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Senator ERVIN. That is a very good statement as far as it goes, but don't you believe that one of the major purposes of adopting a written constitution for the Government of this country was to define the kind of government that was being created and the powers it was to take? Attorney General KENNEDY. Well, I would think that was incorporated in my answer.

Senator ERVIN. I would like to ask you if you have any quarrel with a certain statement made by one of the great lawyers of this country and by the Court in the case of Ex parte Milligan, 4 Wallace, starting at page 1. And I quote these remarks of Jeremiah S. Black, counsel for Milligan.

Attorney General KENNEDY. Can you give me could we have the

date of this?

Senator ERVIN. It is Ex parte Milligan.

Attorney General KENNEDY. Do you have two copies of it?

Senator ERVIN. I don't have the opinion; just some extracts of it. But it was an opinion handed down by the Supreme Court in the case of a civilian in Indiana, who was tried before a military court for what amounted to aiding and abetting the Confederacy or treason against the Union. He was tried by a military court although he was a civilian and was sentenced to death. An appeal was taken to the Supreme Court from the death sentence by counsel, headed by Jeremiah S. Black, one of the greatest lawyers this country has ever known. In his argument before the Court in case, Mr. Black gave this as a reason why this country adopted a written constitution. He said the Founding Fathers knew "that tranquillity was not to be always anticipated in a republic"; "that strife would rise between classes and sections, and even civil war might come"; and "that in such times judges themselves might not be safely trusted in criminal cases, especially in prosecutions for political offenses, where the whole power of the executive is arrayed against the accused party."

That is a statement in part of what that great lawyer, Jeremiah S. Black, said in his argument in Ex parte Milligan.

As I construe that, he says in effect the Founding Fathers established the written constitution for the same reason you expressed in other words; that is, to give the people of the country, among other things, protection against the powers of government.

Do you have any quarrel with this statement?

Attorney General KENNEDY. No; I am with you completely so far, Senator.

Senator ERVIN. The Court said this is Ex parte Milligan: "They"that is, the Founding Fathers knew "that what was done in the past might be attempted in the future."

And "that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive methods to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law."

Do you have any quarrel with that statement?

Attorney General KENNEDY. I don't believe so.

Senator ERVIN. The basis you have for asking the committee to approve the administration bill and asking Congress to adopt it is that we are now having troublous times because of demonstrations in the streets of the country, north, south, east, and west.

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Attorney General KENNEDY. No; that isn't correct. Excuse me, Senator.

Senator ERVIN. Would you deny that this matter has been accentuated by the fact that there have been demonstrations of this character? Attorney General KENNEDY. I think that is correct.

Senator ERVIN. Would you say that your advocacy of the administration bill is not prompted in any part by the fact that we are having, in that sense, troublous times?

Attorney General KENNEDY. I think it is. But that is not the reason we are offering the legislation.

Senator ERVIN. The proposed legislation, other than the voting part and the proposal to extend the life of the Civil Rights Commission was not offered before the demonstration occurred, was it?

Attorney General KENNEDY. I don't think that there was a general feeling in the country or in Congress, Senator, to do much about it. You and I went through this a year ago in connection with the voting bill. As you remember, not very many people were interested. You were interested, we were interested but there weren't many others that were interested in it. There wasn't a great demand around the country and there wasn't a great demand in the Congress. If we couldn't get that very basic bill by, and a very elementary bill, if we didn't have more success with that, we would hardly have great success with legislation that went beyond that. But the reason that we need this legislation-that is what the question is, whether the legislation is needed the reason it is needed is not because there are demonstrations taking place but because there are injustices that should be remedied and the legislation would take a step toward remedying those injustices.

Senator ERVIN. Let us see if we can agree on this proposition: That as a result of the demonstrations which have occurred in Birmingham and unfortunately in Greensboro and Lexington, N.C., and in Cambridge, New York City, Chicago, and Los Angeles, and other areas, we can describe this as a period of troublous times.

