. Alabama, Arkansas, Texas, Virginia, and Mississippi were guilty, it was true, of denying to those unable to pay the poll tax the right to vote. But it was neither Senators Holland’s intention nor those of his cosponsors to punish anyone as a result. On the contrary, all that Holland seemed to want – and he stated as much numerous times – was to help prevent economic inequality from actively contributing to democratic inequality. The poll tax, he avowed, was an unjust and entirely needless qualification upon the electoral franchise and accordingly needed to be abolished.    

Eastland’s allusion to the fact that the five states in question contained only a small portion of the overall population of the United States was similarly lacking in merit. As a point of fact, of course, it was true. Circa 1962, Alabama, Arkansas, Texas, Virginia, and Mississippi between them contained 20,777,779 people, a figure which, as a fraction of the contemporary population of the United States of America (179,323,175), indeed amounted to only 11.5%. But the veracity of the figure he cited in no way gave credence to the argument that Eastland heavily implied by citing it. What he almost certainly meant to say was that the Southern States in question, containing between them such a small fraction of the overall population, simply weren’t worth the trouble of passing a constitutional amendment. Because really, what was the point of modifying the governing charter of the entire American republic if it was only going to effect twelve percent of the population? What this kind of logic entirely overlooks, of course, is the fact that, while abolishing the poll tax in the five states in question would indeed only have allowed a small fraction of this small fraction of the American population to exercise the right to vote, it still would have permitted millions of people who were otherwise qualified to exercise the electoral franchise to do so regardless of their economic status. Not thousands, or hundreds of thousands, but millions. And while it was surely the case that Senator James Eastland was willing to live with the notion that millions of Americans – many of whom he nominally represented in Congress – were incapable of exercising one of the most fundamental rights of citizenship simply because they couldn’t pay a tax, it would be more than fair to say that, as of 1962, the majority of his fellow senators were not.

Meaningless as Eastland’s other arguments were, however – his claims of Southern victimhood or his misleading use of population statistics – it was his attempted invocation of tradition and precedent that rang hollowest of all. The passage of a constitutional amendment banning the use of poll taxes, he asserted, was, “contrary to the historic practices and procedures that have existed in this country since the Colonies were first established on the coast of the Atlantic seaboard.” First, let it be said here with all due emphasis that the phrase “historic practices and procedures” is one which, lacking any clarifying context, is wholly without any inherent legal meaning or moral significance. Without more specific reference to the precedents which he felt weighed upon the case at hand, Eastland might as well have claimed that George Washington once said something vaguely complementary about poll taxes as an argument in their favor. That something possibly qualifies as a historic practice or procedure in no way justifies its continuation in the face of evidence indicating its harmful effects. For the first century and a half of the life of the American republic, it was a historic practice and procedure not to allow women to vote. Did this necessarily mean that the 19^th Amendment was “unwise, unsound, [and] unreasonable” as a result? Was Eastland of the opinion that the 66^th Congress had erred in approving it? And what of slavery? By the time that the final draft of the 13^th Amendment was approved by the House in January of 1865, chattel slavery had been a historic practice and procedure in the United States and its colonial antecedents for something on the order of two hundred years. Would Eastland truly have argued – if the question was put to him – that this precedent should have prevented the members of the 38^th Congress from acting as they did?

            Being both a Southern Democrat and an avowed white supremacist, Eastland might actually have believed that the 13^th Amendment shouldn’t have been approved and that the states of the former Confederacy should have been left to maintain the institution or dispose of it at their own discretion. Granted, this is not something he would ever have admitted to on the floor of the Senate. Though they might lament the loss of life endured by the South during what many of them would persist in calling the “War of Northern Aggression,” few Southerners serving in Congress in 1962 would have gone as far as claiming that the abolition of slavery was an out-and-out mistake. The point stands, however, that there had already been – as of the early 1960s – many “historic practices and procedures” whose legal existence had been cut short in the United States by an act of Congress or a constitutional amendment. Such is the nature of just about any human society. Over time, practices which were once deemed acceptable – even necessary – are often reexamined and abolished in the face of shifting cultural values. Senator Eastland, however, claimed the opposite. “Since human societies were first organized,” he said in defense of his position against the proposed anti-poll-tax amendment, “it became evident that they could not exist as communities without observing the rules and precedents, the mores and the folkways that made living together possible.” By this logic, all societies must necessarily continue to adhere to the “the rules and precedents, the mores and the folkways” that first brought them together lest they lose their reason for being and completely and irrevocably disintegrate. A false assertion, obviously, but an understandable one under the circumstances.

