The Purpose and Powers of the Senate, Part LXXXIII: “The Rules and Precedents, the Mores and the Folkways”

            As the Senate debate of March 16^th, 1962 continued, so too did the opponents of Spessard Holland’s proposed anti-poll-tax amendment persist in their attempt to put forward some manner of reasonably convincing argument as to why such a measure was either invalid or undesirable. No matter how long and how widely these primarily Southern Senators pontificated, however, they never seemed to approach anything like a convincing argument. As previously discussed, Mississippi Senator James Eastland’s endeavor to characterize his opponent’s desire to ban poll taxes at the federal level as a “transitory purpose” was more than a little misguided. Since the ratification and subsequent repeal of the 18^th Amendment, no one serving in Congress could reasonably hold that amendments were the exclusive preserve of only the most weighty and consequential legal and moral principles. His assertion that Alabama Senator J. Lister Hill’s threatened point of order was a sound one carried slightly more weight – inasmuch as it was true that using a piece of normal legislation as a kind of container for a constitutional amendment was more than a little irregular and might even had represented a violation of Senate rules – though his expansion upon this point was characteristically vague and obtuse. “Since human societies were first organized,” he declared,

It became evident that they could not exist as communities without observing the rules and precedents, the mores and the folkways that made living together possible. It is now proposed, in order to lay this intended constitutional amendment before the Senate, to violate not only rules, precedents, and procedures of the Senate and House of Representatives, but to shunt aside those sections of the U.S. Constitution which provide specifically for the manner and means by which congressional bills are to be processed and the manner and means by which congressional resolutions are to be processed. The point of order, when made, should be upheld.

Without turning this into a discussion about something else entirely, it would nevertheless seem necessary to remark for a moment upon certain elements of Eastland’s choice of expression.

Human societies, he said, from their earliest origins, “could not exist as communities without observing the rules and precedents, the mores and the folkways that made living together possible.” Coming from an avowed white supremacist, this would seem to be a rather loaded concept. In order for humans to be able to live together in a functioning society, said society must abide by certain “rules and precedents [,] mores and […] folkways [.]” What rules? What folkways? And were their limits upon what was acceptable? What if one part of a given society considered the precedents and mores of another to be morally reprehensible? What if the majority of this same society felt this way about the behaviors of a minority? Was it possible for the majority to effectively ban the practices that it found to be inexcusable, or were they supposed to quietly tolerate them in the name of “living together?” Given the nature of Eastland’s personal ideology, it would be hard to imagine that there was anything on his mind other than race. After all, was not segregation a more, a folkway, a precedent of Southern society? Was it not an integral practice to the Southern way of life? The gentleman from Mississippi, no doubt, would have answered in the affirmative. And so, while he was ostensibly addressing himself to the point of order offered by his Senate colleague, his choice of words also seemed to constitute something of a shot across the bow at the very concept of the proposed amendment being discussed. Because if segregation was an essential “folkway” of Southern society, then any externally directed efforts to eliminate it – inasmuch as it would make it harder for segregationist Southerners to “live together” with reformist Northerners – must necessarily have represented a threat to American social cohesion.

As to the rest of Eastland’s cited assertion, his intentions were similarly as clear as his choice of words was vague. He accused Senator Holland and his various supporters, in the manner by which they sought to secure passage of an anti-poll-tax amendment, of violating, “Not only [the] rules, precedents, and procedures of the Senate and House of Representatives,” but also of attempting, “to shunt aside those sections of the U.S. Constitution which provide specifically for the manner and means by which congressional bills are to be processed and the manner and means by which congressional resolutions are to be processed.” What he meant by this, no doubt, was that he believed the method by which Holland and Senate Majority Leader Mike Mansfield (1903-2001) were attempting to introduce the former’s proposed anti-poll-tax amendment was to some extent in violation of Senate rules governing amendments to legislation. Inserting a constitutional amendment into a legislative container by amending an existing bill or resolution, he said, required the unanimous consent of the body in question, which neither he nor his fellow Southerners were willing to provide. It was an objection very much rooted in parliamentary procedure, to be sure, and in that sense stood out from the rest of Eastland’s assertions. And it was a sound argument, if true. The Senate – like any legislature – has standing rules by which means its business is transacted and the purpose of which is to ensure that order, transparency, and fairness are maintained at all times. To be in violation of these rules is to be “out of order” and thus to have one’s actions ruled invalid and of no effect. If Holland’s attempt, along with Majority Leader Mansfield, to effectively circumvent the Senate Judiciary Committee by slotting the former’s proposed anti-poll-tax amendment into the eviscerated husk of an unrelated piece of legislation was indeed out of order, this accordingly presented something of a problem.