Attorney General KENNEDY. Yes.

Senator ERVIN. All right. Can't we also describe this bill as a proposal to deal with the situation or with the field-I will not confine it to a situation-by sharp and decisive methods? Aren't the proposals in this bill rather sharp and decisive?

Attorney General KENNEDY. I expect it would probably depend on what your definition of sharp and decisive is. I would make it as sharp and decisive as possible.

Senator ERVIN. I would think that would be correct. I would describe the proposals in the bill to provide that the Federal Government is to regulate business affairs, as I would contend, down to the last bootblack on the local level

Attorney General KENNEDY. For instance, Senator Kefauver raised a question that has been raised by a number of your colleagues whether it is sharp and decisive enough in that area.

Senator ERVIN. You won't quarrel with me if I say that in my opinion this bill is perhaps the most sharp and decisive bill in this area since the Reconstruction Acts of 1867, would you?

You wouldn't quarrel with me if I had that opinion?

Attorney General KENNEDY. I think, Senator, you have had a long distinguished career and you are entitled to any opinion. I have only the greatest respect for you and your ideas.

Senator ERVIN. I appreciate that.

Attorney General KENNEDY. Very sincerely, though, Senator, I have worked with you a long period of time and I have only the greatest respect for you.

Senator ERVIN. I would say to the Attorney General that as some of us, including myself, see this bill, it is a very drastic assault on the principles of constitutional government and on the private rights of individuals. My opposition to the bill does not arise out of any matter of race.

Many years ago, I was elected to represent my county in the North Carolina Legislature. One of my first acts was to introduce a bill to provide for the issuance of bonds to defray the cost of building an adequate school building for Negro schoolchildren in my hometown. As a member of the State legislature, as a member of the school board in my hometown, and as a citizen, I have always done everything within my power to insure that all of North Carolina's children of all races should have adequate educational opportunities. As a lawyer, a judge, and a citizen, I have likewise always done everything within my power to see to it that all men of all races stand equal before the law. Moreover, I have always taken the position that all qualified persons of all races should be accorded their right to register and vote, and that any State or local election official who willfully denies to any qualified citizen that right ought to be prosecuted under State statutes or under section 242 of title 18 of the United States Code. Consequently, I do not base my opposition to this bill upon any matter of race. I would be glad to see the operators of places of public accommodation open such places to all persons by voluntary action on his part whenever he feels that it would be appropriate for him to do so and whenever he feels that he can do so without suffering any unpleasant incidents and without suffering economic loss. I am opposed, however, to any effort to solve problems of this nature by the coercive power of law. All Americans should be permitted to keep their individual rights to use their private property as they wish, and to select their customers as they wish. I oppose this bill because it constitutes a drastic assault upon fundamental constitutional principles and upon basic individual rights. I shall read in a moment what I conceive to be a true statement concerning written constitutions and how they should be interpreted.

Incidentally, I was taught constitutional law by Eugene Wombaugh in the Harvard Law School.

Attorney General KENNEDY. I went to the University of Virginia Law School.

Senator ERVIN. I had the great privilege of sitting at the feet of Eugene Wombaugh. My ideas of constitutional law may not be as sound as Eugene Wombaugh's were, but they are probably sounder than yours would have been if you had received your legal education in the same place you received your earlier education.

Senator KEATING. In the same place as the Senator from North Carolina.

Senator ERVIN. Yes. On one occasion I was privileged to speak to the Harvard Law School Association of New York City. I took that occasion to make some remarks entitled "Alexander Hamilton's Phantom" in which I charged that during recent years members of

the Supreme Court of the United States had failed to practice the greatest judicial virtue, which is judicial self-restraint. I cited a number of cases in support of this thesis.

