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their freedom, or tyranny's is practiced against the people and their rights, it is tyranny, regardless of whether it is their own government or from whatever source it comes.

Senator Ervin. Do you not agree with me that any fair system of jurisprudence would give the same rights to litigants on both sides of the case and thereby accomplish impartial justice?

Senator THURMOND. Well, I was always brought up to respect the courts and to look at a judge in a robe in the view that here is an impartial person and to walk into court and feel that here is an impartial tribune. The only purpose in the person going into court is to get justice. If they do not get justice in the court, we might as well tear down the courthouse and abolish all court officials.

Senator Ervin. Do you not agree with me that the court should be as much concerned with doing justice to the defendant as to the plaintiff?

Senator THURMOND. That has always been my opinion. I was circuit judge about 8 years. About half of that, I was in World War II, but I think our people generally in South Carolina felt that when they went into a court, they received justice.

Senator Ervin. I invite your attention to subsection (b) of section 406, on page 28, which provides that, upon application by the plaintiff, and in such circumstances as the court may deem just, a court of the United States in which a civil action under this section has been brought may appoint at attorney for the plaintiff and may authorize the commencement of a civil action without the payment of fees, costs, or security.

You note there is an absence of any provision for the court to appoint an attorney for the defendant.

Senator THURMOND. This, in effect, would provide that the Government would furnish a lawyer for the plaintiff.

Senator Ervin. But not for the defendant?

Senator THURMOND. But not for the defendant, which to my way of thinking is discrimination in itself.

Senator Ervin. If a widow rented a room in her dwelling house for the purpose of keeping soul and body together and somebody she did not want to rent to demanded that she rent to them, the Federal court could furnish the attorney for the would-be renter but not for the widow

Senator THURMOND. That is correct.

Senator Ervin. I would like you to note another legal monstrosity in this bill.

Subsection (d) of section 406, page 29: The court may allow a prevailing plaintiff a reasonable attorney's fee as part of the costs.

Do you think it is fair to allow the prevailing plaintiff to recover an attorney fee and not allow the prevailing defendant to recover an attorney fee?

Senator THURMOND. Well, Mr. Chairman, it appears that the whole bill is written in a manner that, initially, prohibits objective and impartial treatment to all involved. This, I think, is another instance of allowing the plaintiff a reasonable attorney's fee and not allowing the defendant a reasonable attorney's fee.

Senator Ervin. In a sense, it creates a legal difficulty against the defendant and not against the plaintiff.

Senator THURMOND. It appears that is the way the bill is written.

Senator Ervin. In so doing, it favors one side and discriminates against another. Do you not think that that makes a mockery of justice?

Senator THURMOND. There is no question about it. When there is no objectivity in the courtroom, then there is no justice.

Senator ERVIN. Is it not a general principle of law that each party ordinarily pays his own counsel ?

Senator THURMOND. That is correct.

Senator Ervin. Is it not also a general policy of law that the Government does not favor stirring up litigation and they do not have laws in the States for that purpose ?

Senator THURMOND. That is true. That has been the custom through the history of this country.

Senator Ervin. Do you not think it is bad public policy to stir up litigation by inducing or offering inducement to lawyers to bring suits?

Senator THURMOND. I think it is a heinous procedure.

Senator Ervin. Do you not think they should look to their own clients for fees rather than to others' clients ?

Senator THURMOND. I do.

I now proceed with Title V: Criminal Law Provisions for Private Interference of Private Action.

Title V of S. 3296 would make it a Federal crime for any private individual to injure, intimidate, or interfere with, or attempt to do any of the foregoing, to any person because of his race, color, religion, or national origin while he is engaged in certain specified activities. The activity specified is that activity which is usually associated with asserting constitutional or "civil” rights.

This provision represents a radical new departure in Federal criminal law. It establishes a Federal protectorate based on a combination of events which include both who the person is and what he is engaged in doing.