Unsurprisingly, Senator Eastland did not specify precisely which rule it was that Holland and Mansfield had supposedly violated. Rather, he referred only vaguely to “rules, precedents, and procedures of the Senate and House of Representatives [.]” Nor did he deign to illuminate which “sections of the U.S. Constitution which provide specifically for the manner and means by which congressional bills are to be processed and the manner and means by which congressional resolutions are to be processed” the two were attempting to “shunt aside.” This would seem to have been entirely characteristic of the gentleman from Mississippi, his objections to the aforementioned anti-poll-tax amendment having thus far taken the form of something more like an alarmist screed than a carefully reasoned dissertation. Unfortunately, this style of argument – while rhetorically not without value – also makes verification a bit of a process. The Constitution, at least, is clear enough as to the responsibilities and powers of Congress vis-à-vis the legislative process and the amending process. Article I, Section 7, for example, states very simply that,

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

As to the amending formula, Article V makes matters similarly clear. “The Congress,” it declares, “whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution […] which […] shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof [.]” The Constitution has little more to say in either case. The legislative process is not explicated any further, save to say that, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” Nowhere is it stated whether or not an amendment might be substituted for a bill. “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary […] shall be presented to the President of the United States [,]” it says, while proposed amendments simply require the support of “two thirds of both Houses [.]”

            Bearing these simple regulations in mind, Senators Eastland and Hill would seem to have been right about at least one thing. In order for a bill to become law, either a presidential signature or a veto override vote was required. And in order for a proposed amendment to be ratified, the approval of “the Legislatures of three fourths of the several States” was what was needed. Attempting to transform a bill into an amendment partway through the legislative process was accordingly a bit irregular. Did the bill cease to be a bill once it was successfully modified? Would it still require the president’s signature or could it proceed immediately to the states for consideration? The Constitution itself could not answer these questions, in no small part because the Framers never envisioned what it was that Holland and Mansfield were attempting. Proposed amendments, before they can be voted upon by the Senate at large, must first be submitted to the scrutiny of the Senate Committee on the Judiciary. Specifically, they must be reported out to the floor by the Senate Judiciary Subcommittee on the Constitution. If the Subcommittee rejects a proposed amendment – or if it simply does nothing and keeps the proposed amendment “bottled up” – then no further action can be taken and the proposal is effectively dead. Since Eastland himself was the Chairman of the Judiciary Committee as of 1962 – and would continue to be until his retirement in 1978 – it was perfectly reasonable for the likes of Holland and Mansfield to conclude that the former’s anti-poll-tax amendment would suffer exactly this fate. That is to say, without Eastland’s cooperation, Holland’s proposed amendment would never make it to the floor for a vote. That is, unless the proposed anti-poll-tax amendment’s supporters had in mind some manner of parliamentary trickery.        

    They did, of course, in the form of the aforementioned substitution. The way it was supposed to work, in essence, was that Senate joint Resolution 29 – “providing for the establishing of the former dwelling house of Alexander Hamilton as a national monument” – having previously been introduced, read, submitted to committee, and reported out to the floor, would then be modified in its entirety into Holland’s proposed amendment. Since the bill itself would emerge from the process theoretically intact – severely amended but technically still the same piece of legislation – there would be no need to re-submit it to committee. In point of fact, it had already gone to committee and been reported out to the floor. All that Holland and Mansfield were proposing to do was modify it before it was finally submitted to the floor for a vote. Eastland would not need to be involved in the process any more than was mandated by his role as a voting senator and Holland’s sixty-odd cosponsors would thus be permitted to carry the day. Again, there was arguably a question yet to be answered as to whether the resulting joint resolution really was the same measure that had been reported out of committee, but Eastland certainly wasn’t in a position to make any declarations on the matter. If anyone could claim the authority necessary to resolve the issue, it was likely the Senate Parliamentarian, a man named Charles L. Watkins (1879-1966). It was Watkins’ job to resolve conflicts stemming from the Senate’s complex rules of procedure, after all. It would accordingly have made all the sense in the world for either Hill or Eastland to declare their intention to appeal to his wisdom. In actual fact, of course, the Southerners declined to do so. Rather, Eastland simply declared that unanimous consent was what was required. That is, the substitution being attempted would require the unanimous consent of the Senate in order to be accomplished. And since he was not inclined to give his consent, that should have effectively been that.

