UNITED STATES

"

• r

OF AMERICA

dPROCEEDINGS AND DEBATES OF THE 92 CONGRESS

FIRST SESSION

VOLUME 117-PART 4

FEBRUARY 26, 1971, TO MARCH 8, 1971

(PAGES 4083 TO 5460)

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1971

MaTch 4, 1971 CONGRESSIONAL RECORD - SENATE 5101aspect of the view which you expressed inyour own letter earlier-that there is no pro­hibition on the appointment of a girl Sen­ate page.

With best wishes.Sinc'erely,

JACOB K. JAVITS.Mr. Chairman. I think you will note from

my letter that, although I am not concedingthat there ought to be any discriminationbetween girls and boys in this matter, I amprepared. in order to ease the transition, tomake some special \,-ccommodations and setsome special criteria for my first girl-page ap·pointment: I pick a girl in the upper end ofthe permissible age spectrum; to avoid anyquestion about physical ablllty to performthe work; and I pick a girl whose parentslive nearby. to make sure there will be propersuperVision.

On December 11, 1970, I announced my firstappointment-a New York girl, Paulette De­sell-Who lives with her famlly in the Wash­ington area.

After that announcement, I submittedPaulette's name to the Republican Confer­ence, and was informed by Mr. Trice that theRepublican Conference will certify her to thesergeant at Arms-the appointive authority.In Mr. Trice's letter of December 11, 1970,he wrote:

"If and when Miss Desell presents herself tothis office, the necessary forms wlll be ex­ecuted and she will be certified to the Ser­geant at Arms of the Senate, who is the ap­pointive power."

I then informed the Sergeant at Arms ofwhat was impending, but he replied, by let­ter dated December 30, 1970, that he wouldnot accept such an appointment withoutprior approval of this Committee. In this let­ter, he wrote:

"As you are aware, the matter of authoriz­ing girl pages is now pending in the SenateCommittee on Rules and Administration.Chairman B. Everett Jordan has informedme that this subject is on the Committee'sagenda for its next meeting.

"I presume your nomination of Miss Desellwill be held in abeyance awaiting the Com­mittee's action. I know that you appreciatemy position in that this office Is SUbject tothe direction and control of the Rules Com­mittee and I am unable to change the long­standing pollcies and precedents of the Sen­ate without specific direction from theCommittee."

And so it is up to you, Mr. Chairman, andthe Committee, to resolve this question­and I hope very much that you will resolveit affirmatively and quickly, for it involvesan issue fundamental to our law and oursense of fairness as a people.

IRAKAPENSTEIN IN MEMORIAMMr. PROXMIRE. Mr. President, Ira

Kapenstein, a talented young leader ofmen, has died at 35. His fine service asDeputy Chairman of the Democratic Na­tional Committee and in the Post OfficeDepartment has been brought to theattention of the Senate. I would like tocall attention to Mr. Kapenstein asanewspaperman and as a human being.

Mr. Kapenstein joined the Mil­waukee Journal at the age of 20 in 1956after being graduated from the Univer­sity of Iowa. Within a short time his abil­ity was recognized and he was assignedto cover politics. It was that assignmentthat displayed his keen mind and writingskills. He was always a thorough and fairreporter.

It was during that period when he dis­covered he was striken by cancer. Hisstruggle was to continue more than 10years. But he stood strong as a man to

an adversity that might have licked othermen. He was uncomplaining. He facedsquarely a stern reality. He carried on.Indeed, he succeeded in three othercareers despite his affliction.

All the time, he was considerate ofhis fellow men; truly concerned, forexample, when a friend had a cold; goingout of his way to be kind.

Ira Kapenstein was a real man and acompassionate human being. He will bemissed.

My sympathy goes to his family and tohis many friends.

THE DISABLED AMERICAN VETER­ANS-A HALF CENTURY OF DIS­TINGUISHED SERVICEMr. WILLIAMS. Mr. President, I wish

to join Senators in honoring one of ourNation's most distinguished service or­ganizations as it celebrates its 50th yearof assistance to the wounded and disabledAmerican combat veterans.

From the date of its founding in 1920,the DAV has assisted veterans, theirdependents. widows, and orphans inobtaining benefits to which they havebeen entitled. In many cases, the goodoffices or power of attorney exercised onbehalf of a disabled veteran by a DAVchapter have resulted in obtainingassistance for deserving individuals whowere either uninformed of their rightsor uncertain of how to apply for them.

Even more commendable at this timeof overseas conflict, are the many pro­grams of assistance to the disabled Indo­china veterans now in military hospitals.In a war where vastly improved medicaland rescue facilities have reduced thedeath rate, but thereby contributed to ahigher proportion of injured and disabledsurvivors, the vocational rehabilitationand educational services of the DAV takeon a renewed importance.

I congratulate the DAV on its con­stantly active program, and applaud itsprograms of assistance. Although it is anorganization for which we wish there wasno need, the fact of the matter is thatthere is a tremendous need for the DAVtoday, perhaps one of the greatest in itsdistinguished history. We must re­member that the disabled veteran, whois responsible for neither the escalationnor the continuation of the present con­fiict, has nonetheless been required toundergo the greatest suffering, andendure the most lasting hardships. Wehave a responsibility to such men, andthe most important of all of the DAV'sfunctions, is to not allow us to forget thissacred trust.

CONCLUSION OF MORNINGBUSINESS

The PRESIDING OFFICER (Mr.GAMBRELL). Is there further morningbusiness? If not, morning business isconcluded.

AMEND:MENT OF RULE XXII OF THESTANDING RULES OF THE SENATE

Mr. BYRD of West Virginia. Mr. Presi­dent, I ask that the Senate proceed tothe further consideration of the pendingbusiness.

The PRESIDING OFFICER. The Sen­ate will proceed to the consideration ofthe pending business, which the clerkwill state.

The assistant legislative clerk read asfollows:

The motion to postpone for one legisla­tive day the motion to proceed to the consid­eration of S. Res. 9, amending rule XXII ofthe Standing Rules of the Senate with re­spect to limitation of debate.

QUORUM CALLMr. BYRD of West Virginia. Mr. Presi­

dent, I suggest the absence of a quorum.The PRESIDING OFFICER. The clerk

will call the roll.The assistant legislative clerk pro­

ceeded to call the roll.Mr. BYRD of West Virginia. Mr. Presi­

dent, I ask unanimous consent that theorder for the quorum call be rescinded.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

ORDER FOR RECESS TO 11:45 A.M.TOMORROW

Mr. BYRD of West Virginia. Mr. Presi­dent, I ask unanimous consent thatwhen the Senate completes its businesstoday, it stand in recess until 11 :45 a.m.tomorrow.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

ORDER FOR RECOGNITION OF SEN­ATOR FULBRIGHT TOMORROW

Mr. BYRD of West Virginia. Mr. Presi­dent, I ask unanimous consent thatimmediately following the recognitionof the two leaders, under the standingorder, on tomorrow, the able Senatorfrom Arkansas (Mr. FULBRIGHT) be rec­ognized for not to exceed 15 minutes justprior to the transaction of routine morn­ing business.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

AMENDMENT OF RULE XXII OF THESTANDING RULES OF THE SENATE

The Senate continued with the con­sideration of the motion to proceed tothe consideration of the resolution (S.Res. 9) amending rule XXII of theStanding Rules of the Senate ,with re­spect to the limitation of debate.

Mr. THURMOND. Mr. President, fili­buster, in its lexicographic sense as anoan, designates an armed adventurer,on land or sea, who wages unauthorizedand irregular warfare. Historically, theSenate of the United States operates un­der a form of filibuster in the sense thatunless a two-thirds vote is present to en­yoke cloture, the minority continues to beheard in accordance with the principlesof free speech.

