The Purpose and Powers of the Senate, Part LXXXIX: “Congress May By Law Provide”

    Stop me if you’ve heard this one before, but the story of the 25^th Amendment is rather a curious one. Curious, that is, in terms of the essential character of the amendment itself and the circumstances which gave rise to the same. It concerns itself, of course, with presidential succession, a topic which would seem to be of paramount importance to the proper functioning of the United States government. After all, what manner of crisis might emerge if a sitting president – an individual arguably possessed of unparalleled power in the world – were to die in office without a clear line of succession in place? But the 25^th Amendment was not proposed in response to any such crisis. Granted, at the time of its approval by Congress in the summer of 1965, the assassination of President John F. Kennedy (1917-1963) was less than two years in the past. And it would, quite simply, be a lie to attempt to claim that this same tragic event had no influence over the lawmakers involved. But it would also be patently false to assert that an uncertain line of succession had very much to do with Kennedy’s murder rising to the level of a national crisis. On JFK’s death on November 22^nd, 1963, in Dallas, Texas, Vice-President Lyndon Johnson (1908-1973) simply became the 36^th President. The same thing had happened to Theodore Roosevelt (1858-1919) on the death of William McKinley (1843-1901). The same thing had happened to Chester A. Arthur (1829-1886) on the death of James Garfield (1831-1881). Indeed, as far back as the 1840s, it was accepted as fact that Vice-Presidents were effectively heirs to the presidential throne. Upon the death of a president, that is, the vice-president assumed their office. So why, then, with such a sturdy principle in place, was there any need for an amendment to confirm what everyone already knew? And why was just such an amendment proposed by Congress specifically in 1965?

    The thing about rules of succession, of course, is that they’re not important until they are. From one day to the next, it doesn’t really matter who is next in line to the presidency. And if all things go to plan, it never will matter more than in theory. Because presidents, unlike kings, are not supposed to die in office. So it isn’t until something unexpected happens that the idea of succession becomes important. And once the unexpected has been dealt with, it becomes unimportant once again. Such was the story of the presidential line of succession from the drafting of the Constitution until the ratification of the 25^th Amendment in 1967. Now, in fairness, the actual text of the Constitution as concerns the relationship between the offices of President and Vice-President does leave a bit too much room for interpretation than is particularly desirable. “In Case of the Removal of the President from Office,” it states, “or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President [.]” There would seem to be at least two fairly significant questions which neither this statement nor any other section of the Constitution really answers. The first is, who decides, or by what metric is it decided, whether a sitting President has become unable to discharge the duties of their office? And the second is, what, precisely, in meant by the phrase “shall devolve” in the relevant clause? If, by way of death, resignation, or inability, an individual can no longer fulfil the responsibilities of the office of President, does their Vice-President simply accede to said office as a matter of course? Or do they merely take on the powers and responsibilities of the same while technically remaining Vice-President?

    John Tyler (1790-1862), of all people, at least provided an answer to the latter query. Now arguably among the least well-known occupants of the White House, Tyler made at least one significant contribution to the history of his country. That is, after breaking with the Democrats during the Nullification Crisis (1832-1833), becoming the Whig nominee for Vice-President in 1840, and witnessing the death of his running mate William Henry Harrison (1773-1841) after the latter emerged victorious, he made the crucial decision to take the oath of office as President and immediately assume said office in the spring of 1841. Granted, the decision cannot be said to have been met with universal acclaim. Many Whigs in Congress – chief among them John Quincy Adams (1767-1848) and Henry Clay (1777-1852) – maintained that Tyler was only the “acting president” and that his administration was effectively a regency for that of the deceased Harrison. But Tyler remained steadfast in his conviction that he was the President both formally and practically – going so far as to refuse to open correspondence that continued to address him as “Vice-President” – and in time, both houses of Congress officially affirmed him as such. And so it was that, from 1841 forward, Vice-Presidents who succeeded to the office of President upon the sudden vacancy of the latter did so totally and completely without any reference being made to their being either “acting” or “interim.” This precedent was next affirmed in 1850 when the sudden death of Whig President Zachary Taylor (1784-1850) led to the immediate elevation of his Vice-President, Millard Filmore (1800-1874), and then again in 1865, 1881, 1901, 1923, 1945, and 1963.

    But while the “Tyler Precedent” effectively established the principle that the entire office of President, rather than just its attendant powers and responsibilities, devolved upon the sitting Vice-President upon the sudden and permanent absence of a chief executive, there still remained the question of presidential “inability.” That is to say, it remained unclear, under the terms of the Constitution, precisely what could be said to render a sitting President unable to perform the duties of their office and exactly who, in the moment, was supposed to make this determination. Was the President expected to hold themself to account or was some other party supposed to decide if they were still fit for office? The whole thing, functionally speaking, was more than a little ambiguous, and also more than a little vulnerable to bad-faith manipulation. Granted, when Grover Cleveland (1837-1908) declined to inform the nation when he underwent cancer surgery in July of 1893, it was not necessarily with malicious intent. With the United States in the midst of what would prove to be a fairly severe economic crisis – i.e., the Panic of 1893 – Cleveland was of the opinion that a public admission of his own cancer diagnosis would only plunge the country deeper into financial ruin. To that end, he had the surgery in question conducted aboard a yacht off the coast of Long Island and arranged it such as to give himself ample time to recover before the next session of Congress. If Cleveland had died under anaesthesia, of course, the damage would doubtless have been far greater than if he had simply admitted to his illness. And because the surgery was kept a secret, it is also not entirely clear who, during the relevant period in July of 1893, held the powers of the office of President, the unconscious and then recovering Cleveland or his Vice-President, Adelai Stevenson I (1835-1914). Still, though his reasoning was somewhat questionable, one can at least credit Cleveland with not trying to exploit an ambiguity of the Constitution for the purpose of personal gain. The same could not be said for the next Democrat to occupy the White House.

    In October of 1919, less than one year after the ending of hostilities in WWI and with the concluding Treaty of Versailles still yet to be ratified by Congress, President Woodrow Wilson (1856-1924) suffered a severe stroke. This, in itself, was not all that surprising. He had suffered a previous – albeit comparatively mild – stroke in 1906 during his tenure as President of Princeton University, and he was subsequently diagnosed with atherosclerosis, a persistent narrowing of the arteries that can lead to a number of series health conditions. What was surprising, however, was how President Wilson chose to respond. Rather than disclose his condition to the American public, request that the Vice-President take over his responsibilities, or resign from office in order to focus on his recovery, Wilson opted to keep the knowledge of his stroke a secret from all but a handful of people. Aside from his physician, Dr Cary Grayson (1878-1938), and his wife, the former Edith Galt (1872-1961), Wilson was seen by no one for weeks on end. In that time, Edith, in effect, became the “manager” of the presidency, deciding of her own volition which matters of state were too important to be handled by anyone other than the president and which could be delegated to some other member of the administration. In cooperation with Wilson’s private secretary, Joseph Tumulty (1879-1954) and journalist Louis Seibold (1863-1945), she even went so far as to plant a fabricated interview in the New York World in June of 1920, the purpose of which was to make the still-recovering president appear fully present and alert. But while, by as early as February of 1920, news of Wilson’s condition had begun to leak out of the White House, no one in a position to legitimately question the president’s fitness for office seemed at all willing to do so.

    Vice-President Thomas Marshall (1854-1925), for example, notably took no action. Granted, the text of the Constitution did not explicitly authorize him to do so, but it was unlikely that very many people would have claimed he was acting out of turn if he publicly asked Wilson to consider resignation. Congress, on the other hand, was authorized to act, specifically by the text of Article II, Section 1, Clause 6. In the event, it said, of presidential removal, death, resignation, or inability,

Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

It had never done so before, of course. In all previous cases of the death of a sitting president – as of the middle 1960s, the only means by which the office of chief executive had ever been rendered vacant – the sitting vice-president had simply assumed the superior office. Congress had never been required to step in, doubtless thanks in large part to the relative simplicity of the situation. That is to say, with a vice-president already waiting in the wings, what more really needed to be done besides affirm the new commander-in-chief? But the notion of presidential “inability” presented a much thornier proposition than did the death of a sitting chief executive.

    Nowhere did the Constitution specify how it was that Congress was supposed to determine the “inability” of a sitting president to continue to serve in office. Was it supposed to rely upon the testimony of those closest to the individual in question? The various members of the cabinet, say? Or the vice-president? Or their personal secretary? Or was it necessary that some kind of expert – most likely a medical doctor – conduct an examination and present their findings? And what if the president refused to be examined? Did Congress have the authority to force the president to submit to a physical? Article II, Section 1 could not answer any of these questions. Nor did the text thereof at all indicate that the Framers ever envisioned any of the relevant parties attempting to abuse their delineated powers. Clearly – in light of the various unanswered questions enumerated above – a president who might otherwise qualify as being unable to discharge the responsibilities of their office could nonetheless hold on to power by taking advantage of the poorly-defined nature of Congress’s authority under Article II. But Congress could also conceivably exploit those same powers in an attempt to remove a sitting president with whom its members found themselves at odds. Conflict, in such cases, was almost certainly inevitable, and the Supreme Court would almost certainly be called upon to settle the resulting dispute. But while the Court certainly had the authority to make a binding ruling under such circumstances, there was no telling how much damage might be done in the meantime both to the credibility of an American government seemingly at war with itself and potentially to the lives and livelihoods of those who supported either the sitting president or Congress.