This, as one might expect, is where things get a little tricky. Eastland – again, entirely characteristically – neglected to mention which of the Senate’s standing rules he believed applied to the situation at hand. And since there are, at present, forty-four standing rules – each of which possesses their own set of clauses and subsections – it is not immediately obvious which directive he was attempting to invoke. A cursory examination of these selfsame rules, however, reveals the existence of two clauses within Rule XIV which would seem to apply to the situation in question. Senate Standing Rule XIV, Clause 3, states, in part, that, “No bill or joint resolution shall be committed or amended until it shall have been twice read, after which it may be referred to a committee [.]” And Senate Standing Rule XIV, Clause 7, states that,

When a bill or joint resolution shall have been ordered to be read a third time, it shall not be in order to propose amendments, unless by unanimous consent, but it shall be in order at any time before the passage of any bill or resolution to move its commitment; and when the bill or resolution shall again be reported from the committee it shall be placed on the Calendar.

Taken together, what these rules would seem to mean is that a bill or joint resolution under consideration by the Senate cannot be amended at all before its second reading and can only be amended after its third reading by the unanimous consent of the same. Specifically, Rule XIV notes that after a bill or resolution is read the second time, it is commonly “referred to a committee.” And after it is reported out of committee, it may then be “committed or amended [.]” The relevant question in the case of S.J. Res. 29 would accordingly seem to be as follows. At the time that Holland and Mansfield proposed their amendment, had the measure been read twice only or had it already been read a third time?

            Based on the account recorded in the Congressional Record for March 15^th, 1962, the former would seem to be the case. As formally introduced onto the floor of the Senate by Vice President Lyndon Baines Johnson (1908-1973) in his capacity as the upper chamber’s presiding officer, the resolution in question, “Providing for the establishing of the former dwelling house of Alexander Hamilton as a national memorial, introduced by Mr. JAVITs (for himself and Mr. KEATING), was received, read twice by its title, and referred to the Committee on Interior and Insular Affairs.” Senator Javits then responded by noting that, “This joint resolution is precisely in the form in which the Senate committee reported the measure which is to be the subject of whatever action the Senate shall take with respect to the poll tax.” There would appear to be no other conclusion to draw from this exchange but that the resolution was in exactly the state in which the Senate Standing Rules deemed it ought to be for amendments to be properly considered. It had been read twice, submitted to a committee, reported out of committee, placed on the calander, and at that moment – according to Javits – “is precisely in the form in which the Senate committee reported the measure [.]” Once amendments had been considered and either approved or rejected, it would then presumably proceed to a third and final reading – at which point it would no longer be permissible to introduce further modifications without the unanimous consent of the Senate – and the yeas and nays would then be called.

            Bearing all of this in mind, Hill and Eastland’s threatened point of order would seem to have been functionally moot. The resolution that Holland and Mansfield intended to modify into an anti-poll-tax amendment proposal had only just been reported out of committee on March 15^th. And on March 16^th, this intention having been made clear to them, Hill and Eastland protested that their consent was required in order for such a modification to occur. Between its introduction on March 15^th and the first mention of the threatened point of order on March 16^th, the relevant resolution was discussed at length. But at that time, it did not proceed from its second reading to its third. Its time on the calander had arrived, it was introduced onto the floor by Javits, and discussion commenced. That was all. Does this mean that Hill and Eastland were lying to their fellow senators when they raised the aforementioned point of order? Not necessarily. As aforementioned, the rules of the Senate can often be quite complex, and very few senators at any given time can claim to be exhaustively knowledgeable as to their intricacies and interactions. This is why the position of Senate Parliamentarian exists. It would have been rather an odd turn of events for two such long-serving senators as J. Lister Hill and James Eastland to have been ignorant of exactly which stage of the legislative process freely permitted amendments, but it was certainly not an impossibility. Hill and Eastland, to put it simply, may have merely been mistaken. Then again, in light of Eastland’s apparent propensity for high-flying rhetoric when he was backed into a corner, he may also have been frantically grasping at straws. He knew that the numbers were not in his favor and that any attempt at a filibuster would fail. And he knew that there was a rule that prevented amendments from being offered without unanimous consent after a certain point in the legislative process. So he fudged the details of the applicable rule just slightly. Perhaps he intended to frighten his opponent into submission. Perhaps he only hoped to buy a little more time while the veracity of his claim was verified. In either case, it was certainly possible that Eastland knowingly misspoke. The point, of course, is that he did misspeak, and that his claim was without basis in fact.           