The Purpose and Powers of the Senate, Part LXXIX: “The Privilege of Being a More Responsible Citizen”

Granting that his primary approach seemed to be a somewhat more conditional form of opposition than was common among his compatriots, Senator J. William Fulbright did not entirely abandon the standard line of the Southern Democrat as he drew his argument to a close during the session of March 14^th, 1962. Though his main concern was apparently the funding shortfall that would result from Arkansas’s loss of the poll tax, he also made a point of asserting that the tax in itself wasn’t really any kind of burden. For one thing, he said, it didn’t actually prevent people from voting. According to the Civil Rights Commission, he said,         

The absence of complaints to the Commission, actions by the Department of Justice, private litigation, or other indications of discrimination have led the Commission to conclude that, with the possible exception of a deterrent effect of the poll tax—it does not appear generally to be discriminatory upon the basis of race or color. Negroes now appear to encounter no significant racially motivated impediments to voting in 4 of the 12 Southern States: Arkansas, Oklahoma, Texas, and Virginia.

The fact that Eastland and Hill believed that nothing reported by the Civil Rights Commission could possibly be worth hearing while Fulbright was evidently willing to regard them as a trustworthy source of information is most definitely worth remarking upon. It was Eastland who had said, during the previous day’s debate, that, “If there ever was something loaded against decent people of this country, it is the Civil Rights Commission.” Hill then offered his own agreement, and even Holland felt the need to put some distance between himself and this particular investigatory body. That Fulbright took rather the opposite tack – “If the Civil Rights Commission was unable to find any evidence of discrimination due to existence of a poll tax requirement [,]” he said, “I am sure that none exists” – speaks once again to his exceptionally canny style of debate. Unlike certain of his fellow Southerners, he was not willing to turn up his nose at a potentially useful piece of evidence just because it happened to come from a particular source. He was making the same case that they were, defending the South on the same terms. The only difference was that he could bring himself to use federal resources to his own advantage. And so much the better. By seeming to accept the findings of the Civil Rights Commission, Fulbright effectively forced those reformists who also relied on these findings to explain how it was possible that the same information could be used to affirm two wildly differing conclusions.

            But if even for a moment this willingness to embrace the findings of the Civil Rights Commission put fear into the hearts of his fellow Southerners, Fulbright quickly assuaged that fear by next proceeding along the same lines as Hill and Eastland had done previously. “Last year 68,970 Negroes in Arkansas qualified to vote by paying the poll tax [,]” he went on to say. “Nothing prevented this number from being substantially higher-other than failure to pay the small sum of $1 per person for the privilege of exercising the highest duty of citizenship.” Laying aside, for the moment, the question of exactly how small a sum one dollar is or is not, the population figure Fulbright quoted would seem to bear a degree of scrutiny. The year prior, he said – 1961, presumably – a little under sixty-nine thousand Black people qualified to vote in Arkansas after having paid the poll tax. One assumes this was meant to be an impressive figure. Why else, indeed, would Fulbright have cited it? But it is, in fact, an entirely meaningless number in and of itself. Just under sixty-nine thousand Black people qualified to vote by paying the poll tax, he said. But how many Black people actually lived in contemporary Arkansas? According to the Census of 1960, the Natural State’s population then amounted to 1,923,295. Of that, some seventeen percent were recorded as being members of the state’s Black community. As of 1961, therefore, the total Black population of Arkansas should have been something on the order of three hundred and twenty-seven thousand. Fulbright’s cited figure of sixty-nine thousand registered Black voters would accordingly only amount to just over twenty percent of this total.

            Consider, by way of comparison, certain analogous figures recorded during the Election of 1960. In Massachusetts in that year, there were a little over three million people who were of the lawful voting age. And of that number, something on the order of two million four hundred and seventy thousand ultimately voted in the race for president. This made for a total voter participation rate of seventy-six percent. In Holland’s own Florida – where one and a half million people out of a voting-age population of three and a half million actually voted – the rate was substantially lower at fifty-one percent. In Arkansas, by comparison, only four hundred and thirty thousand out of a voting-age population of slightly over one million voted for some candidate or other, placing the Natural State’s voter participation rate at only forty-one percent. By the standards of the time, this was not a particularly impressive turnout. Only four states saw fewer people vote in spite of being otherwise qualified to do so – Virginia (33.4%), South Carolina (30.5%), Mississippi (25.5%), and Georgia (30.4%) – while the vast majority boasted participation rates in excess of fifty percent. Bearing these facts in mind, Fulbright’s claim that just under sixty-nine thousand Black people had registered to vote in Arkansas in 1961 would seem to be a rather pitiful statistic. Even allowing for the fact that, circa 1960, the voting age population across the states averaged out to about sixty percent of the total population, far fewer Black people were participating in electoral politics in Arkansas than should otherwise have been the case. Indeed, if the demographic breakdown of the Natural State’s Black community more or less mirrored that of the general population – and there is no particular reason to believe that it didn’t – more than twice as many Black people were of voting age than Fulbright claimed actually registered to vote by paying the poll tax.

