wishes to drop that matter; or is it not the fair thing to say that the only opportunity one has to pass a constitutional amendment is to make the best law you can, and, if it should be found unconstitutional, to open the way for a constitutional amendment. We have done that in the income tax, we have done that in numerous ways. The only way the constitutionality of a measure can ever be brought up is after the Supreme Court has held there is no possible way to remedy it. Mr. IGOE. I do not think this committee has finally decided this bill is not constitutional or that one can not be drafted which is; but we are talking about a principle (at least I am) of law that has been on the statute books for over 30 years, and several sections of the law have been declared expressly unconstitutional and are now eliminated from the statute which has to do with the right of suffrage, as I recollect. And I am merely discussing the matter for my own information, to get your views about it. Of course, it the principle was the same, and the Supreme Court has held that that present statute which, I think, is quite broad Mr. JOHNSON. I do not believe so. Mr. HUSTED. I would like to ask the gentleman what, in his opinion, the effect would be upon the country and especially upon the colored people of the country, if Congress passed a law to stop this terrible wrong and evil and the Supreme Court of the United States held it to be unconstititional? Mr. JOHNSON. I think the colored people would feel that the Government of the United States was, for the first time, sincerely interested in their welfare and the Congress of the United States had done all it could do to bring that about. Mr. HUSTED. You do not feel that it would have any evil effect? Mr. JOHNSON. None whatsoever. Mr. HUSTED. For the United States Supreme Court to declare it unconstitutional? Mr. JOHNSON. None whatsoever. Mr. HUSTED. The only question in my mind was whether it would not be better policy to put through a constitutional amendment which would make it really constitutional, or whether we should take a chance on passing a bill which might be declared unconstitutional by the court? Mr. JOHNSON. I might say, sir, that the colored people of the United States are peculiarly law-abiding people. I do not know of a single instance, even in the most radical members of the colored people, where they have fought against proper adjudications of the courts. Mr. HUSTED. I think that statement is very correct and justified by the history of the colored race. Mr. SUMNERS. They show no disposition to rebel against the Government under any circumstances. Mr. JOHNSON. Not against the laws of the Government, sir. They have shown the greatest disposition to inveigh against crimes committed against the Government. If one will read that remarkable document prepared by the Department of Justice, "Sedition among the Colored People," he will find that practically every single thing in which the colored people are accused of sedition is a thing which every law-abiding citizen should get behind him and fight for. They are only insisting upon the enforcement of the now-existing laws. They are no more disloyal than they are in insisting on the passage. of an anti-lynching act. They are insisting that the laws which are now on the statute books be enforced in spirit as well as in the letter of the law. The colored people have never asked any more; they will never stop asking for any less. Mr. DYER. I believe myself that this bill, the one I have, is constitutional. I have examined it very carefully for a number of years and here is a statement I made, after investigation of it, which I would like to read so as to get your view on it. The equality clause of the fourteenth amendment forbids the States to deny to any person within their jurisdiction the equal protection of the laws. This clause is judicially held to confer immunity from any discrimination as a Federal right. The protection which the State extends to one person must be extended to all. It does not forbid discrimination merely in the making of laws, but in the equal protection which the laws are designed to afford. Forbidding the State to deny equal protection is equivalent to requiring the State to provide it. Equal protection is withheld if the State fails to provide it, and the guaranty of immunity is infringed. The constitutional requirement may be violated by acts of omission no less than by acts of commission. The omission of the proper officer of the State to furnish equal protection in any case is the omission of the State itself, since the State can act only by its officers. That is a statement which I made some time ago in Congress and I have cited numerous decisions of the Supreme Court and other courts to sustain it. Mr. SPINGARN. May I add this: I do not purpose going into a discussion of the constitutionality of this act. It is an act which can be drafted so as to meet the constitutional