ercising a constitutional privilege and that a governmental agen should act only after investigation of all the facts?

The Schware and Koenigsberg cases, the last two, hold that a m should not be arbitrarily deprived of the right to practice law. Is it not a basic principle of American life, our statement asks, t no citizen should be deprived of the opportunity to enter his cho profession except for sound reasons and after careful procedures? We submit that these eight decisions were not radical or strain The radical or strained action was the action taken which the Supre Court was called upon to reverse in the name of the Bill of Rig

I have put in our statement a chart or a table showing the v in these eight cases. And if you will permit me a fractional vote a Supreme Court Justice, 6 and a quarter votes were cast on average in favor of the principles enunciated above; only 2 were the other way.

In other words, on a Court that consists of such varied b grounds as a former governor, two former Members of the Senat former State judge, two former Federal judges, a former Attor General, and two former professors of law, several of whom had and distinguished records at the bar, the vote came out on the aver of over 3 to 1 in favor of these principles. I think some defer ought to be paid to such a degree of unanimity on so significant pu questions.

Just in conclusion on this point, I would like to say that the liberties climate has improved over the last 4 years. I think everyone on both sides is happy at this improvement. And I w like to say further that the very climate of McCarthyism, whi believe lies at the source of S. 2646, has turned against the situa as it existed 3 or 4 years ago.

Senator HRUSKA. I should just like to observe that when any ponent or opponent of a measure resorts to that general type of c acterization, the very type of characterization which they conden McCarthyism, so-called-whatever that might mean, then I some reservations as to the strength in their own minds of the which they present.

Mr. RACH. If you know, sir, a better way for describing what on from about 1950 to 1955 than "McCarthyism," I would be ha

to use it.

I meant the general climate of opinion in which the right American citizens are trampled upon.

If there is a shorter word than "McCarthyism," I would be ha to adopt it.

Senator HRUSKA. As you well know, that word means many, n things to many, many people. And I would just like to have record contain the observation that anyone who has to resort to type of comment in the opinion of many condemns the very typ reference that is made here with reference to other names, I have reservations as to the strength of the case that is being presente Mr. RAUH. These Supreme Court decisions, the eight decision which I have referred, represent the best in American constituti law and the Bill of Rights.

This is no time to reverse the trend that is running for hu freedom.

Now, in the remaining 10 minutes which I have agreed to conclude Mr. Chairman, I would like to discuss again the problem we took pearlier on the question of the Supreme Court's appellate jurisfction, and the power of Congress to deal with that. We feel that the elimination or restriction of the Supreme Court's appellate jurisEction threatens our constitutional system.

I don't know whether one should say that eliminating the Supreme Court's jurisdiction in these areas is unconstitutional or anticonstitonal. The fact is, I don't know what the Supreme Court would ay if the case came up to it tomorrow. I don't know whether it would 2 that Congress did have the power to limit its jurisdiction or not. There is one case and I would like to set that case to rest-there is ze case in Supreme Court history where this kind of action was held by the Supreme Court.

A man by the name of McCardle was a southern editor. He edited 1ewspaper down in Mississippi-I believe.

Senator HRUSKA. For the purpose of the record, will you cite the

Mr. RAUH. It is Ex parte McCardle (7 Wall. 506. He was a paper editor down in Mississippi during the reconstruction peAnd he had very little use for the Federal Armed Forces, and wrote some highly inflammatory, incendiary, and libelous states about the Federal Armed Forces. So they took him into custy. And he took out a writ of habeas corpus in the circuit court of ssippi. He lost, and he appealed to the Supreme Court of the

Ted States.

While his case was pending in the Supreme Court of the United , the act of March 27, 1868, was adopted, removing the jurisdicof the court.

I at art was passed by Congress, vetoed by President Johnson, and i over his veto. Then it came to the Supreme Court. And the Seme Court upheld this statute, and refused to consider the case. Te Supreme Court, however, made reference in this very case to eft that there was jurisdiction through another route, and, in in a later case, in Ex parte Yerger (8 Wall. 85), the Supreme took jurisdiction of a similar situation.

other words, in the only case in American history where the me Court has accepted the congressional deprivation of juris--and, indeed, this is the only time that Congress ever tried prive the Supreme Court of jurisdiction-the Court permitted but only after noting that there was a secondary method of

I jo not know whether the McCardle case would be law today. I doubt whether the McCardle case would be law today. And I i like to insert in the record, although I am really not trying to her it up, and I will leave that to you, I would like to have inserted herword a copy of Mr. Hart's article at this place.