When I arose to speak, I realized the possibility that some of my fellow alumni might not approve of what I had to say. Consequently, I took occasion at the begining to assure my audience that my host, the Law School Association of New York City, and my legal alma mater, Harvard Law School, were not accomplices in the crime I was about to commit. I stated that my legal alma mater could not be convicted of complicity in such a crime on the theory of guilt by association because it had been a long time since I attended Harvard Law School. I gave Dean Griswold the further assurance, however, that I could furnish him with the name of a fellow North Carolinian who would give positive testimony of the innocence of Harvard Law School if that became necessary. I told the dean that this man had recently introduced me to a North Carolina audience and had stated in his introduction that I was a graduate of Harvard Law School, but, "Thank the Good Lord, nobody would ever suspect it.' I added I didn't know whether my North Carolina introducer was speaking in defense of Harvard Law School or in defense of me.

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Mr. Attorney General, I would like for you to comment upon a passage which I shall read from one of the most accurate books on constitutional law ever written. The author of such book had the honor of being a resident of the same State that my friend, the Senator from Michigan, Senator Hart, is. He served with great distinction as a member of the Supreme Court of Michigan and as dean of the Law School of the University of Michigan. He was one of the greatest constitutional lawyers this country has ever known. I refer to Judge Thomas M. Cooley.

In the passage which I shall read, Judge Cooley explained why we have written constitutions and how they should be interpreted by legislative bodies and courts. I read from chapter 4, pages 88 and 89, of his monumental work entitled "Constitutional Limitations." He said:

A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion.

It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. Those beneficient maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections; and we may confidently look forward in the future to still further modifications in the direction of improvement. Public sentiment and action effect such changes, and the courts recognize them; but a court or legislature, which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty; and if its course could become a precedent, these instruments would be of little avail. The violence of public passion is quite as likely to be in the direction of oppression as in any other; and the necessity for bills

of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced, by temporary excitements and passions among the people, to adopt oppressive enactments. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the consituation is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.

Do you desire to make any comments on that?

Attorney General KENNEDY. No; I agree basically with that, Senator. But I do not think it therefore follows that a decision of a court, a prior decision of even a supreme court should never be overruled. I do not think we would want to support that doctrine and I think we would also have to take into consideration the fact that there are changes in events and situations which might call for arriving at a different decision on what appears to be basically the same facts.

Senator ERVIN. I agree with you that a court under certain circumstances has the right to reverse a previous decision. I have had to wrestle with the problem myself as a judge. But I think that Judge Learned Hand, whom I consider as great a judge as has ever lived on the North American Continent, laid down the rule by which courts should determine whether they should overrule a previous decision. He did this in a speech he made in reference to a colleague— Judge Thomas Swann. Judge Learned Hand said that Thomas Swann held that a court should never overrule a decision unless that decision was untenable at the time it was made, and not even in that case when a great body of law had been erected upon that decision.

What Judge Learned Hand said on this point indicates that Judge Thomas Swann adhered to the view which has been expressed by Judge Louis D. Brandeis and others; namely, that usually it is better for judges to leave the reversal of their erroneous decisions to the lawmaking power than it is for them to reverse such decisions themselves. Attorney General KENNEDY. I am sure I wouldn't have any quarrel with Judge Learned Hand, but I would just as soon be able to read it myself.

Senator ERVIN. You have described conditions in voting in the United States, and have made particular reference to Mississippi and Alabama.

Attorney General KENNEDY. That is correct.

Senator ERVIN. I ask you how many criminal prosecutions has the Department of Justice instituted in the Federal district courts in order to bring punishment to election officials who have perpetrated these wrongs?

Attorney General KENNEDY. Well, we haven't brought any, Senator. To be quite frank about it, I would think it would be virtually impossible to successfully prosecute a criminal case in either one of those States on this matter.

Senator ERVIN. That is a rather serious accusation to make against the entire people of a State. I believe that a great man named Edmund Burke once said "You cannot indict a whole people." What you have said seems to me to be an indictment of a whole people.

Attorney General KENNEDY. I don't mean it as such, Senator.
Senator ERVIN. I hope you don't.

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