has been opportunity for further consideration of the matter, and at a meeting of the full Commission held last August, the matter was thoroughly canvassed, the legality and the constitutionality of the legislation was explored quite conscientiously, and as a result of that, the Commission unanimously voted in favor of the sixth-grade standard as an appropriate legislative test to be enacted by Congress under the constitutional power already given to Congress by the various clauses to which I have referred in the 13th, 14th, and 15th amendments.

Mr. CREECH. Would you agree, sir, that by the same token, the membership of the Commission in 1959 also explored this matter conscientiously, and that its recommendations were also based upon extensive exploration and study of the problem?

Dean GRISWOLD. I have no doubt of that. They simply did not choose at that time to go as far as they might have gone. The Commission, based on further information, indeed, from some of the hearings the hearing in Louisiana was not held until 1960-and having more concrete information of the use of various tests to deny the right to vote for discriminatory reasons-came to the conclusion, in the summer of 1961, that it was constitutional for Congress to enact these statutes, and that it should so recommend. And it did unanimously, including four members of the Commission who were members at the previous time.

Mr. CREECH. Is it not a fact, sir, that, in its 1959 report, at least one or more of the Commissioners indicated that after careful study and deliberation, it was their feeling that any attempt to change voter qualifications, except by constitutional amendment, would be unconstitutional?

Mr. GRISWOLD. I can't tell you that. I do not recall what position individual members took. I do know the Commission recommended a constitutional amendment in 1959. I also know that two members of the Commission in 1961 did not join in the first recommendation, which goes beyond the sixth grade school provision. I do not understand, however, that their vote against that recommendation was based on constitutional grounds, but rather on their judgment as to what was the appropriate recommendation, all things to be taken into account, as to the extent to which Congres should exercise its power under the existing constitutional provisions.

Mr. CREECH. On page 2 of your statement, sir, paragraph 1, you state that the propriety and need for congressional action rests upon a finding that literacy tests and other performance examinations have been used extensively to effect arbitrary and unreasonable denials of the right to vote.

I should like to inquire, sir, how does this purported finding on the basis of such a recommendation support the Supreme Court's statement in the decision of Lassiter v. Northampton County Board of Elections, handed down in 1959, in which the Court said there is "a wide scope for exercise of State jurisdiction over standards which a State may require of voters," and that "literacy and illiteracy are neutral on race, creed, color, and sex, as reports from around the world show."

Dean GRISWOLD. I am not sure I get all of your question, but let me try to give a response and then you ask me anything that I do not cover.

The Lassiter case involved a State statute enacted in a situation where Congress has not spoken, which is the present situation, with respect to literacy requirements.

Congress has not undertaken to exercise in that field the power which has been granted it under the appropriate clauses of the 13th, 14th, and 15th amendments.

This, it seems to me, is a little bit like an analogy that I can draw in the area of interstate commerce. The Constitution gives Congress power to regulate commerce among the several States.

Now, Congress exercises that power in some respects and does not exercise it in others. One might think that in modern times, Congress had reached about as far as it can in all directions, but of course it has not covered everything and historically it did not.

And we had for a long period, and we still have to some extent, a question of the powers of the States with respect to interstate commerce where there is what has been called by the Supreme Court "the silence of Congress.

When Congress is silent, the States can do various things with respect to interstate commerce. When Congress speaks, the State legislation falls aside.

Now, it seems to me that that analogy applies to the Lassiter case. The Lassiter case arose with respect to a situation where Congress was silent. When Congress is silent with respect to a literacy test in a State, the States have power to enact legislation.

If those literacy tests are administered in a nondiscriminatory fashion, no constitutional amendment is violated.

However, once Congress does exercise its power under the amendments, then the State legislation which is inconsistent therewith would fall aside, just as State legislation with respect to interstate commerce falls aside when Congress exercises its power to regulate inter

state commerce.

I do not know if that is a direct answer to the question you asked but that is the general approach I would take to answer your question. But the Congress has constitutional power to speak, and if Congress did speak under its constitutional power, then the State legislation upheld in the Lassiter case would fall aside.

(Senator Keating entered the hearing room at this point in the proceedings.)