Once again, there is no recitation in the act of the constitutional authority for this radical proposal, but the testimony so far given to this subcommittee reveals that it is somehow supposed to be grounded in the 14th amendment. In my discussion of the immediately preceding section of S. 3296, I covered, quite conclusively, I believe, the concept that the 14th amendment is directed toward State action, and State action only. There is no attempt in title V to allege any State involvement or any conspiracy, which is the subject of 18 U.S.C. 241. This provision of the bill is directed toward direct private action.

In his testimony, the Attorney General relied in very large measure upon the recently decided Guest case. The decision in this case, which is entitled “United States, Appellant v. Herbert Guest et al.", was handed down by the Supreme Court on March 28 of this year. In that case, six defendants were indicted under the provisions of 18 U.S.C. 241, as having conspired to injure, oppress, threaten, or intimidate a citizen in the free exercise or enjoyment of a right or privilege secured to him by the Constitution or laws of the United States. The defendants moved to dismiss the indictment and the Federal district court granted the motion and dismissed the indictment as to all six defendants and on all counts.

In brief, the Supreme Court's action was to remand the case to the district court with instructions for them to consider certain paragraphs of the indictment. At the outset of the case, however, the Court noted in very specific and clear language that “we deal here with issues of statutory construction, not with issues of constitutional power." I have already quoted at length from a crucial portion of the Court's decision in the Guest case which reinstates and reffirms the basic concept that the 14th amendment prohibits discriminatory action on the part of the States only and not by private individuals.

It is true that there is some indication that some few of the Justices question the breadth of power granted to Congress under section 5 of the 14th amendment. In the concurring opinion of Mr. Justice Clark, in which he was joined by Mr. Justice Black and Mr. Justice Fortas, the following language is found:

It is, I believe, appropriate and necessary under the circumstances here to say that there now can be no doubt that the specific language of section 5 empowers the Congress to enact laws punishing all conspiracies—with or without State action—that interfere with 14th amendment rights.

Also, the opinion of Mr. Justice Brennan, joined in by the Chief Justice and Mr. Justice Douglas, contains the follow language:

A majority of the members of the Court express the view today that section 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of 14th amendment rights, whether or not State officers or others acting under the color of State law are implicated in the conspiracy.

The Attorney General seizes upon this language in the concurring opinions to fortify his contention that the Supreme Court would uphold title V against a charge of unconstitutionality. I do not so interpret these opinions. First, in both instances, the word "conspiracies" is used. Title V does not authorize prosecution for conspiracies. It is a straight criminal statute directed toward the criminal act itself.

Second, the Justices hedged their opinions by referring to “14th amendment rights." This necessitates an inquiry as to just what are “14th amendment rights." The 14th amendment begins, in almost every clause, in a way that leaves no doubt that it applies to every clause, “No State shall.” Therefore, it is clear that 14th amendment rights are prohibitory upon State action, and State action only. Title V is applicable to private action and contains not even the slightest pretense that State action need be involved.

Under all the precedents of the Supreme Court, title V of S. 3296 is unconstitutional. Even if there were a constitutionally valid argument in its favor, it is subject to the most serious question. Would Congress be wise in creating a special class of protectorate depending solely upon who the person is and what he might be engaged in doing at the time of the alleged crime? I think not. Such a proposal would establish a bad precedent and could very well lead to other proposals of this nature which would create a Federal police state, which none of us wants.

Mr. Chairman, may I make emphatically clear that I have no interest in protecting criminals from prosecution for their crimes. They should be prosecuted to the full extent of the law. I do have an interest, however, and a very deep one, in protecting the Constitution from either well-meaning or willful distortions which will be to the ultimate detriment of the personal and constitutional rights of all the citizens of the United States.

Mr. Chairman, I had thought that, with the passage of the so-called Civil Rights Act of 1964 and the so-called Voting Rights Act of 1965, Congress would be free from the pressures to take further action in this field for some time. Indeed, it was difficult for me to imagine what more could be proposed under this general heading. We now see that the appetite is virtually insatiable.

This proposal, unfortunately, follows the trend of recent years in ignoring the basic yardstick by which Congress is governed—the U.S. Constitution. Not only does this proposal fail to measure up by the yardstick of the Constitution, but it is, in many respects, both arbitrary and capricious and creates the possibility of the use of oppressive and dictatorial means of achieving its objectives.

