When, on March 27th, 1962, the Senate finally arrived at a formal consideration of Spessard Holland’s anti-poll-tax amendment after enduring two weeks of pseudo-filibuster by a gang of Holland’s fellow Southern Democrats, the senior senator from Florida had more than a few things to get off his chest. For two weeks he had patiently borne the incessant prattle of men who would normally have counted him as an ally, listening calmly and cooly as they insisted without proof that his efforts were all in vain, that his methods were out of order, and that the problem he was trying to solve wasn’t really a problem at all. On occasion, he would interject – mostly to provide the same increasingly wearied clarification of fact – but for the most part, he allowed his opponents to talk to their heart’s content. By March 27th, however, Holland was through with listening. He had permitted his fellow Southerners to pour out their resentment at his efforts without interruption and stood by as his various allies rose to the defense of what was arguably his life’s work. But now that the Senate had formally agreed to hear his proposal, the time had at long last come for the gentleman from Florida to make his case. Whether he had waited simply out of a sense of propriety – preferring to discuss his proposed amendment after the appropriate motion had been adopted – or because he wished to take stock of all of his opponents’ various counterpoints before beginning to dismantle them, the effect was ultimately the same. This is all to say that, on the 27th, Spessard Holland put on a clinic.
To begin with, Holland addressed
himself to his opponents’ hand wringing over his supposed disregard for Senate
procedure. As custom dictated that proposed amendments had to be submitted to,
and approved by, the Senate Committee on the Judiciary before being brought to
the floor for a vote, a number of the senators who took issue with Holland’s
proposal avowed that his attempt to circumvent this process was fundamentally
improper and represented a threat to the long-term health of the upper chamber
of Congress. In response to this criticism, the senator from Florida keenly
asserted that the reverse was actually the case. That is to say, he wasn’t
actively harming the Senate by threatening the authority of the Judiciary
Committee. Rather, he was saving the Senate by circumventing the efforts of the
obstructionists in control of the same. To this end, he observed that,
Some comment has been made to the effect that we are
destroying the jurisdiction of one of our ablest committees, the Committee on
the Judiciary, in taking up this measure as we are. I want it made very clear
that not only are we not destroying that jurisdiction, but that for 14 long
years I have been invoking that jurisdiction, and that there have been five
thorough, detailed hearings upon this proposal, the records of which are
printed and are available now to any Senator who may wish to read them, and on
four occasions there have been recommendations from the subcommittees which
handled these hearings to the full committee that the measure be reported to
the Senate. However, the measure has never been reported to the Senate.
Holland
seemed to want to make clear that he was not a radical by nature. His instinct
had always been to go through the proper channels and observe the established
procedures. And so he had done while pursuing a federal ban on the poll tax. In
this case, however, the established procedure had become a trap. In spite of
submitting and resubmitting his proposal to the Judiciary Committee over the
course of fourteen years – and in spite of the relevant subcommittee holding
numerous hearings and publishing a number of favourable reports – the proposed
amendment in question had yet to be sent to the Senate floor. Clearly,
something or someone was actively stopping the Judiciary Committee from
properly performing its essential function. Bearing this in mind, it was only
sensible for Holland and his cosponsors – within the bounds of propriety, of
course – to take matters into their own hands.
Certainly, Holland wasn’t of the
opinion that the Judiciary Committee should be ignored as a matter of course.
Nor did he feel that his desire, in this instance, to circumvent the same
represented any kind of imposition upon the authority of one of the most
venerable organs of the United States Senate. It was just that, as far as
Holland and his cosponsors were concerned,
The conditions in which we found
ourselves were such that the joinder of 68 Senators, more than enough to
sustain this or any other constitutional amendment, had not brought forth a
report or even a report without recommendation which would bring the measure to
the floor of the Senate. So when we come to the point where the inaction of a
great committee has resulted in such a situation as this for 14 years; and when
we now have an ample number of Senators as cosponsors of this measure to assure
its submission to the States, so far as the Senate is concerned, it is a
protection of the rights of Senators and a protection of the rights of the
Senate itself to bring up the matter in any way that is available, from a
strict parliamentary standpoint, and that is what we have done here.