            This was to be expected, of course. Not only was Arkansas one of the few states where poll taxes were still being collected, but there most certainly also existed a climate of intense hostility on the part of most white inhabitants thereof against any attempt by the Black community to assert itself politically. What is harder to explain is what Fulbright hoped to achieve by obliquely confirming what the supporters of Holland’s amendment already well knew. It would have taken access to contemporary population data to place the figure quoted by Fulbright in its proper context, of course. But this sort of information would hardly have been beyond the grasp of a United States Senator. A few inquiries here, a little calculating there, and any one of them would have been able to show that Fulbright was effectively undercutting his core argument. Perhaps it was a simple matter of arrogance on his part. Perhaps he didn’t think that anyone present would bother to question whether or not the registration figure he quoted represented a respectable percentage of the Black community in his state. Then again, maybe he was only being very literal-minded. The argument against the poll tax, after all – on the part of the proposed amendment’s Northern supporters if not that of its principal author – was that it prevented Black people from voting. How better to respond than with impressive-sounding figures? “In Arkansas,” said Fulbright, “almost seventy thousand Black voters paid their poll taxes last year. In what way were they victims of oppression? In what manner were they being disenfranchised?” A particularly knowledgeable senator might have countered this easily enough, of course, by pointing out that seventy thousand represented but a fraction of the Natural State’s voting-age Black population. But Fulbright, as it happened, had an answer to this as well.

            Voting, the Arkansan explained, was not something to be taken lightly. Indeed, as he declared previously, it was “the highest duty of citizenship” and ought to have been approached with an appropriate sense of gravity. “The task of being a responsible citizen in a democracy has never been easy [,]” he went on to explain.

If we are to make our Government work as it should, every citizen must give long and careful consideration in exercising his privileges of franchise […] Surely, the payment of a dollar poll tax, which Arkansas requires, is a small price to pay for the privilege of being a more responsible citizen. It is inconceivable to me that the caliber of our public officials, and the workings of our governmental system in general, could in any way be improved by the casting of a vote by a person who does not care enough about his Government to pay a $1 poll tax, or as one could correctly call it, registration fee.

Thought of in this wise, a poll tax was not so much a way to discourage voting among certain disadvantaged communities as it was a way to ensure that those who did vote took the matter seriously. To pay for the privilege was to express a more than idle interest in the workings of government, in essence, and it was Fulbright’s opinion that quality of engagement was more important to making the American government “work as it should” than mere quantity. The payment of a dollar was not a particularly high price to pay, of course – “This amount would not even keep a smoker in cigarettes for a week [,]” the senator remarked – but it seemed to him an appropriate charge “for the privilege of being a more responsible citizen.”

            To those who might have claimed that sixty-nine thousand registered Black voters was a pittance compared to Natural State’s actual voting-age Black population, Senator Fulbright accordingly had a rather neat response at the ready. It wasn’t that Arkansas’s poll tax had stopped those of the state’s Black inhabitants from registering to vote who otherwise would have done so. Rather, it was simply that those sixty-nine thousand registered Black voters were the only members of their community who cared enough to pay the tax and take part in their state’s government. It was interest discrimination rather than economic discrimination; a way of filtering out those who would vote thoughtlessly or irresponsibly from the sober and responsible few whose careful discrimination was what the country most needed in order to function. Indeed, Fulbright remarked, “It is inconceivable that a $1 tax is such an overwhelming obstacle that it discourages interested citizens of any color or race from qualifying to vote.” Those who wanted to vote, did vote, was essentially the senator’s position. The tax was only there to ensure that those who wanted to, really wanted to. There was just one problem with this particular line of logic, of course. Though it may have been “inconceivable” to Senator Fulbright that any American citizen might have found a one-dollar tax to be an “overwhelming obstacle” to exercising the franchise, such taxes were absolutely the reason why certain Americans did not vote.