    There was also – albeit somewhat further down the list of priorities – the matter of the vice-president. Specifically, there remained no constitutionally delineated way to replace a vice-president who, for whatever reason, had been removed from office. And in consequence of this evident lack of forethought on the part of the Framers, several periods had transpired in the history of the United States up to the middle 1960s wherein the sitting president had no popularly elected heir apparent. In fact, on sixteen separate occasions, the office of vice-president sat vacant, in some cases for as little as fifty days and in others for as long as nearly four whole years. In seven of these cases, the sitting vice-president had died in office. In one, the sitting vice-president had resigned. And in a rather shocking eight cases, the sitting vice-president had acceded to the office of president. Now, granting that the absence of a vice-president on all of these occasions did not present very many practical problems – inasmuch as the vice-president has a relatively short list of constitutional responsibilities – it does serve, in retrospect, to highlight the rather distressing instability of the presidential line of succession. Because while the status of the vice-president as heir to the president is explicitly defined in the Constitution, Congress is solely responsible for determining who comes next.

    On three separate occasions, Congress has passed legislation for the purpose of determining which of the officers of the Government of the United States followed the vice-president in the presidential line of succession and in what specific order they fell. And taken together, these three acts of law would seem to make clear that the American political class has often disagreed – and often disagreed significantly – as to what constituted a proper safeguard in the event of sudden vacancies in the Executive Branch. The Presidential Succession Act of 1792, approved less than five years after the adoption of the Constitution, simply noted that the vice-president would be followed in the line of succession by the president pro tempore of the Senate and then the Speaker of the House. It also included a rather complicated set of directions for holding special elections for president and vice-president in the event of the sudden vacancy of both of those offices, but this is not so relevant to the discussion at hand. What matters is that, even despite the relative simplicity of the 1792 act’s solution to the problem of presidential succession, the process by which this solution was arrived at was positively fraught with controversy. The 2^nd Congress had pro-administration – i.e., proto-Federalist – majorities in both chambers, and it stood to reason that the supporters of a strong, centralized federal government wanted the presidency to devolve upon one of their own in the event of a catastrophe that left the country ostensibly leaderless.

    It was for this same reason that the potential inclusion of the Secretary of State in the order of succession was eventually shot down. It wasn’t that the office was an appointed one and therefore unfit to succeed to what was supposed to be the only elected office in the land with a nation-wide constituency. Rather, it was because the sitting Secretary of State was none other than Thomas Jefferson (1743-1826), leader of the nation’s anti-administration faction. And so, though it remained substantially unlikely that something would occur to remove enough people ahead of him to lead to his elevation to the office of president, the fact that the proto-federalists in Congress disliked Thomas Jefferson’s politics was in no small part the reason that the 1792 Act of Succession had no role in mind at all for one of the most powerful offices in the contemporary United States Government. The Chief Justice of the Supreme Court was also apparently considered for inclusion in the line of succession, though this idea was discarded for a somewhat more sensible reason. Specifically, the members of the 2^nd Congress found it too difficult to decide precisely what would become of the Chief Justice upon their elevation to the office of president. Would they resign their seat on the Court while serving as Acting President? And if they did, who would take their place on the Court? And if they didn’t, would this not constitute a violation of the separation of powers? Important as the office of Chief Justice was – being the head of one of the three branches of the Government of the United States – the logistics of potentially uniting that office with that of the president were simply too messy to contemplate.

    Compared to its immediate predecessor – which was shaped as much by theory and ideology as any practical considerations – the Presidential Succession Act of 1886 was a direct response to a series of specific events which, between them, showed up the inadequacies of established presidential succession law. The first occurred in September of 1881 upon the death – caused by a gunshot wound sustained two months earlier – of the aforementioned President James A. Garfield. As per the cited terms of Article II, Vice-President Chester A. Arthur immediately succeeded to the presidency, thereby ensuring that the executive branch was not left leaderless. But with Arthur taking his predecessor’s place in the White House, the office of Vice-President was subsequently left vacant at a time when, owing to the vicissitudes of contemporary legislative scheduling, there was neither a president pro tempore of the Senate or a speaker of the House of Representatives yet in place. What this meant, practically speaking, was that the sudden death of President Arthur – however likely or unlikely such an event might have been – would have left literally no one in charge of the Executive Branch. As mentioned previously, the Succession Act of 1792 did provide instructions for conducting a special election in the event of the double vacancy of the offices of president and vice-president. But in the meantime, it depended on there being either a speaker or a Senate pro tem to take up the reigns of the presidency. And while it was true that the House did elect a speaker soon enough after Garfield’s death – in the form of Ohio Republican J. Warren Keifer (1836-1932) – it nevertheless remained a cause for concern among interested parties that the United States had just come dangerously close to being thrust into a situation to which neither the law nor the Constitution seemed to offer any solution.

    This sense of concern was further magnified a scant four years later upon the sudden and unexpected death of Vice-President Thomas A. Hendricks (1819-1885). On its own, of course, Hendrick’s death did little to unsettle the basic power structure of the United States Government. President Cleveland remained in the White House and the Senate continued transacting its business notwithstanding the loss of its presiding officer. If something were then to have happened to Cleveland, however – a secret cancer surgery gone wrong, for example – this would have left the country in a more than usually undesirable position. Absent a vice-president, the sudden death or incapacity of Grover Cleveland would have theoretically led to the elevation of the president pro tem of the Senate or else to the elevation of the speaker of the House of Representatives. But as it happened, there was neither a pro tem nor a speaker in office in November of 1885. Congress was not scheduled to meet until December of that year, at which point the upper and lower houses would duly elect their presiding officers. And while this, indeed, is precisely what happened, there remained a period of several weeks during which the aforementioned President Cleveland was essentially working without a net.

    Was it particularly likely that something might have occurred to remove Cleveland from office during this specific period of time? Not particularly. That is, not as far as history records. But it would seem to bear remembering that the full details of Cleveland’s cancer surgery were not revealed to the American public until one of the doctors who was present published an article on the subject in 1917, twenty years after Cleveland left office in 1897 and almost a decade after his death in 1908. So clearly, then, Grover Cleveland was at least somewhat comfortable keeping secrets about his health from the American people. Secrets which, as far as he was concerned, would go with him to his grave. Bearing this in mind, it would not seem to constitute the most outrageous hypothetical to imagine President Cleveland holding some other important detail about his health closer to his vest than was altogether proper. And what if this particular detail concerned a life-threatening condition? And what if, instead of successfully treating said condition, Cleveland succumbed to it, suddenly, in late November of 1885? It would have amounted to a race, would it not? A race between the Senate and the House to see which of them could elect a presiding officer first. The Senate, at that time, had a Republican majority. And the House, at that time, had a Democratic majority. So the death of Cleveland, in effect, would have triggered a partisan battle for control of the presidency.

    And what if the members of the two chambers found themselves unable to come to a decision? This would have been unlikely in the House – the aforementioned Democratic majority was a fairly sizable one – but it could easily have happened in the Senate if a few Republican senators began to waver. And what then? If the Senate failed to elect a president pro tem in time, the House majority would have been able to effectively hand pick the next commander-in-chief. And while the Democrats in the lower chamber would doubtless have argued this was only fitting and proper – Cleveland having been a Democrat himself – the Republicans in the Senate would surely have cried foul by pointing to the terms of the aforementioned succession act. The pro tem came ahead of the speaker in the event of a double vacancy at the head of the executive branch. The House, therefore, might have been declared guilty by the Senate of having stolen the powers of the presidency in contravention to the law of the land. One can only imagine, with mounting horror, the crisis that would then have more than likely unfolded. It would have been a mess, in short; a horrible, deeply partisan mess. And one which could easily be avoided if the presidential line of succession was made just a little more…lengthy.

    This was seemingly the thought process behind the authorship and subsequent passage of the Presidential Succession Act of 1886. The same draft text had been put forward some three years prior by Massachusetts Senator George Frisbie Hoar (1826-1904), specifically in response to the aforementioned situation created by the death of President Garfield. With the United States having come alarmingly close to invoking the terms of the Succession Act of 1792, Hoar chose this moment to express his opinion that this self-same piece of legislation was fundamentally inadequate to the task it had been designed to perform. For one thing, he asserted, the holding of a special election in accordance with the terms of the act would more than likely throw off the established federal election cycle. If President Arthur had died in office sometime in 1883, for example – which was not beyond imagining; the man suffered from Bright’s disease and actually did die in 1886 – the terms of the 1792 act mandated the holding of an election as soon as two months after the declaration of the resulting double vacancy. Whoever then won the subsequent special election would have been sworn in to office in March of 1884 to serve a four-year term ending in 1888. The next presidential election – under the correspondingly altered schedule – would accordingly have occurred in November of 1887, the result being – from that point forward – an exceptionally crowded electoral calendar. Remember, Garfield had been elected in 1880, followed by mid-terms in 1882, the special election in 1883, more mid-terms in 1884 and 1886, another presidential election in 1887, and yet more mid-terms in 1888. Even for the United States – a country which, by global standards, is considered to be a bit election-mad – this would have been a bit too much democracy in too short a period of time. Indeed, as Senator Hoar put it, the likely result would have been little else but “confusion and trouble”.

