Therefore, he requested an extension of the Commission's life for at least 4 more years.

It is clear that the Commission will have an important function to perform over the next 4 years. The Commission has been an efficient, low-budget operation. It could be even more efficient and effective if extended for this longer term. And Congress would not lose control over the Commission since it would be before the Congress each year seeking appropriations.

Having demonstrated its utility and effectiveness, the Commission should be extended for at least 4 years subject, of course, to a continuing review of its activities by Congress and the President.

Again, Mr. Chairman, thank you for you courtesy in hearing me.

Senator ERVIN. I do not have before me a copy of the recommendation of the Civil Rights Commission to cut off funds to Mississippi. However, my recollection is that the Civil Rights Commission justifies its recommendation on the ground that such grants subsidize the subversion of the Constitution by Mississippi officials. Is my recollection correct on that?

Senator HART. There was a comment at the conclusion that this was subsidizing discrimination, yes.

Senator ERVIN. I would like to state that I cannot agree with the Commission's recommendation, and I cannot agree with my good friend, the senior Senator from Michigan. I am totally incapable of comprehending how it can be said that you subvert the Constitution by using Federal funds in Mississippi to control tuberculosis, to furnish Braille books for the blind to read; by providing funds for the control, as far as possible, of venereal diseases; funds for cancer research, funds used to abate the pollution of water within the borders of the State of Mississippi, and funds for the education of children in impacted Federal areas. I cannot see how it can be said that to spend money in Mississippi for these important projects constitutes a subversion of the Constitution. The Federal funds are used for the education of the mentally retarded, for vocational education, and for branch libraries in order that the people in Mississippi might be allowed to read and expand their intellectual horizons.

If Federal funds were cut off, it would deny old-age assistance to all of the people in Mississippi who need it to keep a roof over their heads, food in their stomachs, clothing on their backs, and medicine for their ills. Furthermore, among these people in Mississippi, there are 70,440 Negroes who would be denied the benefit of old-age assistance as distinguished from 44,935 white. After deploring the fact that the officials of Mississippi were cutting off food for children, the Commission proceeded to say, that the Federal Government should cut off all assistance used to subsidize aid to dependent children, who have nothing whatever to do with the policies of the State of Mississippi. I note that 77.7 percent of these children are in homes of Negroes.

As a matter of fact, this recommendation of the Commission, if the President had undertaken to implement it, would have cut off aid to 50,770 Negro children in Mississippi as against 11,842 white children.

Approximately, 79 percent of all of the funds that go to the State of Mississippi for the aid to dependent children go to Negro children. I do not understand how cutting off all of these funds from Mississippi for the control of venereal disease and cancer and water pollution and aid to dependent children has any relation whatsoever to the subversion of the Constitution by the officials of Mississippi.

Senator HART. Mr. Chairman, do you feel that if the braille book was in a library to which only Negroes were admitted that there would be or would not be a violation of the Constitution?

Senator ERVIN. Well, I do not know whether that is a fact. I am not familiar with the conditions.

Senator HART. I do not know whether that is a fact either. But, I say, if it were a fact what would your attitude be?

Senator ERVIN. But I do know that included in these funds which would be cut off would be a considerable amount of money for aid to the blind given to all Mississippians, white, colored and Indian; and that is not disseminated in a public library.

Senator HART. Mr. Chairman, the point I am trying to make by that question or to suggest is that I think this Congress and the Executive, have an obligation to review each Federal program to see that it is applied on a nondiscriminatory basis.

As I recall it, the suggestion made by the Commission was very broad in its definition of moneys that might or might not be withheld.

I think that our obligation and the Executive's obligation is to see to the nondiscriminatory application of each particular program. I think we will agree that the rights under the 14th amendment, limiting State action, correlated to the fifth amendment, as it relates to the obligation of a Federal official under the 14th, makes it illegal to support discrimination. I think it is the right-there are those who would say it is the duty-for the President to withhold the moneys in Washington to support that effort. He takes an oath to support and protect the Constitution and to enforce the law.

Now, analyze each Federal program, program by program, to see whether the braille book is in a building to which admission is seg regated. If so, I think we have the answer as to what we should do. Parenthetically, the people of Michigan have had in very recent date some experience in this area. Several years ago we extended the aid to dependent children program to the children of the unemployed worker.

