tion directly contrary to the intent of the two amendments, yet that is precisely what S. 2750 would do if it were enacted.

The 15th amendment to the U.S. Constitution provides that:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude

"The Congress shall have power to enforce this article by appropriate legislation."

It will be seen that if the equal protection, due process, and privileges and immunities clauses of the 14th amendment are relied upon as authority for the proposed legislation, the authority of Congress to act pursuant to these clauses is governed by the same principles as those which govern the power of Congress under the 15th amendment. In other words, since the avowed purpose of the bill is to prevent racial discrimination, the power of Congress under the first section of the 14th amendment is the same as the power of Congress under the 15th amendment.

An examination of the power of Congress to enact laws under these two amendments is in order. In the Civil Rights cases, the Supreme Court in interpreting the 14th amendment held that:

"The legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing * * [Emphasis added.]

We should consider also United States v. Harris, 106 U.S. 629 (1883), in which the Court said, "when the laws of a State recognize and protect the rights of all persons, the (14th) amendment imposes no duty and confers no power upon Congress *

Similarly, the Supreme Court has said, in United States v. Reese, 92 U.S. 214, in 1876, that the 15th amendment does not confer authority:

"To impose penalties for every wrongful refusal to receive * (a) vote *** (but) only when the wrongful refusal *** is because of race, color, or previous condition of servitude ***"

Or, phrased in another manner, the 15th amendment only confers on Congress authority to penalize State action under color of laws which States are constitutionally prohibited from making or enforcing.

The cases from which the two preceding passages are taken were decided in 1876 and 1883 by two courts intimately familiar with the purposes sought to be accomplished by the 14th and 15th amendments. In the 1876 Reese decision, the Chief Justice was Morrison R. Waite; associates were Clifford, Miller, Field, Bradley, Swayne, Davis, Strong, and Hunt. The Civil Rights cases were decided 7 years later with the same Chief Justice on the bench, and the following associates: Miller, Field, Bradley, Harlan, Woods, Matthews, Gray, and Blatchford. The opinions set forth relatively simple tests which must be applied in determining the power to be exercised by Congress under the amendments. It is therefore proper to examine S. 2750 in the light of these requirements.

Stated simply, the purpose which is sought to be accomplished by the bill is the outlawing of State literacy tests, and, incidentally, State-required poll taxes. Therefore, under the rules set forth by the Supreme Court, if the State literacy tests and poll taxes are prohibited by the 14th or 15th amendments, S. 2750 is a proper exercise of the power of Congress. But if these State laws are not prohibited by the Constitution, Congress lacks the power necessary to enact S. 2750.

Literacy tests required by States of prospective voters have been repeatedly upheld. I have referred already to Lassiter v. Board of Supervisors, 360 U.S. 45 (1959). Other decisions are Williams v. Mississippi, 170 U.S. 213 (1898) and Williams v. McCully, 128 F. Supp. 897 (W.D. La. 1955). In the Lassiter case, the Supreme Court considered a North Carolina statute which provided that every person presenting himself for registration should be able to read and write any section of the Constitution of North Carolina in the English language. In pronouncing the test a valid exercise of the State's power, as I have said, Mr. Justice Douglas, writing for a unanimous Court, held that:

"In our society *** a State might conclude that only those who are literate should exercise the franchise."

In other words, the States are not precluded by any clause of the Constitution or its amendments from making such laws. Since Congress is restricted from making laws in the premises except where States have made laws which they are "prohibited from making or enforcing," it follows that Congress has no power to enact a law controlling this situation.

Of course, it is not contended that a State law which provides an unreasonable or incomprehensible test, or a test that is unfairly administered, is constitutional. Such laws have been declared unconstitutional by the Supreme Court. The important point is that the Court, not Congress, held the laws unconstitutional. Congress has no authority to declare a broad range of State laws unconstitutional by enacting its own conflicting law.

Poll taxes, which also would presumably be eliminated by S. 2750, have always been sustained as a constitutional exercise of a State's power. Therefore, there could be no authority under the 14th or 15th amendment for Congress to enact a law eliminating this valid exercise of State power.

As might be supposed from this discussion, the constitutional basis of the States' power to establish voter qualifications is so well established that one objective reporter has stated in 3 Race Relations Law Reporter, page 390:

"It would seem, therefore, that the States are free to establish any requirement that they deem wise, as long as these requirements are not discriminatory nor based on sex, race, color or previous condition of servitude. As a consequence, voting rights may, and often do vary widely from State to State."

In fact, an annotated volume of the Constitution prepared for the Legislative Reference Service of the Library of Congress by Professor Corwin states that: "The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State; subject, however, to the limitation that the Constitution in article 1, section 2, adopts as qualifications for voting for Members of Congress those qualifications established by the States for voting for the most numerous branch of their legislatures."