The remainder of Eastland’s address constituted yet another barrage of exaggerated rhetoric and vague, self-serving declarations of dubious veracity. He said that, “All right-thinking Members of the Senate must realize that State action, determination by the States themselves, is the preferable route to take.” Clearly this was not the case, or else all the right-thinking senators were decidedly in the minority. He questioned, “the wisdom and judgment of the proponents in addressing themselves to this poll tax issue when there are only five States today that require the payment of a poll tax as a prerequisite for voting” and further opined that Congress, “could devote itself to more constructive legislation […] than directing its efforts, time, and energies toward a question having to do with only 5 States out of our Union of 50 States.” This was notwithstanding the fact that as a result of the continued existence of poll tax laws, millions of citizens in those five states could not exercise one of their foundational rights as Americans. He then concluded this portion of his address by stating, in reference to previous sessions of Congress in which the poll tax had been under discussion, that,

I consistently took the position during those debates that this issue could not be resolved simply by legislation; that if it were to be accomplished, the only constitutional way is by a constitutional amendment. However, I do challenge the wisdom of this approach, in view of the fact that the States themselves under the initiative of their own State legislatures, have repealed the poll tax requirement, and if the remaining five States are left to themselves, their respective State legislatures will take care of the situation.

From the perspective of those senators present who favored civil rights reform and saw little if any merit in the obfuscatory efforts of diehard segregationist like Hill and Eastland, this last statement was doubtless highly revealing of the essential nature of the challenge they collectively faced.

            On the one hand, Eastland had more or less revealed to all and sundry the extent to which his complaints about procedure, and precedent, and consistency were almost wholly insincere. When Spessard Holland, or one of his various allies, had previously attempted to introduce a piece of legislation onto the floor of the Senate that would have banned the collection of poll taxes at the federal level, Eastland opposed it on the grounds that, “this issue could not be resolved simply by legislation; that if it were to be accomplished, the only constitutional way is by a constitutional amendment.” And this was fair enough. Article I, Section IV of the Constitution does state that, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” While Congress, therefore, is permitted under the Constitution to legislate the “Times, Places and Manner of holding Elections for Senators and Representatives,” the fact that the state assemblies were also given this power would seem to indicate an intention on the part of the Framers that federal elections exist as an area of shared responsibility between state and federal authorities. It would accordingly seem to be a reasonable enough argument that though it is permissible for Congress to singlehandedly alter federal voter qualifications, it is always preferable not to overrule the states by way of federal legislation alone. A constitutional amendment was therefore the ideal method by which to modify existing election procedures, particularly as it blended state and federal power.

            Naturally, in response to this, Holland and those who supported his efforts began introducing constitutional amendment proposals in the Senate for the purpose of eliminating the poll tax. If the Chairman of the Judiciary Committee declared of the crusade to ban said tax that “the only constitutional way is by a constitutional amendment [,]” then this was precisely what the reformers were going to do. Eastland’s response? Obfuscation, of course. The aforementioned Senate Judiciary Subcommittee on the Constitution fell under his authority. Accordingly, if he decided that a proposed amendment shouldn’t make it to the floor, one could rest assured that the proposed amendment in question would die a quiet and ignominious death. Doubtless he would declare, when asked, that the Senate had far more important matters to consider than whether or not a handful of people in a handful of states could vote in federal elections. Whether he believed it or not, of course, the effect would be the same. That is, while Eastland was one of those who helped steer the advocates for a federal ban on the poll tax towards the idea of pursuing a constitutional amendment, he was also responsible – in his position as a Senate committee chair – for ensuring that any such amendment never made it to the floor.

            Eventually – over the course of many years and as the result of a great deal of effort – Holland and his allies did manage to overcome even this seemingly insurmountable obstacle. By 1962, Holland’s proposed amendment had over sixty co-sponsors, thereby ensuring its passage in the event that it was ever put to a vote. And thanks to some canny parliamentary maneuvering on the part of Majority Leader Mike Mansfield, it would get put to a vote by way of a little legislative bait-and-switch. Granting that the latter procedure was perhaps a little irregular, there was nothing in either the Senate rules or the text of the Constitution that might have prevented it from going ahead. And what, to this, was Eastland’s response? After having heeded his advice, pursued a constitutional amendment, and pulled an end-around on the Judiciary Committee, what did Eastland have to say to Holland and his supporters? “I […] challenge the wisdom of this approach [,]” he declared. Despite having advocated for it previously, having set the terms of the resulting game, and having been soundly defeated, he was still of the opinion that the whole idea of a federal poll tax ban was a mistake in itself. Why, one might accordingly be given to ask, did he previously argue that “the only constitutional way is by a constitutional amendment” if, in fact, he thought such an approach to be fundamentally unwise? As is so often the case, the simplest answer is almost certainly the correct one. Eastland did not care about procedure. Eastland did not care about rules. Eastland did not care about precedents. Eastland cared about maintaining the powerbase of white supremacy in the contemporary American South. And if, in order to do that, he had to bend his stated principles and use his authority to shift the goalposts of reform, he would not hesitate to do so.         

