The Purpose and Powers of the Senate, Part LXXXVI: “The Forces Which Imprison So Many”

            Though the tabling of Senator Richard Russell’s threatened point of order on March 27^th, 1962 essentially ensured that Spessard Holland’s proposed anti-poll-tax amendment was no longer in danger of being declared procedurally unconstitutional, there were still a handful of roadblocks which its various supporters would need to clear before the approval of the Senate could be said to be a done thing. The next to appear came in the form of an alternative proposal by one Jacob Javits of New York. Javits was in favour of Holland’s amendment in theory, provided that there was no other way to achieve the same end. But for his part, the New Yorker believed that there was another way, and moreover that this other way was far likelier to succeed. “I feel very deeply [,]” he said upon being granted the floor,

That if we are to do anything, after the pain and anguish which we always go through in these matters, let us do something now instead of deferring the day when we will do something. Aside from every other argument on this subject […] the argument which seems to be the most persuasive is this: If we pass a constitutional amendment and it is approved by the States, we will still have to be back here to pass a statute, because no amendment to the Constitution is self-operative. We must pass a law to implement it. Therefore, why go through all of this circumlocution if we can constitutionally […] do the same thing by statute now? Do we want a repetition of the events of the last 2 weeks, if it is completely unnecessary?

Javits was reflecting upon both the specific attempt that had just been made by a small cohort of Southern senators to prevent a full consideration of Spessard Holland’s proposed anti-poll-tax amendment as well as the larger trend of Southern Democrats greeting every measure that even vaguely whiffed of “civil rights” as a threat to the fundamental cohesion of the American republic. Specifically, he explained, he was prompted by yet another display of “the pain and anguish which we always go through in these matters” and wished to avoid further “circumlocution.” When one recalls the recent history of civil rights legislation in Congress – i.e., the nearly-abortive passage of the Civil Rights Act of 1957 and the similarly agonizing passage of the Civil Rights Act of 1960 – Javits’ point would seem to be well made. With few exceptions, Southern Democrats had gone out of their way since Brown v. Board of Education (1954) to make the further consolidation of structural and legal equality in the United States the procedural equivalent of pulling teeth. And if that was going to continue to be the case – and the preceding two weeks had shown that it most definitely would be – then why not take every opportunity to seek the path of least resistance?

            So it was that Javits proposed a legislative rather than constitutional approach. The reasons for this were several. First, he argued, there was the simple fact that even the successful passage of an anti-poll-tax amendment would not settle the matter forever as far as Congress was concerned. Most amendments, Javits explained, that banned existing practises required enforcement legislation to be passed in order to make them effective. Which meant that, provided Holland’s amendment was approved by Congress and ratified by the states, Congress would still have to return to the topic of poll taxes in the form of an anti-poll-tax bill. At which point, predictably, the same cohort of Southern Democrats who had just tried to stymie the passage of an anti-poll-tax amendment would once more spring into action to quash a piece of anti-poll-tax legislation. So why not simply take the opportunity to pass anti-poll-tax legislation now? Why not make the abolition of poll taxes a painful but ultimately successful one-step process rather than a painful but ultimately successful two or three step process? That is, assuming the parts of the process that had to take place outside the auspices of the Senate would go off without a hitch. Javits was not so sure of this. His second major concern, to that end, was whether or not the House would deign to cooperate.

            More than once, the New Yorker went on to avow, within the last several years preceding the present debate on Holland’s amendment proposal, a majority in the House of Representatives had voted to approve legislation that sought to ban the poll tax at the federal level. And in 1961, in spite of an affirmative vote by the Senate on a joint resolution which included an anti-poll-tax amendment authored by Spessard Holland, the House had rejected said proposal while approving the rest of the resolution’s contents. Based on past behaviour, then, it seemed likelier to Javits that the House would respond favourably to a legislative ban on poll taxes than it would to a constitutional one. Bearing this in mind, the New Yorker believed that he and his fellow senators, “must ask ourselves the logical question: Why do it the hard way? Why not do it the direct way which is available to us, and in which the other body has time and again shown a disposition to join?” Granted, certain objections had been raised to this approach, specifically as to the constitutionality of altering voter qualifications at the state level by way of congressional fiat. But I think [,]” said Javits,

Constitutionality is firmly based upon a number of grounds, all of which are recited in my amendment itself, in which the Congress finds as a fact that the poll tax is an attempt to interfere with the manner of holding elections and primaries, a tax on primaries, an abridgment of rights and privileges of citizens of the United States, a tax on such rights and privileges, an obstruction of the operations of the Federal Government, and an impairment of the republican form of government. This relates to the various elements of the Constitution upon which I depend in urging the constitutionality of such an approach as this.

The phrase “the manner of holding elections” was of particular importance under the circumstances. Article I, Section 4 of the Constitution states that, “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 [.]” In order to demonstrate by what means banning poll taxes via legislation was constitutional, therefore, Javits had to convincingly argue that the setting of voter qualifications fell within the rubric of the “manner” in elections were held.  