Mr. CREECH. Dean Griswold, on page 5 of your statement, you cite cases where the Supreme Court has struck down, for instance, the "grandfather clause" and the white primary and various other devices which it found were employed to accomplish racial disenfranchisement.

You note that in the Schnell case, the courts overturned a State literacy examination because it was found that it was administered in a discriminatory manner.

Sir, these decisions were handed down by the courts on a case-bycase basis and when it was felt that there had been sufficient proof presented in each case to show violation of the 14th and 15th amendments. But how can such individual rulings support legislation designed to remove from all of the States in one fell swoop their broad constitutional power over voter qualification?

Dean GRISWOLD. It seems to me it is simply a question of the extent to which Congress chooses to exercise the power which the Constitution already gives to it, and has for 100 years, to enforce the Constitution.

My own view is that the Congress has long been too slow in moving into this area. When Congress does not act, of course, the States have to act. But if Congress would exercise what I believe is its responsibility under these constitutional provisions, then any State provision which was inconsistent with the enactment of Congress would necessarily have to fall aside, as I have indicated, just as many State provisions with respect to interstate commerce have been perfectly valid when enacted, but when Congress thereafter exercised power to regulate interstate commerce, the State provisions fell aside.

Mr. CREECH. Sir, you say that the power to regulate the voter qualifications has been a power which was conferred on Congress for over 100 years; is that so?

Dean GRISWOLD. No; I did not say that, Mr. Creech, what I said was the power to legislate against discrimination. All we are talking about here is voter qualification standards which, if Congress enacts the bill, the Congress would find, and I believe on ample evidence, have been widely used to carry out racial discrimination in voting. Mr. CREECH. Now, sir, no less authority on the subject than a former Member of the Senate, a former Speaker of the House of Representatives at the time that these constitutional amendments were enacted, the late James G. Blaine, has said

The 15th amendment now proposed did not attempt to declare affirmatively that the Negro should be endowed with the elective franchise, but it did what was tantamount to forbidding the United States or any of its States the power to abridge or deny the right to vote on account of race, color, or previous condition of servitude. States which should enact tests or proper qualification might still exclude a vast majority of Negroes from the polls, but they would at the same time exclude all white men who could not comply with the test which included the Negro. In short, suffrage by the 15th amendment was made impartial but not necessarily universal to male citizens above the age of 21.

Dean GRISWOLD. I think I would say for one thing that the Senator and former Speaker and former ex-Presidential Candidate Blaine did not have the benefit of a very large amount of subsequent experience which we have had, which shows that these particular literacy requirements are in fact used for the purpose of discriminating in voting.

Mr. CREECH. Sir, are you saying that subsequent experience mitigates against the original intent of Congress when it passes legislation. Dean GRISWOLD. No; not at all. I am simply saying that what Senator Blaine said was that the 15th amendment, if fairly applied, would not prevent a State from using a fairly applied literacy test if Congress did not choose to exercise the power which is granted to enforce the 13th, 14th, and 15th amendments.

Subsequent events have shown very clearly, I think, that State literacy tests do in many States provide a basis for racial discrimination. It seems to me, therefore, perfectly appropriate in the situation as it now exists, that Congress should exercise the power which it has and which has been granted to it, and which, in my view, it is the responsibility of Congress to exercise.

Senator KEATING. Mr. Chairman, could I interrupt a moment?

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Senator ERVIN. It is all right with me if it is all right with the dean and Mr. Creech.

Senator KEATING. May I inquire whether it is intended that Dean Griswold will be on this afternoon also?

My reason for inquiring is this: The clergyman who is offering the prayer at 12 o'clock is from New York and a friend of mine and I feel I must be on the floor at 12 noon. I had a few questions I wanted to put to Dean Griswold.

I do not want to interfere with the continuity of Mr. Creech's inquiry, but if Dean Griswold is to be here this afternoon, I could be back.

If not, I would ask the privilege of putting these few questions to him now.

Senator ERVIN. I would suggest that you ask them. I think the dean will be here early this afternoon.

Dean GRISWOLD. Mr. Chairman, I would like very much to get a 3:30 plane. Until that time I am entirely at the committee's disposal. If I may say so in the presence of these two Senators, the reason is that there is a student law club dinner tonight at which I have long promised to speak and I would like not to break the engagement if I could avoid it.