“The States themselves [,]” said the Mississippian, “under the initiative of their own State legislatures, have repealed the poll tax requirement, and if the remaining five States are left to themselves, their respective State legislatures will take care of the situation.” One would struggle to come up with a more cunning dodge than this. There was no need to intervene; the states would take care of it themselves. Recent history was certainly on Senator Eastland’s side. As discussed at length in the present series, Tennessee, South Carolina, Georgia, and Florida had all voluntarily repealed their own poll tax laws in the quarter century preceding Holland’s latest attempt to introduce a national ban. It was accordingly far from unreasonable to conclude that the five poll-tax states that remained were only a handful of years from becoming non-poll-tax states themselves. And in the end, wasn’t the outcome that didn’t involve federal intervention in state affairs the preferrable outcome anyway? Clearly, the South wasn’t madly in love with the poll tax. If Georgia and Florida could see their way clear to giving it up, was there really reason to assume that Virginia and Mississippi wouldn’t ever get around to doing the same? No, the issue wasn’t the policy so much as how Senator Holland was going about pursuing the abolition of the same. The Southern states in question, after all, were uniformly governed by Democrats, the prevailing philosophy of whom traditionally prized state action over federal action. It wasn’t necessarily that the political leadership in the five remaining states were wholly unconvinced that the poll tax itself no longer served a useful purpose. It was just that they were ideologically disinclined to acquiesce when the federal government told them that they had no choice but to abolish it. So why not – with these facts in mind – simply leave the states to their own devices?

Indeed, Eastland continued after a slight prompting from J. Lister Hill, it was his opinion that the efforts of people like Senator Holland to abolish the poll tax at the federal level over the course of the 1940s and 1950s was precisely the reason that the five states in question still stubbornly clung to the same. “People resent being dictated to by the Federal Government,” he explained,

And they resent being kicked around. That is what this attempt is. It is an attempt to kick around the people in the various States and impose on those States. It is an attempt by other States and pressure groups primarily within those States to impose their will on the people of other States. Of course the people in the States aimed at resent it. In my judgment that is the reason why they have stood fast and retained the payment of poll taxes as a qualification for electors.

This description of the contemporary white Southern mindset vis-à-vis the federal government and federal authority may have been a reasonably accurate one, but it certainly wasn’t very flattering. Granted, it made a certain amount of sense for Eastland to portray his fellow white Southerners as victims of an overbearing federal government intent on “kicking them around” and imposing its will upon them. A victim, after all, tends to be deserving of sympathy. But it nevertheless seems a strange kind of strategy to council patience and understanding by asserting that the party being targeted is simply petty by nature. And this was, at bottom, what Eastland was saying. It wasn’t that the people in the five remaining states loved the poll tax. Left to themselves, they’d surely abolish the practice eventually. It was that they resented being told that they had to and were inclined to dig in their heels rather than give way to authority.

            None of this is to say that Eastland didn’t have a point, of course. As the example of the United States Commission on Civil Rights and the various travails it experienced during the first years of its existence makes abundantly clear, white Southern Democrats in the 1950s and 1960s often violently resisted attempts by federal authorities even just to gather information about basic legal practices in the contemporary South. Circuit Judge George C. Wallace (1919-1998) had voter registration records impounded and threatened to imprison any federal agents who tried to get ahold of them when the Commission conducted its first investigation in Montgomery, Alabama in 1957. Eastland’s claim that white Southerners in the five poll-tax states were largely motivated by a kind of reflexive rejection of federal power in any form would therefore appear far from unsound. That being said, one cannot help but get a rather poor impression of the mentality of the contemporary Southerner. Granted, proponents of civil rights reform had arguably already seen the worst that the South had to offer the nation at large over the course of the 1950s between the handing down of the Brown v. Board decision in 1954 and the various protests and political counterattacks launched in the years that followed by the Southern political class in places like Arkansas, Alabama, and Mississippi. But for the senior senator from Mississippi to simply come out and say that his fellow Southerners living in the five states in question actually didn’t hold to the poll tax because they believed it served a vital purpose? That they were only being stubborn because they didn’t like being pushed into things? That they were denying millions of American citizens the right to vote out of some obstinate need to take things at their own pace? To borrow a modern turn of phrase, that would seem a bit like saying the quiet part loud.