    And then, of course, there were the various practical and philosophical implications of potentially placing the powers of the presidency in the hands of either the speaker of the House or the president pro tempore of the Senate. There are, it bears recalling, specific qualifications placed by the Constitution upon the office of President. Article II, Section 1 states that anyone who seeks to hold said office must be at least thirty-five years old, must be a “natural-born” citizen of the United States, and must have been a resident of the United States for at least fourteen years. No such limitations are placed upon the offices of speaker or pro tem. To be elected to the office of speaker – that is, to be elected to a seat in the House – one has to be at least twenty-five years old, have been a citizen of the United States for at least seven years, and reside – at time of election – in the state one seeks to represent. Likewise, in order to be elected to the office of Senate president pro tempore – that is, to be elected to a seat in the Senate – one has to be at least thirty years old, have been a citizen of the United States for at least nine years, and reside – at time of election – in the state one seeks to represent. So what, then, if a duly elected speaker or pro tem who did not meet the qualifications to serve as President was suddenly placed in the position of potentially acceding to the office of chief executive? Under the terms of the Succession Act of 1792, such a scenario would seem to have been quite far from impossible.

    Granted, there has never been a foreign-born speaker of the House in the history of the United States. Nor has there ever been a foreign-born pro tem. But both chambers have welcomed plenty of legislators into their ranks who had their origins on foreign shores. Albert Gallatin (1761-1849), for example, who served as American ambassador, Secretary of the Treasury, and as a Congressman from Pennsylvania, was born in Geneva in what is now the Swiss Confederation. Edward Dickinson Baker (1811-1861), close friend and confidante of Abraham Lincoln and variously a Congressman from Illinois and a Senator from Oregon, emigrated with his family to the United States from his birthplace in London at the age of five. Knute Nelson (1843-1923), who was born in Voss, Norway, served successively as a Congressmen from Minnesota, Governor of Minnesota, and finally as Senator from Minnesota, the latter position he occupied for the better part of thirty years. And the Prussian-born Carl Schurz (1829-1906), after serving first in the Union Army during the American Civil War and then as United States Minister to Spain and Senator from Missouri, spent four years in the Hayes cabinet as Secretary of the Interior. Now, in fairness, most of these men never came particularly close to being elected either to the speakership or as president pro tempore of the Senate. But Nelson’s tenure of twenty-eight years could easily have resulted in his elevation to the post of pro tem near the end of his Senate service in the early 1920s. And what then? What if, following the sudden and unexpected death of President Warren G. Harding (1865-1923), the newly ascended Calvin Coolidge (1872-1933) had stepped off the curb and got hit by a bus? Would Knute Nelson have become president? The Constitution would seem to explicitly forbid such a thing. And even if, to spare the Framers the embarrassment of having their work ignored, he was merely declared to be “acting president”, would it not all amount to the same proscribed outcome? A man who was not a “natural born” citizen would possess the powers of the office of president. Either that, or there would be no president at all.

    It’s all a question of “if”, of course. “If” this person was elected to a given legislative office, “if” that person died without warning. But such things can happen. Indeed, such things have happened. And it was surely with this kind of outcome – equally unexpected and undesirable – in mind that the aforementioned Senator Hoar resubmitted his revised presidential succession bill to Congress in the wanning months of 1885. In its substance and aims, the document in question represented both a broadening and a simplification of the previous succession procedure. Rather than rely upon the presiding officers of the national legislature to step into the breach in the event of a double vacancy at the head of the executive branch, Hoar’s bill instead sought to devolve presidential authority upon the various members of the cabinet, specifically organized in order of the establishment of their associated departments. The result, by modern standards, was not a particularly long list, but it was at least longer than that which was contemplated by the previous Succession Act. The Secretary of State came first, followed by the Secretary of the Treasury, the Secretary of War, the Attorney General, the Secretary of the Navy, and the Secretary of the Interior. In the event of the double vacancy of the offices of President and Vice-President, the next of these secretaries who had been duly confirmed by the Senate – thus excluding recess appointments – and who otherwise met the qualifications to become President themselves – thus excluding the likes of former Interior Secretary Schurz – would, “act as President until the disability of the President or Vice-President is removed or a President shall be elected.” Hoar’s bill also sought to dispense with the special election procedure included in the prior Succession Act, thereby cutting off the possible emergence of an excessively crowded election calendar.

    It was, by and large, a very sound proposal, or so the members of the 49^th Congress seemed to think. Hoar doubtless helped his case by making a crucial observation that seemed to point up the practicality of his plan. In the history of the United States since the passage of the Presidential Succession Act of 1792, no president pro tempore of the Senate and exactly one speaker of the House – that being James K. Polk (1795-1849) – had been elected to the office of President. By way of contrast, six secretaries of state had been elected President subsequent to their service in cabinet. Now, either this meant that the career track that tended to lead someone to a position of leadership in the legislative branch did not necessarily lend itself to successful elevation to the office of president, or it meant that the American people, when given the choice between sending former speakers and pro tems to the White House or sending former secretaries of state, chose the former by a substantially wide margin. Or, quite possibly, it meant both of these things. Maybe legislators were best suited to legislating, with which fact the American people happened to agree. And maybe there was simply no substitute for executive branch experience, for which reason the American people tended to reward former leaders of the State Department whenever they sought the office of president. In any case, there was an evident logic at work by which Hoar’s proposal sought to abide. That is to say, if – statistically speaking – the secretary of state was more likely to become president than either the pro tem or the speaker, why not simply make the secretary of state next in line to the presidency?

    In the end – and as aforementioned – the various members of the 49^th Congress responded warmly to this observation on the part of Senator Hoar. Or a majority of them did, at any rate. Both the Senate and the House debated Hoar’s proposal vigorously – understandable given the weighty nature of the bill in question – and both chambers ultimately determined to vote in the affirmative. On January 19^th, 1886, President Cleveland signed the updated Presidential Succession Act into law. And there it remained, the last word on presidential succession for the next six decades. Several times during this period, its provisions were in position to be invoked following the death of a president or vice-president. And it does bear noting that, if Republican nominee Wendell Wilkie (1892-1944) had won the Election of 1940, the act would almost certainly have been invoked in 1944 following the death of his running mate Charles McNary (1874-1944) in February and his own death in October. But no such sequence of events took place, of course. And in the final evaluation, all that the Presidential Succession Act of 1886 really did was establish – like its predecessor – a list of executive branch succession procedures that the American people found to be unacceptable. So it was that a scant two months after being sworn into office following the sudden death of Franklin D. Roosevelt (1882-1945), President Harry S. Truman (1884-1972) was able to suggest to Congress the bare bones of a proposal that would ultimately result in the passage of the Presidential Succession Act of 1947.

The Purpose and Powers of the Senate, Part LXXXVIII: “Too Precious, Too Fundamental”

            At this stage in the present discussion, there would seem to remain only two further questions worth answering. The first has to do with the legacy of the 24^th Amendment. Namely, what was the immediate practical result of the elimination of the poll tax at the federal level? The second concerns the wider theme that we have sought to address here. That being, was the 24^th Amendment fundamentally institutional or popular in character? As previously discussed, the circumstances that accompanied the passage of the 24^th Amendment through Congress in many ways gave evidence of the United States having just recently entered a transitional era in its cultural and political history. The landmark Brown v. Board of Education (1954) decision was less than a decade in the rearview, and while segregationist political leaders in the American South continued to offer stiff resistance to government-mandated efforts to achieve the full integration of American public schools as well as further civil rights reforms, their efforts at resistance were growing steadily less effective. Whereas, for the entire history of the United States between the middle 1870s and the late 1950s, Conservative Southern Senators had succeeded in using the filibuster to prevent the passage of any federal civil rights legislation, between 1957 and 1964, two civil rights bills were approved by Congress and two civil rights amendments were added to the Constitution. Conservative Southern Democrats attempted to thwart all of these measures, of course – and in the case of the Civil Rights Act of 1957, they mostly succeeded – but their successes were increasingly few and of limited scope. Why and how this came to be would seem a question worth exploring, and the 24^th Amendment would seem a useful lens through which to do so.