This statement appears in the section of the treatise dealing with the 14th amendment and would seem to apply with equal force in questions dealing with the 15th amendment. It would be difficult to make a statement which more completely denies to Congress the power necessary for the enactment of S. 2750. For a conclusive expression of the position of the States with regard to the question, it is necessary only to look to State constitutions and laws. All the States require that each voter must be a U.S. citizen, and all States set a minimum-age requirement. Practically all States prohibit idiots, insane people, and convicted felons from exercising the franchise. A substantial number of the States withhold the right to vote from paupers. In addition, 19 States require some form of literacy test. It is error to assume that all or most of these 19 States are Southern States. Arizona, California, Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New York, Oklahoma, Oregon, Washington and Wyoming all require some form of literacy test.

Laws governing the right to vote have been enacted, amended, contested in State courts, and tested by long experience by the citizens of the several States since the formation of the Nation. It would be a constitutionally indefensible act for Congress to assume the duties so long exercised by the States. It cannot be successfully contended that the Members of Congress know more about proper qualifications for voters in any given State than do the members of that State's legislature. It was the realization of this fact which led the authors of our Constitution to leave the problem of voter qualification to the States.

I do not believe that proponents of the pending legislation would rely upon recent civil rights legislation as precedent for the constitutional soundness of their proposed measure. The similarities are few, and the dissimilarities are striking. Nevertheless, the possibility of such a comparison being made compels me to point out the fallacy in that line of reasoning.

I will assume arguendo that the civil rights legislation passed in 1957 and 1960 is constitutional. This is quite an assumption, but even if each phase of that legislation were completely beyond challenge as an exercise of congressional power, a decision as to its constitutionality would offer no shred of support for the constitutional validity of S. 2750. The reason is that S. 2750 deals with the qualification of voters. In the Civil Rights Acts of 1957 and 1960, great respect is accorded, so far at least as the language of the act is concerned, State laws governing the qualification of voters. Even when the law provides for the appointment of Federal referees to control procedures which have been admin

istered by the States for the better part of two centuries in the past, the language is clear that State qualifications are to be applied by those referees.

By the words of its opening provision, the act is applicable to "all citizens of the United States who are otherwise qualified by law ***" to vote. Following provision for the appointment of a Federal referee, Congress provided that a person discriminated against would be entitled to an order authorizing him to vote if "he is qualified under State law to vote." Subsequently in the same section, it is provided:

"The Court, or at its direction the voting referee, shall issue to each applicant so declared qualified a certificate identifying the holder thereof as a person so qualified."

And finally it is expressly stated that:

"The words 'qualified under State law' shall mean qualified according to the laws, customs, or usages of the State ***."

From this brief examination of the Civil Rights Act, which on its face accepts State requirements as to voter qualification, it is apparent that the act offers no inference of support for S. 2750, which would supplant State laws as to voter qualification.

Thus far in this discussion of the right to vote in Federal elections, nothing has been said with regard to the right to vote for the President and Vice President of the United States. This is because the right to vote for these offices is so clearly a matter of State concern that no convincing argument to the contrary can be advanced. With regard to the selection of the electors who, in turn, elect a President and Vice President, the Constitution provides:

"Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress

**”

The words "in such manner as the legislature thereof may direct" are conclusive in determining authority for control of presidential elections. Thus in 1892 it was held, in McPherson v. Blacker, 146 U.S. 1, that the State legislatures may provide for election of presidential electors at large, or the election may be by districts, or the State legislatures may choose electors as they see fit. The same authority would apply in the setting of qualifications for voters. The argument for congressional control is insupportable, since the only power given Congress by the Constitution in this area is to "determine the time of choosing the electors, and the day on which they shall give their votes ***" In an article published in the 1961 American Bar Association Journal, a member of the New York bar states that:

"There is a clear distinction between the right to vote for a presidential elector and the right to vote for a Member of Congress. The former is a right granted by the individual State ***.”

The author goes on to point out that although the right to vote for Members of Congress is a federally derived right, it is within the power of each State to prescribe suffrage qualifications. It is well established that suffrage requirements, both for elections of Members of Congress and for voters in presidential elections, are determined by the individual States, subject only to the restriction of the 15th and 19th amendments. If suffrage requirements prescribed for these Federal elections meet the requirements of these two amendments, and the Supreme Court has held that both the literacy test and the poll tax do, there is no power in Congress to revise these requirements and make them conform to a national standard.

I have endeavored to prove that Congress lacks authority to enact the proposed legislation, S. 2750. In so doing, it is not my purpose to detract from the powers given Congress in the exercise of its proper powers by fixing responsibility for solution of local problems at the State level. Surely, the people of my home State, Virginia, may petition their State government for redress if present State legislation is unsatisfactory. I submit that Jefferson, Madison, Randolph, Henry, Washington, and other statesmen of their day would not hold Virginia incompetent to solve her own problems within the Commonwealth. In a like manner, statesmen of the present day should acknowledge the competence of State legislatures to solve problems existing within the several States. This, as I understand it, was the purpose in establishing a dual system of government under our Constitution.

I do not object personally to the literacy standards prescribed in the proposed legislation. If Virginia, Connecticut, Montana, or California were to adopt those standards, no reasonable protest could be made. But I protest strenuously

against the asserted power of Congress to apply those standards to all the States.