            Eastland, to be sure, did not believe in the slightest that he was admitting to anything undesirable on the part of the contemporary American South. From his perspective, his countrymen were standing on principle. Not the principle of white supremacy, of course. Almost no one who supported civil rights reform was going to be convinced to back down by appeals to outmoded theories about race. But there was nothing reprehensible in theory about advocating for the principle of subsidiarity. That is, there was nothing necessarily wrong or abhorrent about the citizens and political leaders of a given state wanting to decide for themselves how best to address the various policy areas that most directly affected their daily lives. The fact, in line with this principle, that Southerners often made decisions that led to the relegation of their Black neighbors to second-class status was, as far as Eastland was concerned, entirely beside the point. Southerners, in his mind, were maintaining a foundational principle of American republicanism by jealously guarding their autonomy and by at all times regarding central authority with the utmost suspicion. Was it likely that the residents of the five remaining states also found the poll tax to no longer serve a useful purpose? Most certainly. As Eastland had said, left to settle the matter themselves, all five of the states in question would probably already have dispensed with their respective poll tax statutes. But it would have been un-American – to their thinking – to simply give in to a federal mandate whose purpose was to accomplish the same. Their continued attachment to the poll tax was therefore not to be construed as stemming from any particular love for exceptionally stringent voter registration laws. Rather, it was best understood as representative of their attachment to the essential principle of states’ rights.

            This, at bottom, was the single defining argument upon which Eastland and his Southern cohorts were inclined to stand. They hemmed, and hawed, and said a great deal more about history, and precedent, and points of order, and so forth. Eastland even tried to argue that because the 17^th Amendment was ratified more recently than the 15^th Amendment, such aspects of the former as served his argument more accurately represented the will of the American people than anything contained in the latter. But at the end of the day – in an atmosphere in which appeals to white racial superiority were increasingly taboo within the halls of Congress – states’ rights was the rock upon which 20^th century Southern Democrats seeking to defend segregation attempted to build their church. Even when the reformers enjoyed majority support in Congress – even when the Constitution explicitly granted the federal government the authority to enforce its mandates – Southern segregationists hammered on the same point again, and again, and again. The federal government, they said, was acting in violation of the rights of the states, denying the essential sovereignty of the states, and fundamentally trying to reduce the states to meaningless geographic distinctions. As had been the case a century prior, a canny Northern legislator might at this juncture have asked of his Southern counterpart precisely which rights were being violated and precisely what the South was being kept from doing. But the answers would not have changed any more than the questions. Whether it was the 1860s or the 1960s, Southern Democrats were the unequalled masters of speaking at great length while saying nothing. What did they want to do with their rights? That was fundamentally immaterial. All that mattered was that they were granted that to which they believed they were entitled. Beyond that, the rest of the country could mind its own business.

The Purpose and Powers of the Senate, Part LXXXII: Change and Changeability

            What is this all supposed to mean, you may well be asking? This lengthy diversion into the nature and idiosyncrasies of the United States Supreme Court? What it means, dear reader – and I beg with you to bear with me a little longer – is that the Court changes. Justices come and go, the balance between factions shifts, and the overall character of the Court is sometimes radically transformed as a result. Accordingly, from time to time, previously established precedents get tossed out. And increasingly, over the course of the late 20^th and early 21^st centuries, the Court has found itself at the center of electoral politics. Is this how the Court is supposed to work? This is a difficult question to answer. While it would seem a fair assessment of the Framers’ intentions to say that they did not design the Supreme Court to be a political body whose character and actions are innately tied into the nation’s larger electoral processes, the fact that this has become the case regardless does not necessarily represent a failure. Rather, it is simply what is. The supposedly non-partisan nature of the Supreme Court was always merely a norm. Rather than anything established by the text of the Constitution, it was instead simply promoted as a desirable practice which anyone with good sense would see the wisdom of adhering to. Bearing this somewhat rickety foundation in mind, it was therefore arguably inevitable that some group of American political actors would at some point realize that the Court could be made to function as an extremely effective means by which certain ideological objectives could be accomplished almost entirely outside of the formal democratic process. Indeed, one might argue that it was John Adams (1735-1826) himself, only the second president of the United States, who set the process of politicization in motion by having a lame-duck Congress confirm the appointment of fellow Federalist John Marshall (1755-1835) to the post of Chief Justice in 1801. Eager to frustrate what he assumed would be a long train of Republican successors in office, Adams specifically selected Marshall because he considered him to be ideologically trustworthy and because his good health and relative youth would ensure that he served for a lengthy tenure. 

