of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced, by temporary excitements and passions among the people, to adopt oppressive enactments. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the consituation is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.

Do you desire to make any comments on that?

Attorney General KENNEDY. No; I agree basically with that, Senator. But I do not think it therefore follows that a decision of a court, a prior decision of even a supreme court should never be overruled. I do not think we would want to support that doctrine and I think we would also have to take into consideration the fact that there are changes in events and situations which might call for arriving at a different decision on what appears to be basically the same facts.

Senator ERVIN. I agree with you that a court under certain circumstances has the right to reverse a previous decision. I have had to wrestle with the problem myself as a judge. But I think that Judge Learned Hand, whom I consider as great a judge as has ever lived on the North American Continent, laid down the rule by which courts should determine whether they should overrule a previous decision. He did this in a speech he made in reference to a colleagueJudge Thomas Swann. Judge Learned Hand said that Thomas Swann held that a court should never overrule a decision unless that decision was untenable at the time it was made, and not even in that case when a great body of law had been erected upon that decision.

What Judge Learned Hand said on this point indicates that Judge Thomas Swann adhered to the view which has been expressed by Judge Louis D. Brandeis and others; namely, that usually it is better for judges to leave the reversal of their erroneous decisions to the lawmaking power than it is for them to reverse such decisions themselves. Attorney General KENNEDY. I am sure I wouldn't have any quarrel with Judge Learned Hand, but I would just as soon be able to read it myself.

Senator ERVIN. You have described conditions in voting in the United States, and have made particular reference to Mississippi and Alabama.

Attorney General KENNEDY. That is correct.

Senator ERVIN. I ask you how many criminal prosecutions has the Department of Justice instituted in the Federal district courts in order to bring punishment to election officials who have perpetrated these wrongs?

Attorney General KENNEDY. Well, we haven't brought any, Senator. To be quite frank about it, I would think it would be virtually impossible to successfully prosecute a criminal case in either one of those States on this matter.

Senator ERVIN. That is a rather serious accusation to make against the entire people of a State. I believe that a great man named Edmund Burke once said "You cannot indict a whole people." What you have said seems to me to be an indictment of a whole people.

Attorney General KENNEDY. I don't mean it as such, Senator.
Senator ERVIN. I hope you don't.

Attorney General KENNEDY. I think if you will look at what I said, these are what the facts are at the present time, and I think the people feel very strongly in the State of Alabama and Mississippi. I don't mean they are violating their oath. They just feel very strongly about this matter, they don't happen to agree with the Federal Government, the U.S. Government, me, or the President, or with those who bring these cases. Therefore, when they hear the evidence, they reach a decision which makes it very difficult to arrive at a prosecution. Now, that is the way they feel and I think that that feeling plays a very important role in helping you get any successful criminal prosecution. It was on that basis that the Civil Rights Act of 1957 and the Civil Rights Act of 1960 were requested. This does not originate with me as Attorney General, Senator.

Senator ERVIN. I would like to say that since I am responsible to some limited degree for the present administration being in power, I am not going to charge the Department of Justice as now constituted with any greater sin of omission in this field, that I can lay against the Department of Justice during the previous administration. I made inquiry as to this particular matter on occasions when previous Attorney's General were before committees, and found that their action in this field of criminal law was about on a par with the actions of this administration.

Attorney General KENNEDY. Could I suggest, Senator, that perhaps at your convenience, some time, you might talk to some of your colleagues from those States and find out whether they think that on these facts, you could have a successful prosecution?

I think they would bear me out.

Senator ERVIN. If they become witnesses, I may have an opportunity to interrogate them.

Attorney General KENNEDY. Just if you happen to see them later after the hearing.

Senator ERVIN. Let's see what laws are already on the statute books with reference to this.

Attorney General KENNEDY. I think you put them in the record. I have read your testimony.

Senator ERVIN. I would like to ask you about these laws and put them in again. I don't desire any publicity but I represent a viewpoint I would like the country to know something about and I have not found anything about the existing laws in the public press. It is not because I want any publicity, but I would like to get a little assistance from the free press of America in presenting to the American people the view that some of us honestly believe we are fighting for the preservation of constitutional government in opposing this bill. Attorney General KENNEDY. Fine, Senator.

Senator ERVIN. First, I want to call your attention to a statute which gives a private individual a right to a civil action for deprivation of rights. I refer to title 42, section 1983, of the United States Code, which reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or territory subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

I will ask you if under that statute any American citizen of any race who is wrongfully denied the right to register to vote cannot sue the election officials committing the wrong for damages.

Attorney General KENNEDY. I would think he could.

Senator ERVIN. And, also, would he not have the right under that statute and have not the courts so held, to bring a civil proceeding in equity to prevent any election official from carrying into effect any threat or denial of his rights to register or vote?

Attorney General KENNEDY. I would think he could.

The CHAIRMAN. Senator Ervin, I understand there is an objection to our meeting, so we will have to recess.

Senator ERVIN. Before we adjourn, I would like to assure the Attorney General and the committee that I am not attempting to filibuster. I am trying to make a record which will show that this bill ought to be defeated.

Attorney General KENNEDY. I understand.

(Whereupon, at 12 noon, the committee adjourned, subject to the call of the Chair.)

CIVIL RIGHTS-THE PRESIDENT'S PROGRAM, 1963

WEDNESDAY, JULY 24, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to recess, at 10:40 a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Kefauver, Johnston, McClellan, Ervin, Hart, Long of Missouri, Kennedy, Bayh, Dirksen, Hruska, Fong, and Scott.

Also present: Joseph A. Davis, chief clerk; L. P. B. Lipscomb and Robert Young, professional staff members.

The CHAIRMAN. The committee will come to order.
Mr. Ervin, you may proceed.

Senator ERVIN. Mr. Attorney General, as the committee adjourned at its last sitting, I was asking you about a statute embodied in section 1983 of title 42. It is entitled "Civil Action for Deprivation of Rights." I would like to ask you if, under that statute, any person who is denied any right he has under the Constitution or laws of the United States cannot bring a civil action for damages against any public official for depriving him of that right?

STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES, ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISIONResumed

Attorney General KENNEDY. He can, Senator.

Senator ERVIN. I will ask you, furthermore, if, under that statute, any person who is threatened with the deprivation of any right he has under the Constitution or laws of the United States, by any State or local official, cannot bring an action in equity and obtain preventive relief against being deprived of that right.

Attorney General KENNEDY. I believe he can, Senator.

Senator ERVIN. I ask you if, under the rules which govern the Federal courts, suits in equity are not tried by a judge without a jury? Attorney General KENNEDY. That is correct, Senator.

Senator ERVIN. Now I call your attention to another section, which is subsection 3 of section 1985, title 42, which is a provision of that statute dealing with a conspiracy to deprive a person of rights and privileges.