            As far as the immediate effects of the amendment in question are concerned, one ought naturally to turn their attention to the reactions of the five states wherein poll taxes – circa 1964 – remained the law of the land. Of these five – Alabama, Arkansas, Texas, Virginia, and Mississippi – only Arkansas sought to comply in anything like an enthusiastic manner. Its lawmakers opted to draft an amendment to the state constitution banning poll taxes at all levels, the final version of which was submitted to a referendum vote during the Election of 1964 and subsequently approved. Virginia, meanwhile, offered comparatively firm resistance by enacting a kind of contingency plan intended to achieve the same effect as a poll tax. Specifically, state lawmakers created a mechanism whereby, rather than paying a poll tax and presenting a receipt when attempting to vote, Virginia residents who wished to cast a ballot in federal elections could instead file for a certificate of residency within six months of the election in question and present said certificate to the relevant election officials. Naturally, the enactment of this procedure – which could serve no other purpose than to decrease the overall number of ballots cast in federal elections in Virginia – led to the filing of lawsuits, one of which – Harman v. Forssenius – was eventually appealed to the United States Supreme Court. The Court’s finding – handed down in April of 1965 – subsequently held that because the 24^th Amendment established a constitutional right – that is, the right to cast a ballot in federal elections without having to pay a poll tax – and because the Virginia statute in question placed a real obstacle in the path of those who would attempt to exercise this right – that is, the filing of paperwork within a rigid and specific timeframe – the relevant Virginia statute was necessarily null and void. As Chief Justice Earl Warren (1891-1974) noted accordingly, “For federal elections, the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed. Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twenty-fourth Amendment and must fall under its ban.”

            As for the four states that retained a poll tax requirement for participation in state elections, the matter was eventually settled by another Supreme Court ruling handed down the following year. In Harper v. Virginia State Board of Elections (1966), the Court found that – pursuant to claims made by Virginia resident Annie E. Harper – “A State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” Notably, this decision made no reference to the recently ratified 24^th Amendment, relying rather on the much older 14^th Amendment and its guarantee of protection against state attempt to “deny to any person within its jurisdiction the equal protection of the laws [.]” Likewise, Harper v. Virginia paid no heed to the Court’s own prior findings in Breedlove v. Suttles (1937). In that case, the Hughes Court unanimously declared that,

To make payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the Fourteenth Amendment. Privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate.

What was it, then, that made the Court depart from its own precedent when it did? A number of things, to be sure. The general character of the Court, for one thing, had become far more liberal in the intervening thirty years, particularly with the additions of William O. Douglas (1898-1980), William J. Brennan (1906-1997), and the aforementioned Chief Justice Warren. The Court also could not have failed to observe the trend that was then unfolding across various facets of American culture which increasingly favoured a general liberalization of customs and mores.

This isn’t to say that Warren and those who concurred with him felt the need to enforce some kind of abstract ideal of mainstream American morality lest the Court become subject to accusations of irrelevance. Rather, it is simply to point out the essential fact that the Warren Court existed within a particular socio-cultural context. Its members were not only observers of American culture, but active participants in the same. And so, not only were they liable to be moved by the same social currents that were increasingly driving many of their fellow Americans to embrace a more liberal vision of American citizenship than had been embraced by prior generations, but they were also apt to be conscious of what kind of decision that a majority of the American people would be liable to tolerate. And while the 24^th Amendment itself may not have factored directly into their decision, its recent ratification very likely influenced the Court’s finding. What better indication, after all, of the general feeling of the American people on the issue of the poll tax than a decision on the part of a sizeable majority of their directly elected representatives to abolish the same? Seeing this, Warren and his fellow justices would at the very least have had a strong indication of how their fellow citizens would react to having the validity of the poll tax upheld at the state level. That the logic deployed by Justice Douglas in his decision also mirrored many of the arguments raised during the Senate debate cited herein at length would likewise seem to indicate that the Court was on essentially the same page as the American people and their elected lawmakers.  

For example, Douglas echoed many of the 24^th Amendment’s supporters when he stated that the Equal Protection Clause of the 14^th Amendment demanded,

Substantially equal state legislative representation for all citizens […] whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen's vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.

Likewise, Douglas was as skeptical as many senators had shown themselves to be of any attempt to draw a comparison between the payment of a fee in order to vote and the payment of a fee in exchange for a license. “The interest of the State,” wrote Douglas,

When it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process […] To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor.

And in seeming response to those senators in opposition to the amendment who claimed that the payment of a poll tax demonstrated the kind of personal investment and interest in public policy that the United States supposedly required of its voters, Douglas repeated the same basic argument as had Spessard Holland and his various allies. Namely, that, “wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.” The Breedlove v. Suttles decision was thus overturned, and the poll tax was thus deemed unconstitutional at the state level as well as the federal level.

            As to what kind of amendment the 24^th was, according to our previously established rubric, the answer would seem to be fairly obvious. While there was certainly an institutional element to the subject that the 24^th Amendment sought to address – the nature of state authority over voter qualifications, the federal/state power dynamic, the definition of voting as either a right or a privilege, etc. – it would be difficult to deny the extent to which the success of the same was the direct result of mounting popular agitation in the contemporary United States for wholesale civil rights reform. The achievement of meaningful civil rights reform, of course, was not the intended goal of the amendment’s principal author. Notwithstanding his unwavering desire to eliminate payment of the poll tax as a condition of voting in the United States at the federal level, Florida Senator Spessard Holland, at the end of the day, was a conservative Southern Democrat who believed in the baseless principle of “separate but equal,” who strongly opposed the integration of public schools in the American South, and who would go on to oppose further civil rights reforms as enacted by Congress over the course of the 1960s. What Holland did intend, however, was nevertheless distinctly popular in its character. He may not have desired to promote racial equality at the polling place. But he did – in a very New Deal, 1930s, Southern populist sort of way – wish to advance a degree of economic equality on behalf of the South’s poorer residents.

What he wanted, he said himself, was to be of aid to those, “Oppressed by penury and poverty.” And the people of the five holdout states were certainly being oppressed. Not those with money in their pockets, of course. The wealthy, in any context, are hardly ever made the victims of state power. But the poor? Those without money to spare to pay for the privilege of casting a ballot? They were in the position of having a fundamental right stripped away. And this, Holland avowed, could not possibly be justified. “So far as I am concerned,” he said, “I think a citizen is entitled to vote for his President, his Vice President, his Senators, and his Representatives, regardless of what may be the law of the State with reference to local elections.” Taking its author at his word, the purpose of the 24^th Amendment would thus seem to have been specifically popular. And not just in the sense that its direct beneficiaries numbered in the millions. Yes, Holland was working directly on behalf of millions of American citizens whose right to vote had been curtailed by the existence of poll tax laws in the five aforementioned states. But he was also labouring in service of the many millions more who lived in the other forty-five states of the union and whose moral sensibilities could no longer stomach the thought of wealth being a determining factor in voter qualification. Many of these people lived in his home state of Florida, of course, the voters thereof having ratified Holland’s desire to eliminate the poll tax many times over since first sending him to the Senate in 1946. But many more lived in states that Holland did not represent.

They lived in Illinois, for example, home state of Senator Paul Douglas. Paul Douglas, who had long since established himself as a champion of civil rights. Paul Douglas, who ardently supported the Civil Rights Act of 1957 and who was the only senator to vote against confirming Southern segregationist James Eastland as chairman of the powerful Judiciary Committee. Paul Douglas, who famously declared, during the Senate debate over the 24^th Amendment, that what he and his allies really wanted was,

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.

If the people of the Prairie State wanted Paul Douglas to represent them – and the results of the senate elections of 1948, 1954, and 1960 would seem to make it clear that they did – then it would likewise seem fair to say that the people of the Prairie State wanted civil rights reform to be a national priority.

So too, it seemed, did the people of Texas, at least in part. In spite of being a Southern state, in spite of it still having a poll tax law on the books, and in spite of its representation in the Senate including the notoriously conservative Republican John Tower, Texas was the home state of Senator Ralph Yarborough, one of the most dedicated progressives that the Senate has ever seen. Tower, of course, voted against the amendment in question. And after all, it was he who sought to warn his fellow senators of the potential implications of the same by observing that while, “We may think that we could never have a totalitarian system in this country […] Mr. Hitler came to power in a free election. It could happen here.” But it was Yarborough – whom the people of Texas had also granted their faith – who memorably asserted that,

As man reaches for the stars in space, so must he reach for the stars on earth: for stars of fairness and justice and for the dignity of the individual. The time has come to drop the word "privilege," meaning some governmental granted boon, and to substitute the word "right," insofar as the franchise is concerned.

Clearly – based, if nothing else, on the fact that the people of the Lone Star State continued to elect this man to represent them until 1970 – some millions of Texans were also in favour of eliminating the poll tax. So must have been the New Yorkers who had elected Kenneth Keating and Jacob Javits. So must have been the Tennesseans who elected Estes Kefauver. Indeed, if the list of senators who voted to approve the 24^th Amendment is any indication, the vast majority of Americans in 1962 favoured the abolition of the poll tax regardless of the states’ rights issues that such a course of action potentially entailed.

            Indeed, the situation seemed to be precisely as Spessard Holland described it on the floor of the Senate on March 15^th. Notwithstanding, he had said, the rights of the five states in which poll taxes remained in force to establish and administer their own voter qualification laws,       

The other 45 States, which have considerable interest in the election of the President, the Vice President, and the Members of Congress, also have some rights, including the complete privilege and right, under the Constitution, to ask that this matter be submitted to the conscience of all 50 States [.]