            In order to accomplish this, Senator Javits turned – of all places – to the words of Strom Thurmond, former Governor of South Carolina and then a senator from that same state. During the ultimately successful campaign against the poll tax that had taken place in the Palmetto State in 1947, Governor Thurmond asserted that, “There has been much misguided agitation about the poll tax as a qualification for voting. Capacity, in accordance with the other constitutional provisions, to exercise the right of franchise should be the only qualification of an elector.” This, Javits added, was precisely how he felt himself. “Any kind of financial or property prerequisite for voting is not a qualification [,]” he thus avowed.

It seems to me that that concept is borne out by the cases, particularly the one case upon which the proponents of the constitutional amendment theory constantly rely, the case of Breedlove v. Suttles […] decided in 1937. There the Supreme Court refers throughout to the poll tax not as a qualification for voting—or, to use the words of the Governor of South Carolina, as relating to capacity—but as a "prerequisite of voting." I respectfully submit that treated as a prerequisite, as a condition precedent for voting, it falls far more within the time, place, and manner of holding elections, over which article I, section 4, of the Constitution gives Congress the power, than it does within the term "qualifications," over which article I, section 2, gives the States power.

Looked at in a certain way, Javits – and, apparently, Strom Thurmond – would seem to have a point. If poll taxes were a prerequisite for voting rather than a qualification – if they were merely a means of registering rather than a measure of intellectual or moral capacity – then it would seem entirely appropriate for them to be considered part and parcel of “the manner” of holding elections. Their payment or nonpayment accordingly did not denote whether a person was “qualified” to vote as much as they simply indicated individual completion or non-completion of an administrative requirement.

            Sure as Senator Javits was of the wisdom of his preferred approach, few of his colleagues were quite so confident. Kentucky Republican John Sherman Cooper (1901-1991), for one, was deeply concerned as to the constitutionality of the New Yorker’s proposal. Javits’ assertions notwithstanding, there was simply no way to know for certain whether the Supreme Court would uphold an anti-poll-tax bill or declare it null and void. And so, rather than risk having to delay the invalidation of poll taxes at the national level until the meeting of some later session of Congress – accompanied, once again, by the customary “pain and anguish” – Cooper supported the passage of a constitutional amendment to the same exact end. It would be, if nothing else, a sure thing if it was ratified. Similarly, Javits and Holland went back and forth for quite some time about whose proposed amendment to S.J. Res. 29 made the most sense. The New Yorker believed a statute was the speediest approach – “I am for doing something,” he said, “and that if we want to do something we should adopt my amendment.” The Floridian, on the other hand, was of the same belief as Cooper that an amendment was likelier to bear up under constitutional scrutiny. In the end, only Paul Douglas of Illinois made a particularly spirited defence of Javits’s proposal. But it was, it must be said, particularly spirited.

            First, in specific reference to the arguments that had been made by various other senators concerning the questionable constitutionality of Javits’s approach, Douglas opined that any such declarations constituted little more than speculation. In the past, senators had often sought to predict whether or not a particular statute that had just received congressional approval would be upheld by the Supreme Court. And it seemed to Douglas that they were more often wrong than right. Bearing this in mind – that is, the proven unreliability of any such predictions – the Illinoisan believed it made the most sense to simply proceed as the situation at hand appeared to dictate. It was a fact that a majority in the Senate wanted to see poll taxes abolished at the federal level. And it was also a fact that, while a constitutional amendment could certainly achieve the desired result, it would require the cooperation of a majority of the states and the passage of some kind of enforcing legislation to do so. But the same result might have also been achieved simply by supporting Javits’s anti-poll-tax bill and ensuring its passage through the Senate. And as the latter method was the simpler of the two, it was the one that Douglas favoured.

            This was not all that Paul Douglas had to say, however. A noted economist and an ardent liberal, Douglas had a very particular view of the Jim Crow regime, the American South, and the historical factors that seemed to bind the two together. And evidently, he believed that a debate on the legitimacy of poll taxes presented an ideal opportunity to share the thesis he had developed with his fellow senators. Key to this thesis – per Douglas’s opening remarks – was the work of liberal Southern historian C. Vann Woodward (1908-1999), a figure who had been much derided by his fellow Southerners over the course of the 1950s as having wilfully maligned and misinterpreted their culture and traditions while arguing that racial segregation was driven by economics more than anything. Notwithstanding criticisms such as this intended to diminish the significance of Woodward’s various conclusions, Douglas avowed that the man was as much a Southerner as any of those who continued to cling to Jim Crow and the “Lost Cause” narrative. “If his credentials should be further questioned,” the senator accordingly remarked, “let it be recorded that one of his grandfathers fought in the Confederate Army for 4 years, and it is my impression that he was wounded defending the Stars and Bars. Certainly, as a good southern soldier, he showed his patriotism by trying to kill as many northerners as he could.” This was intended, to be sure, as a somewhat facetious remark, but in truth it did not differ much from the kinds of things of which Southern senators regularly boasted.