question and end all argument, and it is futile to go into that. But I just want to say, in finding authority for the constitutionality of this act, we do not rely exclusively on the fourteenth amendment. We find authority, also, in the Constitution itself which assures a Republican form of government in the States. You have two horns of the dilemma. The States are either powerless to prevent lynchings or they do not choose to prevent lynchings. If they are powerless to prevent lynchings, then we have mob rule in the States, "mobocracy" and the violation of the Constitution itself. If they can do it and they do not prevent it, you have a violation of the fourteenth amendment in that we do not give equal protection. Mr. YATES. In what particular was it suggested this might be unconstitutional? Wherein is it supposed to violate the Constitution of the United States? The CHAIRMAN. Does the Constitution grant power to do anything of this kind? You see the Constitution does not give us any power not specifically contained therein. Mr. YATES. Not delegated? The CHAIRMAN. Not delegated to Congress. Mr. YATES. Yes, I understand that. It is just a general objection, then. Mr. TROTTER. I just want to say to the Congressman in regard to that question about the amendment, first: The colored people (I want to speak for them; Mr. Spingarn has spoken for the friends and has spoken very well for them) feel that we ought to have the benefit of the easier way. It is a good deal harder to pass an amendment than it is to pass a Congressional law. If we pass a Congressional law and then the Supreme Court says it is unconstitutional we know it is then up to us. But we would a great deal rather have the law first, even if it is declared unconstitutional, and then we have a better chance to get a constitutional amendment than we have to get the constitutional amendment without the law being first passed. Mr. JOHNSON. May I conclude my remarks by bringing just another phase into the discussion on this subject. As to that clause in the fourteenth amendment, it says no State shall deny to its citizens or to any of its citizens equal protection of the laws. Of course, we know that even a man who is charged with crime and the man who is a criminal is entitled to a certain protection of the law. Now, I have figures here which show that since 1918, 13 negroes were taken from the custody of peace officers; that is, taken away from the sheriffs and deputy sheriffs and taken out of prisons and even out of the courts where they were being tried. Men have been lynched even after being sentenced by the court. One of the most horrible lynchings in the United States took place at Waco, Tex., where a boy had been sentenced to death and the mob immediately took him out and burned him in the public square before eight or ten thousand people. In 1919, 34 negroes were taken away from the peace officers, from the local authorities of the various States. It seems to me there is some right under the fourteenth amendment which says no State shall deny to its citizens or to any of its citizens the equal protection of the laws, and we must conclude that the criminal, much more so than the man who is accused of crime, is entitled to equal protection of the laws; that is, he shall be kept in a rlace of safety until he is given a fair and impartial trial. Mr. DYER. You have some data there? Mr. JOHNSON. Yes, sir. Mr. DYER. I suggest that you have that inserted in your remarks in full, to be printed in the hearings. (The following papers were submitted for the record by Mr. Johnson :) TABLE 1.-Number of white and colored persons lynched in the United States, 1889–1918 1 1 Victims of the Atlanta, Ga. (1906), and East St. Louis, Ill. (1917), riots have been excluded from this and subsequent tables. TABLE 2.-Number of persons lynched, by five-year periods, and by color and sex, 1889–1918. TABLE 3.-Number of persons lynched, by geographical divisions and States and by color, Of the total number of lynchings for the 30 years' period, 6.9 per cent occurred in the Northern States, 87.8 per cent in the Southern States, and 4.8 per cent in the Western States, while 15 lynchings are recorded in Alaska and "places unknown," 4 of these latter having occurred in Alaska. Individual States having a percentage of the total number of lynchings in excess of 5 per cent are: Georgia, 12.1 per cent; Mississippi, 11.6 per cent; Texas, 10.5 per cent; Louisiana, 9.6 per cent; Alabama, 8.9 per cent; Arkansas, 6.9 per cent; Tennessee, 5.9 per cent; Florida, 5.5 per cent; Kentucky, 5.2 per cent. TABLE 3.-Number of persons lynched, by geographical divisions and States and by color, 1889-1918-Continued. United States.. Alabama. Arkansas. Florida. Georgia.. Kentucky. TABLE 4.- Women and girls lynched, by States, 1889-1918.1 Nebraska.. North Carolina. Oklahoma. South Carolina. Tennessee. Texas. Virginia. 1 The percentage of women lynched to the total number, is 1.5. 2 11 |