There was, to be sure, something of a conflict at play, morally if not legally. The Constitution did grant to the states the right – albeit not the exclusive right – to determine how congressional and presidential elections were to be held within their confines and whom among their citizens were qualified to vote in the same. It therefore did seem to go against the spirit of the Constitution for a group of Senators to then attempt to use the power of Congress to force any state or any group of states to alter or abolish their voter qualification laws. It did not violate the letter of the Constitution, of course, that same document having granted to a supermajority of both houses of Congress and the legislatures of the states the right to make any alternations to the text of the Constitution that they collectively desired. And then again, in terms of the spirit of the thing, there was also Holland’s aforementioned argument. There could be no doubt that the individual states had a vested interest in determining which of their citizens – at least in terms of age and legal status – could legally cast a ballot. But it was also true that the American people as a whole had an equally vested interest in the outcomes of congressional and presidential elections.

            Consider, by way of illustration, the following scenario. An individual or group of individuals who intend to vote for the Republican candidate in the forthcoming presidential election in 1964 would most certainly have a vital political investment in the notion that every Republican vote in every state of the union will be properly recorded and tallied. What they want, after all, is for the Republican candidate to be elected. And the more Republican votes that are counted, the more likely said candidate is to ultimately emerge victorious. And now, notwithstanding the complex electoral calculus of how American presidential elections work in practice, let us simply imagine that the state of Texas is closely divided, in terms of the partisan loyalties of its inhabitants, between the Republican Party and the Democratic Party. Indeed, as of the early 60s, this would seem to have been precisely the case. And let us also imagine that Black Texans are both statistically poorer than white Texans – which they still are – and statistically more likely to vote Republican than Democratic – which they still were in the early 60s. And let us finally remember that, as of the early 60s, Texas only allowed those of its citizens to vote who had paid their allotted poll tax and could present a receipt to that effect at a polling place.

Now, if a presidential election was held under these specific circumstances, only the citizens of the State of Texas who had paid their poll tax would be permitted to cast a ballot. Which is to say, a proportionately smaller number of Black Texans would ultimately be able to vote. Which is also to say, a proportionately smaller number of ballots would be cast for the Republican candidate. Depending on the circumstances, of course, this might practically mean very little. If the Democratic candidate were to win in a landslide, the fact that a few thousand votes for the losing candidate were never cast would seem to be neither here nor there. But if the election was very close? If a few thousand ballots could mean the difference between either the Democratic candidate or the Republican candidate winning all of the Lone Star State’s Electoral College votes? And furthermore, if the substantial parcel of Electoral College votes awarded by the Lone Star State ended up deciding the presidential election as a whole? Well, suddenly the voter qualification laws in place in Texas would seem to be of great interest to Democrats and Republicans nationwide. More than that, even, it would seem to be something that directly affects their own ability to accurately express a given electoral preference. No one votes in a vacuum, after all. Knowledge of partisan support in regions other than one’s own – particularly in the context of a national election – can and does influence how one ultimately decides to cast one’s own ballot. And if one knew that their party’s support was being artificially depressed in certain localities by the action of certain laws? It would only seem natural and to seek some form of legislative remedy.

This, of course, is what Senator Holland claimed to desire. The rationalization, that is, of state voter qualification laws so as to ensure that all American citizens – regardless of where they lived or how much money they had in their pocket – could vote in presidential and congressional elections and so that no particular party was disadvantaged in terms of the ability of its supporters to vote. A simple objective, to be sure, but one far reaching in its implications. As discussed above, the difference of a few ballots here or there being cast or disallowed could conceivably mean the difference between one candidate or another winning all of a state’s electoral votes. And as American history has amply shown, the difference between winning or losing the electoral votes of a given state can sometimes mean the difference between being elected President or not. Bearing this in mind, would it not have been fair to say that electoral laws such as those that required the payment of poll taxes represented an unfair advantage in terms of the partisan support that they necessarily disallowed? Granted, poll tax laws were not applied in terms of the party affiliation of the individuals to be taxed. But if it could be proven that the majority of those who were denied the right to vote on the basis of being unable to pay their poll tax in Texas would have voted Republican, how is that not the concern of Republican voters living in New York, or Illinois, or Kentucky? Were it not for the electoral laws in place in Texas, their preferred candidate might be in a position to scoop up the Lone Star State’s Electoral College Votes. Why shouldn’t these same Republican voters – along with whomever else among their fellow citizens wished their nation’s elections to be conducted in a more equitable fashion – have made use of the power at their disposal to instruct or otherwise indicate to their representatives in Congress that an amendment to the Constitution was what the situation at hand called for?

They did, in fact, do just that. Whether by directly instructing their elected representatives – by writing letters, making phone calls, or making personal appeals at their constituency offices – or by simply continuing to vote for those whose stated positions reflected their own, the American people effectively created a situation whereby, circa 1962, supermajorities in both houses of Congress favoured the elimination of the poll tax at the federal level by way of amending the Constitution. This took time to arrange, of course. Spessard Holland began advocating for the elimination of poll taxes in the Senate in 1946. In July of the following year, he managed to get an amendment resolution passed in the House, only for the resulting measure to then be filibustered in the Senate. When one peruses the membership rolls of the 80^th Congress, this ends up coming as little surprise. Present and accounted for in the summer of 1947 were John Sparkman, J. Lister Hill, J. William Fullbright, Richard Russell, Allen J. Ellender, and James Eastland, all of whom would speak out against Holland’s ultimately successful attempt to secure the same objective in the spring of 1962. And serving along with them were such like-minded segregationists as Mississippi’s Theodore G. Bilbo – who once wrote a book advocating for the deportation of Black Americans to Liberia as the ultimate expression of “separate but equal” – Texans Tom. T. Connally and W. Lee “Pappy” O’Daniel – the latter of whom would go on to assert that the Brown v. Board of Education decision was part of a Communist conspiracy – and the otherwise respected internationalist, Georgia’s Walter F. George. By combining their efforts, these men would have had little trouble defeating this early effort on the part of Senator Holland. But in doing so, they doubtless also stoked the interest of those citizens and their representatives who did not live in poll tax states.

Consider, by way of confirmation, Holland’s next attempt in 1949. In July of that year, the Floridian once again managed to secure enough support in the House to gain passage for his anti-poll tax resolution by a commanding margin. But rather than attempt another filibuster – which they surely would have done if they knew the numbers were on their side – his opponents in the Senate this time made sure that the proposal never emerged from the Committee on Rules and Administration, the membership of which included the aforementioned John C. Stennis, Louisianan Russell B. Long, and North Carolina’s Willis Smith. Bottling proposals up in committee, of course, was and is the favoured tactic of legislators who find that they have no means of defeating them otherwise. It was what Senator Eastland had done to Holland’s proposed amendment for some time, forcing the latter to concoct the “bait-and-switch” maneuver that ultimately took place in 1962. And it was almost certainly what had happened in 1949. Why? Because Holland had already managed to frighten his opponents into believing that the poll tax was under threat. Within just three years of entering the Senate, he had managed to secure passage through the House of two separate anti-poll-tax proposals. The first had taken a filibuster in order to defeat. And evidently, a second filibuster was not considered a worthwhile risk. Public opposition to the poll tax was on the rise.

It would seem to be something of an open question as to whether or not Holland’s efforts were directly responsible for this ongoing shift in public opinion. To be sure, the man spent no small amount of time agitating among his fellow legislators for their support in his anti-poll-tax crusade. And it seems likely that he managed to convince at least one or two of them over the course of fourteen years. But without the support of the American public at large – and specifically the support of the populations of certain states – Holland’s desired reform would surely have proven to be functionally impossible to achieve. The question remains, then: to what extent did Spessard Holland himself make the elimination of the poll tax by constitutional amendment a reality? Consider this. Between the time that State Senator Holland helped engineer the repeal of Florida’s poll tax in 1937 and the first appearance of United States Senator Holland in the hallowed halls of Congress nine years later, a single state opted to nullify its own poll tax law – that being Georgia in 1945. And following the beginning of Holland’s Senate tenure in 1947 and the successful approval of the 24^th Amendment by Congress, a further three states – Connecticut (1947), South Carolina (1951), and Tennessee (1953) – had followed suit. Was this solely the result of Holland’s long-suffering labours? Most assuredly not. But it certainly could not have hurt – and very likely did a fair bit to help – that throughout these years, as campaigners on the ground worked tirelessly to change a blatantly discriminatory status quo, there remained a lone senator in Washington patiently hammering away at the same objective. It could not but have given people a sense that they were not alone. And it very likely convinced more than a few senators that their own views on the poll tax warranted airing.

In any case, it was the American people collectively deciding that they were finished with poll taxes that ultimately doomed them to the dustbin of history by way of the 24^th Amendment. The efforts of Spessard Holland in the United States Senate may have influenced or encouraged campaigners in South Carolina and Tennessee, but it was the people of those states and the legislators that they elected who finally brought about the repeal of local poll tax laws in the early 1950s. And just so, while Senator Holland did a great deal to keep the dream of a poll-tax ban alive at the federal level – through much patient prodding, cajoling, and encouraging – it was the American people who elected the majority that in due course voted to abolish the poll tax. And it was the populations of the various states who elected the majorities that ultimately voted to ratify the 24^th Amendment. Granted, all amendments must enjoy an overwhelming majority of support in order to proceed from the proposal stage to formal ratification. But in the increasingly fraught socio-political atmosphere of the early 1960s, it is especially noteworthy that an overwhelming majority of the American people – as represented in Congress and in the legislatures of the states – opted at this time to approve of a pro-civil rights amendment to the United States Constitution. They were not being asked to endorse the modification of one of the various institutions of the United States Government – to alter the jurisdiction of the federal courts, say, or grant the federal government access to a larger tax base. Rather, they were being given the chance to decide whether or not to extend the right to vote – one of the most fundamental rights of citizenship – to those of their fellow citizens who, because they lived in certain states and were financially disadvantaged, were otherwise prohibited from taking part in the democratic process. Indeed, they were essentially being asked to help redefine who was and wasn’t a full citizen. And the fact that they overwhelmingly decided to expand the franchise rather than maintain the narrow, discriminatory definition that had been articulated in the various Southern states at the turn of the 20^th century would seem to both speak to the popular appeal of the subject at that moment in time and foreshadow the other similar reforms which were to follow over the course of the 1960s.