This is no "guerrilla warfare" of theSenate-it is a form of deliberation, de­bate, and discussion representing a veryimportant aspect of our constitutionallyordained system of government. The U.S.Senate is not a homogeneous body. Wewould not wish it to be so. The body ofAmerican citizens are points of diversity,

CONGRESSIONAL RECORD -SENATE March 4, 1971

and the Senate should reflect that di­versity.

Mr. President, filibustering itself goesback to the time of the Roman senate.The filibuster was employed in the Eng­lish Parliament by Charles stewart Par­nell. Under the Constitution of theUnited states, we found the filibuster inthe very first Congress. Senator JohnRandolph of Roanoke occupied the floorday after day with dreary monolog, butthe filibuster is not without its mastersof ingenuity.

Huey P. Long of Louisiana had a pa­litical career spanning less than 20 yearsand a lifetime of only 42, yet this manhad been well noted for his feat of con­tinuous and almost uninterrupted talk­ing.

He was born in 1893 in Winnfield, La.He never was graduated from high schooland was never granted a college diploma.Yet, in 1 year, Huey Long emerged acertified lawYer from Tulane Universityat the age of 21. In 1918, he was electedrailroad commissioner for the northerndistrict of Louisiana and began his po­litical career. This lowly beginning ledhim to the gubernatorial race in 1924 anda seat in the U,S. Senate in 1930, Duringhis drive for the Presidency in Septem­ber of 1935, he was gunned down by anassassin in Baton Rouge.

Mr. President, filibuster has had itslighter moments in history, and SenatorLong added his charm and humor intheir enactment. He highlighted presen­tations with biographical sketches ofFrederick the Great, quotations fromVictor Hugo, and details on how to fryoYsters. His various menus and com­ments on cooking could have resultedin a book. Once the Senator remarked:

Years from today there w1ll be great jeal­ousy over the fact that Senators will beclaiming that they were among those whoheard my memorable speech.

The practice of limiting debateknown as the "previous question" wasintroduced in 1604 by Sir Henry Vane."Previous question" was also cited in the.Joumals of the Continental Congress.

Mr. President, the first Senate in 1789adopted 19 rules. Those relating to de­bate and the use of time in the Senatewere:

2. No member shall speak to another, orotherwIse Interrupt the busIness of the Sen­ate, or read any prInted paper while theJournals or public papers are reading, orWhen any Member Is speakIng In any debate.

3. Every Member, when he speaks,shalladdress the Chait, standIng in hIs place,and when he has finished shall sit down.

4. No Member shall speak more than twiceIn anyone debate on the same day, WIthoutleave of the Senate.

6. No motIon shall be debated until thesame shall be seconded.

8. When a question Is before the Senate,no motIon shall be received unless for anamendment, for the prevIous question, orfor postponIng the main questIon, or to com­mIt, or to adjourn.

9. The previous questlon being moved andseconded, the questIon from the ChaIr shallbe: "Shall the main question be now put?"And If the nays prevail, the main questionshall not then be put.

11. When the yeas and nays shall be calledfor by one-fifth of the members present,each Member called upon shall, unless forspecial reasons be excused by the Senate,declare, openly and wIthout debate, his as­sent or dIssent to the questIon.

Mr. President, in 1806, when the ruleswere modified, reference to the previousquestion was omitted. It was used onlythree times between 1789 and that modi­fication, a period of 17 years. Until 1846,there were no further limitations on de­bate in the Senate.

On July 12, 1941, Henry Clay intro­duced a proposal of the "previous ques­tion." This proposal met with such op­position that it was abandoned as wasClay's proposed adoption of the "hourrule."

Mr. President, on July 27, 1850, Sen­ator Douglas submitted a bill permittingthe use of "previous question," as hadSenator Clay. This again drew substan­tial opposition and the resolution waslaid on the table. Not until 1862 was aproposal limiting debate adopted by theSenate, and this was at the time of theCivil War. The introduction by SenatorWade was directly related to the war.

In 1870, the U.S. Senate, on appeal,sustained a decision of the Chair that aSenator had the right to read whatevermatter he wished under considerationduring the course of the debate. Since1872, a precedent has been set that aSenator cannot be taken from the floorfor irrelevancy in debate.

Mr. President, in protest of the An­thony rule first adopted on December 7,1870, Senator Edmunds said:

I would rather that not a sIngle bl1l shaHpass between now and the 4th day of Marchthan to Introduce Into thIs bOdy (WhIch isthe only one where there Is free debate andthe only one whIch can under Its rules dis­cuss freely measures of Importance or other­wIse) a provisIon Which does In effect op­erate to carry a bill eIther to defeat or successwIth only a five or fifteen mInutes debateand one or two Senators on a sIde speakIng.I thInk it is of greatest Importance to thepUblic interest, in the long run and In theshort run, that every bill on your Calendarshould fall than that any Senator should becut off from the rIght of expressing his opIn­ion and the grounds of it upon every measurethat is to be voted upon here....

For close to 200 years here in theUnited States of America, and for a timelonger than that of which we have ac­count, man has sought his right to self­expression. That sentiment remains withus today and will continue as long asman remains man.

What at first glance might seem tosome to be a matter of little importance,must be studied and reflected upon. Ex­tended debate in the Senate focusesnational attention on matters of impor­tance. Curtailment of this debate wouldthreaten the survival of our great andfree Govemment.

Mr. President, the Committee onRules and Administration condenses forus the 1969-70 proposal to alter ruleXXII as follows: At the beginning of the91st Congress yet another strategy wasdevised by those who favored altera­tion of rule XXII, but felt themselvesblocked by that very cloture rUle fromeffecting a change. Proponents of changemarshalled their support behind a singleresolution, Senate Resolution 11, intro­duced by Senators CHURCH and PEARSONand cosponsored by 35 other Senators. Itprovided for invoking of cloture by three­fifths, rather than two-thirds, of thosepresent and voting.

Their strategy required a favorable

ruling by the Vice President, still Mr.Humphrey, that a simple majority couldinvoke cloture on any motion to take up,or on the resolution itself, when achange in the rules was being attemptedat the start of a new Congress. On Janu­ary 14, 1969, 5 days after debate hadbegun on Senate Resolution 11, Mr.CHURCH and 24 other Senators filed acloture motion to limit ..debate on themotion to consider the l'esolution. Thiscloture motion was fiied tinder the proce­dures set forth in rule XXII;

Mr. CHURCH then inquired of the ChairWhether, if a majority of the Senatorspresent and voting, but less than thetwo-thirds required by rUle XXII, votedin favor. of cloture, the cloture motionwould have been agreed to. Mr. CHU~CHjustified his request for a favorableruling with the argument that it was tin­constitutional ·to require a. two-thirdsvote to invoke cloture on such questionsin t.p.atit restricted theright of a major­ity of the Senate t6 determine its rulesat the opening ofa new Congress. Thiswas a right, by Mr. CHURCH'S reasoning,implied in the Constitution.

Mr. President, the Vice Presidentagreed with Mr. CHURCH, saying:

On a p~r with the rIght of the Senate todetermIne its rUles, though perhaps not setforth so specifically In the ConstitutIon, isthe rIght of the Senate, a simple majorItyof the Senate, to decIde constItutional ques­tions.

I! a majority-this Is the view of theChair-but less than two-thIrds, of thosepresent and votIng, vote In favor of thIscloture motion, the questIon whether themotion has been agreed to is a constitutionalquestIon. The constItutional questIon Is thevalidIty of the RUle XXII requIrement foran affirmative vote by two-thIrds of theSenate before a majority of the Senate mayexercIse Its right to consider a proposedchange in the rules. I! the Chair were to an­nounce that the motIon for cloture had notbeen agreed to because the. affirmatIve votehad faUen short of the two-thIrds required,the ChaIr· would not only be vIOlatIng oneestablished principle by deciding the consti­tutIonal question hImself, It would be Violat­Ing the other established princIple by in­hlbiting,.1! not effectIvely preventing, theSenate from exercisIng its right to decidethe constitutional questIon.

