this conclusion, however, for a somewhat different reason than that stated by the Court, which is that "the coverage formula is rational in both practice and theory." I do not base my conclusion on the fact that the formula is rational, for it is enough for me that Congress by creating this formula has merely exercised its hitherto unquestioned and undisputed power to decide when, where, and upon what conditions its laws shall go into effect. By stating in specific detail that the major remedial sections of the Act are to be applied in areas where certain conditions exist, and by granting the Attorney General and the Director of the Census unreviewable power to make the mechanical determination of which areas come within the formula of § 4(b), I believe that Congress has acted within its established power to set out preconditions upon which the Act is to go into effect. See, e.g., Martin v. Mott, 12 Wheat. 19; United States v. Bush & Co., 310 U.S. 371; Hirabayashi v. United States, 320 U.S. 81.

Though, as I have said, I agree with most of the Court's conclusions, I dissent from its holding that every part of § 5 of the Act is constitutional. Section 4(a), to which 85 is linked, suspends for five years all literacy tests and similar devices in those States coming within the formula of § 4(b). Section 5 goes on to provide that a State covered by § 4(b) can in no way amend its constitution or laws relating to voting without first trying to persuade the Attorney General of the United States or the Federal District Court for the District of Columbia that the new proposed laws do not have the purpose and will not have the effect of denying the right to vote to citizens on account of their race or color. I think this section is unconstitutional on at least two grounds.

(a) The Constitution gives federal courts jurisdiction over cases and controversies only. If it can be said that any case or controversy arises under this section which gives the District Court for the District of Columbia jurisdiction to approve or reject state laws or constitutional amendments, then the case or controversy must be between a State and the United States Government. But it is hard for me to believe that a justiciable controversy can arise in the constitutional sense from a desire by the United States Government or some of its officials to determine in advance what legislative provisions a State may enact or what constitutional amendments it may adopt. If this dispute between the Federal Government and the States amounts to a case or controversy it is a far cry from the traditional constitutional notion of a case or controversy as a dispute over the meaning of enforceable laws or the manner in which they are applied. And if by this section Congress has created a case or controversy, and I do not believe it has, then it seems to me that the most appropriate judicial forum for settling these important questions is this Court acting under its original Art. III, § 2, jurisdiction to try cases in which a State is a party.1 At least a trial in this Court would treat the States with the dignity to which they should be entitled as constituent members of our Federal Union.

The form of words and the manipulation of presumptions used in § 5 to create the illusion of a case or controversy should not be allowed to cloud the effect of that section. By requiring a State to ask a federal court to approve the validity of a proposed law which has in no way become operative, Congress has asked the State to secure precisely the type of advisory opinion our Constitution forbids. As I have pointed out elsewhere, see my dissenting opinion in Griswold v. Connecticut, 381 U.S. 479, 507, n. 6, pp. 513-515, some of those drafting our Constitution wanted to give the federal courts the power to issue advisory opinions and propose new laws to the legislative body. These suggestions were rejected. We should likewise reject any attempt by Congress to flout constitutional limitations by authorizing federal courts to render advisory opinions when there is no case or controversy before them. Congress has ample power to protect the rights of citizens to vote without resorting to the unnecessarily circuitous, indirect and unconstitutional route it has adopted in this section.

(b) My second and more basic objection to § 5 is that Congress has here exercised its power under § 2 of the Fifteenth Amendment through the adoption of means that conflict with the most basic principles of the Constitution. As the Court says the limitations of the power granted under § 2 are the same as the limitations imposed on the exercise of any of the powers expressly granted Congress by the Constitution. The classic formulation of these constitutional limita

If $14(b) of the Act by stating that no court other than the District Court for the District of Columbia shall issue a judgment under § 5 is an attempt to limit the constitutionally created original jurisdiction of this Court, then I think that section is also unconstitutional.

tions was stated by Chief Justice Marshall when he said in McCulloch v. Maryland, 4 Wheat. 316, 421, "Let the end be legitmate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." (Emphasis added.) Section 5, by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless. One of the most basic premises upon which our structure of government was founded was that the Federal Government was to have certain specific and limited powers and no others, and all other power was to be reserved either "to the States respectively, or to the people." Certainly if all the provisions of our Constitution which limit the power of the Federal Government and reserve other power to the States are to mean anything, they mean at least that the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them.3 Moreover, it seems to me that § 5 which gives federal officials power to veto state laws they do not like is in direct conflict with the clear command of our Constitution that "The United States shall guarantee to every State in this Union a Republican Form of Government." I cannot help but believe that the inevitable effect of any such law which forces any one of the States to entreat federal authorities in far-away places for approval of local laws before they can become effective is to create the impression that the State or States treated in this way are little more than conquered provinces. And if one law concerning voting can make the States plead for this approval by a distant federal court or the United States Attorney General, other laws on different subjects can force the States to seek the advance approval not only of the Attorney General but of the President himself or any other chosen members of his staff. It is inconceivable to me that such a radical degradation of state power was intended in any of the provisions of our Constitution or its Amendments. Of course I do not mean to cast any doubt whatever upon the indisputable power of the Federal Government to invalidate a state law once enacted and operative on the ground that it intrudes into the area of supreme federal power. But the Federal Government has heretofore always been content to exercise this power to protect federal supremacy by authorizing its agents to bring lawsuits against state officials once an operative state law has created an actual case and controversy. A federal law which assumes the power to compel the States to submit in advance any proposed legislation they have for approval by federal agents approaches dangerously near to wiping the States out as useful and effective units in the government of our country. I cannot agree to any constitutional interpretation that leads inevitably to such a result.