The Judiciary
Committee was important. Its authority was worth respecting. But
it was not more important or more worthy of respect than the Senate
itself. When sixty-eight senators signaled their support for a given measure,
but a single Senate committee prevented them voting on the same, clearly
something was amiss. And it was not just a majority that favoured the Holland
amendment, but a two-thirds majority. That was enough – at the time – to
break a filibuster, confirm a cabinet nominee, ratify a treaty, or send a
constitutional amendment to the states. Did it make any sense at all that a
single committee – or perhaps just the chair of a single committee – should
have been able to deny such an overwhelming majority from making manifest its
will? Spessard Holland certainly did not think so and acted appropriately.
As to the argument – put forward
frequently by a number of Southern Democrats during the preceding two weeks of
debate – that Holland and his allies were carrying out the will of pro-civil
rights interest groups rather than working on behalf of the welfare of the
American people, Holland likewise had quite a bit to say. “There are persons
[,]” he said,
Who think we are interested only in
white voters, and there are persons who think we are interested only in Negro
voters. So far as I am concerned, 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. I think
the results accomplished in our State, where in 1960 1,540,000-plus voted,
indicate rather conclusively the beneficent nature of what Florida has done.
Certain of
Holland’s fellow Democrats, to be sure, would violently disagree with this
particular view of things. Indeed, they had done so numerous times already. As
far as these Southern senators were concerned, it was no business of anyone
living in any state outside of their own what went on there in terms of the law
and its enforcement. Every state was sovereign, they said, and answerable only
to its citizens. But while Holland, in almost any other instance, would have
heartily agreed, in this case he could not help but beg to differ.
Consider, the Floridian asked of his
fellow senators, the results of the recent Election of 1960 in the State of
Mississippi. “The winning ticket of electors [,]” he said, referring to that of
the Democratic Party,
Polled 116,000 votes, just under 10
percent of the total. As I have just remarked, the total vote cast was 25
percent. How anyone can feel that that was a representative expression of the
people of that good State, and how anyone can feel that other States and other
people everywhere in the Nation do not have a stake and a proper interest in
that sort of situation, I do not see. Personally, I have a very deep interest
in seeing that representative expressions are made in elections for national
officers, whether it be in my own city, my county, my State, or any other
State, by as full participation of the citizens as can be had, because I
believe in the voice of the people. I decry any effort to confine the voice
that is heard at elections to a much smaller segment of the citizens than that
which truthfully represents the whole people.
In presenting this
argument, Holland effectively reiterated the essential premise of American
federalism under the auspices of the Constitution. That is to say, he asserted
the existence of dual layers of sovereignty existing on roughly co-equal terms.
Within this model, the states are each sovereign and self-governing entities
and thus fully entitled to all of the accustomed powers and responsibilities
thereof. And each of these sovereign states derives said powers and
responsibilities from the constituent citizens residing therein. But these same
constituents, in addition to being citizens of a given state, are also citizens
of the United States of America. And that entity, which is also
sovereign and self-governing, has powers and responsibilities separate from
those of the states and is entitled to exercise the same outside of state
interference.
In consequence,
if a majority of the citizens of the United States – through the medium of
their elected representatives – express their collective intention to ensure
that federal electoral laws across the country are structured and applied in a
fair, equitable, and consistent manner, it makes no difference if a handful of
states raise objections. In the first place, the outcomes of federal elections
affect the residents of more than just a handful of states, thereby arguably
placing the regulation of federal election law more in the federal sphere than
in that of the states. And also, unless the relevant states amount to a
majority of the overall population, denying the majority’s right to make
manifest its will would place a potentially dangerous amount of power in the
hands of the minority. Again, this could hardly be said to constitute a novel
line of reasoning. Federalism and majority rule are at the heart of the
American understanding of republican government. But given the circumstances,
it’s not so hard to understand why Senator Holland felt the need to restate
their importance as he did. His opponents were acting in a way that essentially
defied how the United States was designed to function. Individual states are
not supposed to be able to countermand the will of an overwhelming
national majority to see accomplished an entirely constitutional objective. And
for that matter, said national majority is not supposed to turn a blind
eye when it perceives an injustice taking place, even if said injustice is only
occurring in a few states. Whether Alabaman or Mississippian, New Yorker or
Californian, Americans of all stripes have a vested interest in looking out for
one another and in ensuring that the same rights and privileges are enjoyed by
all.
Operating from
within this very basic understanding of American federalism, Holland’s tone was
very much one of neighbourly concern. “How can we feel that that is a
representative expression?” he lamented of the cited election results.
Should not other States be deeply
concerned about expressions from my State, or from the State so ably
represented by the present Presiding Officer, the Senator from Illinois [Mr.
Douglas], or from every other State, as representative of the thought of the
people of those States? How else may we be satisfied that righteous verdicts
are being reached?