The ChaIr Informs the Senate that in orderto give substance to the right of the Senateto determine or change Its rules to determIneWhether the two-thIrds requIrement of RuleXXII is an unconstItutional Inhibition onthat right at the opening of a new, Congress,If a majorIty of the Senators present andvoting but fewer than two-thirds vote Infavor of the pending motIon for cloture, theChair wlll announce that a majority haveagreed to limit debate on S. Res. 11, to amendRule XXII, at the opening of a new Congress,debate will proceed under the cloture provi­sIons of that rule.

This landmark ruling, subject, as theChair said, to appeal without debate,caused considerable agony for those whoopposed it and the altering of ruIe XXII.Senator Holland averred that it wouId"deprive the Senate of any. change todiscuss the constitutional aspects of thisvery serious matter."

On January 16, the Senate voted 51 to47 to invoke cloture and the Vice Presi­dent, in line with his earlier statement,ruled that cloture had been invoked. Thisdecision was appealed and reversed on a45-to-53 rollcall vote. Subsequently, onJanuary 28, a second attempt to invoke

March 4, 1971 CONGRESSIONAL RECORD - SENATE 5103

cloture, this time within the two-thirdsstructure of rule XXII, was attemptedand failed, 50 to 42; thus ended anotherploy for changing rule XXII.

Once again we have the problem ofcloture before us, rule XXII has beendebated again and again. It should benoted that again and again, the Sen­ate has responded by voting an indica:­tion of support to the two-thirds rulingand a desire to allow the Senate its con­stitutional differences from the U.S.House of Representatives and its uniquechangelessness over the time encom­passed by our 92 Congresses. House rulesmay be changed at. the beginning ofevery Congress; the Senate continues itsoperation subject to the previous rules.

Two-thirds is noted to be the prevail­ing fraction in our U.S. Constitution. Itrequires a two-thirds vote of the Sen­ate to ratify treaties, a two-thirds voteof both Houses overrides a veto, a two­thirds vote of both Houses is required topass constitutional amendments, two­thirds of the Senate is needed to con­vict on impeachment, and two-thirdsvote of each House. is required toexpel a Member.

Mr. President, the U.S. Senate hasbeen praised by scholars and legislatorsalike for its deliberation and carefulconsideration. Han. Robert Luce stated:

Many of the wise men who have servedin the Senate have come to believe that itis important that there should be one placeIn the legislative journey where the oppor­tunity . for discussion Is unfettered. Theyhave found that this has not In the endprevented any decisions persistently wantedby the people, but on the other hand hasstood In the way of much action that thecountry has come to conclude would havebeen unwise.

Prof. Lewis Froman, Jr., is quoted:The ability of any Senator to speak for

as long as he chooses Is one of the mostsacred of the Institutions of the Senateand distinguishes it quite sharply from theHouse of Representatives, or, Indeed, anyother legislative body In the world.

U.S. Senator and former Vice Pres­ident HUBERT HUMPHREY said of theSenate:

If I were to teach again a course in gov­ernment, I would say if you really want toknow the kind of manners and rules ofconduct that you ought to have to assurethe meaning of the First Amendment, par­ticularly, as it comes to free speech, andthe rights of redress for your grievances, thefreedom of the press, the freedom to as­semble ... the Senate of the United Statesrepresents that in its fullest measure. AndIn that alone, it's worthwhlle. If nothingelse, that would make It a very worthwhlleAmerican Institution.

WaIter Lippmann has said:The filibuster under the present rules of

the Senate conforms with the essential spiritof the American COnstitUtion, and It Is oneof the very strongest practical guaranteeswe have for preserving the rights which areIn the Constitution.

In his speech upon leaving office, VicePresident of the United States AdlaiStevenson said:

Of those who clamor against the senate,and its methods of procedure, it may trulybe said: "They know not what they do." Inthis chamber alone are preserved, withoutrestraint, two· essentials of wise legislationand of good government-the right of

amendment and of debate. Great evils oftenresult from hasty legislation; rarely fromthe delay which follows full discussion anddeliberation. In my humble jUdgement, thehistoric Senate--preserving the unrestrictedright of amendment and of debate, main­taining intact the time-honored parliamen­tary methods and amenities which unfail­ingly secure action after deliberation-pos­sesses in our scheme of government a valuewhich cannot be measured by words.

Mr. President, Prof. Raymond Wolfin­ger has said:

Unlimited debate is a rarity among na­tional legislatures, and the glory of theUnited States senate.

Prof. Lindsay Rodgers assessed thesituation thus:

As the much vaunted separation of pow­ers now exists, unrestricted debate In theSenate Is the only check upon presidentialand party autocracy The devices that theframers of the Constitution so meticulouslyset up would be Ineffective without the safe­guard of senatorial minority action ... Abol·Ish cloture and the Senate will graduallysink to the level of the House of Represent­atives where there is less dellberatlon anddebate than In any other legislativeassembly.

In his doctoral thesis, former Presi­dent Woodrow Wilson said:

The Senate's opportunity for open and un­restricted discussion and its simple, com­paratively unencumbered forms of proce­dure, unquestionably enable it to fulfillwith very considerable success Its high func­tions as a chamber of revisions.

Mr. President, some would have us re­move the glory of unrestricted debatefrom the Senate.

I might say, when I speak of unre­stricted debate, that I mean one canspeak of cloture being applied which re­quires two-thirds of the Members of thisbody present and voting. It is not un­limited debate. Two-thirds of this bodycan stop debate at any time. Others areproud of the unique role this debate pro­vision has made· possible. The U.S. Gov:"ernment has operated under a well de­signed constitution for almost 200 yearsat present, and has drawn the attentionand the study of free nations all overthe world. In America, citizens are ableto find a voice in their government.Changes necessitate reaction, but we, likeour forefathers, must be suspicious ifimmediate reaction is based on emotionand the facts are not adequately con­sidered.

In the United States, there are placesallowing quick reaction. The press am­plifies public reaction "on the spot." Citi­zens contact their representatives. Con­cerned individuals form into groups tofurther their cause. The U.S. House ofRepresentatives operates with few en­cumbrances in format. The President isacutely aware of how the public feels.Scholars, professors, and educators studythe matter. With all these avenues ofreaction noted, it becomes obvious thatour Government has maintained itselfso well and prospered due to these fac­tors and factors other than these pathsof immediacy. It has relied on the steadyhand of the U.S. Senate. It has lookedto the Senate for guidance that is basedon its principle of unlimited debate­principles which allow all sides of theissue to be heard and all points brought

forth and deliberated. It is this aspect ofof our Senate that makes the Senate abody to be looked upon with respect. Wewould be removing this respect from theSenate if we were to remove ourselvesfrom the foresight of the authors of ourConstitution in respect to rule XXII.

Mr. President, William S. White, au­thor of "The Taft Story," has furnishedsome "images" of the U.S. Senate in hisstory of the Senate, "Citadel,"

It is a body llke no other. The Institutionllves In an unending yesterday where the pastis never gone, the present never qUite decisiveand the future rarely quite visible. It has Itsgood moments and its bad moments; but tothe United States It symbolizes, if nothingelse at all, the integrity of continuity andwholeness.

This Institution protects and expresseswhat is at the heart of democracy-dlstlnc­tlon of the individual, integrity of the littlestate; and treasures the Infinite variety pres­ent in our national life.

The senate, therefore, may be seen as aunlqilely constitutional place In that it Ishere, and here alone, outside the courts­to which access Is not always easy-that theminority will again and again be defendedagainst the majority's most passionate will.

Deliberately, the framers of our Con­stitution put Rhode Island on equal foot­ingwith New York. Deliberately, debatewas considered as a vehicle by which allideas would be expressed. Deliberately,even the wrong can be expressed againand again.

