the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities (op. cit. p. 62).

That being the law of the land, how, then, can Congress say to the States that no person or class of persons shall be denied the right to serve on their juries on account of sex?

There remains for discussion, therefore, the question of whether a State may establish some form of "economic status" as a criterion or classification for jury service.

It is important in this connection to recall that many of the States at the time of the adoption of the Constitution and thereafter required that the jurors in their courts be taxpayers or freeholders.

For many, many years the Federal Government recognized the reasonableness of this criterion or classification by adopting the States' rules of qualification as its own.

Another important factor is stated by Mr. Justice Black in the opinion of the Court in Kotch et al. v. Board of River Port Pilot Commissioners for the Port of New Orleans, et al., 330 U.S. 552, at page 557: "And an important factor in our consideration is that this case tests the right and power of a State to select its own agents and officers. Taylor v. Beckwith, 178 U.S. 548; Snowden v. Hughes, 321, U.S.

1, 11-13.

Just a few weeks ago, March 24, 1966, Justice Black very forcefully applied the Kotch case, supra, in his dissenting opinion in the Virginia Poll Tax case, 86 S. Ct. 1079, 1085. In the final analysis, I assume that if Congress enacts title II of this bill its constitutionality will be determined by the yardstick of that case. (Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079.)

So this phase of this statement may well conclude with applications to this title of (a) Justice Black's dissent; (b) the dissent of Justices Harlan and Steward; (c) the reasoning of the opinion of the Court delivered by Justice Douglas.

The rest of this memorandum deals with excerpts from the decisions in that Virginia Poll Tax case and justifies in my opinion the conclusion that the States have a perfect right historically, constitutionally, and legally to include economic status of its citizens as a factor in whether or not the States will permit those citizens, regardless of race or color or religion, talking about the pure question of economic status, that under the McGowan case, the Maryland Sunday Law case, if it is a reasonable classification and the Congress has no right to say to the States under the Constitution as it now exists that you can't consider that factor.

Time does not permit me to include in this statement the entire dissenting opinion of Mr. Justice Black. Even if it did, it would be unnecessary, for anyone desiring to read all of it will find it beginning at page 1083 of 86 Supreme Court Reporter (advance sheet of April 15, 1966).

Bear in mind that what the majority there held was that voter qualifications have no relation to wealth nor to paying or not paying a Justice Black pointed out:

tax.

The equal protection cases carefully analyzed boil down to the principle that distinctions drawn and even discriminations imposed by state laws do not violate the Equal Protection clause so long as these distinctions and discrimina

tions are not "irrational," "irrelevant," "unreasonable," "arbitrary,” or “invidious." The restrictive connotations of these terms ***

citing cases—

are a plain recognition of the fact that under a proper interpretation of the Equal Protection clause States are to have the broadest kind of leeway in areas where they have a general constitutional competence to act.

At this point Justice Black quoted from Metropolitan Casualty Insurance Co. v. Brownell, 294 U.S. 580, as follows:

A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.

Bear in mind that the equal protection clause applies not only to citizens but to all persons within the jurisdiction of the State.

Despite that, certainly a State may restrict service as jurors to those persons who are citizens.

And, there is nothing in the 14th Amendment which prevents a State from excluding and exempting from jury duty certain classes on the bona fide ground that it is for the good of the community that their regular work should not be interrupted.

Rawlins v. Georgia, 201 U.S. 638 (per Justice Holmes).

So lawyers, ministers, doctors, dentists, railway engineers, and firemen may be excluded. There may be age limits.

And "economic status" as a factor will not be considered as arbitrary or invidious if there is any state of facts which reasonably may be conceived to justify it.

I should think that if a person is entirely dependent upon the Government of the United States or the State government for his subsistence, that the State might well think that he should not be a juror— particularly in cases in which the United States or a State is a party. I should think that if a person has not been able to accumulate and retain an amount of property sufficient for his name to appear on the tax digests of his county that the State might well think that he should not adjudge the rights of a fellow citizen whose life, liberty, or property were in jeopardy.

"Economic status" as a criterion cannot be judicially determined to be arbitrary and capricious when we know that—

In England a property qualification for jury duty was required by statute at a very early date (Commonwealth v. Dorsey, 103 Mass. 412) and similar statutes have from time to time been enacted in this country. Although . . . these statutes usually relate only to the ownership and occupancy of real property, in some cases the statutes may require the ownership of personal property of a certain value. (Conway v. Clinton, 1 Utah 215.)