In this great land where freedom is cherished, there are those who ardently believe that the elimination of any practice viewed by them as a social evil is an end which justifies the means. They have no fear of unauthorized Executive orders, unconstitutional laws, or judicial amendments to our Constitution. To them I say the greatest evil the world could know would be the destruction of this Nation. Let us work for social reform, let us seek perfect justice-but in so doing, let us not resort to practices which in the hands of would-be tyrants could be as ready tools for the suppression of liberty as their proponents of today find them to be in what they consider the extension of liberty. Any device that avoids the Constitution can avoid it for the purpose of withdrawing privileges as readily as it can avoid it to grant them. The first President of our country, mindful of this disposition of men to shake off the restraining bonds of the Constitution when the situation seemed to demand it or make it politically expedient, said in his farewell address:

"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument for good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance, in permanent evil, any particular or transient benefit which the use can at any time yield."

The provisions of S. 2750 may in the minds of some offer a transient benefit, but the precedent, if established, will eventually and inevitably operate to the detriment of the Nation.

Senator ERVIN. Mr. Bloch, Senator Goldwater was to be the next witness, and he said it would be a little time before he could get here. I believe that you know it is customary to take Senators' testimony as soon as possible, but we are going to proceed with you, and then, if he comes in, if it will not discommode you too much, we can let him replace you temporarily.

The chairman is delighted to welcome Mr. Charles J. Bloch, of Macon, Ga., to come before the committee.

Mr. Bloch is one of the most distinguished trial lawyers in America, and, in my judgment, has no superior and very few, if any, equals as a constitutional lawyer.

He has written a very illuminating book on the subject of States' rights, "The Law of the Land," which I wish I had the power to make every Member of the Senate read.

STATEMENT OF CHARLES J. BLOCH, ATTORNEY AT LAW

Mr. BLOCH. Thank you, Senator Ervin.

I have had the honor to appear before this committee on several occasions, sometimes as an official representative of the State of Georgia. This time I appear, and my appearance is unique in at least two respects:

(1) I do not appear as a representative of the State of Georgia, but I appear at the invitation of Senator Eastland and your chairman, Senator Ervin.

(2) I appear just after having had the privilege of hearing the remarks of the Attorney General of the United States in support of this legislation, which I opposed and continue to oppose.

As I understood the Attorney General, he recognizes that the States. of this Union under the Northampton County, North Carolina case, and others which it follows, have a right to enact laws confining the right to vote to its literate citizens. In other words, to apply literacy

tests.

What the Attorney General, it seems to me, with all due respect, would have the Congress do in these bills would simply destroy that power of the States by having the Congress define "literate" and make that word "literate" synonymous with having a sixth-grade education.

If the plan of these bills is enacted into law and a citizen of Georgia seeks to register to vote, and the registrars, following the Georgia law, request that the applicant read or write a section of the Constitution, which is a part of our literacy test, the applicant may decline to do so if he can prove that he has completed the sixth grade in an accredited school of any State of the Union, the District of Columbia, or Puerto Rico.

The Attorney General made some reference to a provision in the Constitution that all men are created equal. I have never seen such a statement in the Constitution, but, if it were there, it would now be changed, or it would be changed if Congress enacted this legislation to say all sixth-grade students are equal.

I think the Attorney General demonstrated the basic unconstitutionality of this plan when he expressed doubts as to its constitutionality as applied to State elections. If it is appropriate legislation under the 14th or 15th amendments, and I do not think it is, it would make no difference whether State or Federal elections were involved. On November 9, 1961, I had the privilege of making a talk to the lawyers assembled in Birmingham, Ala., for the southeastern regional meeting. I called it "The Tangled Web." It has been reprinted in the February 1962 issue of the Georgia Bar Journal.

The general theme of it was:

*

* by

Oh, what a tangled web we weave when first we practice to-deviate. Illegitimate and unconstitutional practices get their first footing * silent approaches and slight deviations from legal modes of procedure. The Supreme Court of the United States said that in Boyd v. United States (116 U.S., pp. 616, 635).

The first slight deviations, the silent approaches commenced about 18 years ago.

Today, there are many lawyers and others who are not interested in the preservation of our system of government.

Today, there are others who are so anxious for one purpose or another to impose their will upon the States of the South that they care not about the effects of evasion or ignoring of the Constitution upon the American system of government.

History says that when Admiral Farragut sailed into Mobile Bay he said, "Go ahead, torpedoes be damned."

That expresses their attitude toward those parts of the Constitution which displease them, or which block their path and ambitions for power.

Mr. Justice Douglas has recently warned of this trend, although he thought those pursuing it were men of good will. Recently, on June 20, 1960, he said:

We live and work under a Constitution. The temptation of many men of good will is to cut corners, take short cuts, and reach the desired end regardless of means (Hannah v. Larche, 363 U.S., at p. 494).

Despite Justice Douglas' warning, this is exactly what these bills seek to do.