CIVIL RIGHTS WEDNESDAY, JUNE 8, 1966 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS, Washington, D.C. The subcommittee met, pursuant to recess, at 10:30 a.m., in room 2228, New Senate Office Building, Senator Samuel J. Ervin, Jr., presiding. Present: Senators Ervin, Kennedy (of Massachusetts), and Javits. Also present: George Autry, chief counsel; H. Houston Groome, Jr., Lawrence M. Baskir, Lewis W. Evans, counsel; and John Baker, minority counsel. Senator ERVIN. The subcommittee will come to order. I would like to read the following from 16 Am. Jur. 2d, subject: Constitutional law, section 476 at page 831. In all cases where the Constitution seeks to protect the rights of the citizens against discriminative and unjust laws of the state by prohibiting such laws, it does not denounce individual offenses, but the abrogation and denial of rights, for which it clothes Congress with the power to provide a remedy. The Fourteenth Amendment, therefore, does not authorize direct legislation by Congress to regulate the conduct of citizens among themselves, even though such individual conduct abridges the privileges and immunities of citizens of the United States. The legislation authorized to be adopted by Congress for enforcing the Fourteenth Amendment is not direct legislation on the matters respecting which the states are prohibited from making or enforcing certain laws or doing certain acts, but is corrective legislation, such as may be necessary or proper for counteracting and redressing the effect of such laws or acts; although the civil rights guaranteed by the Fourteenth Amendment cannot with impunity be impaired by the wrongful acts of individuals unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings, such impairment is simply a private wrong or a crime, and the rights thus violated remain in full force and may be vindicated by resort to the laws of the state for redress-the right itself is not destroyed by such state action as to permit Congress to intervene. That deals with what legislative power Congress has under the privileges and immunities provision of the 1st section of the 14th amend ment. I now read from 16 Am. Jur. 2d, subject: Constitutional Law, section 545, at page 936, which has reference to the powers of Congress to legislate for the enforcement of the provisions of the 1st section of the 14th amendment insofar as it involves the guarantee against due process. The Fourteenth Amendment did not invest and did not attempt to invest Congress with power to legislate upon subjects which are within the domain of state legislation. And the guaranty of due process adds nothing to the rights of one citizen as against another. It is a prohibition applicable to the acts of the state, and does not, of itself, secure to individuals whose rights may be transgressed by the state, a remedy by way of reparation. (At this point Senator Kennedy entered the hearing room.) Senator ERVIN. I now wish to read from 16 Am. Jur. 2d Series, subject: Constitutional Law, section 491, page 856, the following, which deals with the power of Congress to legislate for the enforcement of the provisions of the 1st section of the 14th amendment concerning the equal protection of the laws. The equal protection clause was designed as a safeguard against acts of the state and not against the conduct of private individuals or persons. It does not add anything to the rights which one citizen has against another under the Constitution. Private conduct abridging individual rights does no violence to the equal protection clause unless to some significant extent the state in any of its manifestations has been found to have become involved in it. I read part of footnote 15, which cites Burton v. Wilmington Parking Authority, 365 U.S. 715. The action inhibited by the equal protection clause of the Fourteenth Amendment is only such action as may fairly be said to be that of the states, but is state action of every kind, including state participation through any arrangement, management, funds, or property; the amendment erects no shield against merely private conduct, however discriminatory or wrongful, unless to some significant extent the state in any of its manifestations becomes involved in it. Mr. Attorney General, I would like to make my position clear with respect to title V. I do not oppose Federal legislation which undertakes to punish the use of force or the threats of force, to deny any man a constitutional right where the right is not based upon the 14th amendment. I do not favor title V in its present form, even with respect to interference with rights outside of the 14th amendment domain, for the very simple reason I do not believe that it is good policy for the Government to pick out one group of citizens and protect them and not protect all Americans. In other words, I agree that it is within the legitimate domain of congressional power, and I would support exercise of such power were Congress to make it a Federal crime to forcibly interfere with a man's right to cast a ballot in a Federal election. I do not believe, however, in restricting that crime to mere action based upon racial motivation. I think the Government ought to be equally concerned with the protection of all Americans, all 190 million of them, insofar as they are eligible to vote in Federal elections, and I think that if a party is assaulted to prevent him from voting in a Federal election, on account of the color of his necktie, that he is equally entitled to be protected as if the assault were based on the color of his skin. So if you amend title V along these lines I would support it. Now my position on the 14th amendment is simply this: I am saying this by way of summary, and I hope I won't have to allude to it anymore, the 14th amendment, insofar as any relevant sections are concerned, authorizes Congress to deal