The Purpose and Powers of the Senate, Part LXXXVII: “A Perfectly Ridiculous Situation”

            Though the tabling of the Javits Amendment on March 27^th, 1962, seemingly cleared away the last major obstacle to the final approval of what would become the 24^th Amendment by the Senate, it turned out that there was still one more senator who had something to add. One more legislator, that is, who had watched Spessard Holland and his supporters laboriously drag their anti-poll-tax proposal nearly across the finish line and still somehow came to the conclusion that this was the perfect moment to throw his own pet project into the mix. That senator’s name was Prescott Bush (1895-1972). And while the proposal he introduced was, on its own merits, eminently worthwhile, the man’s timing could not have been worse. At the very least – by his own admission – he was in favour of Holland’s amendment, and fully intended to vote for it when the opportunity to do so finally arose. But he was also interested in adding his own favoured reform to the resolution then under discussion. Specifically, he wished to propose another constitutional amendment, the effect of which would have been to grant the District of Columbia representation in Congress on the same terms as though it were a state. Evidently, Bush had submitted a similar amendment proposal to the Judiciary Committee in 1961, had met with a distinct lack of action, and wished to pursue the same remedy as Senator Holland. But while, from the perspective of Senator Bush and doubtless many of his fellow reformers, there seemed to be a natural affinity between their cause and Senator Holland’s – they both supported expanding access to the franchise, after all – Senator Holland himself was not so sanguine.  

            Granting representation in Congress to the District of Columbia, Holland asserted, was far too radical an action to take without first a great deal of very careful consideration. Functionally, it would be the same thing as admitting a new state, with the attendant additions to the membership of the House and the Senate. And without knowing what these additions would do to the balance of power in Congress – or perhaps knowing exactly what they would do and wishing to avoid just that – Holland found that he was unable to offer the same unalloyed support that Bush had extended to his own constitutional proposal. Bush was, unsurprisingly, nonplussed by this response. “Frankly,” he said,

I do not see any reason why the citizens of the District of Columbia should be deprived of representation in the Congress merely because it is a district and not a State. There are more than three-fourths of a million citizens in this city. They now can vote for President and Vice President of the United States, thanks to the action of the Congress, but they lack any way of expressing themselves in the halls of the Congress. It seems to me that is a perfectly ridiculous situation.

It was at this point that Spessard Holland made something of a shift in his tone. Previously, when it was his reform proposal under discussion, he had maintained an attitude of patient determination as one after another of his Southern colleagues denounced his stated goals and called into question his intentions. But now that it was a Northern Republican offering to expand access to the franchise – and now that, incidentally, the beneficiaries of this expansion were more likely to be black than white – his perspective, as expressed, became far more traditionally patronizing.

            It bears recalling, at this point, just who Spessard Holland was. A reformer, to be sure, in the style of the New Deal. And a populist of a sort, eager to render aid to the economically disadvantaged. But also, decidedly, a Southern Democrat in the conventional sense. While his efforts to eliminate the poll tax at both the state and national levels were bound to render aid to some number of Black Americans, he must also have known that enough extra-legal obstacles would have remained in place – not the least of which being the threat of violence – so as to prevent the Black community from gaining any significant advantage as a result. Indeed, he more than likely counted on this being the case. With this essential fact in mind – that, in spite of his determination to see this one species of electoral reform achieved, the man was hardly what one might call a liberal – Holland’s response to Senator Bush’s proposal would not seem to be all that surprising. “The Commonwealth of Puerto Rico [,]” he went on to say,

Has more than 2 million citizens and does not have representatives in the House or in the Senate. In addition, I invite the Senator's attention to the fact that recently we extended the voting privilege to the District of Columbia. The Senator from Florida was one who voted for that measure. The States have approved the amendment. The citizens of the District of Columbia, like citizens anywhere else, now can vote for President and Vice President of the United States. I suggest that first there should be a little trial run, to see how the citizens of the District of Columbia, after such a long term of nonparticipation, show their attitude toward the National Government.

There are a few things about Holland’s reasoning here that would seem to warrant analysis. It was true, of course, that the Commonwealth of Puerto Rico – circa 1962 – was far more populous than the District of Columbia. It was also true that, in spite of this fact – that Puerto Rico was larger, in terms of population, than several states – said territory did not possess voting representation in Congress. But rather than take this as a reason to support equal representation in Congress for Puerto Rico ahead of D.C. – the democratic deficit being far more severe in the former than in the latter – Holland seemed to think that neither territory deserved to have their status changed.

Did this have anything to do with the fact that the vast majority of Puerto Rico’s population would not have fit the mainstream American definition of “white?” Very likely. This was definitely why he didn’t support granting representation in Congress to D.C., the only major city in the United States at that time with a non-white majority. It was also almost certainly why he spoke so condescendingly of the voting rights that had just recently been extended to the residents of that district. They had just been extended – by way of the 23^rd Amendment – the right to cast ballots in elections for President and Vice-President. Wasn’t that enough, Holland asked, at least for the time being? “I suggest [,]” he said, “that first there should be a little trial run, to see how the citizens of the District of Columbia, after such a long term of nonparticipation, show their attitude toward the National Government.” One wonders why the senior senator from Florida felt that the “attitude” of the people of D.C. was in any way significant. Did the people of Alaska have to “show their attitude” towards the federal government before they were granted the right to send senators and representatives to Congress? Of course not. Once Alaska was granted statehood in 1959, it was automatically entitled to representation in Congress. The District of Columbia had been a part of the United States – and its inhabitants had been citizens thereof – for over sixty years longer than Alaska had even been a US territory. So why was it that Holland felt they needed to prove themselves in order to be extended representation in Congress? And what, precisely, did he feel they needed to prove? Their patriotism? Their intelligence? What do either of these things have to do with casting a ballot?

Clearly, in spite of his apparent dedication to certain aspects of electoral reform, Spessard Holland was, in many ways, typical of most conservative Southern Democrats. That is, while he did seem to favour extending the electoral franchise to larger swaths of the Southern white community than had previously been the case – and in this sense seemed to agree at least partially with Paul Douglas that the Southern white working class were deserving of a greater say in public affairs – he nevertheless maintained that certain kinds of people were simply not suited to self-government. Puerto Ricans, for example, or the majority Black inhabitants of the District of Columbia. These people, rather than have the franchise that was theirs by right restored to them, needed to show their “attitude” towards the federal government before their future inclusion in the national political process could even be considered. Granted, in certain parts of the United States in 1962, there existed Black people and Hispanic people who voted in elections at all levels of government without fear of molestation. There were even a number of non-white congressmen and at least one non-white senator then serving. And Holland would likely not have argued that this was for the worse. But practically nowhere in the contemporary United States where there existed a majority non-white population was that population permitted to freely exercise its democratic rights. And the fact that Spessard Holland – in spite of his apparent dedication to tearing down the poll tax – seemed to want it to stay that way once more drives home both how strange his participation in the anti-poll-tax crusade really was as well as the extent to which “reform,” within a political context, can often be a complex and often contradictory concept.

Holland was not alone among his fellow senators, of course, in expressing somewhat inconsistent feelings towards electoral reform and the expansion of the franchise. Estes Kefauver, for example, who was then serving as the Chairman of the Senate Subcommittee on the Constitution, argued that while DC ought to have some manner of representation in Congress, “perhaps it ought to be first in the House of Representatives, during a trial period, rather than the U.S. Senate initially.” And Ohio Senator Stephen M. Young (1889-1984) gave voice to the same tired old chestnut about D.C. not having a voice in Congress because it “belonged to the nation.” Which was true enough, in a metaphorical sense. Washington was – and remains – the nation’s capital, and ought to do everything possible to make itself welcome to elected officials, their families, and visitors from across the country. That being said, “the nation” doesn’t live in Washington on anything like a permanent basis. Public servants come and go, but the people who drive the buses, and wait the tables, and stock the shelves, and teach the children in the District are the ones who pay most of the taxes and have no other place to call home. It would accordingly seem to make sense that they should have some say in how they are governed. But this, for whatever reason, seemed not to be a particularly convincing argument in 1962. While Senator Holland’s proposed amendment had more than enough support to pass constitutional muster, Senator Bush’s decidedly did not. And while Bush certainly could have taken steps to force the issue if he so desired – provided he could attract enough support to stage a filibuster of his own – he was fairly quickly talked into dropping his proposal by the aforementioned Senator Kefauver. In his capacity as chair of the Senate committee responsible for reviewing potential amendments to the Constitution, the Tennessean assured Senator Bush that his proposal would be granted a hearing as soon as was feasible. In response, Senator Bush then withdrew said proposal and Senator Holland’s amendment was summarily agreed to and read a third time.