Certainly, in some
very important ways, the states were – and are – legally distinct and sovereign
entities upon which neither the federal government nor the governments of their
fellow states can rightly exert their will. But in other ways – equally real
and important – there exists a single country called “The United States of
America” whose citizens are both bound and empowered to be responsible for one
another. And so while it may have been fair in some cases to say – as men like
J. Lister Hill and James Eastland were fond of saying – that it was legally
beyond the remit of the people and government of the state of Florida, say, or
New York, or Massachusetts to attempt to question or alter the legal status of
the citizens of any other state, it was also perfectly acceptable – or indeed
eminently desirable – for the inhabitants of one part of the American republic
to express concern for, and attempt to render aid to, the inhabitants of
another part.
This, Holland avowed, was all that
he was trying to do. Offer aid, that is, to some of his fellow citizens. And
while certain of his colleagues in the Senate might have felt compelled to make
a personal objection, none of them could rightly claim that the senior senator
from Florida was acting either unconstitutionally or with anything less than
the best interests of the Senate at heart. “I have done my level best [,]” he
explained,
In every Congress to bring it out of
committee and before the Senate in the regular way; and I have no apology
whatever to make for bringing it up at this time, in this way, with the
gracious concurrence of both the majority leader and the minority leader. When
the time comes that the will of the Senate can be thwarted, instead of
furthered, by the inaction in a committee for 13 years, it occurs to me that
the Senate then has a right to act, particularly when it may act only by
two-thirds vote of its membership, indicating the breadth of the support the
measure enjoys.
In furtherance of
his cause, Holland then described a series of letters and wires he had received
from people living in Mississippi and Alabama who had been prevented from
voting because of the poll tax laws then in force in their states. These
people, he avowed, were not necessarily prevented from voting because they
could not afford to pay said tax, but because the systems of collection created
issues for them which they found they could not ultimately overcome. And if the
senators from those states were adamant in their refusal to offer any kind of
assistance, then Holland would take it upon himself to do so on their behalf.
As if to drive home the patent
absurdity of the situation that Holland had but moments before lamented, the
Chairman of the Senate Subcommittee on the Constitution, one Estes Kefauver
(1903-1963), then took the floor to commend Senator Holland on his efforts thus
far. “I believe the committee system has served its legitimate purpose several
times on this particular subject [,]” he began.
No useful purpose would be served by
deferring action on this amendment. The hearings held by the subcommittee in
the present and past Congresses have been widely distributed and many Members
of the Congress and the public have made use of them. The issue is a clear and
straightforward one. It has been thoroughly heard and discussed and debated
more than enough over the past 12 years. I, therefore, strongly urge my
colleagues to join me in voting in favor of the amendment proposed by the
distinguished Senator from Florida.
For context, let it
be recalled that the aforementioned Subcommittee on the Constitution was
specifically a subcommittee of the Committee on the Judiciary. Which is to say
that Kefauver – a Tennessee Democrat – was also a member of the Judiciary
Committee, the chair of which was James Eastland. Bearing this fact in mind, Kefauver’s
encouragement of Holland’s efforts would seem to take on an added significance.
Not only was he arguing – as the leader of the body responsible for evaluating
such things – that Holland’s proposed constitutional amendment was both sound
and necessary, but he was doing so in defiance of the chair of the
larger committee on which he sat. A member of the Judiciary Committee, he was
in effect telling Holland to go ahead with his plan to circumvent the Judiciary
Committee. This was quite far from normal procedure. But then again, so was
keeping a proposed constitutional amendment from reaching the Senate floor for
thirteen years in spite of numerous favourable reports from the relevant subcommittee.
Eager, it seemed, to add strangeness
to strangeness, Richard Russell chose this point in the debate to introduce the
point of order he and his colleagues had threatened to bring to the Senate’s
attention over a week prior on March 15th. “I take the position [,]”
he said,
That the Constitution itself
prescribes the method by which it may be amended, and that the pending proposal
does not appear in the Constitution as a means whereby a proposed
constitutional amendment may be submitted to the several States. I further
submit that in the 173 years since the Constitution of the United States was
first ratified and approved, no attempt whatever has ever been made to so
distort the constitutional process. This is the first time in 173 years that an
effort has been made to use a piece of proposed general legislation as a
vehicle for amending the Constitution of the United States and submitting that
amendment to the several States.
