lic authority it is, in the judgment of the Commission, contrary to the 14th amendment.

Senator ERVIN. Well, I will ask the dean if the recommendations of your Commission with respect to the District of Columbia, do not indicate that you think he ought to be deprived of that right?

Mr. GRISWOLD. We are getting quite a little bit remote from Mississippi, Senator, but I am glad to respond. We recommended that insofar as there was activity through brokers, and insofar as there was renting of units of anything more than single-family dwellings, that discrimination should be made invalid. Insofar as the private owner of a single family residence, acting on his own is concerned, we did not recommend that any action be taken to restrict his right to sell as he sees fit.

Senator ERVIN. Did you not recommend action be taken to restrict the right of a realtor to sell on his behalf?

Mr. GRISWOLD. Yes, we did.

Senator ERVIN. And you recommend, do you not, that any realtor who, attempting to obey the directions of his employer, undertakes to make a sale, shall be forbidden to carry out the preference that the sale be made to members of the Caucasian race?

Mr. GRISWOLD. I believe that is correct, Senator. Yes.

Senator ERVIN. I am glad that you interpret it the same way that I do.

Now, isn't that evidence that the Commission believes, irrespective of the legal technicalities, that Americans should no longer be allowed to select associates for themselves and their children of immature age, from members of their own race?

Mr. GRISWOLD. I thought that was decided by the 14th amendment, sir.

Senator ERVIN. Do you mean, you think that the 14th amendment is designed to deny a member of any race the privilege of selecting associates for himself and his immature children, from among his own race?

Mr. GRISWOLD. I think the 14th amendment was designed to effectuate the ideals of this country which are that this is a country of nondiscrimination, in which all people have equal status.

Senator ERVIN. In other words, you think that under the 14th amendment, a member of a race no longer has a right to undertake to select his own associates and those of his immature children?

Mr. GRISWOLD. No, Senator. He can get a house any place he wants to get a house, but he cannot keep other people from getting a house in the same area.

Senator ERVIN. And he cannot sell his own property, can he?

Mr. GRISWOLD. He can sell, under the recommendation of the Commission, he can sell his own property in as discriminatory a manner and he wants to, but he cannot do it through a broker.

Senator ERVIN. But the truth of it is, Dean, that these laws your Commission recommends for the District would require any person who wanted to stay on the wind side of the law, if he were going to sell his property through a broker or if it is more than a one-family residence, through his own efforts and if he has an opportunity to sell that property to a member of the Caucasian race or to a member of the Negro race, he would sell to the Negro if he were a wise man. Mr. GRISWOLD. Well, I don't think it is quite as clear as that.

I think all he would have to do would be to show that he was not acting in a discriminatory manner. May I say, Senator, that there was nothing novel in this recommendation of the Commission. Such laws are in force in a considerable number of States in the country today and with respect to the District of Columbia, Congress acts as a State legislature, and through the District Commissioners, has such powers, and we were simply recommending that the District of Columbia be brought in line with a considerable number of other States in the country.

Senator ERVIN. Well, you also recommend that the right to sell property to whomsoever one pleases should be limited and restricted. Mr. GRISWOLD. Not if they sell them on their own and it is a single family residence. We do not so recommend.

Senator ERVIN. But all other property, not single family residences

Mr. GRISWOLD. That is correct.

Senator ERVIN. And with respect to sale of single-family residences sold through a realtor and with respect to all other property, you would limit the common law right of every property owner in the District to sell his property to whomsoever he pleased, would you not? Mr. GRISWOLD. Senator, there are many limitations on the so-called common law rights of the property owner.

You cannot build a building more than so high; you cannot build it closer to the street than this; and you must comply with the zoning ordinances; and you cannot put a factory in a residential area; and this would simply be in accord with the well-established power of the community to regulate the owning and dealing in real estate.

Senator ERVIN. Well, you agree then to the implications of my question, as to the restriction that your Commission would put on the freedom of traffic and property?

Mr. GRISWOLD. I agree, Senator, that it would be a restriction, that is right. We believe it is a restriction which is well warranted by the 14th amendment or with respect to the District, by the 5th amendment. Senator ERVIN. Now, you spoke in connection with Mississippi's desegregated schools, and I notice that there is a recommendation of the Commission that all the school districts be required forthwith to desegregate.

Can you cite me any decision that says that the Constitution requires desegregation of all schools?