At this stage in the debate – with Holland’s proposal on the cusp of being formally approved by the Senate – a final, rather curious exchange took place between one of its detractors and one of its supporters. The detractor, unsurprisingly, was Georgia Senator Richard Russell, who had been attempting to hold up the progress of Holland’s reform initiative for over two weeks. The supporter, however, was not Holland himself. The senior senator from Florida having seemingly lapsed back into his customary pose of quiet resolution, the role of advocate was instead taken up by none other than Minority Leader Everett Dirksen (1896-1969). Now, the Illinoisan, for his part, did not seem to want to start anything. All that he did, at this noteworthy moment in the life of a proposed amendment, was summarize its recent history for the benefit of the Congressional Record. But whether he intended to or not, the Republican ended up striking a nerve. Richard Russell, seething with resentment, requested and received the floor. Then he proceeded to marvel at the damage he perceived had just been done to the rules and procedures of the Senate. “Evidently,” he began, in reference to Dirksen and his aforementioned postmortem,

His conscience was hurting him somewhat about having the rules of the Senate ravished in the manner in which they were ravished by the Senate. He therefore felt he must seek consolation, by some kind of confessional route, by getting the approval of the Parliamentarian of the Senate. Mr. President, we have seen a great many remarkable things transpire in the Senate. Yet this is the first time in 173 years that the Senate has found it necessary to use the method it has used, which at best is a stretching of the rules of the Senate to an extreme to which they have never before been stretched in 173 years.

Russel then went on to express the hope that his colleagues would take stock of their actions and remain sensitive of the fact that, though they had accomplished their collective aim, they’d had to bend or even break the rules of the Senate to do it.

            Senator Dirksen’s response was characteristically florid (and perhaps more than a little smug). The Illinoisan was apparently,

Deeply distressed by the infelicity and pain that I have caused my distinguished friend and brother in the faith […] I believe that today we see righteousness triumphant, and the doing of a job that should have been done a long time ago. I know it brings pain. It is not unlike the labor that produces a new child in the world. Perhaps if this process is finally consummated, both in the House and in the Senate, the new child in the form of a world without a poll tax will have been born. Obviously that will be of some importance. So I am sure, Mr. President, that I have violated no rule. I am sure that my summation of the situation has been quite circumspect. I am equally sure that I detected some confusion earlier in the afternoon. I hope that now the votes will be correct, and that we can send this proposal off to the other branch of the Congress and wish it well. So I apologize if I have offended my affectionate friend.

Evidently still smarting, Russell answered by assuring the Minority Leader,

That I was not offended. I was shocked, astonished, and surprised, but I felt no offense. I have been around the Senate too long to take any offense whatever at any position which any other Senator takes. I hope the other 99 Members of this body will be as kind to me in not being offended at any position I may take.

Russell, it bears noting, was not known among his fellow senators as a stickler for parliamentary procedure. Indeed, if he was famous for anything at all, it was more than likely his early-career support for the New Deal and his subsequent dedication to fighting poverty, particularly in the rural South. It was significant, therefore, that his lingering objection to Senator Holland’s anti-poll-tax amendment seemed to be parliamentary in nature. And it was equally significant that Dirksen seemed to pay this fact no heed.

            Richard Brevard Russell, it may be said with some certainty, was an ardent white supremacist. Granted, he was not a fire-breathing race-baiter in the mold of James Eastland or John C. Stennis, but his views on segregation and racial equality were well established by the spring of 1962. In the late 1940s, for example, when President Truman declared his support for Black civil rights – epitomized by his decision to desegregate the United States Armed Forces in 1948 – Russell responded by publicly declaring that Truman’s actions represented an “uncalled-for attack on our Southern civilization.” And a dozen years later, upon the unveiling of the Democratic Party’s official platform for the Election of 1960, Russell avowed that the document represented a “complete surrender to the NAACP and the other extreme radicals at Los Angeles.” He tended not to go much further than this, however, in terms of the manner in which he expressed his displeasure at the shifting focus of the Democratic Party over the course of his career in Congress. He was a man very concerned with appearances, it might be said. The crudeness of a James Eastland did not appeal to his sensibilities. Rather, he preferred to maintain a façade of gentility; to be the “reasonable” segregationist Southerner that Northerners were at least willing to deal with. And his final word on Senator Holland’s anti-poll-tax amendment would seem to be a case-in-point. His primary objection to dispensing with the poll tax at the level of federal elections was undoubtably racially motivated. To put it simply, Russell would have preferred it if fewer Black people could freely vote. But that was not the substance of his attack on the proposed amendment. The issue, as far as he would admit, was not that certain people were unfit to vote. Rather, it was that the specific method by which Holland had chosen to pursue a widening of the electoral franchise was fundamentally invalid. It was not the message that bothered Russell, that is to say, but the medium.

            This, again, was patently false. If Richard Russell ever showed any particular interest in Senate rules or procedures, it was because those rules and procedures actively worked to his benefit. The filibuster was the embodiment of this kind of fair-weather attitude. So long as the supermajority threshold for cloture remained in place – and as long as he and his fellow Southerners were the ones doing the filibustering – Russell could be counted on to defend the rules and procedures surrounding the filibuster as being essential to the continued integrity of the upper chamber of Congress. But the moment that he and his colleagues found themselves on the receiving end of a filibuster, Russell could likewise be counted on to rail against the evils of undemocratic minority control. Just so, in the event that Russell found himself eagerly pursuing the passage of a piece of legislation particularly dear to his heart – something to do with alleviating rural poverty, perhaps – one can be sure that he would use every method at his disposal to secure its final passage, traditions and precedents of the Senate be damned. If the result mattered to him very deeply, in short, and as long as he wasn’t in danger of literally violating the Constitution, one can be sure that Richard Russell would act in the same way that Spessard Holland had done. His lamentation at the violence which he perceived had been done to the integrity of the Senate could therefore be fairly described as hypocritical at best. History had shown – in the form of repeated successful filibuster attempts by Russell, his Southern colleagues, and their forebears – that declarations of support for existing rules and regulations in the Senate were often simply a mask behind which segregationists and white supremacists sought to uphold an oppressive power structure from which they benefitted directly.

            Everett McKinley Dirksen knew this very well, of course. He had been serving in the Senate since 1951, and before that, he’d served in the House beginning in 1933. So he knew when a fellow legislator was saying one thing while meaning another. And he responded to Russell’s lamentation with the appropriate degree of ironic indulgence. He was, he said, “deeply distressed by the infelicity and pain that I have caused my distinguished friend and brother in the faith.” He believed that, “today we see righteousness triumphant, and the doing of a job that should have been done a long time ago.” And while he knew that such a thing, “brings pain,” he was also of the opinion that, “if this process is finally consummated, both in the House and in the Senate, [a] new child in the form of a world without a poll tax will have been born.” One can be sure that Dirksen was being fundamentally sincere, of course. There is no reason to doubt that he truly believed the creation of “a world without a poll tax” was worth a degree of pain and inconvenience in the meantime. But he was also, most certainly, laying things on a little thick.

That was his way, to be sure. Dirksen had a rich baritone voice, a sing-song cadence, and an expansive vocabulary, and did seem to love holding forth upon whatever subject he could get his hands on. He also seemed to take an understated sort of pleasure in undermining the efforts of those of his colleagues who would deny the basic equality of every member of the human race. He'd supported the Civil Rights Acts of 1957 and 1960, would go on to support the Civil Rights Act of 1964, and was not afraid to use his position as Senate Minority Leader – an office he occupied continuously from 1959 until his death a decade later – to rally support for legislation intended to expand access to the franchise or make unlawful various kinds of legal discrimination. Indeed, it would be fair to say that he found himself in opposition to the efforts of Richard Russell and his fellow Southern Democrats more often than not. But Dirksen was also, regardless of personal or political differences of opinion, a man who took the Senate tradition of collegiality very seriously. Hence, in this instance, his gentle and heartfelt tone. Russell was not an enemy, a fool, or a windbag – he was Dirksen’s, “distinguished friend and brother in the faith.” Dirksen did not relish the discomfort which he and his allies had caused the chamber’s contingent of Southern segregationists, but rather apologized and attempted to justify the need for such an outcome. And ultimately, he concluded by apologizing to his “affectionate friend,” even offering him an invitation to his home in D.C. Was this all rather overdoing it? Had Dirksen arguably crossed the line from consoling to needling? Quite possibly. Indeed, quite probably. But no one could say that the man wasn’t unfailingly courteous in his speech and form of address. Likewise, there could be no denying that he played the game of parliamentary politics beautifully. He was a skilled strategist, a talented orator, a thoughtful legislator, and a compassionate human being. And as the 1960s wore on and Congress considered yet more legislation intended to promote and protect the civil rights of otherwise disadvantaged Americans, the Senate would come to see fewer and fewer of his like.