            Having already discussed precisely why this should have been the case, it will suffice here to say that Fulbright – in common with many a public official across the history of the United States – either grossly underestimated or simply chose to ignore the degree to which some of his fellow Americans were sunk in the most desperate type of poverty imaginable. One dollar, he said, would not “keep a smoker in cigarettes for a week [,]” as if smoking was the one need that all Americans would always seek to fill. True, even the poorest among us will seek to feed their own vices. People living in poverty drink. People living in poverty smoke. Their money, to be sure, would be better spent elsewhere. But anyone with an even ounce of compassion should be able to understand that those who live in desperation often have a greater need for solace than most. And just because a poor person has money to spend on cigarettes, this should not be taken to mean that they have anything like disposable income. Nor should their poverty be taken to mean – as Fulbright seemed to suggest – that they aren’t capable of making perfectly sound decisions. A poor person – particularly a poor Black person – living in Arkansas in the early 1960s might have looked at their living conditions, their finances, and the political status quo, and have quite reasonably concluded that no matter how they chose to vote – if they were to pay the poll tax in order to do so – the basic circumstances of their life were not liable to change. Even if they were able to make it to a ballot box without being threatened or molested, were any of the candidates on offer likely to cater to their needs? Almost certainly not. If there was no poll tax – and if the threat of violence was not hanging over the whole affair like a veritable sword of Damocles – then perhaps there might have been something to the idea of rallying the vote of the poor in favor of large-scale reform. As it was, however, knowing for a certainly that the community of interest to which they belonged largely lacked the opportunity to make itself heard, a poor Arkansan – be they Black or white – would not be remiss in concluding that the dollar they might have spent on the poll tax would be better off spent buying them a smoke.

            As it happened, Fulbright was not only guilty of lacking in imagination or compassion. His closing argument also revealed an attachment to worn-out cliches. Among his fellow Southern senators, he had previously shown himself to be among the canniest, the most astute, and the most likely to make a compelling argument as to the broadly useful purposes of the poll tax. But in spite of all this, by way of last words, he chose to default to a series of tired tropes. “By bringing up this proposal [,]” he said of Holland’s anti-poll-tax amendment,

A Pandora's box, filled with every conceivable type of so-called civil rights legislation, will be opened. The Congress has much urgent business to transact this session, and the committees are working on many bills of far-reaching importance which may be delayed indefinitely if we get bogged down in another extended debate over legislation in this field […] It is a puny, trifling issue to occupy the time and attention of this body. No doubt in some districts it may still be good for a few votes for its advocates, but as a matter of real importance to the effectiveness of our democracy, it is an illusion and unimportant. If the poll tax is to be abolished the States should do it. I urge that the proposed amendment be defeated.

In many ways, this was a close mirror of what Senator Richard Russell had proclaimed in opposition to Holland’s amendment during the session of March 14^th. Of the broader anti-poll-tax crusade, the Georgian had rather acidly remarked that it was,

A political fantasy which has been pursued vigorously by a number of political paladins on white horses, and carrying shields and spears and swords, since long before I ever came to this body […] If ever there has been a scarecrow that has been completely exercised by having been dragged around this Chamber and presented in different forms, by different means, in different ways, by different men, and for different purposes, it is the so-called poll tax legislation.

Fulbright added to this dismissive assessment of the inherent value of the proposed anti-poll-tax amendment a lament – common enough among legislators who wish to avoid discussing the true nature of their opposition to a given measure – concerning the time that looked to be wasted unless the Senate dropped the matter entirely. Such complaints were not wholly unfounded, of course, particularly as the ongoing responsibilities of the upper house were expanded as a result of the New Deal and the many and various reforms necessitated by WWII. The Senate simply didn’t have as much time on its hands in the 1960s as it had in the 1920s, to put it simply, and there was something to be said for at least trying to keep things on schedule. The only problem with this line of thinking was that it flew in the face of a simple truth. Namely, that some of the most time-consuming conversations a given legislative body might have are also, inarguably, the most necessary.

            Consider, by way of comparison, the topic of slavery and its abolition. When it finally came time to banish the institution to the dustbin of history with the passage of the 13^th Amendment by the House of Representatives in January of 1865, it would not have been entirely unreasonable for a given member of that same body to suggest – as Fulbright suggested almost a century later – that, “The Congress has much urgent business to transact this session […] which may be delayed indefinitely if we get bogged down in another extended debate […] in this field [.]” The American Civil War had come to end over the course of the spring and summer of that year, it was true, and the reintegration of the rebellious Southern states was only a matter of time. But no one could possibly have claimed that Congress no longer had very much business to transact simply because the Confederacy had functionally ceased to exist. The demobilization of both the much-expanded Union Army and what remained of the now-defunct Confederate Army was a monumental task on its own, and still pending. As was the reconstruction of various pieces of damaged or destroyed federal infrastructure and the aforementioned reintegration of the now-occupied Southern states. And yet, in spite of all of this important business – and surely still more besides – the ultimate fate of slavery itself was undeniably of the greatest importance.