only with action by a State which denies due process of law, or the equal protection of the laws, or deprives one of the privileges and immunities of national citizenship. It is doing strange things to the language to maintain that a constitutional provision which only authorizes Congress to act in respect to State action also authorizes Congress to act with respect to individual action. I would go along with the constitutional amendment to allow legislation, and despite my feeling that all citizens are entitled to equal protection, I would even restrict it to racial motivation, simply because, as a practical matter, the equal protection of the laws clause can apply conceivably to every transaction between a State or any of its officials down to the policeman or the constable. I would not want the Federal Government to assume responsibility on that broad a field for enforcement of criminal laws, or have that power. Now, I recognize that six of the Justices in the Guest case have made an obiter dicta statement, which you and I interpret differently. I interpret those Justices to say if Congress shall pass a law such as the kind you suggest, and somebody shall hereafter violate that law, and the case involving that violation shall hereafter come before this Court, we promise here and now that we will adjudge the law valid before the law is passed, before the case arises, before the facts come into existence, and before we have heard argument. I agree with the characterization of Justice Harlan that this obiter dicta is at the least extraordinary. Now I recognize, and I say this with sadness, but I say it with all the sincerity of which I am capable, that these six Justices, as they have stated, are prepared to hold legislation of this kind constitutional. I, unfortunately but very sincerely, entertain the opinion that a majority of the Supreme Court as now constituted will undoubtedly uphold any act of Congress, no matter how inconsistent it may be with the words of the Constitution, and no matter how inconsistent it may be with the previous decisions of the Court, and no matter how inconsistent it may be, with the Federal system of Government set up by the Constitution, if it has the effect of concentrating further powers in the Federal Government, and diminishing the powers of the States and local government. I hate to say that but that is my honest opinion, and I might add in this connection that I am not the only one who entertains this opinion. I would like to read from one of the opinions of the Supreme Court of the United States, volume 344, the concurring opinion of the late Justice Robert H. Jackson in Brown v. Allen, and I read from page 543: Rightly or wrongly the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law, but is guided in these matters by personal impressions which from time to time may be shared by a majority of the justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete; that words no longer mean what they have always meant; that the law knows no fixed principles. Justice Jackson added this on page 546: But I know of no way that we can have equal justice under law except we have some law. Justice Jackson is not the only man that shares these opinions. As you undoubtedly know, on August 23, 1958, the State chief justices, that is, the presiding justices of the highest courts of the States of the Union, had a meeting in Pasadena, Calif., and adopted a resolution in which they pointed out many decisions of the Supreme Court which were incompatible, in their judgment, with the system of Federal Government established by the Constitution, and in which they took the unprecedented action of imploring the Supreme Court of the United States to exercise the very highest of all judicial virtues, namely the judicial virtue of self-restraint. I am not going to undertake to read what the chief justices of 36 States said. These chief justices came from States north, south, east, and west. 65-506-66-pt. 1-11 I call your attention to what they said in the fourth section of their resolution: That this conference believes *** that a fundamental purpose of having a written constitution is to promote the certainty and stability of the provisions of law set forth in such a constitution. The entire resolution which appeared in U.S. News & World Report for October 3, 1958, will be printed at this point in the body of the record. (The article follows:) [From U.S. News & World Report] WHAT 36 STATE CHIEF JUSTICES SAID ABOUT THE SUPREME COURT The chief justices of 36 States recently adopted a report critical of This report, approved by the chief justices of three fourths of the nation's States, found that the present Supreme Court has abused the power given to it by the Constitution. The Court is pictured as invading fields of Government reserved by the Constitution to the States. Full text of this historic document has not previously been given wide distribution. It is printed below, together with the formal resolution of approval by the Conference of State Chief Justices. The Conference of Chief Justices, meeting in Pasadena, Calif., on Aug. 23, 1958, adopted a resolution submitted by its Committee on Federal-State Relationships as Affected by Judicial Decisions. Vote on the resolution was 36 to 8, with 2 members abstaining and 4 not present. Text of the resolution: Resolved: 1. That this Conference approves the Report of the Committee on FederalState Relationships as Affected by Judicial Decisions submitted at this meeting. 2. That, in the field of federal-State_relationships, the division of powers between those granted to the National Government and those reserved to the State Governments should be tested solely by the provisions of the Constitution of the United States and the Amendments thereto. 