He who silences the cruel and irresponsibleman today must first call that the braveand lonely man may be silenced tomorrow.-And those who mock the institution, and

demand of it more efficiency, might re­member that there Is altogether a good dealof both at present in American lIfe-today'spleading minority could become tomorrow'sarrogant majority. They might recall, too,that the technique of communication, andwith them the drenching power of propa­ganda, have vastly risen In our time whenthe gaunt aerials thrust upward all acrossthe land. They might recall that the publicIs not always right all at once and that It isperhaps not too bad to have one place inwhich matters can be examined at leisure,even if a leisure uncomfortably prolonged.

They might be interested, for example, Inthe estimate of responsible politicians thatat one time In our hlstory-£peclfically inthe 1920's-the Klu Klux Klan held politicalcontrol, overt or in shadow, In as many astwenty-sIx American States. The point arisesthat this conceivably could have meantfifty-two pro-Klan Senators out of a total ofninety-six. The question follows thus "WOuldIt really be wise to alter the Senate rUles sothat a simple majOrity could halt a filibusterby voting cloture, instead of a two-thirds ma­jority of all Senators, or sixty-four, as atpresent:

The body pre-eminently is all amalgam ofthe States, a national Institution only In thesense that it Is not possible to avoid haVingthe parts sum up to the whole, and thus toa considerable degree It Is an amalgam of thesections.

Literally, the word Senate means anassembly of elders. The term originatedin ancient Rome where the Senate wasthe supreme council of state made up ofa hundred nobles.

It is in this light, the light of an organismhaving beginnings but never an end andholding a kind of 11m1tless Writ over theAmerican llfe, that the Senate has one ofIts unique qualities.

And since, unlike the House, the senate

5104 CONGRESSIONAL RECORD -·SENATE March 4, 1971

is a continuing body, never ending and neverwholly overturning from one Congress tothe next, the Senate rUles go on immutablefrom one Congress to another. It is not neces­sary to renew or continue them; they standas unshakable in fact, almost, as the Consti­tution Itself.

TIle Senate set out with no real llmitationon how long a man might speak other thanthe limitation that his own conscience orsense of fitness might suggest.

Mr. President, in this biennial questionof rule XXII one of the central issues ofthe debate is the question of whether theSenate was established as a continuingbody, or did the Founding Fathers havein mind that the rules of the Senateshould be continuing.

On this question, David Kammermanin his study prepared for the Senate Re­publican policy committee states on page4 under the heading of constitutionalprovisions:

Article I, Section 3, (of the Constitution),provides for rotation of 1/3 of the Senateevery two years. This provision has been com­pared with the requirement in the Con­stitution for biennial election of all Housemembers: Unlike the case of the House ofRepresentatives, the plan of rotation everytwo years has reSUlted, ever since the sen­ate organized for the first time in 1789, inthere always being more than a majority ofsitting Senators. The Senate has always thusbeen able to do business; since it always hashad a quorum as required by the Constitu­tion.

But what of other evidence pointingtoward the precedent of the Senate as acontinuing body. Mr. Kammerman goeson to point out that there are other pro­visions of the Constitution cited to es­tablish this precedent. As he states:

Other provisions ... cited ... Include (a)those dealing with the oftlce of the Vice Presi­dent and the President pro tempore; (b)those establlshing the Senate's executivefunctions, .as distinguished from Its legis­lative functions; (c) the power of the Presi­dent on extraordinary occasions, (to) con­vene both Houses, or either of them ... :(d) the limiting proviso In Article V (whichdeals with amending the Constitution), asfollows: .•. no state, without ita consent,shall be deprived of ita equal suffrage in theSenate.

Mr. President, these then are some as­pects of the Constitution cited for theprecedent of the Senate as a continuingbody.

But what of the views of the FoundingFathers on the character of the Senate?How did they think of the nature of theSenate. In the Federalist, No. 63, someinsight into this thinking of the earlyConstitutionalists may be found. For init James Madison-or Alexander Hamil­ton-wrote as follows: Yet however req­uisite a sense of national character maybe, it is evident that it can never be suf­ficiently possessed by a numerous andchangeable body. It can only be found ina number so small that a sensible degreeof the praise and blame of public meas­ures may be the portion of each individ­ual; or in an assembly so durably in­vested with public trust, that the prideand consequence of its members maybe sensibly incorporated with the repu­tation and prosperity of the community.The half-yearly representatives of RhodeIsland, would probably have been littleaffected in their deliberations on the in-

iquitous measures of that State, by argu­ments drawn from the light in whichsuch measures would be viewed by for­eign nations, or even by the sister States.

Mr. President, I add, as a sixth defect,the want in some important cases, of adue responsibility in the Government tothe people &rising from that frequencyof elections, which in other cases pro­duces this responsibility. This remarkwill, perhaps, appear not only new, butparadoxical. It must nevertheless be ac­knowledged, when explained, to be asundeniable as it is important,

Responsibility, in order to be reason­able, must be limited to objects withinthe power of the responsible party' andin order to be effectual, must relate tooperations of that power, of which aready and proper judgment can beformed by the constituents. The objectsof government may be divided into twogeneral classes: the one depending onmeasures, which have singly an imme­diate and sensible operation the otherdepending on a succession of ~ell-chosenand well-connected measures, which ha.:;a gradual, and perhaps unobserved, oper­ation. The importance of the latter de­scription to the COllective and permanentwelfare of every country, needs no ex­planation.

And yet it is evident, that an assem­bly elected for so short a term as to beunable to provide more than one or twolinks in a chain of measures, on whichthe general welfare may essentially de­pend, ought not to be answerable for thefinal result any more than a steward ortenant, engaged for 1 year could bejustly made to answer for PI~ns or im­provements which could not be accom­plished in less than a half dozen years.Now it is possible for the people to esti­mate the share of influence which theannual assemblies may respectfully haveon events resulting from the mixed trans­actions of several years. It is SUfficientlydiffiCUlt, to preserve a personal responsi­bility in the members of a numerousbody, for such acts of the body as havean immediate, detached, and palpableoperation on its constituents.

Mr. President, the proper remedy forthis defect must be an additional body inthe l~gislative department, which havingsuffiCIent permanency to provide for suchobjects as.require a continued attention,and a tram of measures, may be justlyand effectually answerable for the at­tainment of these objects.

This then is how some of the Found­ing Fathers conceived the Senate to be.A relatively small, continuing body whichcould continue to do business, therebyremaining responsible to its constituentsand to the continuation of the operationof the Governmnet. And it is to this COll­cept of a small stable body that thethree-fifths proposition has its greatestthreat.

For if the Senate is to continue as ithas then there must be provisions givento the protections of the minority beingridden over roughshod by a ruthless ma­jority. Also a Senate majority may notnecessarily reflect the majority opinionof the people or even of the States. Theremay not have been time for public opin­ion to have formed on an issue and a pro-

longed debate can result in producing ac­tions which will be in accord with publicsentiment. A hasty majority vote couldtotally negate this.

Mr. President, the nature of thematters of legislation dictate that veryoften careful consideration must be givento them. A powerful majority must notbe allowed to bypass this very importantaspect of the Senate deliberative processsimply by the sheer weight of its num­bers. This is not the nature of the Senateas it was conceived in 1789 and it shouldnot be allowed to be the nature of theSenate in 1971.

If anything continuity and respon­sibility should be the hallmarks of thisChamber. Continuity in the ongoingprocess of the American deliberative sys­tem of government and responsibility notonly in its proceedings but to its con­stituents, the American people.

