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constitutional amendment was authorized to be submitted to the electorate in the general election this November on this question. If the amendment is approved, women will soon thereafter be allowed to serve on juries in South Carolina.
Incidentaly, Mr. Chairman, I might say that when I was Governor of South Carolina, I recommended that women be allowed to serve on juries.
Nevertheless, it is inconceivable to me that Congress can now presume to require all States to allow women to serve on juries under the pretext of the 14th amendment when it was previously admitted that a separate and distinct amendment to the Constitution was necessary to enfranchise women. If the 14th amendment does indeed give Congress the authority to legislate the eligibility for women to serve on juries, it seems apparent that it would have also given Congress the authority to legislate the eligibility for women to vote without the necessity for further amending the Constitution. No such authority was presumed by Congress at the time of the approval of the 19th amendment.
The administration of the courts and the application of State law in State courts, under our Federal system, is reserved entirely to the States. Those safeguards which Congress has in prior years deemed necessary are both written into the Constitution and have been enacted into law. Title II of S. 3296 would give the Attorney General of the United States oversight of the processes of jury selection of all State courts down to and including police courts and the numerous magistrates' courts. This proposal is violative of the spirit and of the terms of the Constitution because it infringes upon, in a very substantial manner, the rights and prerogatives of the States. The selection of jurors is an integral part of the administration of justice, and the administration of justice should not and, constitutionally, cannot be centralized under the authority of an Attorney General or of any other official of the National Government.
Senator Ervix. Senator, I have some questions on this. Would you rather that I ask them now or wait until you have completed your statement ?
Senator THURMOND. Either way the chairman desires.
Senator Ervin. Title II undertakes, among other things, to let Congress prescribe a rule of procedure for State courts, does it not?
Senator THURMOND. That is correct.
Senator Ervin. Do you know of any other proposal from the time George Washington took his first oath of office as President of the United States down to the present moment, where Congress has ever been asked to prescribe a rule of procedure for State courts?
Senator THURMOND. I know of no such law or no such rule. In fact, I do not recall any ever having been advocated even, before this.
Senator Ervin. Now, when you say that you cannot do so and so, that is tantamount to saying you must do so and so, is it not?
Senator THURMOND. I think the effect would be the same.
Senator ERVIN. And is not the effect of this declaration that Congress is going to undertake to determine the composition of State juries; is that not the purpose and effect of title II ?
Senator THURMOND. Mr. Chairman, I do not think that there is any question that that is the effect.
Senator Ervin. Under this rule of procedure any person can raise the question whether the jury is constituted according to this so-called declaration of rights, can he not?
Senator THURMOND. Yes, I believe that would be the case.
Senator Ervin. The way this is phrased, if a millionarie has a civil case or if he is accused in a criminal case, he can raise the point that there has not been a proper placing in the jury wheel or jury box of the names of paupers and hoboes, under the provision that you cannot consider the economic status of people?
Senator THURMOND. If this bill passed, I do not see any reason why he could not raise those points.
Senator Ervin. At the present time, the court has gone as far as to say that a man of one race can raise the point that members of his race had been systematically excluded from juries, has it not?
Senator THURMOND. That is correct.
Senator Ervin. Does this not go a bow shot beyond that and provide that a man who is a litigant in a civil case, or an accused in a criminal case, can raise the point that women had been excluded from jury service?
Senator THURMOND. I think that is correct.
Senator Ervin. And also, he can raise the point that people of a certain religion, to which he does not belong, have been excluded from the jury wheel or jury box?
Senator THURMOND. I think a man charged with a crime can raise all kinds of points, even though there may be no merit in some of the points. But it certainly opens up the matter to such an extent that a criminal can raise points that could very seriously affect the administration of justice throughout the whole Nation.
Senator ERVIN. As a matter of fact title II provides a rule of procedure, which says that regardless of whether the attorney for a litigant or an accused has any basis whatever for his claim, he can raise the point that the names of persons in the jury wheel or jury box do not conform to this declaration about the persons who have a right to serve on juries, can he not? Senator THURMOND. That is correct.
