Don't you know, as a matter of fact, there are taxes laid upon the exercise of virtually all our fundamental constitutional rights-including those embodied in the equal protection clause itself? In other words, the equal protection clause is a guarantee of life, liberty, and property. Now, you have the constitutional right under that to accumulate property, and yet all of our property has taxes on it-it is well recognized it is perfectly constitutional to impose taxes on property. It is also well recognized most of the taxes of this country, the Federal Government gets the income taxes, and the right to pursue a livelihood and earn money is one of the liberties secured by the 14th amendment, is it not? And yet all income taxes are imposed on the exercise of the right to pursue an employment. So that is a tax on the exercise of a constitutional right. And that is a constitutional right secured by the 14th amendment. Since you cite the Griswold case, I think the most personal of all rights is the right to get married. And don't you know virtually every State in this Union imposes a tax on the right to get married in the form of a license fee.

Senator Scorr. That is their last opportunity to warn them.

Senator ERVIN. And every State in the Union imposes a tax upon the right to pursue many special occupations. The right of a lawyer to practice law, don't they tax that in Texas? Yet under your decision it would be unconstitutional.

The right to operate a filling station in North Carolina, we tax. There are thousands of taxes in this country on the exercise of constitutional rights.

So as I see it, the foundation on which your opinion rests does not exist, to be perfectly frank about it.

I cannot escape the conviction that you and the other judges who concurred in it just personally did not think that was the kind of policy Texas ought to have, and that, therefore, the due process clause invalidated it because it was contrary to your personal notions of the decent thing, and not referred to the Constitution.

Judge THORNBERRY. I am sorry if you have that impression, Senator. Senator ERVIN. Well, I am going to ask you some questions—not about your cases. Section 2, article I of the Constitution says:

The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

Don't you agree with me that all of the decisions interpreting that provision of the Constitution say that the only people who can vote for Congressman are persons who have a right to vote for the most numerous branch of the State legislature, and that the State legislature only has a right to prescribe those qualifications?

Judge THORNBERRY. Generally speaking, that is right.

Senator ERVIN. Then I call your attention to article II, section 1, subsection 2:

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.

Don't you agree with me that under all of the decisions interpreting that clause of the Constitution the power to prescribe qualifications

for those who vote for the presidential and vice presidential electors belongs to the State?

Judge THORNBERRY. Senator, I assume we are not overlooking the 24th amendment.

Senator ERVIN. Well, that places a limitation that they shall not prescribe a poll tax as a prerequisite to voting

Judge THORNBERRY. For Federal officials; yes, sir.

Senator ERVIN. And isn't the conclusion inescapable that the twothirds of the Congress that voted to submit the 24th amendment, and the legislators of three-fourths of the States who voted to ratify it entertained the opinion that the right to levy a poll tax would exist in the absence of the adoption of that amendment?

Judge THORNBERRY. Í do not know what is inescapable in the mind of those men.

Senator ERVIN. And so your opinion

Senator HART. If the Senator would yield just a second-here are two Senators who voted for it who do not believe in this either.

Senator SCOTT. I agree with the Senator from Michigan.

Senator ERVIN. At least as far as you can affirm personally—at least two-thirds of the Senate, two-thirds of the House, short of the Senator from Pennsylvania and the Senator from Michigan, entertained the opinion I suggested.

Senator SCOTT. I would say it is as difficult to read my mind, until I have spoken, as it is to read the minds of judges.

Senator ERVIN. That is the reason you can only define the minds by taking the language they use. And that is where I thought you could only determine the Constitution. But I have found that people can read the Constitution contrary to the words in it. And that is what I am trying to demonstrate right now. I want to invite your attention to the 10th amendment:

The powers not delegated to the United States by the Constitution nor prohibited by the State are reserved to the States respectively, or to the people,

Don't you agree that under that provision of the Constitution the States have the right to describe the qualifications for voters subject only to limitations placed upon that right by the 14th amendment, or equal protection clause; and the 15th amendment; and the 17th amendment; and I believe the 19th?