I see no reason to read into the Constitution meanings it did not have when it was adopted and which have not been put into it since. The proceedings of the original Constitutional Convention show beyond all doubt that the power to veto or negative state laws was denied Congress. On several occasions proposals were submitted to the convention to grant this power to Congress. These proposals were debated extensively and on every occasion when submitted for vote they were overwhelmingly rejected.' The refusal to give Congress this extraordinary power to veto state laws was based on the belief that if such power

The requirement that States come to Washington to have their laws judged is reminiscent of the deeply resented practices used by the English crown in dealing with the American colonies. One of the abuses complained of most bitterly was the King's practice of holding legislative and judicial proceedings in inconvenient and distant places. The signers of the Declaration of Independence protested that the King "has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures," and they objected to the King's "transporting us beyond Seas to be tried for pretended offences." These abuses were fresh in the minds of the Framers of our Constitution and in part caused them to include in Art. 3, § 2, the provision that criminal trials "shall be held in the State where the said Crimes shall have been committed." Also included in the Sixth Amendment was the requirement that a defendant in a criminal prosecution be tried by a "jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law."

See Debates in the Federal Convention of 1787 as reported by James Madison in Documents Illustrative of the Formation of the Union of the American States (1927), pp. 605, 789, 856.

resided in Congress the States would be helpless to function as effective governments. Since that time neither the Fifteenth Amendment nor any other Amendment to the Constitution has given the slightest indication of a purpose to grant Congress the power to veto state laws either by itself or its agents. Nor does any provision in the Constitution endow the federal courts with power to participate with state legislative bodies in determining what state policies shall be enacted into law. The judicial power to invalidate a law in a case or controversy after the law has become effective is a long way from the power to prevent a State from passing a law. I cannot agree with the Court that Congress denied a power in itself to veto a state law-can delegate this same power to the Attorney General or the District Court for the District of Columbia. For the effect on the States is the same in both cases-they cannot pass their laws without sending their agents to the City of Washington to plead to federal officials for their advance approval.

In this and other prior Acts Congress has quite properly vested the Attorney General with extremely broad power to protect voting rights of citizens against discrimination on account of race or color. Section 5 viewed in this context is of very minor importance and in my judgment is likely to serve more as an irritant to the States than as an aid to the enforcement of the Act. I would hold § 5 invalid for the reasons stated above with full confidence that the Attorney General has ample power to give vigorous, expeditious and effective protection to the voting rights of all citizens."

Senator ALLEN. The Department of Justice also conceded by way of testimony of the current head of its Civil Rights Division, Mr. Stanley Pottinger, "I think it is fair to say that section 5 does represent a substantial departure from ordinary concepts of federalism."

Mr. Chairman, these are not hasty judgments nor are they rhetorical overstatements of the effects of sections 4 and 5. They are deliberately calculated understatements of the situation.

At issue is the power in Congress to reduce States to the status of conquered provinces. At issue is a power in Congress to classify State legislation by subject matter and to compel States to submit legislation within such subject areas for prior approval of Federal agencies of Government.

It is important to bear in mind that more than State voting laws must be considered as being within the scope of this asserted power. More is involved than the exercise of power claimed by Congress under authority of the 15th amendment. For, actually, the power vested in Congress by the 15th amendment is in terms the same power vested in Congress by the 14th amendment-which is near limitless in scope by reason of subjects covered by the due process and equal protection clauses of the amendment.

As a matter of fact, the power vested in Congress by these amendments is no greater than the power vested in Congress by the Constitution, which says that Congress shall have the power to "make all laws necessary and proper" to implement its specifically delegated authority.

So it is difficult to imagine any subject appropriate for State legislation which could not, at will, be classified by Congress and made subject to prior approval procedures. But such an all-pervasive power in Congress is totally inconsistent with the federal system of Government created by the Constitution.

One speaker expressing what seemed to be the prevailing opinion of the delegates said of the proposal, "Will any State ever agree to be bound hand & foot in this manner. It is worse than making mere corporations of them . . . ." Id., at 604.