In point of fact,
Russell was not wrong. It was true that the text of the Constitution did not
explicitly justify Holland’s use of a joint resolution as a vehicle for a
proposed amendment. Nor was there any precedent – “In the 173 years since the
Constitution of the United States was first ratified and approved” – for the
specific procedural “switcheroo” that Senator Holland was attempting. But
whereas Holland did not take it as a given that these facts equated to a
functional disqualification of his efforts, Russell and his cohorts very much
did. “There is nothing in the rules of the Senate,” the Georgian continued, “there
is nothing in any statute to be found anywhere in the statute books, and there
is not a line in the Constitution of the United States that would justify the
procedure which is undertaken here, today. I submit, Mr. President, that it is
wholly unconstitutional.”
The only problem with this position,
of course, is that it was itself unjustified by any standing precedents, rules,
or procedures. The fact that a particular legislative procedure is not
explicitly mentioned in the Constitution does not necessarily make it
unconstitutional. The fact that there is no precedent for a particular parliamentary
manoeuvre does not necessarily make it invalid or functionally null. And the
fact that the rules of the Senate do not give sanction to a particular congressional
process does not necessarily make it against the rules of the Senate. Holland’s
chosen approach was novel – he would not have argued otherwise – but that did
not automatically mean that it was improper or impermissible. It would have
been different, of course, if Russell could point to an explicit contradiction
between what the senior senator from Florida was attempting and the specific
terms of the Constitution. But he quite simply could not. Indeed – and though
he had previously intimated otherwise – Russell couldn’t even argue that
Holland was violating the rules of the Senate. He admitted as much when asked
to clarify precisely which of the Senate explicit regulations Holland was
supposed to have violated. “I did not say any rule of the Senate is violated by
it [,]” Russell responded.
I said the Constitution is violated
by it. The Senate itself has never dealt with this matter. Even in its wildest
dreams, the Senate could never imagine that any resort would be made to such an
unorthodox procedure as this one, in order to get such a matter as this before
the Senate. Therefore, the Senate did not adopt a rule in that connection.
Notwithstanding his and his cohorts’
prior claim to have had the defeat of Holland’s proposed amendment well in
hand, it was at this point that Russell’s confidence began to waver. Heretofore
unswervingly confident, the Georgian began to grow increasingly strident and
embittered. Having been forced to admit that Holland was in fact not in danger
of breaking any Senate rules, Russell hastened to add that this should not have
been the end of the matter. “I think
that in order to justify our positions,” he noted sourly,
And our rather irrational action, we
might follow rule XL—I believe we now have 40 Senate rules—by a rule XLI,
stating about as follows: "Provided, That none of these rules shall
be considered to apply in any case in which an organization of professional
do-gooders claiming a membership of a million voters shall declare that any
resolution, motion, legislation, or other proposal involves a question of
minority rights. In all such cases, neither any rule, precedent, law, nor
constitutional provision shall be binding or shall be cited in an effort to
restrain the Senate from an immediate vote or the Presiding Officer from
declaring all points of order out of order.
Almost two weeks
prior, the Southern opponents of Holland’s amendment had been crowing that
because the procedure he was endeavouring to follow required the unanimous
consent of the Senate – and because they were in no way inclined to give their
consent – the thing was as good as dead. And now, here was Richard Russell
essentially admitting defeat while complaining that as long as the Senate was
going to persist in making things up as it went, it might as well give itself
written permission to do so.
As ever a model of patience and composure,
Spessard Holland ignored his fellow Southerner’s rather petulant outburst and
instead addressed himself entirely to the logical basis of the latter’s
argument. “The rule laid down in article V of the Constitution does not go so
far as to provide what vehicle shall be used by Congress [,]” he stated accordingly.
It simply says Congress, by
two-thirds vote in both Houses, may accept the amendment. My information and
belief is that there is no requirement at all as to the vehicle or resolution
number, so long as the body of the resolution is there. It describes definitely
that it must be approved by two-thirds of the Members of each House before it
can be submitted to the several States. There is no doubt at all in my mind
that that is the situation.
Naturally, Russell
was disinclined to budge. He and his fellow obstructionists had not held up the
business of the Senate for almost two weeks just to completely cave in when the
going got tough. “This proposal to amend a regular legislative proposal,” he
replied,
Which requires a majority vote and
which would go to the President for his approval or disapproval, by a
constitutional amendment, which requires a two-thirds vote and which would not
go to the President for his approval or disapproval, is wholly unconstitutional
and that it should be so declared, and that this matter should be brought up in
a way in keeping with the Constitution of the United States.
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