Senator Ervin. I will ask you, from your long experience as a trial lawyer and a trial judge, if you know any other situation where the law gives a man a right to raise a point and have it passed on without showing he has any basis for raising the point ?
Senator THURMOND. I know of no precedent of that kind. In fact, I do not think anyone in the past connected with the administration of justice has even had the audacity to raise such a point.
Senator ERVIN. And does not this bill provide that when the lawyer raises this point, without having any foundation for raising it, that the court cannot proceed to try the case, but must then call upon the jury officials in the jurisdiction to file a written statement under oath explaining exactly how they went about selecting the names of persons put in the jury box or the jury wheel?
Senator THURMOND. Unless the judge does follow that procedure, then very probably, if this law is passed, an appellate court would reverse the verdict because the point had been raised and had not been settled. This puts the burden of proof, really, on the jury commissioners and you would practically have to go through a trial of that, which in effect is a pretrial of the main trial, before you could determine the matter.
Senator ERVIN. In other words, title II says you cannot proceed with the trial of the case, where the lawyer raises this point regardless of whether he has any merit for raising it, until the jury commissioners file these affidavits.
Senator THURMOND. I think that is correct, because once a man accused of a crime raises the point, he practically holds the jury commissioners guilty until they have proven themselves innocent.
Senator Ervin. I will ask you if under this bill, after the attorney raises the point, regardless of whether or not he has a basis for it, and the jury officials file an affidavit showing that there was no violation of this provision, then the attorney who has raised the point can cross-examine them and anybody else who has any relevant facts connected with the matter.
Senator THURMOND. I think the attorney for a defendant in such a case would probably claim such a right, and very probably, under this bill, if it passes, he would have such a right.
Senator Ervin. Do you not agree with me that under the phraseology of the bill, he has an absolute right to do that, regardless of whether he has shown any foundation whatever for his claim?
Senator THURMOND. That is my opinion, if the bill passes.
Senator ERVIN. And then to pass on that question of whether the names of the persons in the jury wheel correspond to this declaration of the bill, you can go into the question of everybody's race, everybody's sex, everybody's economic status, everybody's national origin, and everybody's religion who is of the age to serve as jurors in those jurisdictions.
Senator THURMOND. I think the chairman is eminently correct.
Senator Ervin. And to go into this, you would have to show the names of everybody in the jury box to see whether people have been excluded, and also the names of everybody whose name is not in the jury box.
Senator THURMOND. Well, that is the only way the determination can be reached, if that point is raised.
Senator Ervin. And there is an absolute right to do this under this bill, regardless of whether there is any showing of anything wrong. Just to make the thing concrete, in my county, which is Burke County, in North Carolina, we probably have 23,000 or 24,000 people 21 years of age and up. Before there could be a trial of the case a lawyer could inquire into the race, the sex, the religion, the national origin, and the economic status of every one of those 23,000 or 24,000 persons as a matter of right under this bill, could he not?
Senator THURMOND. I do not know of any reason why he could not, and if such a procedure is followed, it is very easy for anyone to visualize the long, tedious, drawn-out, extended procedure that would result in the trial of a case if a lawyer saw fit to raise those points, and, of course, many of them would.
Senator Ervin. A lawyer as a matter of absolute right could inquire into all of these matters concerning everybody whose name appears in the jury box, and everybody in the jurisdiction whose name does not appear in the jury box. He could for all practical purposes prevent a case from ever coming to trial if the bill is enacted into law and upheld by the courts.
Senator THURMOND. Well, I could visualize where that could happen.
Senator Ervin. And how will society be protected against criminals in the meantime, while these inquiries are being made?
Senator THURMOND. Well, there is no question that society would suffer and the criminals would rejoice.
Senator Ervin. Now do you not agree with me that under the present practices in the States, if you wanted to raise any question about the composition of the jury, you would have to show some basis for the claim that the jury is improperly constituted ?
Senator THURMOND. The chairman is correct.