Juries, 50 C.J.S. Section 147, p. 869 (citation interpolated). See also 50 C.J.S. Section 147 (b), p. 869; and Kerwin v. People, 96 Ill. 206; Bradford v. State, 15 Ind. 347; McKnight v. Seattle, 39 Wash. 516, 81 Pac. 998.

Under some statutes it is required that a juror be a person whose name is on the assessment rolls as a taxpayer. (50 C.J.S. Section 148.)

The Supreme Court of the United States in Brown v. Allen, 344 U.S. at page 471, quotes from Strauder v. West Virginia, 100 U.S. 303, 310 (supra) showing that a State was permitted to

confine the selection (of jurors) to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.

The Court today might not agree with that Court of 1880 "composed of Justices familiar with the evils the amendment sought to remedy" but whether or not it agrees, that ruling would prevent a classification as to "freeholders" from being arbitrary or capricious.

And in that case at page 474 (Brown v. Allen, 344 U.S. 443, 474) the Supreme Court said:

Short of an annual census or required population registration, these tax lists offer the most comprehensive source of available names. We do not think a use, non-discriminatory as to race, of the tax lists violates the 14th Amendment . . Justice Black continued:

And if history can be a factor in determining the "rationality" of discrimination in a state law (which we held it could in Kotch v. River Ports Pilot Comms. supra), then whatever may be our personal opinion, history is on the side of “rationality" of the State's poll tax policy. Property qualifications existed in the Colonies and were continued by many States after the Constitution was adopted (86 S.Ct. at pp. 1085-6).

Georgia was using the books of the receiver of tax returns as a basis for determining the constitution of "the body of petit jurors" certainly as early as 1861. (See Code of 1861, sec. 3837.)

Those books were not being so used for the purpose of barring Negroes from jury service for they were expressly barred, (Code of 1861, sec. 3836) by a section of the same code which confined competency to "free white male citizens."

Passing to the dissent of Justices Harlan and Stewart, at page 1090, they posed the question at issue: "Is there a rational basis for Virginia's poll tax as a voting qualification?”

They thought the answer to that question to be "Yes." They supported their opinion thus:

Property qualifications and poll taxes have been a traditional part of our political structure. In the Colonies the franchise was generally a restricted one. Over the years these and other restrictions were gradually lifted, primarily because popular theories of political representation had changed. Often restrictions were lifted only after wide public debate. The issue of woman suffrage, for example, raised questions of family relationships, of participation in public affairs, of the very nature of the type of society in which Americans wished to live; eventually a consensus was reached, which culminated in the 19th Amendment no more than 45 years ago.

Similarly with property qualifications, it is only by fiat that it can be said, especially in the context of American history, that there can be no rational debate as to their advisability. Most of the early Colonies had them; many of the States have had them during much of their histories; and whether one agrees or not, arguments have been and still can be made in favor of them. For example, it is certainly a rational argument that payment of some minimal poll tax promotes civic responsibility, weeding out those who do not care enough about public affairs to pay $1.50 or there abouts a year for the exercise of the franchise. It is also arguable, indeed it was probably accepted as sound political theory by a large percentage of Americans through most of our history, that people with some property have a deeper stake in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and the community and Nation would be better managed if the franchise were restricted to such citizens. Nondiscriminatory and fairly applied literacy tests, upheld by this Court in Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S. Ct. 985, 3 L. Ed. 2d 1072, find justification on every similar grounds.

Property and poll-tax qualifications, very simply, are not in accord with current egalitarian notions of how a modern democracy should be organized. It is of course entirely fitting that legislatures should modify the law to reflect such changes in popular attitudes. However, it is all wrong, in my view, for the

Court to adopt the political doctrines popularly accepted at a particular moment of our history and to declare all others to be irrational and invidious, barring them from the range of choice by reasonably minded people acting through the political process. It was not too long ago that Mr. Justice Holmes felt impelled to remind the Court that the due process clause of the 14th amendment does not enact the laissez-faire theory of society, Lochner v. People of State of New York, 198 U.S. 45, 75-76, 25 S. Ct. 539, 546, 49 L. Ed. 937. The times have changed, and perhaps it is appropriate to observe that neither does the equal protection clause of that amendment rigidly impose upon American an ideology of unrestrained egalitarianism.