            Which is all to say that Melville Fuller’s ruling in Pollock v. Farmers' Loan & Trust Co. need not have represented the last word of the Supreme Court on the topic of federal income taxes. As it stands, the supporters of said policy opted to pursue an amendment to the Constitution explicitly authorizing Congress to collect income taxes at the federal level without needing to apportion them among the states by population. What they could have done, however – and which the proximity of the Pollock ruling to the preceding Springer ruling arguably suggested they do – was turn the idea of a federal income tax into a campaign issue centered on the Supreme Court itself. If the replacement of a few justices made the difference between declaring a federal income tax constitutional and declaring it null and void, why not build an electoral strategy around appointing Supreme Court justices more amenable to progressive ideas? Consider, by way of an answer, the following counterfactual. If, in pursuit of the enactment of a national income tax law, the nation’s progressives lined up solidly behind the eventual Democratic Party candidate for president – one William Jennings Bryan (1860-1925) – it is possible that the eventual Republican victor – one William McKinley (1843-1901) – might instead have been defeated in the Election of 1896. In that event – and provided that progressive forces also succeeded in capturing a majority in the Senate – President Bryan would only have had to wait until the retirement of Stephen Johnson Field in 1897 for the chance to appoint an Associate Justice more amenable to the notion that incomes derived from property ownership could be taxed by Congress without having to be apportioned. The Pollock decision had only been a 5-4 ruling and Field had been in the majority. His replacement, along with the passage of another federal income tax law by Congress, would therefore arguably have resulted in a 5-4 vote in the opposite direction once the validity of the law in question was put before the Court.    

Without getting into how likely or unlikely the scenario described above might have been, it will here suffice to say that it was at the very least possible. It could conceivably have happened. The fact that it didn’t is attributable to many factors, among which was a decision on the part of the supporters of a federal income tax to pursue a constitutional amendment instead of seeking to purposefully change the character of the Court. Was the levying of a federal income tax simply too important to be left to the whims of a changing and changeable judicial majority? Arguably, it was not. As previously discussed, it was not absolutely essential at the turn of the 20^th century for the United States to begin collecting income taxes at the national level. There were other avenues that the American republic could have gone down. That the nation did ultimately enact a federal income tax in 1913 ought accordingly to be regarded as simply one choice among many. A majority of Americans were successfully convinced of the utility of allowing the federal government to begin collecting taxes on incomes and the result was the passage and ratification of the 16^th Amendment. Just so, the supporters of a federal income tax also made a choice when they settled upon an amendment as their preferred objective rather than fixating upon the Supreme Court. The latter approach might have succeeded. But for whatever strategic, or legal, or political reasons, the progressives opted for an amendment instead.

Which brings us back – fiiiiiinally – to the Senate debate of March 16^th, 1962. One of the ways Mississippi Senator James Eastland had attempted to dismiss Florida Senator Spessard Holland’s proposed anti-poll-tax amendment was to claim that the means being used simply did not suit the end. “It is no small matter [,]” he said, “when the framework of the U.S. Constitution is bent and torn to accommodate a transitory purpose, no matter how worthwhile the proponents of that purpose deem the goal they seek to achieve may be.” But what was it that made the abolition of poll taxes at the national level particularly transitory? Perhaps what Eastland meant to say was that the sudden rage against poll taxes evidenced by the wide-ranging support Holland’s proposal then enjoyed in the Senate was nothing more than a passing fad. Today it was poll taxes, tomorrow it would be literacy tests; civil rights fever seemed to have gripped a goodly portion of the Congress and caused otherwise reasonable men and women to propose all sorts of measures that were more optimistic than they were sensible. Granted, he may have had a point. A constitution isn’t supposed to be a comprehensive legislative corpus representative of the sum total of the nation’s contemporary socio-legal character. That is to say, it needn’t be exhaustively specific in the subjects it seeks to cover in order to serve a useful purpose. This is what laws are for. Laws, more than constitutions, are changeable, malleable, modifiable, and repealable. They respond to the changing priorities of the public at large without being so flimsy as to be easily disrespected or ignored. Constitutional amendments are comparatively solid and immovable. Only those precepts that receive near-universal support warrant being enshrined in a nation’s governing charter, and only those again whose object is not merely a matter of taste or opinion.