Section 19 of the Act provides as follows:

"If any provision of this Act or the application thereof to any person or circumstances is held invalid, the remainder of the Act and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby."

Mr. Chairman, it seems to me that too few of us recall how intensely our Founding Fathers felt about the possibility that Congress might one day assert the power to reduce States to the status of mere provinces. Nor do they seem to realize the extraordinary precautions taken to prevent the happening of this contingency.

The possibility of such a development was foreseen by the eminent New York State jurist, Robert Yates, who warned the Founding Fathers that the States could not survive under a system of government where the judicial powers of the Nation were vested in one Supreme Court without limitations on those powers.

He warned that the equity power in the courts to exercise unlimited discretion in construing the Constitution and a tendency to construe the Constitution to ever enlarge the powers of Congress, together with the supremacy clause of the Constitution, which made State laws and State constitutions subservient to the laws of Congress, would eventually be used to deny States their inherent rights of sovereignty and to deny to the people their fundamental rights and powers essential to self-government in these States.

It seems to me that there is more than just a bit of irony in the fact that we are busily engaged in preparations for celebrating the 200th anniversary of the Declaration of Independence, and at the same time witnessing Congress to assert a power to deprive the people of the States of inherent rights set out in the Declaration of Independence

to:

Alter or abolish their forms of government and to institute new governments, laying its foundations on such principles, and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness.

So, while the people prepare to celebrate the 200th anniversary of the Declaration of Independence, Congress celebrates its new found powers to require the people in the States to submit their proposed constitutional amendments for prior approval of the judicial or executive branches of Government.

So history has turned full circle. The colonists fought a war to free themselves of this burden; 200 years later, Congress reimposes it.

Well, it cannot be said that Robert Yates did not warn us that this might happen. Nor can it be said that those who drafted the Constitution and those who subsequently ratified it, did not do their dead level best to prevent this situation from occurring.

First, they insisted that there be included in the Constitution itself, this provision: "The United States shall guarantee to every state in this Union a Republican form of Government." (Article IV, section 4.)

The people who insisted on this guarantee knew the elements of a republican form of government, and Members of this Congress know what is meant by a republican form of government.

Strictly speaking, in our Republican form of government, the absolute sovereignty of the Nation is in the people of the Nation and the residuary sovereignty not granted to any of its public functionaries is in the people of the state (2 Dall 471.)

Our Founding Fathers knew and Members of this Congress know that the residuary sovereignty retained in the people under a republican form of government consists of all of the essential elements of local self-government. The rights and powers essential to local self

government include not only the rights specifically mentioned in the preamble of the Declaration of Independence, but also such fundamental rights as:

The right to adopt and amend their State constitutions without let or hindrance from any other authority.

The sole right to prescribe in their constitutions the essential conditions necessary to the enactment of valid State legislation. That would be subject, of course, to the right of the Federal Government to move against any such acts of the local governments that were unconstitutional, or that were in any way discriminatory.

The right in the people to determine which of its citizens may exercise the franchise-the right to create State and local offices-establish tenure and qualifications for office, and to prescribe the manner of appointment or election of citizens to office.

The right to allocate and balance the powers of their State governments and the power to change the form of State, local, or other political subdivisions of government.

Now, Mr. Chairman, under the present Voting Rights Act, it is necessary for a city which seeks to annex territory contiguous to itand municipalities are called on often to do that, to bring city services to outlying areas those proceedings having to do with annexing the outer territory have to be approved up here in Washington.

In one of our city governments they had a commission form of government there, with three commissioners. All of the commissioners were white. They passed enabling legislation in the State legislature giving the city the right, if it saw fit, to seek to change its form of government to the automatic system and the city wanted to proceed in that area. The automatic system would certainly have had several blacks on the new commission on the board of aldermen, and it took over a year to get approval of that legislative machinery to take this step, which was contingent upon the vote of all of the people of the city. So, for our governments to have to come to Washington and beg the Federal authorities, call on their Senators and Representatives to intercede with the Justice Department to look with favor on this effort of our citizens to change their form of government by a plebiscite among the people, that is degrading and it is humiliating for us to be called on to do that.

We do not feel that we should, and that is what we are trying to do in knocking out sections 4 and 5.

The right to annex territory by municipal governments to regulate elections to enact corrupt practices acts and otherwise supervise the elections held under authority of State laws.

Yet Congress fulfills its solemn obligation to guarantee every State in the Union a republican form of government by denying to certain States, each and every one of these essential elements of a republican form of government.

It remained for history to demonstrate that Robert Yates was right and that the people were right in fearing that Congress or the U.S. Supreme Court might one day construe the constitutional guarantee of a republican form of government out of existence. They were wise to insist on protection against this possibility. So, before ratification of