The foregoing are the views of the three dissenting Justices.

It remains to be demonstrated that the reasons assigned by the majority of the Court for nullifying Virginia's poll tax would by no means support the conclusion that a State cannot use "economic status" as one of its legislative criteria for the determination of the competency of jurors in its courts.

The very basis of the majority opinion is that the right to vote in Federal elections is conferred by the Constitution, and once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the 14th amendment.

Service on a jury is a privilege-not a right. The Constitution confers upon no one the right to serve on a jury. The State legislature grants the privilege which is quite different from "the political franchise of voting" and not a "fundamental political right, because preservative of all rights.”

The concluding paragraph of the opinion graphically demonstrates the differences.

Justice Douglas concluded "*** wealth or fee paying has, in our view, no relation to voting qualifications ***”

"Economic status" did under the common law of England have a relation to the privilege of serving on a jury, and continues to have, in the view of many State legislatures, a relation to that privilege. The question is not whose "view" is correct.

The question is merely whether the view of the State legislatures is arbitrary, capricious, invidious, without any justification based on any state of facts which may be reasonably conceived.

In the light of repeated decisions of the Supreme Court of the United States, it is difficult to imagine how this question is capable of being answered save in one way.

I cannot see how there can be a more complete answer to it than that given by Chief Justice Warren in his opinion for the Court in McGowan, et al. v. State of Maryland, 366 U.S. 420. That case was decided May 21, 1961. Only Justice Douglas dissented. Justices Black, Clark, Harlan, Brennan, and Stewart of those now on the Court were there then.

Restating the age-old doctrine, "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it," the Chief Justice and the Court (save Justice Douglas) applied it in upholding Maryland's Sunday closing laws or Sunday blue laws.

Almost contemporaneously (May 29, 1961), Chief Justice Warren wrote for a majority of the Court in Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., et al., 366 U.S. 617, and in Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, and in

Braunfield, et al. v. Braun, 366 U.S. 599, all upholding State Sunday closing laws (May 29, 1961).

Finally as to this title let it be observed that if it becomes effective, its application will not merely be local. It will not affect the South alone. The States of the North, the East and the West will feel its impact perhaps even more strongly than the Southern States. Title IV-section 401 of this title provides:

It is the policy of the United States to prevent, and the right of every person to be protected against, discrimination on account of race, color, religion, or national origin in the purchase, rental, lease, financing, use, and occupancy of housing throughout the nation.

Assuming that to be a correct statement of the policy of the United States, which I rather doubt when I read the outcries against this particular title, the question is whether the Congress has the constitutional power to enforce that policy as it is requested to do in the sections of the title which follow 401.

As I write this (June 8, 1966) it appears that the "policy" expressed in section 401 may be abandoned by its sponsors.

The principle expressed in the policy may be about to succumb to political expediency.

Writing of this section that would in the words of the editorial writer "ban discrimination in sale or rental of residential units," an editorial writer in the Atlanta Constitution of June 8, 1966 (p. 4) says:

Laudable as the aims of this section are, the proposal is questionable on constitutional grounds. And, more to the point, it simply doesn't have the Republican support needed to counter-balance Southern Democratic opposition. It's time to be realistic. The housing section just doesn't have a chance at this session. The personal protection and jury list sections are vital. So it's time to separate the housing section from the main bill and press on to adoption of the other portions.

The statement that the section is "questionable on constitutional grounds" is a model of understatement.

The statement that the jury list section is vital would be difficult to understand in the absence of the thought that the writer of that editorial had probably never read the "jury list section" or, if he had, had considered its implications.

I then go on to demonstrate that this section 401, aside from any application of it, which is sort of out of my field, that section 401 is absolutely unconstitutional under the law of the land has it, has been declared up through yesterday.

That the section is unconstitutional is thoroughly demonstrated by the Civil Rights Cases, 109 U.S. 3, which still live and were applied by the court in the famous case of Shelley v. Kraemer, 334 U.S. 1, which held (1948) that State court enforcement of restrictive covenants which have for their purpose the exclusion of persons of designated race or color from ownership or occupancy of real property could not be justified.

But, even in so holding, the Court said:

Since the decision of this Court in the Civil Rights cases, 1883, 109 U.S. 3, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the 14th amendment is only such action as may fairly be said to be that of the States. That amendment erects no shield against merely private conduct, however discriminatory or wrongful (334 U.S. at p. 13).