Senator Ervin. And this bill turns the whole process around and allows an inquiry into that matter without any basis being shown to sustain that contention, is that not
Senator THURMOND. I think that is correct. I think it practically would allow a pretrial which, in itself, might take much, much longer, even, than the trial on the merits of the case.
Senator Ervin. And do you not agree with me, apart from the question of the constitutional power of the Congress to prescribe rules of procedure for State courts, that title II is a wholly unrealistic proposed piece of legislation that does not take into account any of the practicalities of the administration of justice?
Senator THURMOND. I think it is unrealistic and I think it is impractical. I think it is unwise. I think it is purely visionary.
Senator Ervin. Thank you.
Senator THURMOND. This may cause a lot of complications even in the magistrate's courts, where people go out and pick up jurors from the streets, as they do now. This could cause tremendous delays, not only in the trial courts, the high courts like the circuit courts, the superior courts, as they call them in different States, but in the lower courts.
Senator ERVIN. You referred to the fact that under the law of the Original Colonies, the jurors were ordinarily required to be freeholders. In North Carolina, the law is that the regular jurors are drawn from the jury box, but the court very often summons special venires, which are not drawn from the jury box, and also summons, in both civil and criminal cases, tales jurors, who are drawn from the bystanders. Under North Carolina law, a juror whose name is not drawn from the box as a regular juror, but who is summoned in a special venire, or as a tales juror, has to be a freeholder. Title II would nullify that North Carolina law, would it not?
Senator THURMOND. It would invalidate it. The effect of it would be if this law passes to invalidate the North Carolina law.
Senator ERVIN. And the South Carolina law, which makes women ineligible for jury service
Senator THURMOND. It would nullify the laws of all the States in conflict with this law, because as the chairman, of course, and everyone knows, a Federal statute would not only strike down the State statute, but even presumes to strike down the State constitution.
Senator Ervin. And on the theory of the equal protection of the laws clause on which title II is based, I will ask if you try teenagers, if Congress would not have the power to say teenagers could sit on juries, or at least have their names in jury boxes for trials of teenagers?
Senator THURMOND. Well, this law is so broad until it seems it is just really impossible to predict just how far it does go.
Senator Ervin. Well, if Congress has the power to prescribe rules of procedure for State courts, it has the power to prescribe how bills of indictment should be drawn in State courts and how pleadings should be filed. It can regulate the entire matter of procedure and evidence in State courts; can it not?
Senator THURMOND. Well, if this law passes, Mr. Chairman, it seems to me that the State courts have virtually been taken over by the Federal Government and that every aspect of the jury trial will be controlled by the Attorney General of the United States.
As I stated earlier in my statement, section 1861 held that all qualified persons shall have the opportunity to serve on juries. In section 1862, it states that no person or class of persons shall be denied the right to serve on juries.
Why, you can just visualize the technicalities that an able criminal trial lawyer could raise if this bill passes with the various ramifications that this bill imples.
Senator Ervin. I will ask you a question I have not been able to get anybody to answer thus far, and that is, what do these words "national origin" used in title II mean?
Senator THURMOND. Well, that is a rather difficult question to answer. When you say national origin, I do not know how far back you are going. We have people who have come from foreign countries who were born over there and we have others who have been here one generation, some two generations, some three. It is just a question of construing national origin. And I imagine the Attorney General would make that construction, as he would make all other interpretations under this bill if it passes.
Continuing, Mr. Chairman, we are now down to title III, suits by the Attorney General in school or other public facility cases.
Title III of S. 3296 would empower the Attorney General of the United States to bring a civil action or other proceeding for preventive relief to compel—and I want to emphasize that—to compel the integration of any public school, public college, or any other public facility owned or operated by a State or any subdivision thereof. Also, the Attorney General would be empowered to bring similar suit against any person, whether acting under color of law or otherwise, who interferes with or threatens to interfere with any other person attending any public school, public college, or other public facility.
If any question arises there as to who is going to determine whether they are interfering, is the Justice Department going to make that determination? Is the Attorney General himself going to make that determination himself!
The Attorney General would have power to bring suits in these two circumstances without so much as a complaint upon which to base his action.