Mr. President, to gain a small insightinto this awesome sense of responsibilityof the Senate and its members we haveonly to look across to the House of Repre­sentatives. As it has been pointed out,under our governmental system, legisla­tion can be sped through the House at abreakneck pace, with only scant debateunder special rules set up by a partisancommittee, it is imperative that a bul­wark remain against such hasty passageof legislation and it is here in the Senatethat this bulwark can be found. And thecornerstone of this bulwark is the respon­sibility found in prolonged and thor­oughgoing de'bate.

As James Madison-or AlexanderHamilton-wrote: The necessity of aSenate is not less indicated by the pro­pensity of all single and numerousassemblies, to yield to the impulse ofsudden and violent passions, and to beseduced by faction leaders into in­temperate and peInicious resolutions. Ex­amples on this subject might be citedwithout number; and from proceedingswithin the United States, as well as fromthe history of other nations. But a posi­tion that will not be contradicted, neednot be proved. All that need be remarkedis, that a body which is to correct thisinfirmity, ought itself to be free from it,and consequently ought to be less numer­ous. It ought, moreover, to possess greatfirmness, and consequently ought to holdits authority by a tenure of considerableduration.

To this might well be added the free­dom of prolonged debate. What author­ity could the Senate hope to possesswithout this safeguard other than thatfalse authority of numerical superiority.I urge the Members of this bodY to con­sider these words of our great pOliticalancestors and to envision what our leg­islative process would be under thethree-fifths rule and to compare thatpicture with the vision of our fore­fathers.

Responsibility and continuation wouldhave little meaning in that process forthe Senate.

So let us give careful thought to thesematters as we have this legislation underconsideration; and let us preserve andprotect this singular distinction andheIitage of the Senate-freedom of de­bate and the protection of the minoIity.

5105March 4, 1~!1 ,C8N?~~SJ8~~h ,~<tORP-SEN1I~Mr. President, many of those who litically sophisticated Americans of the impact in the rural Midwest, but might

would vote in.' favor of the resolution RevolutIonary period. change the pattern of economic existencebefore Us would rather have a rule which The emergence of federalism as a by- in some resort States. Through thewould allow for: cloture to be invoked product of historical occurrences, rather medium of local self-government, theby a mere maj6i·ity. In fact,' many 'of than as a designed institution to achieve laws can be adapted to whatever condi­our colleagues have advocated this pref- a political end, does not detract from its tions exist, thus keeping civil strife at aerence publicly arid here Oll thEdloor of potential as a worthy political device, minimum.this bOdy. Therefore,' those -- who have but, indeed, accentuates its usefulness. Although circumstances dictated thatprevio~ly voted ill favor of the resolu- In the absence of federalism, successful the Government of the United States betion which would change the number-of republican government is limited to federal, it remained for the delegates tovotes required to invoke cloture from areas in which there is substantial iden- the Philadelphia Convention to shape thetwo-thirds to three-fifths comprise tityof geographical, climatical, and his- form of the federation. So ineffectual wasvarious viewpoints as to what the rule torical influences, for republicanism the central government under the Arti­should do. places the ultimate rule in the hands of cles of Confederation,_ that for all prac-

It is' obvious to me when I listen to some majority to the modified and lim- tical purposes the several States, at thethe various arguments favoring a change ited dictates of which the minorities time of the convention, each exercisedin rule XXII that there are those in this must conform. By the use of federalism, the total powers of sovereignty. Sov­body who are disregarding an important the need to require minorities to con- ereignty was vested in the people of eachprinciple upon which this country was form is minimized, thereby promoting State, and the people of the individualformed. individualism, and in individualism lies States had vested the power of sov-

Our Nation was established in a form the seed of diversity. ereignty in their particular State.which relies quite heavily on the prin- One but need look to Europe for ex- Through the Constitution the severalciple of federalism. One of the principal amples of the limited possibilities of re- States delegated certain specific ones offacets of 'federalism incorporated into publicanism without federalism. Repub- the powers of sovereignty to the Nationalthe Constitution is the equal representa- lics in small geographic confines exhibit Government. This creation of a commontion of the several States in the U.S. the greatest stability, as exemplified by agent of the States in no way affectedSenate. Switzerland, the Netherlands, Belgium, the retention of sovereignty by the people

While not incorporated into the and the Scandinavian countries, The of each State, for sovereignty is indivisi­Constitution, the practice of permitting French RepUblic, applied to a larger area ble, and the creation of the General Gov­unlimited debate in -the Senate until and' more diverse peoples, fluctuates be- ernment could not make the people of all1917 strengthened immeasurably the tween instability and absolutism, each the States collectively sovereign in someconcept of federalism in the practical occurring in turn as a reaction to the matters, and leave the people of one Stateapplication of our Government. In many other. The British Empire. employing sovereign in others. It was the power ofways, including the various cloture rules federalism in the form of dominionship sovereignty, and not sovereignty itself,which have prevailed in the Senate and commonwealth devices, presents a that was delegated to the National Gov­since 1917, the concept of federalism graphic illustration of the possibilities of ernment; and the delegation of powershas been weakened and our country federalism grafted on colonialism. was made by each State-a sort of sub­hampered thereby. If republicanism is the process for leasing-and was not a delegation by the

Mr. President, at this time I shall implementing self-government, federal- people of the several States collectively.continue a discussion I began last month ism is the process for implementing local The ratification of the Constitution didon the important concept of federalism. self-government. Local self-government not accomplish a withdrawal of powersI believe that a review of some of the is beneficial not only because it permits from each State by its own people and afacets of this concept would be helpful individualism, but also because of its revesting of those powers in a new gov­to a decision on the pending question. contributions to the continuation of ernment. Two facts are therefore explicit

Federalism in America was a byprod- self-government at all levels. It is human in our constitutional government. First,uct of the English colonial order, rather nature for a person to be most apathetic the National Government was and is athan the brainchild of political the- about situations over which his individ- creation of the States, and as such isorists. Had the pattern of settlement ual conduct has the least influence. an agent of the States. Second, sover­developed all along the seaboard in one A citizen is therefore less motivated to eignty in our country rests totally in theexpansive colony and, therefore, been exert himself in matters of government people of any individual State, ratheradministered as one political entity, it in which his activity plays a smaller than in the people of the United Statesis problematical whether federalism relative part. The same citizen is much collectively.would have been incorporated into our more inclined to direct his influence to The National Government holds thepolitical structure. Even in the settle- the solution of a local matter where his right to exercise the specific powers dele­ment of English America, it was diver- activity shows the most direct result. gated to it, not by virtue of any power ofsity of interests and purposes that In the local political arena, where there sovereignty vested directly from a people;dictated the plurality of colonies, rather is a local political arena, the citizen but by virtue of a contract between thethan the other way around. In Virginia acquired the experience and sophistica- States. The specific powers delegatedprofit was the prime motive for the set- tion with which to exercise his obliga- cannot be withdrawn by an individualtlement efforts. In New England religi- tions of citizenship in relation to the State because of the agreement with theous freedom was the prime motive, furthest removed level of government. other States embodied in the Constitu­while in Georgia humanitarianism in It is in local self-government, a prod- tion. The contract can be changed onlythe form of providing a new life for uct of federalism, that the real secret of by the contracting parties-the States;unfortunates in debtors' prison, mixed domestic tranquillity lies. In no other and by agreement, most features of thewith a desire for protection of the other way can the variances of human conduct contract can be changed with the con­colonies from the Spaniards, were the be reasonably bounded, for requiring sent of less than all the States. Nothingmotivating forces. These diversities were conformity over broad areas will inevi- illustrates better and more emphaticallymagnified, rather than diminished, un- tably lead to civil strife. For instance, that the National Government is a crea­del' the influence of differences in geog- a prohibition of gambling over the entire tion of the States, rather than of theraphy and climate, after the colonies United States might conform to the will people, than the fact that the Constitu­achieved a foothold. The political struc- of the majority, but there is a strong Uon can be amended by the Statesture of each colony developed in accord- likelihood that it would promote civil through their legislatures, and not byance with the needs of the partiCUlar strife in some areas, such as Nevada. the people themselves. The equal repre­colony, and the differences were carried Strict nationwide regulation of fishing sentation of the States in the Senate isover into the State governments when might be only an inconvenience to rec- not, of course, subject to the amendmentthe colonies became free. This palitical reation in some areas of the country, but process; and any change in this featureaccommodation of diverse interests and would possibly impair the earning of a would require unanimous consent of thepurposes was the' key to the success of livelihoon in others. A change in the States and, indeed, any change withoutthe .English colonial system, and the legal relationship of an inn or hotelkeeper unanimous consent would have the ef­benefits· of It were not lost on the po- and the guests would have a limited fect of dissolving the Union.

