If the voter answers in the affirmative, the registrar can say, "Well, I can't register you; I can't test you unless I find out first whether you are telling me the truth about this, that you completed the sixth grade in school. I therefore call upon you for legal proof of the fact that you have completed the sixth grade in school.

Now, if the registrar wanted to, he could demand legal proof, which could require the production of a certificate signed by the proper authorities. If the proper authorities could not be found or his record could not be found for them to certify, why, then, he could not register; he could not give him a test because he claimed he had a sixthgrade education. He could not tell whether the registrant could read or write and could meet the literacy requirement.

Or if the fellow came from out of State, he would be required to register him under the statute. I do not remember what the terms are, but in the courts when you want to certify a clerk, you have to certify the judge as a judge and you get the judge to certify the clerk as a clerk and you have that plastered all over with great big seals.

Now, if the man says, "No, I have not completed the sixth grade," he can say, "You will have to prove it to me because this law forbids me to give you a literacy test if you have. I would have to violate the act of Congress to give you a literacy test. The act says I can't do it. You have to prove to me that you have completed the sixth grade of some school before I am allowed by the law to give you a literacy test to prove you are literate."

I cannot think of anything more calculated to keep a registrar from registering a man

Senator KEATING. All I can say, Mr. Chairman, is that if this is such an ineffective bill there should not be strong opposition to it from any quarter.

Senator ERVIN. I do not come from an area where the test is used to keep anyone who is qualified from voting.

Senator KEATING. That is my understanding and should be said in all fairness.

Senator ERVIN. I have grandchildren, and I think the greatest device ever conceived by the minds of men is the Constitution of the United States. I am going to do all I can despite all political pressures and despite all the sob sisters to try to see that this Constitution is handed down to my grandchildren in as good shape as it was when I came into this world.

I am going to stand for the Constitution for that reason solely. I agree with the Senator from Arizona, I do not think any qualified citizen of any State ought to be denied the right to vote anywhere.

But I think in enforcing the voting laws, we should go to the courts and enforce them as we enforce any other law. And we have more laws on this subject than any other I can think of right now.

Mr. BLOCH. Mr. Chairman, I have to catch a train. I wanted to be excused. Senator Goldwater said something that made me think of something that I had forgotten in my prepared notes. I am glad Senator Keating is here. He was not here when I was testifying. Senator KEATING. We have sat across the table from each other for a great many years.

Mr. BLOCH. I made the statement, Senator, during my prepared talk, that the 14th amendment did not have a blessed thing to do with voting and I forgot to prove it.

Senator Goldwater said something in his discussion that helped me prove it.

The 14th amendment says:

All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privi leges or immunities of citizens of the United States.

Now, you see the word "citizen" there; of "citizens of the United States."

The case to which I called attention during our discussion of Minor v. Happersett, where the Supreme Court of the United States held that a white woman could not vote despite that privilege or immunity section, and despite the fact that she was a citizen, because the privilege of voting was not a privilege or immunity of a citizen of the United States but a privilege or immunity of a State. That is the only place where the word "citizen" is mentioned in the 14th amendment.

Senator KEATING. Is not a citizen of a State a citizen of the United States?

Mr. BLOCH. Yes; but the privilege of voting comes not from the United States but from the State.

Look at the next clause, "Nor shall any State deprive any person of life, liberty, or property without due process of law."

It does not say "citizen"; it says "person," "nor deny to any person within its jurisdiction the equal protection of laws."

Now, if the equal-protection clause applies to voting, then the State cannot deprive any person within its jurisdiction, whether he be a citizen or not, of the right to vote.

Senator KEATING. Could I ask you this question: Could a State deprive every baldheaded person of the right to vote? Would that be a violation of the 14th amendment?

Mr. BLOCH. If a person is denied the right of voting by reason of his race, color or previous condition of servitude

Senator KEATING. I am talking about a baldheaded person. Would it be a denial of the equal protection of the laws, for a State to pass a law saying no baldheaded man could vote?

Mr. BLOCH. It would be a denial of the equal protection of the laws, yes; but it would not be depriving him of a constitutional right.

Senator KEATING. Equal protection of the laws is a constitutional right.

Mr. BLOCH. The Federal Government has nothing to do with voting except in situations where the 15th amendment or the 19th amendment apply.

Senator ERVIN. You have raised a very interesting point, because the truth of it is in the original decisions under the 14th amendment, the Court held that the 14th amendment recognized the rights of the States to disenfranchise some of their citizens.