And really, weren’t poll taxes a fad in themselves? Over the course of American history up to 1962, they’d been adopted and repealed in a number of states at various points in time. Even in the post-Reconstruction Southern states controlled by segregationist majorities, the popularity of poll taxes had waxed and waned between the end of the 19^th century and the beginning of the 20^th. Indeed, while all of them adopted some form of poll tax between 1870 and 1902, the majority then went on to repeal these same measures between 1920 and 1953. Small comfort for those who suffered in the interim, of course, but also arguable proof that poll taxes were something of a transitory notion. States had adopted them and disposed of them as their opinions of their utility changed, and it was not necessarily unreasonable to conclude – circa 1962 – that the remaining five states in which poll taxes remained in force would sooner or later follow suit. In the meantime, if there existed a majority in Congress desirous of forcing the issue and banning poll taxes at the level of federal elections, said majority could always attempt to enact a federal statute. Naturally, the resulting law would be subject to later modification or repeal. But given the fact that only five states would be affected, the emergence of the required majority in favor of reinstating the poll tax would seem more than a little unlikely.

Yes, Eastland may indeed have had a point. It would have represented an oddly specific use of the amending power enshrined in the Constitution to ban something as demonstrably transitory as poll taxes had proven to be, particularly at a time when they appeared very much on their way out. Does this necessarily mean, however, that Eastland was right and Holland was wrong? That Congress should not have been pursuing a constitutional amendment banning poll taxes? No, it does not. The various powers possessed by the different branches of the United States Government are there to be used. Norms and traditions may be held up, at times, as a form of de facto regulation, but the only authorities that really matter are the Supreme Court and the Constitution itself. And as long as they give sanction for a particular actor or institution to act in a particular way, no other authority need realistically be consulted. Did it make sense for Congress to approve an amendment to the Constitution in 1919 banning the manufacture and sale of intoxicating liquors? Not particularly. In spite of the obvious political power that had been amassed by the temperance movement by the end of the 1910s, the consumption of alcoholic beverages was still an extremely common occurrence in almost all regions of the United States. It was therefore arguably inevitable that while a constitutional ban on the manufacture and sale of intoxicating liquors was likely to meet with ardent support among certain communities in certain states, the general response among the American people at large was going to be one of disobedience. Though it might accordingly be fair to describe the supporters of the 18^th Amendment as rather foolish in their estimation of this selfsame measure’s likelihood of success, it would nevertheless be incorrect to declare as a result that their pursuit of a constitutional amendment was fundamentally wrong.

Circa 1918, temperance advocates had the support of enough state legislatures to ensure that a prohibition amendment, once approved by Congress, would be ratified within the year. And they had enough support in Congress to ensure that a prohibition amendment would be approved by significant margins. This is all that has ever been required for anyone to secure an amendment on any subject at all. So long as the numbers add up, it doesn’t matter if they’re being foolish, or thoughtless, or even outright discriminatory. The Constitution does not differentiate between sensible amendments and senseless ones. Which is what made Senator Eastland’s comment about Senator Holland’s objective being “transitory” so rich. He was entitled, of course, as a member of the Senate to raise objections to the proposed anti-poll-tax amendment and give voice to his concerns in an attempt to sway his fellow legislators. And within the limits of decorum and good taste – as established by the Senate’s official rules of debate – he was allowed to say whatever he wanted in pursuit of his desired objective. It’s just that claiming an amendment banning poll taxes represented a transitory purpose would seem to be somewhat ineffective as a strategy.

            Not that long before – in living memory, in fact, for men like Eastland, Hill, and Russell – Congress had approved and the states had ratified an amendment to the Constitution making the consumption of alcohol functionally illegal. And then, even more recently – within the Senate tenures of sitting members Harry F. Byrd (1887-1966) and Carl Hayden (1877-1972) – Congress and the states had cooperated to pass another amendment whose only purpose was to repeal that selfsame prohibition amendment. Was this not the very definition of transitory? The 18^th Amendment had been in force for less than fifteen years when it was repealed in 1933. Suffice to say, that was all the time it took for the supporters of temperance to lose all of the influence they had accrued during the previous half-century. Was it not possible, then, for the supporters of Senator Holland’s anti-poll-tax amendment to likewise exhaust all their political capital once their objective was actually accomplished? Could the nation, as it had turned against prohibition, not turn against civil rights as well? Absolutely. Functionally speaking, however, this makes no difference as to whether or not a given amendment proposal could or even should be approved. Simply put, if the numbers are on its side, it will be approved. History had shown this, failures and all, and notwithstanding Eastland’s protestation to the contrary. “It is no small matter [,]” he said, “when the framework of the U.S. Constitution is bent and torn to accommodate a transitory purpose [.]” As of 1962, however, the horse was long since out of the barn. Senator Holland had the numbers. Practically speaking, nothing else really mattered. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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