Mr. GRISWOLD. Yes. The Brown case, decided by the Supreme Court in 1954.

Senator ERVIN. I hate to disagree with the Dean of the law school that I attended, but the Brown case does nothing except prevent discrimination which consists of the exclusion of a child from any school on account of race. That is all it does.

Mr. GRISWOLD. I understood that was the question you asked. That is the question I was attempting to answer.

Senator ERVIN. No. I asked you if you could cite me any decision. that says the 14th amendment requires desegregation of all schools. Mr. BERNHARD. Mr. Chairman, I hesitate to get into this, having gone to Yale, but it is my understanding that when the second opinion came down in the Brown case, the school boards were given directives to formulate school plans looking toward compliance with the first

order, to overcome separate but equal facilities in all their school system.

Senator ERVIN. As a Harvard graduate, I would suggest to the Yale graduate, that he reads the second Brown case again, he will find that schools are directed to admit only those who are found qualified, and that they not be excluded from the schools on account of race. As a matter of fact, the Brown decision itself, sets out numerous grounds for exclusion, other than race.

Mr. BERNHARD. With great respect, Mr. Chairman, I think it went a little beyond that. It put a duty on the school board to formulate its own plans, looking toward compliance with the concept that no racial criteria be used in the public school system, and desegregate those schools that were totally segregated.

Senator, you use that well-known phrase, with all deliberate speed, which obviously, was not directed simply to the individual parties then before the court, but related to the school systems themselves, generally.

Senator ERVIN. I don't want to detain you unduly, but I think, on that point, I might refer to the words of the man that knows the most about this because he wrote the original decision in the case.

First, however, I am directing that the case of Gong Hum v. Rice, 275 U.S. 78, be printed in the appendix of the record so that the Commission may see what the Constitution meant prior to the 17th of May 1954.

The opinion in the case of Briggs et al, v. Elliott et al, which appears 98 Federal Supplement, page 529 was written by a man who, in my judgment, is the greatest lawyer of our generation, John J. Parker. In that case he said that there was not a single decision that had been cited or called to his attention or which he could find which held that the 14th amendment required desegregation of schools. That opinion will appear in the appendix of the record.

Mr. GRISWOLD. One thing we can agree on, Senator, is our admiration for Judge Parker, one of my great heroes.

Senator ERVIN. Yes, sir. I think that one of the greatest tragedies of the human race was the fact that he was rejected for membership to the Supreme Court of the United States.

Mr. GRISWOLD. I agree with you entirely. He was a great gentleman about that and everything else in his life.

Senator ERVIN. I also think it might be interesting if not illuminating for the Brown case to appear in the appendix.

Concerning the Brown case, it might be interesting to promote here the comment of the editor of the Richmond News Leader, James Jackson Kilpatrick, in which he makes an observation about the school matter:

Prior to high noon on May 17, 1954, 17 American States, pursuant to provisions of their State Constitutions, and their long-accepted State laws, maintained racial segregation lawfully in their public schools. But that which had been lawful at noon became unlawful by 1 o'clock; the Constitution of the United States that had meant one thing at sunup meant quite another at sundown, and in my part of the country, public officials who had sworn to uphold the Constitution gazed in dismay upon the drastically different Constitution they were now sworn to uphold.

Mr. GRISWOLD. Senator, it seems to me that the significant phrase in that statement is "became unlawful at 1 o'clock.”

Senator ERVIN. Yes, sir.

Mr. GRISWOLD. And has been since.

Senator ERVIN. He doesn't say, "has been since," does he?
Mr. GRISWOLD. I added, "and has been since."

Senator ERVIN. You added that.

Dean, I would like to ask you if, in the year 1849 the Supreme Judicial Court of the State of Massachusetts did not originate what we call the separate but equal doctrine?

Mr. GRISWOLD. Yes, to my regret. The legislature of Massachusetts changed it 5 years later.

Senator ERVIN. Yes, and then that was followed by the Supreme Court of the United States. I would like to ask you if there are not at least 70 judicial decisions from all areas of the country, North, South, East, and West, and from the Supreme Court of the United States, handed down, between that date and the 17th day of May 1954, holding that the 14th amendment permitted segregation of children on the basis of race in public schools.