~~21-Part4

5106 CONGRESSIONAL RECORD-· SENATE, ,I " ~

March 4, 1971

As complicated as these relations mayseem. to the contemporary citizen of theUnited States, they were elementary tothe citizens at the time of the Consti­tution's adoption. Indeed, they were sofundamental in the minds of the dele­gates to the Constitutional Conventionthat they saw no need to specificallyspell out all of them. By the meredelegation of certain specific powers tothe National Government, the delegatesconsidered it implicit in the whole docu­ment that those powers not delegated re­mained where they had been theretofore.To the people of their era, it was abund­antly clear that the National Govern­ment was intended to exercise onlythose powers delegated, but it is mostfortunate for those in later generationsthat many insisted that the matter notbe left to conjecture. Perhaps these wisepersons anticipated the tremendous up­surge of apathy that was to occur inlater generations. The inclusion of the10th amendment removed any dobut asto the nature of the powers of the Na­tional Government, and the relationsWpof the National Government to theStates and to the people. The 10thamendment provides:

The powers not delegated to the UnitedStates by the Constitution, nor prohibitedby it to the States, are reserved to the Statesrespectively or to the people.

The 10th amendment did more thanspell out that the National Government~as to be one of limited powers, althoughIt accomplishes that purpose. It alsoprovides an insight into the relation ofthe States to the National Governmentand of the National Government to thepeople of each State. The powers notdelegated were not reserved to theStates collectively, but to each individ­ually. The retained powers of sovereign­ty of each State were not in any waycomprised by the Constitution. Therewas no pledge to achieve uniformity, noreven to strive for it, in the administra­tion of the reserved powers. There wasnot even a pledge of the States to exer­cise all of the reserved powers in anyway at all. The States, individually, hadreceived their grant of sovereign powersfrom the people-I repeat, the people­of the States through the State consti­tution, some States receiving more, andsome less, powers. In each instance thepeople reserved the right to thems~lvesto modify or change the powers grantedto the State, and the 10th amendmentrecognized this fact by the verbiage "orto tl1e people." The reservation of powerwas not to the people of the entirecountry, but to those in each State. Thepeople in the territories were people ofthe country, but not being within a par­ticular state, were not among thegroup who had granted power to aState in the original instance, and werenot, therefore, among those to whompowers were reserved.

The Constitution did not create theGeneral Government as a supreme one,but as one parallel to the State govern­ments. It is a fallacy to assume that withregard to the delegated powers, the rightof the National Government to regulateis exclusive, for it was not so intended.As a practical necessity, a direct con-

flict between the exercise of delegatedpowers by the National Government, andan exercise of powers by a State in thesame fleld, must be resolved in favor ofthe exercise by the National Govern­ment; or else the original delegationcould be nullified by the action of aState. In the absence of such a directconflict, however, the only consistent in­terpretation of the Constitution is toacknowledge in the States a power toact in the same fields as those in whichpOwers were delegated to the NationalGovernment. In those matters where ex­clusive power was intended for the Na­tional Government, the Constitution spe­cifically prohibits State action. It is notthe general exercise of powers by theStates that is prohibited, however, butonly specific actions. Not only the sub­stantive provisions of the Constitutionattest to this intention, but also the formand order of the Constitution. The prin­cipal delegations of powers to the Gen­eral Government appear in section 8 ofarticle 1. In section 9 of the same article,the powers delegated are limited by cer­tain specific prohibitions against the Na­tional Government in the exercise ofthose pOwers delegated. In section 10of the same article, there is an enumera­tion of prohibitions of those State ac­tions which would obtain such exclusive­ness in the exercise of delegated powersby the General Government as wasdeemed necessary. The exercise of powersby a State were restricted by the Con­stitution, then, in only two instances:First, when the State action is in directconflict with an action of the NationalGovernment taken pursuant to a dele­gated power; and second, when such ac­tion by the State is specifically pro­hibited by the Constitution. From thisit is clear that the States did not neces­sarily surrender their power to act infields in which power was delegated tothe National Government.

The prohibitions against State actionare not nearly so broad as even thoselimited powers delegated to the NationalGovernment, as readily appears from theprovisions of section 10, article I, whichis as follows:

Section 10. No State shall enter into anytreaty, alllance, or confederation; grant let­ters of mark and reprisal; coin money; emitbills of credit; make anything but gold andsilver coined a tender in payment of debts;pass any bill of attainder, ex post facto law,or law impairing the obligation of contracts,or grant any title of nobility.

No State shall without consent of (the)Congress, lay any Imposts or duties on im­ports or exports, except what may be abso­lutely necessary for executing Its inspectionlaws; and the net produce of all duties andimposts laid by any State on imports or ex­ports, shall be for the use 01 the Treasuryof the United States; and all such laws shallbe subject to the revision and control of(the) Congress.

No State shall, without the consent ofCongress, lay any duty of tonnage, keeptroops, or ships of war in time of peace,enter Into any agreement or compact Withanother State, or with a foreign power, orengage in war, unleGs actually Invaded, or insuch Imminent danger as will not admit ofthe late.

In addition to the deprivation of sov­ereign powers of the States that accruesthrough these prohibitions of State ac-

tion and the requirement of consistencywith actions of the National Governmenttaken under· the delegated powers, thestates iricurred additional obligationsunder the Constitution through provi­sions regulating certain mutual relationsamong the States themselves. These pro­visions are contained in article IV, sec­tions 1 and 2. Section 1 provides thateach State shall give full faith and creditto the public acts, records, and judicialproceedings of every other State. Con­gress is appointed as the arbitrator ofthis agreement, and is authorized toprescribe the manner in which such acts,records, and proceedings must be pre­sented in order to qualify for the agreedstatus. In section 2, each State agreedto extend the privileges and immunitiesenjoyed by its own citizens to the citizensof the other States. Each State alsoagreed to extradite escaped criminals tothe State from which they escaped upondemand by such State.

On that point, Mr. President, I want tosay it is remarkable that today someStates have refused in some instances toconform to this requirement of return­ing escaped criminals. It is abhorrent.yet it is practiced, on occasion, in som@States.

The tWrd agreement in tWs section,wWch bound each State to refrain fromfreeing slaves escaping into it from an­other, became irrelevant when slaverywas abolished. The National Governmentis in no way concerned with the provi­sions of section 2, compliance being leftto the good faith of each State, and tothe advantage of reciprocal treatmentwWch inure from strict observance of theagreement. The provisions of section 2also serve as irrebuttable evidence as tothe nature of the Constitution as a com­pact or treaty between sovereign States.