Tis entirely up to you. This copy doesn't belong to me, but if dise inother copy you could put it in here.

V: SCEWINE. I respectfully suggest that not only the article but acle cited in the printed statement might be put in. And the The is to inform the Senators as fully as possible.

4-57-pt. 2-3

Mr. RAUH. That would be very fine. There is a great deal of learn ing that would be available.

Mr. SOURWINE. We can get that photostated and returned to yo if you can't get another copy.

Mr. RAUH. It is in the Library of Congress. I suppose they coul provide you with it. It would be the easiest way.

Senator HRUSKA. These two articles will be inserted in the appendi of the record.

(The articles referred to will be found in appendix I.) Mr. RAUH. Now, it doesn't seem to me

Senator HRUSKA. Before we leave the McCardle case, didn't th statute apply particularly and exclusively to the McCardle case? Mr. RAUH. It applied to appeals from habeas corpus actions of particular type. It was not solely to McCardle, but it was to a cla of cases of which McCardle was the first that came up.

Senator HRUSKA. But the limitations were so great that it was n likely that it would be applicable to any other case except McCardl Mr. RAUH. That is correct.

Senator HRUSKA. When was the statute repealed?
When was that repealed?

Was it repealed?

Mr. RAUH. Now you have got me. I don't know, sir.

I would have to check that. It might have-it might have simp expired by its own limitations.

Senator HRUSKA. And that would furnish small basis for the d servation made in the latter case you referred to, isn't that so?

Mr. RAUH. No; the latter case is almost immediately afterwar The Yerger case is in the 8 Wall.; this is in 5 Wall. And what ha pened in Yerger after the Supreme Court took jurisdiction was th they let him out of jail and avoided Supreme Court jurisdiction

that action.

The Yerger case was never decided either. The Supreme Cou had taken jurisdiction. He was then released by the military a thorities, and, of course, that rendered the case moot.

Mr. SOURWINE. Mr. Chairman, would the chairman like to ord that in editing these hearings, the committee staff should make note to include that case?

Senator HRUSKA. Yes; as to the repeal of the statute; and if it not too extensive, the text of it.

Mr. RAUH. It would be very helpful.2

We have, from pages 4 to 9 of our statement, at great length go into positions taken by responsible conservative influences in Ameri against weakening the traditional appellate jurisdiction of t Supreme Court.

2 EDITOR'S NOTE.-The McCardle case involved a writ of habeas corpus. Authority the Supreme Court to exercise appellate jurisdiction over such writs was contained in Judiciary Act Amendment of February 5, 1867. The 40th Congress withdrew this thority by providing "that so much of the act approved February five, eighteen hund and sixty-seven, entitled 'An Act to amend "an Act to establish the judicial courts of United States," approved September twenty-fourth, seventeen hundred and eighty-ni as authorizes an appeal from the judgment of the circuit court to the Supreme Court of United States, or the exercise of any such jurisdiction by said Supreme Court on app which have been or may hereafter be taken, be, and the same is, hereby repealed." T act was vetoed and passed over the veto on March 27, 1868.

Authority of the Supreme Court to exercise appellate jurisdiction in habeas cor cases appears to have been restored by section 763, Revised Statutes, approved June

For example, Mr. Justice Roberts, who was the most conservative zember of the Court in his last years on the bench, and who was formerly counsel to the Pennsylvania Railroad and other large business organizations, has not only fought against any such suggestion, but he recommended that this provision of the Constitution be elimrated, that this question be clarified.

Indeed, the American Bar Association, with which I am not too often in agreement, takes the position that the Constitution should be amended to protect the appellate jurisdiction of the Supreme Court. Mr. SOURWINE. Can you cite the American Bar Association's action in that regard?

Mr. RAUH. 34 A. B. A. J. 1072 (1948), 74 A. B. A. Rep. 438 (1949), 75A. B. A. Rep. 116 (1950).

Mr. SOURWINE. Those citations were in your statement, but I thought they ought to be here, too.

Mr. RAUH. Thank you.