It is past time for a calm, dispassionate reappraisal of this entire matter, and by no means should Congress be stampeded into approving the pending bill.

Senator ERVIN. You have had a distinguished career upon the bench. Would you not agree that it is very unusual for any court to do anything more than to decide the case that is pending before it at the time, and do you not agree that the Guest case could have been decided as it was on the basis of the bill of indictment?

Senator THURMOND. I certainly do.
Senator Ervin. Which alleged State action.

Senator THURMOND. That is correct. I agree fully with the statement of the distinguished chairman.

Senator ERVIN. Is it in accordance with accepted judicial practice for judges to go beyond the scope of the case before them and announce how they will act in the future?

Senator THURMOND. It has never been customary for judges in this country to follow such procedure.

Senator ERVIN. I believe your statement puts a little different interpretation on the statement of those judges than that of the Attorney General.

Senator THURMOND. I think my statement is entirely in conflict with the position of the Attorney General of the United States.

Senator ERVIN. Senator, on behalf of the subcommittee, I wish to thank you for making a very brilliant presentation of your views on this very momentous legislation.

Senator THURMOND. Thank you, Mr. Chairman, and I wish to thank the subcommittee.

Senator ERVIN. Will the counsel call the next witness?

Mr. AUTRY. Mr. Chairman, the next witness is the honorable John H. Chafee, Governor of the State of Rhode Island.



Senator Ervin. On behalf of the subcommittee, I want to thank you for accepting the invitation of this subcommittee, to bring your views to us.

Governor CHAFEE. Thank you very much, Mr. Chairman.

First, Mr. Chairman, I would like to thank you for inviting me to come down and state my views on the proposed Civil Rights Act of 1966. As requested, I shall confine my remarks to title IV, the section dealing with open occupancy housing. I want to make it clear that I do not consider myself an expert in this field. Nevertheless, as the Governor of a predominantly urban State in the Northeast, I was delighted to accept your invitation and to share with you the experience of a State and region which have had experience with the type of legislation which you are presently considering.

Let me make clear at the outset that I am in favor of the bill as a whole, and I am in favor of the portion of it which deals with housing. For reasons which I shall explain, I think the housing provisions are far less creative than I would like them to be. Nevertheless, I favor the bill which is before you.

As some of you probably know, Rhode Island had a unique experience in the passage of its Fair Housing Practices Act. I am proud to say that, as a member of the Rhode Island House of Representatives, I was a sponsor of the first fair housing bill to be proposed in my State back in 1959. The bill immediately became the subject of widespread and intense public debate. It remained so for 6 years, until April 1965, when it finally passed both branches of our general assembly and, as Governor, I had the privilege of signing it into law. I might point out that during each of those 6 years public discussion was focused on a slightly different version of the fair housing idea. When the original bill failed to pass in 1959, for example, the legislature turned its attention in 1960 to a bill which would have excluded from coverage large portions of the housing market. Yet the bill which we finally passed last year was almost identical to the bill which was first introduced 6 years earlier.

Mr. Chairman, I cannot say to you that, after our 6 years of debate, the fair housing bill passed on a wave of favorable public sentiment. Legislation of this type is not popular. I do not apologize for the Rhode Island experience, however. Indeed, I would point out that we passed our bill within a few short months after the California referendum showed just how unpopular open housing legislation is apt to be. We did what we thought had to be done, and I think it fair to claim that, whether popular or unpopular, nowhere in the Nation was there better public understanding of fair housing legislation at the time of its passage than in Rhode Island.

It is partly because of this 6-year history that I am reluctant to discuss the details of the coverage or the specific procedures and remedies provided in the housing section of the legislation before this committee.

I would be glad to answer any questions on that.

Our law in Rhode Island does not now cover the entire housing market. It excludes from coverage rooms in a rooming house, which was one of the questions previously directed to Senator Thurmond, market. It excludes from coverage rooms in a roominghouse, which the owner is also a bona fide resident. Our law does not provide for damages for a complainant. On the other hand, it does provide, as do most State laws, for administration of the act by a commission, which

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