In other words, as far as voting is concerned, the second section of the 14th amendment provides that a State which denies to a substan

tial number of its male citizens of the age of 21 years the right to vote may have its representation in Congress decreased proportionately. It is very interesting. Here is the case of Stone v. Smith, which was decided by the Supreme Judicial Court of Massachusetts and is reported in 159 Mass. 414, and 34 N.E. 521, which discusses the second section of the 14th amendment.

It says:

This section distinctly recognizes the right of a State to deny or abridge the right to vote of the male inhabitants who are 21 years of age, and it is well known that many of the States have from time to time by an impartial and uniform rule of prohibition denied the right to vote of such of their male inhabitants as were thought not to possess the qualifications necessary for an independent and intelligent exercise of the right.

That is very interesting, since it comes from the State of Massachusetts rather than from Georgia or North Carolina or Alabama. So, the 14th amendment, according to the Supreme Judicial Court of Massachusetts, expressly recognizes the right of the State to deprive some of its citizens of the right to vote.

Mr. BLOCH. Mr. Chairman, I would like the privilege of supplementing

Senator ERVIN. That was cited and approved by the Supreme Court of the United States in the Lassiter case in 1959.

Mr. BLOCH. May I be excused?

Senator ERVIN. Yes, sir.

Mr. BLOCH. I would like to have the privilege of supplementing my statement by something on that which I was reminded of by Senator Goldwater.

Senator ERVIN. I hope you can get it within the next few days.

Senator KEATING. The Tuesday after Easter is the date for the socalled literacy bill to be called up on the floor. I assume the proper way to do that is through this committee, so the quicker you get your information in to us the better we will be able to act on it. It seems like the orderly way to present the matter to our colleagues in the Senate.

Mr. BLOCH. You will have it by Monday.

Senator GOLDWATER. I just want to thank you, Senator Ervin and Senator Keating, for allowing me to be here. I want to make it clear that I am not in favor of the actions practiced in certain parts of our country. I do not think anybody should be denied the right to vote because of race, creed, or color, but neither do I believe that this bill will solve the problem.

I think it will only compound the difficulties, and I am hopeful that in your discussions, during the period of time when you write the bill up, you can direct your efforts toward some solution that will recognize that 44 out of the 50 States have never had any trouble, doing it the way we are doing it, by requiring a simple literacy test. Senator ERVIN. I would like to say I agree with both of those observations. I think any man qualified to vote should be allowed to vote anywhere, in the precinct in which he resides.

But as I read these preambles in this bill, they remind me of the opening verses of the second chapter of Genesis.

As I remember, the serpent tempted Eve to eat of the tree in the midst of the Garden of Eden, the tree of forbidden fruit.

The serpent told Eve, "Now, can you eat of any tree in the garden?” Eve said, "No. I can eat of any tree except the fruit of the tree in the midst of the garden. I cannot eat of that. The Lord has forbidden us to eat of that."

The serpent said to Eve: "Well, the fruit of that tree is pretty and if you eat it, it will make you wise, make you know things, increase your knowledge."

So Eve looked at it and noticed the fruit of the tree was pleasing to the eye and it looked like it would be good to taste, and it was something she was desirous of consuming because the person who consumed it would become wise. So Eve succumbed to temptation and ate of the tree in the midst of the garden.

That is exactly what the preamble of this bill reminds me of-Eve. Because the advocates of the bill set out there something about the fruit of the tree being pretty and like Eve, they are succumbing to temptation. They say, "We are going to do some constitutional evil in the hope that some good will flow from it."

And that is the reason why I think the preambles to this bill remind me of Eve and the serpent.

We want to thank you, Senator Goldwater.

The subcommittee is very deeply grateful to both Senator Goldwater and Mr. Bloch for appearing before us and giving us the benefit of their views with respect to this legislation.

If there is nothing further, we will take a recess until 2 p.m. to

morrow.

(Whereupon, at 4 p.m., the hearing recessed, to resume Wednesday, April 11, at 2 p.m.)

SUPPLEMENT TO STATEMENT OF CHARLES J. BLOCH ON LITERACY QUALIFICATION BILLS S. 480 AND S. 2750

In my original statement. in listing the powers delegated by the States to the Congress which might authorize the enactment of this legislation, I did not overlook section 5 of the 14th amendment, nor section 2 of the 15th amendment. These bills, if enacted into law, would not be "appropriate legislation" as that term is used in these amendments. That the States were not shorn of their powers by these amendments is demonstrated by the language of the 17th amendment.