So it seems to me that whether you call it unconstitutional or anticonstitutional, the independence of the Supreme Court is a most important factor, a most weighty and significant factor, in American constitutional life, and that nothing should be done which would weaken that, and certainly the Jenner resolution, S. 2646 would do so. Now I would just like to make two points in concluding. First, the Supreme Court, through its history, has been under attack, but every time the attack has been beaten down. First came the JefferSans who were aiming at John Marshall, and had they impeached Samuel Chase, undoubtedly would have impeached John Marshall. Eat Jeffersonian senators took the floor of the United States Senate defend Chase, and thereby make the independence of the judiciary resi.

And this fight went on year after year. The Court has been critized by one side or the other. I am not saying who was right, hisally, whether the liberals were right or the conservatives. The facts, the Court has won out each time. The Court won out, the time, in 1937. It does not matter whether you like the decisions Supreme Court rendered before 1937 or you did not. I happen se one who did not. The fact is that Congress stood by the Court and pointed out by their action that you could not change the just by adding numbers. Congress stood firm for the Court. pe Congress is going to stand firm for the Court this time. ondly, there is one additional thing in this bill that I did not le in my statement and that I want to refer to. It involves civil the third section. I do not say this was intended, but I say 23 the effect. The third section of this bill could end the operaof the NAACP in the Southern States.

An. I say I am not here arguing or suggesting that it was so in-it would have that effect.

The third section provides that there shall be no Supreme Court jurtion of "any statute or executive regulation of any State the purpose of which is to control subversive activities within such State Now I want to give you a case: In Florida a State legislative agency ng to harass and drive the NAACP out of the State through an ative agency claiming that it is a Communist-controlled body.

I believe that under this section the Supreme Court would have no authority to review the decision of the Supreme Court of Florida, which will undoubtedly uphold the action of the legislative committee. Senator HRUSKA. In spite of its power under this arbitrary and unreasonable thing which you discussed a little while ago?

Mr. RAUH. I am saying if this bill were passed.

Senator HRUSKA. Even if it were, you see, in the bar association cases, those bills were passed and the Supreme Court said you cannot hold a man from being a member of the bar association because

Mr. RAUH. I am making two assumptions here, Mr. Chairman: first, that this bill is passed, and second, that this bill is held constitutional by the Supreme Court. I was making both of those assump tions.

Senator HRUSKA. Even so, even if it is constitutional

Mr. RAUH. If this is constitutional, then the Supreme Court would have no jurisdiction to review the action of the Supreme Court of Florida. That was the point I was making.

Senator HRUSKA. I see.

Mr. RAUH. But if this bill is passed, if this bill is held constitutional all that the supreme courts of the Southern States have to do to avoid review of their action against the NAACP is to put it on the ground of security, and indeed, as I was pointing out in Florida, that is ex actly what they were doing in Florida.

Now let's take a case that is pending in the Supreme Court of th United States from Alabama. The State of Alabama, in its effort to drive the NAACP out of the State and thereby prevent integration fined the NAACP-a judge of the State there fined the NAACP$100,000 for refusing to put up its membership list. That case is pres ently pending, and is being argued in the Supreme Court of the Unite States.

If this were passed, all that Alabama would have to do is say "We need those lists for security purposes," and there would be n review. I believe it would not be any Senator's desire, particu larly those who supported civil rights the last term of Congres to provide that the Supreme Court should not have the power o appeal from State courts to reverse harassing action by the south ern segregationist States of the organization which has done the mos to promote integration throughout the Nation, and yet, this section, i passed, would have that effect.

I have completed my statement, and I would be happy to answe any questions. And I did make it in my 15 minutes.

Mr. SOURWINE. I have two questions, Mr. Chairman.

Senator HRUSKA. Yes.

Mr. SOURWINE. Is your prediction of the action which you say wi be taken by the Florida Supreme Court based upon your opinion to the merits of the case involved, or are you charging that th Florida Supreme Court has predetermined the decision it will mak without regard to the merits of the case?

Mr. RAUH. I know of no decision by the supreme court of a segre gationist State which has protected the NAACP. I know of cas in the Supreme Court of Virginia, decided as late as 2 or 3 weeks ag where the same contentions that are being made in Florida were ove ruled without even permitting counsel for the organizations or t individuals to be heard. I think it not an unreasonable predictio