Senator ERVIN. I will do all I can, but I should say in all fairness, that since I have a great veneration for the Constitution of the United States and I think I am engaged in defending the Constitution of the United States, I have a great many questions I want to ask you.

Dean GRISWOLD. I am at your disposal. I have stated the fact of what I would like to do. If that is not convenient

Senator ERVIN. I will do all I can to get you to it. But I do think I am trying to save the Constitution of the United States for the benefit of all Americans of all races and all generations, and I think there are quite a few questions I should ask you.

Dean GRISWOLD. Thank you.

Senator ERVIN. I thank you.

Senator KEATING. The two members sitting on this committee now should be very sympathetic to the dean's desire to get to the law club meeting, because if there is nothing else, and there are many other things that the distinguished chairman and the Senator from New York have in common, it is that they are both proud of being graduates of Harvard Law School.

We both want to cooperate in any way we can with the chairman. But I would be very happy, if the chairman thinks that he will be here at 2 o'clock, I will be very happy to defer my questions until after this defense of the Constitution.

Senator ERVIN. I would say to the Senator from New York, if he wishes to go and listen to the prayer, that I would not deter him from that at all, and I would suggest that he proceed.

The Senator from New York may not be standing in the need of prayer, but I honestly believe the Constitution of the United States is. Senator KEATING. It might be good for both of us to hear both the dean and the clergyman. But I shall return. He does not have to leave until 3:30, anyway. My questions will be short, and I was very sorry not to hear Dean Griswold's presentation. But I shall read his statement with great interest because of the great respect I have for the witness. I will return at 2 o'clock, if I may.

Mr. CREECH. Dean Griswold, I shall try to move quickly with these questions. I do have several others I would like to ask.

On page 4 of your statement, you indicate that existing laws are not sufficient to deal with arbitrary and discriminatory denials of the right to vote and that there is no basis for believing that present laws will have any significant effect upon the discriminatory use of qualifications tests within the predictable future.

Sir, I should like to ask: What then are the advantages of the enforcement procedures in this legislation over the present laws, if a registrar challenges a voter's sixth grade education? Will he still not have to go into court and perhaps become involved in lengthy litiga

tion?

Dean GRISWOLD. Yes, Mr. Creech; he may be if the registrar chooses to operate on that basis. However, it seems to me that in most cases, the existence of a sixth grade education is susceptible of documentary and clear and incontrovertible proof. The remedy in court will be much quicker and if it is shown that there is a systematic pattern of-is that the phrase-Mr. Bernhard?

Mr. BERNHARD. Pattern or practice.

Dean GRISWOLD. A systematic pattern or practice of discrimination. Then, under the existing Civil Rights Act, steps can be taken to terminate that way of dealing with this problem.

Under the literacy test, it is an individual matter, person by person, involving a great deal of judgment, particularly when it is an explainor-interpret-the-Constitution provision, as to which there is no clear or convenient external objective, documentary test.

It seems to me it is a little bit like the provision with which we are all familiar: one reaches his majority when he is 21 years old.

We all know people who are just as competent 5 days before they are 21 as they are 5 days after, but they become legally competent at the fixed point because that is objectively determinable and it greatly minimizes the factual determination and the controversy which would arise if some government functionary had to have every individual appear before him and he finally said, "Well now, you are competent,' and the people who were found not competent then had to go to court and litigate.

It is our view that this provision would be a step, a help, toward simplifying this process and toward minimizing the existing racial discrimination in voting under color of literacy tests.

Mr. CREECH. Sir, I would like to ask some questions pertaining to the memorandum which accompanied your statement.

The statement on page 5 of the Commission's memorandum, that Congress has the power to protect Federal elections from racial discrimination, may be true, but according to Ex parte Yarbrough, this power does not arise, does it, until the class of voters who are qualified has been determined by State law?

In other words, the State law decides who shall be the voters, does it not, sir?

Dean GRISWOLD. In the absence of action by Congress under the clauses giving the Congress power to enforce the 13th, 14th, and 15th amendments, then it is the State law which determines the class who can vote.