Mr. GRISWOLD. I would like to point out first, Senator, that in 1849 there was no 14th amendment. So that the case about the city of Boston has nothing to do with the situation which exists since the 14th amendment. I don't know the number of cases that there were after the 14th amendment. Whatever number there were, they were not the first cases that have been overruled.

Senator ERVIN. But Dean, the State of Massachusetts in 1849 did have a provision in the State constitution, which was comparable to the equal protection of the law clause.

Mr. GRISWOLD. Not quite comparable, Senator.

Senator ERVIN. All right.

Mr. GRISWOLD. It is similar, I agree, but not quite the same. Senator ERVIN. Well, Dean, don't you agree with me that that clause in the State constitution guaranteed equality of rights to all people in Massachusetts ?

Mr. GRISWOLD. Not quite, Senator. I have forgotten-
Senator ERVIN. It is quite close to that, isn't it?

Mr. GRISWOLD. I don't remember its exact wording. It was written by John Adams. He was very good in writing about Government. He and Jefferson worked very closely together on constitutional

matters.

Senator ERVIN. Well, it is about as close to the equal protection of the laws clause, as human language can be, without using identical language, is it not?

Mr. GRISWOLD. I cannot answer the question, Senator, when I don't recall the language of it.

Senator ERVIN. Well, sir, if you reread it, you will find I am right in that position. We won't call for you to reread it at this time.

Of course, the Supreme Court of the United States has no power to amend the Constitution, does it?

Mr. GRISWOLD. It has the power to interpret the Constitution. It not only has the power, but it has the duty to interpret the Constitution.

Senator ERVIN. Yes, it has an obligation to interpret the Constitution and to ascertain the meaning of the Constitution, but not to change its meaning.

Mr. GRISWOLD. Under its decisions, it also has power to overrule its prior interpretation of the Constitution. The decision of the Supreme

Court in the Brown case in 1954 was no surprise to anyone who was following the Plessy decisions of the Court. The basis of Plessy v. Ferguson, which you have not cited, but which is one of the cases in this group, had been completely undermined by a whole series of cases. The Brown case was not merely argued; it was reargued, and the decision, I am sure, was not a surprise to you, Senator, nor to very many other people who were informed in this area.

Senator ERVIN. With all due respect I am not surprised any more by anything the Supreme Court does.

Mr. GRISWOLD. Then my statement is correct, I take it?

Senator ERVIN. The other day it handed down a decision in a case, fortunately not from the South, but from the State of New York, in which it was held that a man convicted of murder 20 years ago who did not at the time of the trial appeal his conviction because, in the event of a new trial, he might be sentenced to death instead of life imprisonment, could wait 20 years, and then reopen the question. To my mind this means that the Supreme Court held that no State can adopt any rule or procedure that is binding.

Mr. GRISWOLD. We are getting pretty far afield, Senator, but in that case, the man had been trying for all of those 20 years to get his question heard in the courts, and it still seems to me that in these great United States, we ought not to be convicting people of murder on confessions which are extracted by force. What is shocking about a decision which supports that rule?

Senator ERVIN. It is shocking to me that a State does not have the capacity to end a trial after a man has had his day in court and a full opportunity, not only to present his case, but to have it reviewed.

Mr. GRISWOLD. If a man can prove at any time that a confession was beaten out of him, it seems to me that he ought to be able to have that heard in court.

Senator ERVIN. Can we agree that from 1868, when the 14th amend ment was ratified, until May 17, 1954, a period of, I believe, 86 years, the 14th amendment was construed directly opposite to its construction in the Brown case?

Mr. GRISWOLD. Not quite that long. I don't think the construction on which you are relying came about until 1898, in Plessy v. Ferguson. But for a long time it had been construed, to the great pain and chagrin of many citizens of this country, to be that a State could lawfully segregate in its school system.

Senator ERVIN. Had not Congress placed an identical interpretation on it by providing for segregated schools in the District of Columbia?

Mr. GRISWOLD. Yes.

Senator ERVIN. And frankly, had not that interpretation been placed on that provision by all who had the occasion and the legal authority and duty to construe it?

Mr. GRISWOLD. No, I don't think so.

Senator ERVIN. Well, I would like to see opinions to the contrary, but I will not delay on this point; it seems to me that since it took the Supreme Court of the United States 86 years, to even discover the fact that the 14th amendment prohibited exclusion from the schools on the basis of race, that the Civil Rights Commission might have patience with people in other areas, who think that that decision was tantamount to an amendment of the Constitution.