It was an extremely thorny topic; one which, even in the absence of most Southern congressmen and senators, was bound to lead to inflamed tempers and excessively drawn-out arguments. Some would oppose abolition on the (patently racist) grounds that it would inevitably lead to social and economic equality for Black Americans. Others would claim that for Congress to thus meddle with the basic principle of private property would represent a direct contradiction to the broader spirit of the Constitution itself. Granted, the Senate had approved the thing quickly enough by a vote of thirty-eight to six only four months after its introduction. But from the time of the first failed attempt at approval in the House in June of 1864 to practically the moment it was finally passed in January of 1865, it more often than not seemed scarcely possible that the anti-slavery amendment would ever be submitted to the states. The whole subject was simply too raw, too volatile, and too monumental to permit easy passage. But did this mean, necessarily, that the topic should have been dropped? Should Fulbright’s perfectly sound assertion that practical matters ought to take precedence over subjects liable to stir up emotions have been applied? Fulbright, in his heart of hearts, would probably have answered in the affirmative. Being a Southerner, a Democrat, and a devotee of states’ rights, he had every reason to believe that rushing a vote on an anti-slavery amendment before the representatives of the states that stood to be most dramatically affected had been reseated in Congress represented both bad federalism and yet another in a long list of Northern crimes against Southern sovereignty. No, the proper order of things was plain. First, secure peace, then reintegrate the states, then settle the matter of slavery. And if the first two tasks leave too little time to complete the last? Well, there’d always be time in the next Congress, or perhaps the Congress after that.

If the logic Fulbright sought to deploy prevailed in every applicable instance, one does indeed wonder at how little Congress would ever achieve. Only the most uncontroversial measures imaginable would be considered or approved, leading to a fairly short series of unanimous votes and a tremendous legislative backlog. Indeed, it would seem likely that, in fairly short order, Congress would cease to function altogether. Differences in spending priorities will almost always lead to disagreement, and what is Congress if not a chamber for sorting out how money is going to be spent? If the top priority of the assembled lawmakers is not to get “bogged down in another extended debate [,]” how could they possibly discuss anything of importance? Granted – and this has less often been the case in the 21^st century than during the 20^th – there are certain measures that seem to enjoy broad support year after year. Farms bills, road bills, defensive reauthorization bills, and so forth. But sometimes even these boilerplate proposals become vehicles for determined legislators to take a stand on a given issue. And what then? If a senator decides they want to attach a controversial rider to the federal budget and threatens to filibuster the same unless it’s given an up-or-down vote, what, according to Fulbright, is supposed to happen next? True, without some support, the senator in question wouldn’t get very far at all. But as long as they have enough friends in the upper chamber to block a vote on cloture, the result would seem to be an impasse. Are the other senators just supposed to shrug and say, “We’re too busy to get bogged down, we’ll just have to deal with the budget later?” The budget is the thing that they’re supposed to be busy with. And if it takes time to sort it out – to hear out the renegade senator and negotiate some kind of settlement – isn’t that the whole purpose of Congress? To debate what needs debating?

            In addition to being patently ridiculous in itself, Fulbright’s lament for the “urgent business” that a discussion of an anti-poll-tax amendment would supposedly distract the Senate away from also ran directly counter to another of his own assertions. The concept of an anti-poll-tax amendment, he said, was, “A Pandora's box, filled with every conceivable type of so-called civil rights legislation […] The Congress has much urgent business to transact this session […] which may be delayed indefinitely if we get bogged down in another extended debate […] in this field.” But he also said, with his very next breath, that it was, “a puny, trifling issue to occupy the time and attention of this body” and that, “as a matter of real importance to the effectiveness of our democracy, it is an illusion and unimportant.” So which was it? Was the debate over the poll tax so emotionally charged as to require more time to sort through than Congress had to spare at that moment in time? Or was it so completely insignificant as to be rightly dismissed out of hand? Fulbright did describe it as “an illusion” – perhaps its seeming importance was just that: illusory. It wasn’t that it really did matter, only that some people mistakenly believed that it mattered. If this is what he meant to say, it is no wonder he did so in a rather oblique and indirect manner. Senator Holland, you’ll recall, had been attempting to secure the passage of an anti-poll-tax amendment since he first came to the Senate in 1947. It accordingly would have been a rather unkind thing on the part of Senator Fulbright to explicitly declare that anyone who regarded the issue of the poll tax with any kind of gravity was in fact grossly mistaken. If, indeed, this is what the Arkansan meant to say. His parting words, as aforesaid, were something of a muddle.