if the people of a community by voluntary action maintained a residential neighborhood for members of their race, that there is nothing in the 14th amendment to invalidate such action?

Senator SPARKMAN. I believe the chairman is correct.

Senator ERVIN. And do you not think that freedom of association guaranteed by the first amendment gives members of any race a right, which cannot be abrogated by Federal law, to maintain their community for people of their own race?

Senator SPARKMAN. I agree with the chairman in his conclusion. Senator ERVIN. Title II undertakes to establish, does it not, a rule of procedure for State courts. It passes upon the question whether or not people have been excluded from juries on account of their race or their religion or their sex or their national origin or their economic status?

Senator SPARKMAN. That is title II.

Senator ERVIN. Are you familiar with any act of Congress that has been passed since George Washington took his first oath of office as President of the United States whereby the Congress undertook to prescribe rules of procedure to govern State courts?

Senator SPARKMAN. Not at all, and in fact, some very strong statements have been made against any such action.

Senator ERVIN. Now Chief Justice Samuel P. Chase stated in the celebrated case of Texas v. White that the Constitution in all of its provisions looks to an indestructible union composed of indestructible States. Can such a union exist if Congress has the right to supplant the State's power to prescribe rules of procedure for the operation of its own courts? Wouldn't that negative the federal system as a vital part of our constitutional Government?

Senator SPARKMAN. Yes it would be contrary to the intent of the Constitution and to our system of government.

Senator ERVIN. Doesn't title II provide in effect that an attorney in a case can assert that the provisions with reference to the composition of juries have been violated, and without offering any basis for his assertions, require all of the jury officials in the jurisdiction involved to come in and make a disclosure of all details about how they select the jurors?

Senator SPARKMAN. That is the import of the language.

Senator ERVIN. And he can do that without making any proof that there is any basis for his assertions; can he not?

Senator SPARKMAN. It could be done on a simple charge.

Senator ERVIN. And even after he receives the sworn statement of the jury officials, and that sworn statement shows that there has been no violation of the statute, he can then cross-examine those jury commissioners and any other person concerning any matter relevant to the question whether there has been any person denied the right to serve on the jury on account of his race or his national origin or his sex or his economic status; can't he?

Senator SPARKMAN. That is right. It brings the Federal Government right into the jury box.

Senator ERVIN. I will ask you as a matter of fact if any lawyer could not virtually prevent any case from ever coming to trial, under the provisions of this bill, owing to the fact that it would be relevant for him to inquire into the race, the national origin, the sex, the religion,

and the economic status of every adult whose name either appeared in the jury box or whose name was excluded from the jury box?

Senator SPARKMAN. There could be almost interminable delay. Senator ERVIN. And is it not true that in most of the rural counties of the United States with which you are familiar the courts of general jurisdiction meet only for limited periods of time at stated intervals throughout the year, and under this title would this not provide a method by which a lawyer could prevent the average case from ever coming to trial?

Senator SPARKMAN. The Senator is correct.

Senator ERVIN. And he could do all of that without showing there is any basis for his action whatever; can't he? Senator SPARKMAN. That is correct.

Senator ERVIN. Now, just one question with reference to title III. Under existing law, the Attorney General can bring suits to desegregate school districts only if he has a complaint that discrimination has existed in those school districts, and only if the persons making the complaint are unable financially to maintain the cost of the litigation themselves. Isn't that your understanding of existing law? Senator SPARKMAN. That is correct.

Senator ERVIN. Now, does not title III vest in the Attorney General the absolute authority to bring desegregation suits without any complaint being made, and without making any inquiry into the financial ability of any body to bring suits?

Senator SPARKMAN. That is right.

Senator ERVIN. Individually.

Senator SPARKMAN. He can start an action any time he personally wishes to do so.

Senator ERVIN. Is it not one of the fundamental principles of our Constitution that constitutional rights are individual rights, and whether they are to be exercised or not is a matter solely for the determination of the individual possessing the right?

Senator SPARKMAN. That is correct.

Senator ERVIN. Does not title III vest in the Attorney General power to do violence to that constitutional principle, and to make the determination himself whether or not rights which belong to individuals shall be exercised even in cases where those individuals may not wish to exercise those rights?

Senator SPARKMAN. That is right.

Senator ERVIN. After the decision in the Brown case, on remand, did not the Federal courts in South Carolina and Kansas declare that the Brown case did not require integration-that it merely prohibited discrimination consisting of the exclusion of a child from a particular school on account of his race?