In any case, as Dirksen concluded his exchange with Richard Russell, Spessard Holland moved to close the book on his proposed constitutional amendment. Specifically, he asked that the yeas and nays be called so as to determine whether his amendment would be passed or rejected. Having been called, the yeas and nays were then accordingly counted. Holland’s anti-poll-tax amendment was approved by a margin of 77-16. The breakdown of votes was telling, if also predictable. Almost all of the senators who voted in the negative were Southern Democrats. The exceptions were John Hickey (1911-1970), a Wyoming Democrat, and John Tower (1925-1991), a Texas Republican. Among the supporters, meanwhile, could be found the vast majority of the chamber’s Republicans, two-thirds of its Democrats, and a few notable standouts. Arizona Republican Barry Goldwater (1909-1998), well known for his dedication to the principles of small government conservatism, voted in favour. This, in spite of the fact that he had previously declared himself opposed to federal government efforts to force the racial integration of Southern schools on the grounds that education was strictly a matter of state concern. Likewise, one might be surprised to discover West Virginia Democrat Robert Byrd (1917-2010) among those who voted in the affirmative. Notwithstanding his youthful membership in the KKK – an act he later described as “the greatest mistake I ever made” – Byrd was an avid supporter of states’ rights who voted against the Civil Rights Act of 1957 and who would go on to participate – for no less than fourteen hours – in the filibuster against the Civil Rights Act of 1964. In this instance, however – perhaps in a presage of his late-career liberal turn – Byrd chose to support a measure that would necessitate federal intervention in the laws and practices of the states.

The total itself was also rather telling. As presented to the Senate some two weeks earlier, Holland’s amendment proposal had a little over sixty cosponsors. That is to say, over sixty senators declared their support for Holland’s initiative before any debate on the matter had occurred. This was more than enough to secure cloture, if need be, and would arguably seem to account for Holland and his allies’ rather indulgent approach when it came to their opposition. As there was seemingly no reason to believe that the measure could successfully be filibustered by its detractors, Senator Holland and Majority Leader Mansfield appeared content to allow the upper chamber’s Southern segregationists to speak their piece without interruption. And while it was certainly possible – perhaps even likely – that some of the Floridian’s cosponsors might have been swayed by one or another of the arguments deployed by the aforementioned Southern segregationists – be they philosophical or parliamentary in nature – the degree of support that Holland had managed to accrue ensured that a few defections here and there would make little difference to the end result. What ultimately ended up happening, of course, was that Holland’s proposal actually gained support over the course of the debate. Whereas, at last count, the anti-poll-tax amendment proposal had the declared support of a bipartisan group of sixty-seven senators, it was finally approved by the Senate by a similarly bipartisan group of seventy-seven senators.

Whether or not one can fairly call this a portent of things to come, it was arguably a sign of the wanning power of the segregationist South. Whereas, between the end of Reconstruction and the middle of the 1950s, Southern Democrats had been able to use their influence in Congress – chiefly by way of the filibuster – to prevent the passage of a whole host of civil rights and anti-lynching bills, the years that followed the announcement of the Brown v. Board decision in 1954 had shown a slow but persistent erosion of this self-same bloc’s political agency. Granted, they had managed to ensure that the Civil Rights Act of 1957 contained a number of loopholes intended to allow segregationists to continue to deny Black Americans the exercise of certain fundamental rights. But they had failed to prevent the passage of the Civil Rights Act of 1960, the explicit purpose of which was to close these loopholes and ensure the continued integration of American public schools. And they had also failed to prevent the approval and ratification of the 23^rd Amendment, the direct result of which was the partial political empowerment of Washington D.C, the only major city in the whole of the contemporary United States with a majority Black population. The passage of Holland’s anti-poll-tax amendment was very much in keeping with this trend.

Indeed, the success of said measure arguably demonstrated that the power of the Senate’s traditional Southern bloc was in the process of weakening further still. The 23^rd Amendment had been approved by the Senate in 1961 by an impressive vote of 70-18. But a scant year later – and in relation to a subject much closer to the hearts of the chamber’s segregationist cohort – the soon-to-be 24^th Amendment was approved by an even more commanding margin of 77-16. In spite of the dedication of the Southern bloc to the principles of states’ rights, the lengthy orations delivered by the likes of Richard Russell, J. Lister Hill, and James Eastland, and a threatened parliamentary point of order that might have derailed the whole project, the amendment proposed by Spessard Holland for the purpose of eliminating poll taxes at the national level actively gained support over the course of its opponents’ attempt to smother it in its crib. And while it was true that this would soon enough become something of a new normal in regard to civil rights legislation in Congress, it was, at the time, a fairly noteworthy turn of events. In the meantime, of course, there were still the House to contend with, and the states after that. The lower chamber, for its part, took quite a lot longer to come to a decision, with a final vote (295–86) not arriving until late in the summer of 1962. And the states took longer still, with the first ratification – that of Illinois – occurring only in November of that same year.            

Indeed, the ratification process of the 24^th Amendment was a rather drawn-out affair, stretching over the entire length of 1963 and bleeding into 1964. That said, the pace was a fairly steady one, with at least one state producing a ratification in every month between January and June. February and March were the most productive, with twelve and thirteen ratifications, while January, May, and June were the least, with only two each. As was the case with the previous two amendments, ratifications dried up completely in the summer, only to resume once more in January of 1964. The 38^th and final state – whose affirmative vote would secure the inclusion of the 24^th Amendment in the text of the Constitution – turned out to be South Dakota, whose state legislature rendered its decision on January 23^rd. Of the resulting cohort of thirty-eight states, only six could safely be considered as belonging to the “South.” Of these, five – West Virginia, Maryland, Kentucky, Tennessee, and Missouri – were located in the Upper South and were politically and culturally somewhat distant from their Deep South brethren. Take the contemporary Senate representation as a case in point. While the people of West Virginia had elected the aforementioned Robert Byrd to the Senate only a few years earlier in 1959, they’d also chosen noted progressive Jennings Randolph (1902-1998) for the same office a year prior in 1958. Maryland and Kentucky, meanwhile, were both represented solely by Republicans in the Senate. Tennessee was represented by Albert Gore Sr. and Estes Kefauver, both liberal reformers, and the people of Missouri had just recently elected Edward V. Long (1908-1972), noted ally of pro-civil-rights Governor James T. Blair (1902-1962), and Stuart Symington (1901-1988), a Massachusetts-born, Yale-educated bureaucrat who had famously and publicly opposed the red-baiting tactics of Wisconsin Republican Joseph McCarthy (1908-1957) in the middle of the previous decade. Bearing all of this in mind – the relatively liberal leanings, that is to say, of the aforementioned states – these five were inarguably the most likely states among the larger Southern cohort to vote in favour of ratifying an anti-poll-tax amendment.

The most likely, of course, besides Spessard Holland’s native Florida. Granted, it would certainly have been possible for the legislature of Holland’s home state to reject his coveted anti-poll-tax amendment. Florida remained a stronghold of the Democratic Party’s conservative, segregationist wing. And doubtless many of the Sunshine State’s elected lawmakers were as suspicious of federal authority as Holland was apt to be himself. But Holland had also been pursuing a federal ban on the poll tax for fourteen years as of 1962. And if the people of Florida had had a problem with this – if they disagreed with his stated objective of eliminating the poll tax at the federal level – they could have voted him out of office in 1952 or 1958. The fact that they chose not to do this would seem to indicate that they substantially endorsed his position and were prepared to ratify any draft amendment that Congress might send their way. In the end, of course, Florida was not the first state to vote in favour of the 24^th Amendment. That honour, as aforementioned, went to Illinois. Nor was it even among the first dozen. But in April of 1963, Florida did add its name to the list of ratifying states, making it the only former Confederate state besides Tennessee to do so.

            The rest of the South naturally declined to offer any help. Georgia almost did, it bears mentioning, it’s senate voting to ratify at some point in January of 1964. Evidently, certain elements within the Peach State’s dominant political class, having concluded that the amendment in question would be ratified with or without their participation, decided there was some benefit to be had from Georgia clinching the process. The Georgia House of Representatives, unfortunately, declined to take any action. As did the state assemblies of Virginia, North Carolina, Alabama, Texas, Arkansas, Louisiana, and South Carolina. Mississippi’s state legislature did decide to take action, though it was to officially reject the amendment rather than ratify it. And while one might be inclined to conclude that this was done out of nothing more than spite, even a cursory evaluation of the timing would indicate otherwise. Mississippi’s vote to reject came in late December of 1962, at which time only two states had yet signaled their approval. It would accordingly seem fair to say that Mississippi state lawmakers at least believed there was a chance that the amendment would not ultimately be ratified. And indeed, if the aforementioned five Upper South states had aligned with their Deep South brethren in declining to offer their approval, the three remaining states whose legislatures chose not to act – Oklahoma, Arizona, and Wyoming – would not have been able to make up the difference between them. In reality, of course, this is not what occurred. The five Upper South states voted to ratify, Mississippi’s negative vote was entirely in vain, and Spessard Holland’s anti-poll-tax proposal – over fourteen years in the making – officially became the 24^th Amendment to the United States Constitution on January 23^rd, 1964.