Section 5 of the 14th amendment is one of the vehicles by which the Senate is asked to enact S. 2979, the Federal Voting Rights Act of 1962.

Just 4 years after the adoption of the 14th amendment, Mrs. Virginia Minor. a native born, free, white citizen of the United States, and of the State of Missouri, over the age of 21 years, wishing to vote for electors for President and Vice President of the United States, and for a Representative in Congress at the general election held in November 1872, applied to one Happersett. the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not a male citizen of the United States, but a woman, and therefore not qualified to vote under the constitution of the State of Missouri, which provided: "Every male citizen of the United States shall be entitled to vote." The Supreme Court of the United States upheld the registrar, "being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void” (Minor v. Happersett, 21 Wall, 162, 178). That decision remained as the "law of the land" until the adoption, 45 years or so later, of the 19th amendment.

I suppose it will be argued that that decision has become eroded by time, and that under more recent decisions a State may not deny to any person within its jurisdiction the equal protection of any of its laws, including registration and voting laws.

It will be argued, therefore, that qualifications prescribed by State laws for voting, or registration to vote, other than qualifications based upon age, residence, freedom from confinement, and freedom from conviction of a crime, are susceptible of use, and have been used, to deny citizens the right to vote, because of their race and color, and that, therefore, Congress has the right to and should nullify and supersede the qualifications prescribed by State laws.

If this be good logic, if section 5 of the 14th amendment can be used in this respect, then it can be so used to abolish any State legislation which the Congress thinks is being used to deprive persons within the jurisdiction of any State of the equal protection of the laws.

It would make no difference-if this is the law-what State, or how many States, had used a law "discriminatingly," or in the language of the Constitution, "so as to deprive presons within its jurisdiction of the equal protection of the laws."

If the State of California, for example, in the opinion of Congress used its capital punishment statute so as to deny persons within its jurisdiction the equal protection of it, that is, if more Chinese or Negroes were executed than white people, then the Congress could supersede the statutes of all States prescribing capital punishment.

Under this new theory of constitutional law, if a State criminal statute is even susceptible of such use by any State, Congress may repeal all such statutes in every State.

This supposed new-found power of Congress would not be confined to criminal statutes.

If taxing statutes of a State are susceptible of such use, or are being so used by any one State, Congress may repeal them all.

Under this supposed new-found power, Congress could repeal any statute of any State susceptible of being used to abridge the privileges or immunities of citizens of the United States.

Under this supposed new-found power, Congress could repeal any statute of any State susceptible of being used to deprive any person of life, liberty, or property, without due process of law, or susceptible of being used so as to deny to any person within the jurisdiction of a State the equal protection of the laws. If Congress has this power, then the States and the cities have absolutely no police power left, for any statute or ordinance enacted for the health, safety, and general welfare of the people is susceptible of being discriminately used. Drivers' licenses, speed limit laws, all safety measures, will disappear. All health measures will disappear.

Control of every phase of every day life will pass from city councils and State legislatures to the Congress.

SUPPLEMENT TO TESTIMONY OF CHARLES J. BLOCH

During the hearing of April 10, I was granted permission to supplement my remarks with additional material. I had hoped to make a fairly complete statement with respect to the 14th amendment and voting rights. However, I am now advised that supplementary material must be furnished by April 16. Hence, this will of necessity be rather sketchy.

I had hoped to develop the thesis that the 14th amendment was not intended to apply to voting rights.

If it was so intended, the adoption of the 15th was useless.

I am not unmindful of the trend of recent cases, but my knowledge of their holdings does not prevent my wondering when the shift from the 15th to the 14th as the measure of voting rights commenced and why.

The very fine opinion of Circuit Judge Cameron writing for himself and District Judges Mize and Clayton in Darby v. Daniel, 168 F. Supp. 170, in holding that "the qualification of voters is a matter committed exclusively to the States" and that "the Supreme Court has spoken on the subject in language as clear as it is decisive" (p. 176) cites several Supreme Court decisions beginning with Pope v. Williams (1904), 193 U.S. 621.

Then, Pope contended that the assailed Maryland statute was contrary to parts of the 14th amendment including that which prohibits a State from denying any person within its jurisdiction the equal protection of the laws.