Senator SPARKMAN. That is right.

Senator ERVIN. And did not those courts declare and have not other Federal courts since declared that the Constitution does not require integration? It merely prohibits exclusion from schools on the basis of race, and if all the schools of a community are open to all children regardless of race there is no violation of the Constitution involved.

Senator SPARKMAN. That is my understanding.

Senator ERVIN. And wouldn't title III in practical operation give the Attorney General the power to nullify the interpretation made

of the Constitution in the Brown case, regardless of the wishes of the people of the communities?

Senator SPARKMAN. It certainly would give the Attorney General that power.

Senator ERVIN. Now, with reference to title V, which purports to be based in part on the 14th amendment, does not the 1st section of the 14th amendment merely provide that no State shall deprive any person of the privileges and impunities of Federal citizenship or of due process of law or of the equal protection of the laws? Isn't that its substance? Senator SPARKMAN. That is the provision.

Senator ERVIN. No power whatever is given to Congress under those words to regulate or to deal with anything except the prohibitions on certain kinds of State action; is that not true?

Senator SPARKMAN. That is my interpretation.

Senator ERVIN. And does not section 5 of the 14th amendment merely provide that Congress shall have the power to pass legislation which is appropriate to enforce those prohibitions against the forbidden State action?

Senator SPARKMAN. The Senator is correct.

Senator ERVIN. And hasn't every authoritative decision of the Supreme Court of the United States and of all of the lower Federal courts from the time the 14th amendment was ratified stated that section 5 does not reach individual action at all, unless that individual action is concurred in by State action of some kind?

Senator SPARKMAN. That is my understanding.

Senator ERVIN. And would it not be impossible to uphold these provisions relating to the action of individuals in title V, unless there is a total repudiation of both the language and the interpretations of the 14th amendment?

Senator SPARKMAN. I feel that that is the effect that title V would have.

Senator ERVIN. You can make a very good case for the proposition that if you want to engage in logic as to the powers of Government to do what is best for the people, the Government should have power to prescribe what the people will eat or what their diet should be in the interest of keeping them fro.n overeating.

Senator SPARKMAN. Well, that conclusion could be drawn. I may say, Mr. Chairman, I am a strong believer in our system of government, which does provide for what I consider a strong Federal Government, a strong National Government, but at the same time the protection of the States and the individuals in the rights that were there before there was a Federal Government. I believe in that dual system of government and I think we ought to respect it.

Senator ERVIN. I share your conviction in that regard. I think we have the most marvelous system of government ever created by the mind of man, and that is so because it was created out of the entire experience of the English-speaking people in their fight for self-Government and dignity and freedom of the individual. The Constitution divides the powers of the Government between the Federal Government on the one hand and local government in the form of the States and subdivisions of States on the other, and I think that when

ever you let the Federal Government invade the fields that are reserved to the States, you are destroying the best system of government ever devised by the mind of man.

This bill to a large extent, where it doesn't offend the letter of the Constitution, offends, in my judgment, sanity and sound action under the Constitution.

Thank you very much.

Senator SPARKMAN. Thank you, Mr. Chairman.

Mr. AUTRY. Mr. Chairman, the next witness is the Honorable Frankie Freeman, Commissioner of the U.S. Commission on Civil Rights. She is also the associate general counsel of the St. Louis Housing and Land Clearance Authority.

Mrs. Freeman, if you would for the record, please identify the two gentlemen accompanying you.

STATEMENT OF FRANKIE FREEMAN, COMMISSIONER, ASSOCIATE GENERAL COUNSEL, ST. LOUIS HOUSING AND LAND CLEARANCE AUTHORITIES, U.S. COMMISSION ON CIVIL RIGHTS, ACCOMPANIED BY WILLIAM L. TAYLOR, STAFF DIRECTOR, AND HOWARD A. GLICKSTEIN, GENERAL COUNSEL

Mrs. FREEMAN. Honorable chairman and distinguished members of this subcommittee, I am Frankie M. Freeman, a member of the U.S. Commission on Civil Rights. Accompanying me are Mr. William L. Taylor, staff director, and Mr. Howard Glickstein, General Counsel of the Commission on Civil Rights.

I appreciate this opportunity to appear before you in support of legislation which, I believe will afford urgently needed protection to all Americans.