Recall that the debate surrounding Holland’s anti-poll-tax amendment had started with a lament on the part of Richard Russell that his kin had paid so dearly during the American Civil War for being so bold as to believed that, “one Southerner could lick four Yankees.” They paid in blood, of course, for this mistake, drawn, “By the bayonets of the soldiers of our friend from Illinois and other States who overpowered us in the most calamitous and fratricidal strife this Nation has ever seen.” But while theirs was ultimately a losing war, the South, in Russell’s estimation, had nothing to be ashamed of. “Any man of southern descent [,]” he avowed, “has a right to be proud of the record made by those men who wore the gray, and history does not record a more indomitable or longer drawn out fight against overwhelming odds than was made by the Confederacy.” To Russell, it seemed – and most assuredly to many of his fellow Southerners – the Civil War in general and the memory of the Confederacy in particular was a source of both pride and sorrow. Their kin had lost, to be sure, and the South had paid dearly as a result. But they had also fought valiantly for something that they believed in with all their hearts. Unspoken, of course, was the exact nature of that “something” – i.e. the enslavement of human beings – as well as the fact that the enemy they had fought were their fellow Americans. By claiming that C. Vann Woodward’s grandfather had, during this same war, tried to “kill as many northerners as he could [,]” Senator Douglas was therefore simply saying what was previously unsaid. Russell had decried the Southern blood that had been shed. Douglas sought to celebrate the Northern blood that had been shed. It was all patently ridiculous – and more than a little ghastly – but it was also very much in keeping with the psycho-emotional lexicon of contemporary American political life.

Far more distressing, however, to contemporary Southern sensibilities than Douglas’s purposely flippant inversion of most mainstream narratives of the Civil War was his personal understanding – heavily drawn from the works of the aforementioned Woodward – of the Jim Crow regime and his intentions towards the same. The poll tax, he said, whose elimination the Senate was in the midst of debating, was nothing more or less than a tool, “used by the economic and political aristocracy of the South to keep the rest of the South in subjugation.” Black or white were unimportant to this aristocracy, the propaganda they regularly distributed notwithstanding. All that they cared about was holding onto whatever power was necessary to preserve their material wealth. This, Douglas avowed, was what he and his fellow liberals were intent on destroying. Not the Southern way of life, but rather the continued economic and political dominance of the traditional Southern monied class. “We are trying,” he explained accordingly,

To free all of our friends, both South and North, from the forces which imprison so many. We know that many of what are upheld as basic institutions of the South are not really supported by the majority of the southern people but are, instead, imposed by a relatively small uppercrust who are dominant and who control overwhelmingly the agencies of information and propaganda. We want to set free the economically disfranchised majority of the South, both white and black alike. We want to open up the doors of more adequate education for the disinherited, both white and black alike. We want to open up the gates of opportunity so that the abilities of white and black alike may function more effectively. To do all these things, we of the civil rights group in the North are willing to pay more taxes. For we know that in this Nation, we are brothers, one of another, and should help to bear the burden of the States which have a low income per capita.

            There was a great deal in this speech likely to cause upset among the chamber’s Southerners. For one, there was the implication that someone like Douglas – a liberal from Illinois – had a better idea of material conditions in the South and the needs of its inhabitants than did the elected representatives of the same. For another, there was Douglas’s explicit assertion that segregation and Jim Crow were designed to prop up a particular class of Southerners – “a relatively small uppercrust” – rather than serve the needs or desires of the Southern people as a whole. And finally – and perhaps most gallingly – there was the idea that the South was simply too poor as a region to adequately fund the kinds of transformative social programs its people so desperately needed while the North had money enough to spare in order to pick up the resulting slack. Douglas was not trying to offend his Southern colleagues, of course. Or at the very least, that’s not all he was trying to do. But his comments rather cut to the heart of the contemporary Southern sense of pride. As the likes of Richard Russell, and J. Lister Hill, and James Eastland had made clear nearly every time they took the floor during the course of the debate at hand, the people of the contemporary American South treasured their family histories, their shared heritage, their sense of cultural solidarity, and their independence. They did not like being told that their way of life was fundamentally flawed. They did not like asking for or accepting charity. And they did not like being told what to do. And what was it that Paul Douglas was trying to tell them? That their culture – their way of life – was in reality a mask for the economic and political domination of a particular social class. That they were poor. That they did not know themselves. One wonders how it was that a brawl didn’t break out. Perhaps it was because things were already moving rather swiftly. The chamber had just voted to table Russell’s aforementioned point of order. And now, shortly after Douglas finished delivering the oration cited above, Majority Leader Mansfield once again moved that the motion under discussion be tabled and called for a vote. Upon the ordering of the yeas and nays, the amendment to Senator Holland’s proposal authored by Senator Javits was accordingly tabled by a margin of 59-34.