The State of Michigan in this session of the legislature adopted conforming legislation so as to be eligible for participation in that program. They defined, however, "unemployed" as a former wage earner who had been covered by the unemployment insurance program. The Secretary of Health, Education, and Welfare ruled that this was discriminatory and has withheld the funds. Discriminatory because children of a parent who had not worked under covered employment would not be eligible. This having the effect of denying moneys to some 10,000 families.

As you point out, what advancements do you make? I have the impression that the Secretary of Health, Education, and Welfare was right in this, in that it had the effect of encouraging Michigan to enact a program which is nondiscriminatory in all of its aspects. I think that we are wrong when he sends to Mississippi moneys for programs which are segregated or discriminatory, not because of economic classification, but because of racial classification. I think the power is there and I think the obligation is clear.

I do not quarrel with my colleague who has a reluctance to support what we have come to know as the Powell amendment. I can see the complications, we all can.

But, look, it is intolerable that we continue to vacillate in the middle ground. Use Executive action, program by program if you do not want to see the Powell amendment applied because the day is not yet. at hand, I suspect, when we will be able to get an across-the-board statute making applicable this restriction to all programs.

But I have never found the answer to the Negro who says, "You collect taxes from me and then you permit them to be distributed in a fashion and into programs where I find the door slammed in my face." Now, in my book, that is just intolerable and indefensible.

Senator ERVIN. I doubt whether that condition exists to a large degree in Mississippi, because the bulk of all the relief funds go to Negroes.

But suppose Congress should enact a law, to allow the President to cut off funds to a State he selects. Do you think that the State ought to be given notice, an opportunity to be heard, and have a day in court on the question whether it is violating the Constitution, or do you think it should be condemned, as the Civil Rights Commission recom-mended, without any notice, without any trial, without any opportunity to be heard and without any opportunity to refute the charges against it? Certainly that would be contrary to the basic concept of due process of law.

Senator HART. I think that the action would not be precipitate, and ought not be precipitate, but the notice should be very clear that the whistle has been blown.

Senator ERVIN. The fundamental difference in your view and mine is, I think, that in my view, the Federal courts in Mississippi are open. There are Federal laws which make it both a civil wrong and a crime to deny any person any right he has under the Constitution or laws of the United States.

My opinion is that the Federal Government should use the Federal courts in Mississippi if it has any evidence of violation of laws on the part of anyone, officials or private citizens, and prosecute them in a case, where due process is had, where they are given an opportunity to defend themselves.

I think that would be far better than taking aid away from the blind, taking aid away from people who are suffering from venereal disease and cancer, and allowing the rivers of Mississippi to be polluted.

Senator HART. Senator, that is the reason some of us would like to see what has been known as title III enacted to permit exactly that course of conduct by the Attorney General.

Senator ERVIN. And the reason some of us object to title III is that it changes the whole legal system of the United States by converting this from a government of laws into a government of men.

I thank the Senator. I have a high respect for the Senator and his opinions. But I think in this particular case the Senator is in a position where, unfortunately, he does not entertain the same sound views I do. [Laughter.]

Senator KEATING. Mr. Chairman, I do not want to prolong this. I know other commitments that Senator Hart has are calling him away, but I do want to make this comment at this point.

I have the feeling, as apparently Senator Hart does, that the statement in the report of the Civil Rights Commission has been widely

misunderstood and misinterpreted, and that goes for a number of editorial writers also.

The statement was:

That the President explore the legal authority he possesses as Chief Executive to withhold Federal funds from the State of Mississippi until the State of Mississippi demonstrates its compliance with the Constitution and the laws of the United States.

Now, I interpreted that when I read that as meaning that that would take place with regard to each program separately, that it was not intended to say that the President should shut off funds to the State of Mississippi just because of segregation in a library or just because of segregation in a hospital; that it was understood that the President should survey his authority to shut off funds in any particular program where discrimination was practiced, and certainly I think that is sound. I think it is a proper procedure for making certain that the Constitution is enforced.

There is a responsibility here on the Executive to determine whether such a power does exist, and if that power exists to exercise it.