The Commission supports the objectives of S. 3296-to provide more effective and impartial means of selecting juries, to make more secure the right to equal educational opportunity and to equal access to public facilities, to remove racial discrimination as a barrier to obtaining housing, and to strengthen and supplement existing criminal sanctions against officials and private citizens who intimidate Negroes and civil rights workers in connection with the exercise of their rights. We have suggestions for what we believe will be improvements-but they are offered as changes tending to strengthen the bill and make more certain our Nation's approach to its objectives.

TITLES I AND II

It was one of the central purposes of the 14th amendment to do away with a dual standard in the administration of justice for whites and Negroes. One hundred years have elapsed but we have failed to achieve that purpose in some areas of this country. In parts of the South the instrumentalities of justice have been used, in the words of my fellow Commissioner, Erwin N. Griswold, "to perpetuate a system of social control." Exclusion of Negroes from juries is one of the ways in which this social control is exercised. Crimes or civil wrongs of certain types, committed against Negroes or whites believed to sympathize with Negroes, cease to be crimes or wrongs at all. Disproportionately large penalties are imposed on Negroes believed to

have flouted prevailing social mores. And it is not difficult to appreciate the effect that knowledge by Negroes of racial discrimination in the selection of juries may have in deterring them from seeking civil remedies in just causes.

Titles I and II of the bill are designed to deal more effectively with discrimination in the selection of juries and thereby make inroads upon the dual standard. These titles also could help to end racial violence by increasing the likelihood that the offenders will be made to answer for their crimes.

Several proposed amendments of a technical nature to title I and other titles of the bill are incorporated in a staff memorandum, which, with the permission of the subcommittee, I will submit for the record. (The memorandum referred to follows:)

UNITED STATES COMMISSION ON CIVIL RIGHTS, WASHINGTON, D.C.

STAFF MEMORANDUM

Subject: Recommendations on Technical Amendments to S. 3296 and Supple mentary Comment on Title V.

TITLE I-FEDERAL JURIES

There are two areas in Title I where technical improvements should be made: Summoning of Jurors-The Administration's Bill amends and renumbers the sections of the present law which would not be changed, but omits the provision now numbered as Title 28 U.S.C. §1867, without adding a substitute provision. Present section 1867 provides for the summoning of prospective jurors at the time they are required to serve.

Testing of Jurors-The Administration's Bill requires prospective jurors to appear personally before the clerk to fill out a juror qualification form. This would require prospective jurors to make a special trip to the Federal district court, often some distance from their homes, without any compensation. We recommend that the Bill be amended to permit the juror qualification form to be returned by mail and, if necessary, completed on his behalf by someone other than the juror. Only if a person did not respond to a mail request would the person be asked to appear in person. This would mean that the literacy test portion of the form would have to be administered by the clerk after the prospective juror had been summoned to the court for actual jury duty, and that all persons summoned would be compensated whether or not they were accepted for jury service.

TITLE V-INTERFERENCE WITH RIGHTS

Interference with Persons Using Interstate Highways-Section 501 (a) should include an additional subsection making criminal any interference with a person using any road or highway in interstate commerce. Section 501(a)(7) is limited to travel by common carrier. While 18 U.S.C. §241 has been interpreted to make criminal any interference with interstate travel, that section requires the Government in a prosecution to establish the existence of a conspiracy. By covering interstate travel in this legislation, the Government would be protecting against interference with persons using the highways even where there is not a conspiracy. Repeal of Criminal Sanctions Against Intimidation Contained in Voting Rights Act of 1965-As Mrs. Freeman's statement notes, Title V as presently written applies only to acts involving "force or threat of force." It does not extend to economic intimidation. Her statement also notes that Section 502(c) repeals the criminal sanctions against economic intimidation now contained in the Voting Rights Act.

The Commission has repeatedly drawn attention to the problem of economic intimidation directed at Negro exercise of voting rights. In its 1961 report, Voting at pp. 91-97, it examined difficulties in the enforcement of 42 U.S.C. §1971(b). In its 1965 report, Voting in Mississippi at pp. 31-40, the Commission explored the effects of fear of economic reprisal and published the results of a four-county poll of public school teachers showing the direct relationship between fear of economic reprisal and failure to attempt to register.

It is impossible to measure at this time the effect which the threat of possible criminal prosecution has had on persons who might otherwise have attempted