Judge THORNBERRY. Well, I agree that it is subject to the limitations you have mentioned. I would not describe the 14th amendment as limited as you have.

Senator ERVIN. Well, I am frank to state I think the 14th amendment does limit the right, because it says you cannot have one kind of voting law for one man and another for another.

Judge THORNBERRY. No; Senator. You said the equal protection clause. The opinion does say something about the due process clause of the 14th amendment. I just had to add that exception.

Senator ERVIN. Then I invite your attention to the 17th amendment, which says:

The Senate of the United States shall be composed of two Senators from each State elected by the people thereof for six years, and each Senator shall have one vote. The electors in each State shall the qualifications requisite for electors of the most numerous branch of the State legislature.

Don't you agree with me that also gives the States the right to prescribe the qualifications for voters, subject to

Judge THORNBERRY. Subject to

Senator ERVIN. To the 14th, the 15th and the 19th amendments? Judge THORNBERRY. Subject to the amendments to the Constitution, the Constitution of the United States, and the Supreme Court decisions interpreting them.

Senator ERVIN. And there are four provisions-four provisions of the Constitution giving the States the right to prescribe the qualifications for voting. And in none of those four provisions of the Constitution is there any prohibition upon a State adopting as a qualification of voting a poll tax. But you hold that that is put there by the due process clause.

There is something in the Book of Proverbs that says that "there be three things which are too wonderful for me; yea, four-the way of an eagle in the air, the way of a serpent upon a rock, the way of a ship in the midst of the sea, and the way of a man with a maid." Well, there is a fifth thing that is more mysterious to me.

The CHAIRMAN. Wait a minute. There is a rollcall vote.

Senator ERVIN. Wait a minute. There is one thing that is even more mysterious to me than that, and that is how can the due process clause invalidate four other provisions of the Constitution.

The CHAIRMAN. We will recess now until 10 o'clock Monday morning.

Senator ERVIN. Before you do, I would like to have printed in the record the Breedlove case. And that completes the examination.

(The document referred to for inclusion in the record was marked "Exhibit 48" and appears in the appendix.)

The CHAIRMAN. The committee is recessed until Monday morning at 10 o'clock. Thank you.

(Whereupon, at 12:40 p.m. the committee was recessed, to reconvene at 10 a.m. Monday, July 22, 1968.)

NOMINATIONS OF ABE FORTAS AND

HOMER THORNBERRY

MONDAY, JULY 22, 1968

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to recess, at 10:15 a.m., in room 318 Old Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Ervin, Hart, Burdick, and Thurmond. Also present: John Holloman, chief counsel; Thomas B. Collins, George S. Green, Francis C. Rosenberger, Peter M. Stockett, Robert B. Young, C. D. Chrissos, and Claude F. Clayton, Jr.

The CHAIRMAN. Senator Ervin.

Senator ERVIN. Mr. Chairman, I would like to make a unanimous consent request at this time, and that is that the staff procure a complete copy of United States of America v. The State of Texas, 252 Federal Supplement, at page-beginning at page 2–34, and put it in the record at this point.

The CHAIRMAN. It will be admitted.

(The material referred to for inclusion in the record was marked "Exhibit 49" and appears in the appendix.)

STATEMENT OF HON. HOMER THORNBERRY, NOMINEE TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES Resumed

Senator ERVIN. Judge, I asked you yesterday if you did not agree with me that the imposition of poll taxes as a prerequisite to voting was considered to be constitutional prior to your decision in the Texas poll tax case.

Judge THORNBERRY. Yes, sir; you asked me that, and I answered. Senator ERVIN. You answered in the affirmative.

Judge THORNBERRY. Yes, sir.

Senator ERVIN. Mr. Chairman, I would like to read this which corroborates the judge. 18 American Jurisprudence, Subject: "Elections," section 72, starting on page 226.

The state in its constitution or the legislature, if its powers in this respect have not been restricted by fundamental law, may require the payment of taxes as a condition to the right to vote.

That is sustained by all of the cases cited, which are multitudinousabout as thick as the leaves in the brooks of Vallhombrosa. And among