3. That this Conference believes that our system of federalism, under which control of matters primarily of national concern is committed to our National Government and control of matters primarily of local concern is reserved to the several States, is sound and should be more diligently preserved. 4. That this Conference, while recognizing that the application of constitutional rules to changed conditions must be sufficiently flexible as to make such rules adaptable to altered conditions, believes that a fundamental purpose of having a written Constitution is to promote the certainty and stability of the provisions of law set forth in such a Constitution. 1 Report on high court: Who wrote it, who approved it: These 10 State justices were members of the committee which drew up the report on the Supreme Court: Frederick W. Brune, Chief Judge of Maryland, Chairman. Albert Conway, Chief Judge of New York. John R. Dethmers, Chief Justice of Michigan. William H. Duckworth, Chief Justice of Georgia. John E. Hickman, Chief Justice of Texas. John E. Martin, Chief Justice of Wisconsin. Taylor H. Stukes, Chief Justice of South Carolina. Also voting to approve the report were chief justices from 26 other States: Alabama, Arizona, Colorado, Voting against the report were chief justices from seven States, one territory: California, New Jersey, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, Hawaii. Abstaining: Nevada, North Dakota. Not present: Arkansas, Connecticut, Indiana, Puerto Rico. 5. That this Conference hereby respectfully urges that the Supreme Court of the United States, in exercising the great powers confided to it for the determination of questions as to the allocation and extent of national and State powers, respectively, and as to the validity under the Federal Constitution of the exercise of powers reserved to the States, exercise one of the greatest of all judicial powers-the power of judicial self-restraint-by recognizing and giving effect to the difference between that which, on the one hand, the Constitution may prescribe or permit, and that which, on the other, a majority of the Supreme Court, as from time to time constituted, may deem desirable or undesirable, to the end that our system of federalism may continue to function with and through the preservation of local self-government. 6. That this Conference firmly believes that the subject with which the Committee on Federal-State Relationships as Affected by Judicial Decisions has been concerned is one of continuing importance, and that there should be a committee appointed to deal with the subject in the ensuing year. Following is full text of the Committee's report as approved by the State chief justices: FOREWORD Your Committee on Federal-State Relationships as Affected by Judicial Decisions was appointed pursuant to action taken at the 1957 meeting of the Conference, at which, you will recall, there was some discussion of recent decisions of the Supreme Court of the United States and a resolution expressing concern with regard thereto was adopted by the Conference. This Committee held a meeting in Washington in December, 1957, at which plans for conducting our work were developed. This meeting was attended by Sidney Spector of the Council of State Governments and by Professor Philip B. Kurland of the University of Chicago Law School. The Committee believed that it would be desirable to survey this field from the point of view of general trends rather than by attempting to submit detailed analyses of many cases. It was realized, however' that an expert survey of recent Supreme Court decisions within the area under consideration would be highly desirable in order that we might have the benefit in drafting this report of scholarly research and of competent analysis and appraisal, as well as of objectivity of approach. Thanks to Professor Kurland and to four of his colleagues of the faculty of the University of Chicago Law School, several monographs dealing with subjects within the Committee's field of action have been prepared and have been furnished to all members of the Committee and of the Conference. These monographs and their authors are as follows: 1. "The Supreme Court, the Due Process Clause, and the In Personam Jurisdiction of State Court," by Professor Kurland; 2. "Limitations on State Power to Deal with Issues of Subversion and Loyalty," by Assistant Professor [Roger C.] Cramton; 3. "Congress, the States and Commerce," by Professor Allison Dunham; 4. "The Supreme Court, Federalism, and State Systems of Criminal Justice," by Professor Francis A. Allen; and "The Supreme Court, the Congress and State Jurisdiction Over Labor Relations," by Professor Bernard D. Meltzer. These gentlemen have devoted much time, study and thought to the preparation of very scholarly, interesting and instructive monographs on the above subjects. We wish to express our deep appreciation to cach of them for his very thorough research and analysis of these problems. With the pressure of the work of our respective courts, the members of this Committee could not have undertaken this research work and we could scarcely have hoped, even with ample time, to equal the thorough and excellent reports which they have written on their respective subjects. It had originally been hoped that all necessary research material would be available to your Committee by the end of April and that the Committee could study it and then meet for discussion, possibly late in May, and thereafter send at least a draft of the Committee's report to the members of the Conference well in advance of the 1958 meeting; but these hopes have not been realized. The magnitude of the studies and the thoroughness with which they have been made rendered it impossible to complete them until about two months after the original target date and it has been impracticable to hold another meeting of this Committee until the time of the Conference. |