The sovereign powers of the severalStates were thus impaired by the Con­stitution in three ways: By the delega­tion of certain powers to the generalgovernment, by mutual agreement tothe prohibitions of specific State actions,and by agreement to four items of recip­rocal conduct. Although these three areascontain the total impairment to Stateaction embodied in the original Con­stitution, there is one remaining provi­sion wWch restricts not the power of aState, but the sovereignty of the peopleof each State. TWs provision is con­tained in section 4 of article IV, and pro­vides that the United States shall guar­antee to each State a repUblican formof government. Despite the fact thatprior to the adoption of the Constitution,each State did in fact have a republicanform of government, the people of eachState, being completely sovereign-andthey remain so today except in tWs oneinstance-had the power to establish anyform of government they desired, in­cluding a monarchy, a dictatorsWp, or,if they saw fit, a pure democracy. Thispower of sovereignty was surrendered bythe people of each State upon the adop­tion of the Constitution. From a practi­cal standpoint this surrender of sover­eignty was and is inconsequential, for inno State have the people shown a dis­position to deviate from a republicanform. Realization of the full imolicRtionsof this provision shOUld serve' as a re-

5107to the States as the Constitution found It.This "Is admitted; and whenever a thing,from character or condition, Is of a descrip­tion to be regulated by that power In theState, then the regulation may be made bythe State, and Congress cannot Interfere.

These definitions of police power arebroad enough to encompass the majorityof reserved powers, and attest to theintention" of the Constitution to imple­ment federalism in substance, as well asin form. .

At a minimum, the police power lU­eludes the right to take such actions asseem necessary to protect life and li­berty. "Since life and liberty-and thelatter necessarily includes property-;-areof the primary importance to SOCIety,laws made to protect them must takeprecedence over those of secondaryimportance. ..

Under the broader definitions, polIcepower would include the right to takeaction in the field of social conduct a?dwelfare; but whether within the policepower or without, there can be no ques­tion that such actions are within thescope of reserved powers of the State. Noauthority whatsoever is delegated to theNational Government in this area.Through this reservation, one of ~he

most beneficial applications of federalIsmis obtained. In no other field is theremore variance from State to State tJ:anin the field of welfare needs and desu'esfor governmental action by the people.Indeed, there is even nothing static aboutthe variance from State to State, foreven within a single State, the needs anddesires of the people in this area fluc­tuate substantially with time. Laws de­signed at the national level to meet themaximum need in one locality would behighly wasteful in most areas, as well asdistasteful; and one designed to meet theaverage need-if such there be-wo~d

be too little in one area, and too much lUanother. The exercise of this power bythe States, rather than by the NationalGovernment, makes it possible to fit theremedy of governmental action to ~he

specific need, without either squandenngthe resources of the citizenry or encour­aging slough in areas where governmen­tal action is unneeded.

Among the powers reserved to theStates none is more important than theregulation of the public educational sys­tem. It is in the educational process thatlies the control of the minds of men, andno easier path to despotic power existsthan the one available in a power toshape and mold the thinking patterns ofimmature minds. So inherently dan­gerous is this awesome power, that itwould be unthinkable to trust anyonehuman or group of humans with itstotality. The individual liberty of .allposterity depends on the diversiflcatlOnof the power to control education. Underthe federated republican constitutionalgovernment, prescribed for the ~ni~d

states, the control of education IS dIS­persed at least to the level of the severalStates; even slight prudence dictates thatit be dispersed even further to the handsof purely local authority. Americansshould never forget examples of the es­tablishment and perpetuation of totali-tarian regimes in Germany and Italy,with the brainwashed consent of those

CONGRESSIONAL RECORD - SENATE

subjected to the influence of an educa­tional system in the control of a cen­tralized power.

Although these are but a few of themany powers reserved to the States, theyserve to illustrate that the total powersreserved are formidable, and constitutea broader jurisdiction by far than thatcomprised of the powers delegated to theNational Government. It was the inten­tion of the Constitution that neither theNational Government nor the State gov­ernments be supreme: Each was to besupreme in its own realm, the two tooperate on a parallel, with each ac­complishing those tasks of governmentfor which it was best SUited. Strict limi­tations on jurisdiction were imposed onthe General Government, whose influ­ence extended over the breadth of thecountry; while residual jurisdiction wasreserved to the several States, whose in­fluence was bounded by the geographiclimitations of State boundaries. Thetotal power of sovereignty was therebydispersed among the 14 governments­13 State governments and one centralone-at the time the Constitution wasadopted. The plan of decentralizationpermitted growth of the Nation withoutany weighing of the scales toward cen­tralization. As a result, the total powersof sovereignty are now dispersed among51 governments. No new power accruedto the National Government with theadmission of new states, although itspowers were extended thereby geograph­ically.

Despite the absence of any delegationof additional powers to the General Gov­ernment, or of any consequential newprohibitions against State actions, thebalance between the powers of the Na­tional Government on the one hand, andthose of the States on the other, hastipped heavily in favor of the former.Almost from the beginning, events andpractices have worked for a dimunitionof State authority, and what began asa slow, almost imperceptible process hasnow snowballed into such proportionsthat the whole concept of federalismis threatened with extinction. Oncewholly autonomous States now appeardoomed to conversion into mere sub­divisions of an all-powerful centralizedgovernment, with the host of individualliberties, which flourished under the um­brella of the parallel governments offederalism, being squeezed to death inthe formation of the triangle of pyram­idal government with the top at Wash­ington. So strong is the wave of cen­tralization that only a completely awak­ened and alarmed public can turn thetide.

Unfortunately, some of the mostadaptable tools for the maintenance offederalism and States' rights, designedfor our use and protection by the authorsof the Constitution, have been lost inthe intervening years.

In this era, liberty is challenged world­wide on a scale unprecedented. We findourselves in a position of leadership ofthe free world, not because of our ma­terial wealth, primarily, but because ourpolitical structure has permitted and en­coura.ged the individual freedom ofthought and action whic? promotes di-

March 4, 1971

Jreshing reminder, however, that ~he

pure democracy, on. the tenets of WhIChso many of the radical proposals of thecurrent age are based, is as foreign toour Government in the United States asare any of the hated isms. '

In any attempt to define t~e expan:>eof powers of each State which remalUunimpaired by the compact of the Statesin 1788, it is necessary to reckon, .notonly with the provisions of the ConstItu­tion, but also with the fact that the peo­ple of each State are the source of sover­eignty, both of those pOwers delegatedby the States to the National Govern­ment and of those reserved to them­selve~ by the States. Of those. delegated,any substantive power is subject to thesovereignty of the people of the sev.eralStates, and through the prescnbedmethod of amendment may be expanded,altered, returned to the several States,or revoked altogether. Except for thosepowers delegated to the National Gov­ernment and those actions prohibited tothe States the several states retain allother pOw~rs exclusively, with one limi­tation-the total powers of sovereignty,at the will of the people, may be with­held from the state. Although subject tothe same external limitations, the powersof one State may substantially exceedthose of another State, whose peoplehave seen flt not to vest certain of thepowers of sovereignty in any governmen~.

Such a limitation by the people on theIrState government would be embodied ina state constitution. The term "reservedpowers of the States," therefore, refersto those powers of sovereignty which maybe granted to a State by the people, andexercised by the State without conflictwith the U.S. Constitution.

While enumeration of the powers ofthe National Government requires onlya quick reference to the Constitution,where they are fUlly listed, the reservedpowers of the several States are so broadas to defy enumeration. Any deflnitiveapproach to the State powers must nec­essadly be from the standpoint of whatthey are not, although we can list al­most without end powers that are in­cluded among state powers., By almost any definition, the policepower encompasses a broader range ofState actions than any other of thosereserved. Under some deflnitions, it isalmost synonymous with the entire scopeof reserve powers, being in no way re­stricted to the realm of criminal law.For instance, in Sweet v. Rechel, 159'U.S. 380, P. 398, the U.S. SupremeCourt-by no means a defender of Statepowers-referred with approval to a ref­erence to the police power as:

The power vested In the legislature bythe Constitution to make, ordain, and estab­llsh all manner of Wholesome and reasonablelaws, statutes, and ordinances, either WithpenaltIes or without. not repugnant ~o theConstitution as they shall jUdge to be forthe good and welfare of the commonwealthand of the SUbjects of the same.