In turn, we should allow, of course, any State or community which feels that that is an improper exercise of power to review the matter in the court. There is no reason why the Federal court, the Federal Government, should go into court and say, "We propose to act in accordance with what we believe is right and legal, and we want the permission of the court to do so."

The action should be taken, and then allow any party who claims to be aggrieved thereby to bring its appropriate action in court.

Now, there is a correlative obligation on the part of the legislative branch to plug those loopholes where the Executive concludes that he does not have the power to shut off funds to a State which, in a particular area, is engaging in discriminatory practices.

I am constrained to say that I agree entirely with the Senator from Michigan in his comments, and I share his view that there has been a wide misinterpretation of this statement of the Commission. Senator ERVIN. May I pay the Senator a compliment?

Senator KEATING. I am a little hesitant, but you go ahead. [Laughter.]

Senator ERVIN. I would suggest that if the Civil Rights Commission should have its life extended, they call on the Senator from New York to phrase their next pronouncement of this kind, because the Senator has made it appear quite different from what the language, as I interpret it was. We have apparently read the same document and drawn quite different conclusions from it, and I think it would have been a far more intelligent statement if the Senator from New York had phrased it, than it is as it was phrased by the Civil Rights Commission.

Senator KEATING. Well, after all, the Senator from New York has never been the dean of Harvard Law School or the dean of Howard University Law School, and he has never been president of Notre Dame.

We had some rather distinguished lawyers and legal scholars, serving on the Commission-and I do not eliminate the other three by referring to those three, who drew up this report.

While I appreciate the compliment, and it is a very high one, I feel that these gentlemen are extremely able lawyers.

Senator HART. Mr. Chairman, if I could just add a very brief note, so far as this Congress is concerned, and the Senate, particularly, let us not get lost over an analysis of the clarity of expression of the Commission.

The basic point they expressed concern about is one which we have to resolve, and let us not get off on a merry-go-round about how much more clearly it could have been put.

Senator ERVIN. Thank you, Senator.

Counsel will call the next witness.

Mr. CREECH. The next witness is Senator Jacob K. Javits, Republican, of New York.

STATEMENT OF HON. JACOB K. JAVITS, U.S. SENATOR FROM THE STATE OF NEW YORK

Senator JAVITS. Mr. Chairman, I want to thank the Chair and my colleagues of the subcommittee for the opportunity to appear before them. I shall make a brief statement and try to answer any questions. Mr. Chairman, I greatly favor S. 1219, to make the U.S. Civil Rights Commission a permanent body.

The racial strife in Birmingham, Ala., which is so much in the news at the moment, is itself the most eloquent testimony which this subcommittee could possibly take on the bills presently before it. The Commission stands as almost the only outlet for the pent-up grievances of the Negro community which are bursting out more and more frequently.

The Birmingham case illustrates all too vividly how unwilling, and justifiably unwilling, is the Negro community of our Nation to endure any longer the denial of their constitutional rights and therefore second-class citizenship. And Birmingham also shows how inadequate are the laws of the United States to assure the legal and orderly expression of this deep and growing feeling of the Negro community. When voting rights are involved, the Attorney General has limited power to resort to the U.S. district courts for injunctive relief, under the provision of the 1960 Civil Rights Act. But, as Albany, Ga., and Birmingham typify, the civil rights movement is changing toward a massive revolt of the Negro community against the entire segregated social fabric of the South. So far this has taken the form largely of peaceful protest, exercising the right of peaceful assembly and petition under the first amendment to the U.S. Constitution. But will it remain generally peaceful?

At this point, the Federal authorities have taken the position that no authority exists to take action in such situations short of a complete breakdown of law and order which the States themselves cannot handle; in that case the Federal presence as through U.S. marshals, as at Oxford, Miss.-and, if need be, Federal troops can be used. Clearly there is an enormous gap between informal mediation, which the Department of Justice has attempted in Birmingham, through Assistant Attorney General Burke Marshall and others, and the use of troops.

At the present time, only the U.S. Civil Rights Commission exists in this gap. Its most vital function, in my view, is its availability as an official agency of the U.S. Government to receive and collate complaints of deprivations of civil rights, to make findings of fact