And from the same source, as expound­ed in The License Cases, 5 Howard 504,page 599, comes this comment on policepowers: ""

The" assumptIon Is that the pollee powerwas not touched by the C6nStl~U~~onbut left

~ .!c': 'J. :or

5108 CONGRESSIONALRECORD-····SENATE

versity in the form of independent ini­tiative, which in turn has permitted ourgreat material rewards.

The real path to liberty, stability, andtranquillity lies in a recultivation and re­newed reverence for those sound andtimeless fundamental concepts which areinterwoven in such careful balance intoour Constitution and the political struc­ture therein established.

Mr. President, the existing rule XXIIis the most suppressive of debate whichhas ever existed in the Senate. If anychange in the rule is to be made whichprevents cloture by the vote of any num­ber of· the Senators the wisest coursewould be to return to a requirement fora two-thirds vote of the membership ofthe Senate. Under no circumstancesshould cloture be made easy.

So, Mr. President, it is clear concerningthe powers of the Central Governmentas contrasted with the powers of theState. It is hoped as time goes by thatthe people of this country will not permitthe powers retained to the States underthe Constitution to be eroded and theright of the people to be degraded andthat we can retain the original intentof the framers of the Constitution tohave the separation of powers of thethree branches and the division of pow­ers between the States and the NationalGovernment.

These are bulwarks of protection toour democracy.

Retaining rule XXII is right in linewith many provisions of the Constitutionwhere a two-thirds vote is required inso many instances to accomplish action,as I have pointed out here today.

Mr. President, I yield the floor.

SANCTIONS AGAINST RHODESIAMr. BYRD of Virginia. Mr. President,

the United States is permitting the SovietUnion to maintain a stranglehold on itssupply of chrome ore--a material vital tothe national defense.

This situation results from America'sparticipation in United Nations eco­nomic sanctions against Rhodesia, thesmall African country which is the sourceof two-thirds of the world's supply ofchrome ore.

Now the Congress is being asked bythe administration to release chrome orefrom the national stockpile to ease theshortage of this commodity resultingfrom the Rhodesian embargo.

Release of chrome ore from the stock­pile is not the appropriate remedy for thepresent situation of the United States.

The current step for this Nation totake would be to end its foolish policyagainst Rhodesia and resume trade withthat nation.

The story leading up to our presentshortage of chrome, and our dependenceon the Soviet Union, goes back more than5 years.

On November 11, 1965, Rhodesia de­clared her independence of Great Britain.

The United Nations Security Council,at the urging of Great Britain, adopted aresolution condemning Rhodesia as "athreat to international peace and se­curity." The resolution called on theSecurity Council to take steps to endRhodesian independence.

Despite the fact that Rhodesia, in de­claring independence, was only takingthe same step that the United Statestook in 1776, the U.S. Ambassador to theUnited Nations actively supported theresolution against Rhodesia.

In arguing the case in favor of sanc­tions against Rhodesia, Arthur Goldberg,then U.S. Ambassador to the UnitedStates, said this:

What is happening now In Rhodesia is aneffort to perpetuate the control of 6 percentof the popUlation over the other 94 per­cent ...

Is it not a fact that in the Soviet Unionthe members of the Communist Party,comprising about 1 percent of the popu­lation and acting through a few leaders,control the other 99 percent of the peopleof that nation of nearly 200 million?

Is it not a fact that a handful of mencontrol the destinies of all the people ofAlbania?

Is it not a fact that a handful of mencontrol all the people in Bulgaria and inRumania and in Yugoslavia?

Is it not a fact that Fidel Castro almostsinglehanded, operating through a smallCommunist cadre, controls the lives andfortunes of nearly 7 million Cubans?

Is it not a fact that in the world'slargest nation, China, the lives of near­ly 700 million. persons are controlled bya small Communist dictatorship?

Yet the United Nations has not im­posed sanctions on any of these Com­munist countries-nor has the UnitedStates asked the U.N. to impose any suchsanctions.

However, the United Nations did seefit to impose sanctions on Rhodesia.

And pursuant to the U.N. resolution,our Government severed diplomatic tieswith the Ian Smith government andcalled for a voluntary boycott of Rhode­sian products.

These voluntary sanctions caused greathardships on the Rhodesian people, butthey did not succeed in forcing the down­fall of the Smith government.

The next step was the U.N. SecurityCouncil's resolution of April 9, 1966,calling on Great Britain to use force toprevent the movement of oil to Rhode­sia.

These first two steps were not success­ful in bringing down the Smith regime, soin December 1966, the Security Councilconsidered mandatory sanctions againstRhodesia under article 41 of the U.N.Charter.

The U.S. Ambassador again activelysupported this measure, assuring theCouncil that the United States WOUld, touse his words, "apply the full force ofour law to implementing this decision,"

The Council voted to invoke article41-the first such vote, and the onlysuch vote, for mandatory sanctions inthe history of the United Nations.

The United States promptly complied.President Johnson issued an Executiveorder on January 5, 1967, declaring it tobe a criminal offense for any Americanto engage in the import of a wide rangeof Rhodesian products, and severely re­stricting U.S. exports to that country.

Still, it did not bring about the down­fall of the Smith government.

So, on July 31, 1968, the President ofthe United States issued Executive Order

No. 11419, barring alIUIiltedStates im­ports from: and exports to that country.

The Smith government still survived.Asa matter of fact, the economic sanc­tions are a failUre.

Last summer, the special committeeof the United Nations charged with en­forcing the Rhodesian sanctions issueda 337-page report which in effect admit­ted that the embargo policy has notworked.

It cited 60 reports of· evasions of thesanctions during 1969 and confessed that31 nations, of Which 27 are U.N. members,do not even answer inquiries from thecommittee.

The fact is that in spite of the sanc­tions, Rhodesia's export trade rose from$237 million in 1968 to $336 million in1969.

But if the sanctions are a failure, theynevertheless have had serious conse­quences.

For one thing, imposition of a manda­tory embargo brings the United Nationsjust one step short of armed interven­tion.

Article 42 of the United Nations Char­ter makes this point quite clear, in thislanguage:

Should the Security Council consider thatthe measures prOVided for in article 41 wouldbe inadequate or have proved to be Inade­quate, it may take action by air, sea or landforces as may be necessary to maintain orrestore International peace and security.Such action may include demonstrations,blockade, and other operations by land forcesof the Members of the United Nations.

That is what the charter says.Is the United States prepared to take

part in a war to bring the RhodesianGoverruuent to its knees?

The United States is in a vulnerableposition-its action is unprincipled andwrong. It is unjust.

Besides that, we are in the absurd posi­tion of demanding economic sanctionsagainst a nation at peace with us andyet do nothing about seeking economicsanctions against North Vietnam, againstwhom we are fighting in Southeast, Asia.

While the United States has gone alongwith the British-sponsored embargo ofRhodesia, ships flying the flag of GreatBritain have continued to carry cargoto North Vietnam.

Last year 40 British ships called atHaiphong. In 1969, the total was 74; andin 1968, it was 114.

Mr. BYRDof West Virginia. Mr. Pres­ident, will the Senator yield?

Mr. BYRD of VirgiIila. I am glad toyield to. the Senator from West Virginia.

Mr. BYRD of. West Virginia. Is theSoviet Union supplying any weaponryto the Vietcong and the North Vietnam­ese?

Mr. BYRD of Virginia. The SovietUnion through recent years has been themajor supplier of sophisticated weaponsgoing to the North Vietnamese.

Mr. BYRD of West Virginia. Mr. Pres­ident, will the Senator yield for anotherquestion?

Mr. BYRD of Virginia. I yield to theSenat-or from West Virginia.

Mr. BYRD of West Virginia. Are thoseweapons being used .. to maim and killAmerican boys in Indochina?

Mr. BYRD of Virginia. Yes. The weap-