Senator WATKINS. You may find yourself somewhat handicapped sitting where you are.

Senator ERVIN. Well, I am somewhat used to a lowdown positionI will stay here. You go ahead, Senator.

Mr. BLOCH. Senator Watkins, if I may address you personally, during the hearing this morning, during the course of the discussion this morning, Senator Ervin alluded to the fact that the judiciary section of the Constitution conferred judicial powers in law and equity upon the Supreme Court of the United States and said-and in the inferior courts which Congress might from time to time ordain and establish, I believe is the language.

Well now, a very great argument could be made on the proposition that what the Constitution meant by "equity" at that time was the equity jurisdiction as it was known at the time of the Constitution of the United States and that the Congress might not have the powerto enlarge the equity jurisdiction by such provisions as, with all respect to them, are contained in some of these bills.

Senator WATKINS. As I remember, the old adage that the equity powers were there for the purpose of correcting that wherein the law was deficient.

Mr. BLOCH. That is right.

Senator WATKINS. And as deficiencies developed as they went along, I would think that would be quite sufficient answer to that other argument. In other words, equity is not fixed, as we go along we find equitable situations or legal situations that have to be corrected. That is the general underlying principle, as I understand it, for equity.

Mr. BLOCH. I think equity is that branch of the science of jurisprudence which the law could not reach, rather than to correct situations. Senator WATKINS. Well, situations, as they develop deficiencies, you correct those deficiencies, and equity as it developed over the years is still a vital living force to correcting situations as they have developed, not only those that have happened in the past but those that will occur in the future.

Mr. BLOCH. The reason, Senator, I answered so promptly a while ago that I thought Congress had the power to do it was that in this case I was quoting, Stefanelli v. Minard, Justice Frankfurter says:

Discretionary refusal to exercise equitable power under the act—

so he seemed to think that the Court might have discretionary power even in the absence of statute, despite the decisions of the Court in Giles v. Harris and in Green v. Mills.

Senator WATKINS. Did he write the prevailing opinion in that case? Mr. BLOCH. Yes. It was 8 to 1 and he wrote that opinion. JusticeDouglas dissented.

Directly applicable to the proposed amended section in James v. Bowman (190 U. S. 127), holding unconstitutional section 5507 of the Revised Statutes (cf. present title 18, sec. 594) which was:

Every person who prevents, hinders, controls, or intimidates another from exercising, or in exercising the right of suffrage, to whom that right is guaranteed by the 15th amendment to the Constitution of the United States, by means of bribery or threats of depriving such person of employment, etc. *** shall be punished ***.

The Court held the statute to be too comprehensive as an exercise of power under the 15th amendment,

That decision is controlling here, as the proposed amendment is even broader than that so nullified.

United States v. Reese ((1875) 92 U. S. 214) was written by Chief Justice Waite, concurred in by Justices Miller, Field, Bradley, Swayne, Davis, and Strong. That Justice Waite was no southern partisan is demonstrated by the Cotton case which appears in the same volume, Lamar, Executor v. Browne, et al. (92 U. S. 187).

The majority in the Reese case held:

(a) Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress;

(b) The power of Congress to legislate at all upon the subject of voting at State elections rests upon the 15th amendment;

(c) That power can be exercised by providing a punishment only when the wrongful refusal is because of "race, color, or previous condition of servitude."

(d) The third and fourth sections of the act of May 31, 1870, not being confined in their operation to unlawful discrimination on account of race, color, or previous condition of servitude are beyond the limits of the 15th amendment, and are unauthorized.

In the light of these decisions, I wonder if the effort is going to be made to try to get a Court, differently constituted, to reverse itself once more, and overrule these decisions, and later ones following them.

Should the Congress enact a statute which, under previous decisions of the Court, is unconstitutional? Is that following "the law of the land"?

We respectfully submit that in the interests of constitutional government the Congress should be making efforts to have the Court return to the principle of stare decisis, summarized (U. S. C. A. Cons. art. 1, sec. 1 to sec. 9, p. 77) from the cases of Missouri v. Illinois (180 U. S. 219); Provident Insurance Co. v. Massachusetts (73 U. S. 611); Martin v. Hunter (1 Wheaton 351), as follows:

Especially in cases of doubt, the solemn, deliverage, well considered, and long-settled decisions of the judiciary, and the quiet assent of the people to an unbroken and unvarying practice, ought to conclude the action of the courts in favor of a principle so established, even when the individual opinions of the judges would be different were the question res integra.

We respectfully submit that the Congress of the United States ought not to lend its support to groups whose announced purpose is the overturn of constitutional principles.

Senator HRUSKA. At that point, would not "constitutional interpretations" be more applicable than "constitutional principles"?

Mr. BLOCH. Well, my position is, Senator, that when constitutional interpretations are so often repeated, they become constitutional principles; that a constitutional interpretation acquiesced in over scores of years to my mind becomes a constitutional principle just as if it had been originally written into the Constitution.

Senator WATKINS. Well, if we ever were to make a mistake along the line of constitutional interpretation, then it would have to stay there for all time: would it not?

Mr. BLOCH. No, it would not have to stay.

Senator WATKINS. Well, how would you change that, by another constitutional amendment?

Mr. BLOCH. No, sir. But that is not my language, Senator. I did not draw that out of the clear sky. We discussed this morning

that Chief Justice Taft in the Gong Lum v. Rice case used almost that very same expression-perhaps I could get it before we are through-and I pointed out the expression to which I called Senator Ervin's attention in the morning session, it was worded about this effect, "That the matter has been so long established it ought not be disturbed," in a school case.

Senator ERVIN. What you have just read is simply a very fundamental application of the doctrine of stare decisis, which means that where an interpretation has been placed by the courts on a constitutional provision or statutes in previous decisions, judges should follow such interpretation and leave the changing of the established meaning of the constitutional provision or the statutes to the governmental agencies authorized by the Constitution to amend the Constitution or alter the statute.

Mr. BLOCH. Yes, sir; and what I have just read, "res integra” was a quotation from the United States Code Annotated, section on the Constitution, article I, sections 1 to 9, and was not my language. I quoted from that.

But I do think, Mr. Chairman and Senators, that when a provision of the Constitution has been repeatedly interpreted by the Court over a long period of years that it becomes so much a constitutional principle that people ought to be allowed to depend on it as being the law and that their rights ought to be governed by that.

Senator HRUSKA. Of course, if it becomes that solidly installed, then I share Senator Watkins' apprehension, that the only way to amend is by constitutional amendment, if we are going to hold to that interpretation of the situation, and I do not think that would fit in with our constitutional history, they would have to go through the pains of a formal constitutional amendment to correct something which was originated in that way.

Mr. BLOCH. Well, I do not think that I would go that far, to say that it would have to be done by constitutional amendment. Perhaps it ought to be done that way.

But to take, for example, the 14th amendment, upon which the Gong Lum case was based, that contains, as we discussed this morning, the provision that the Congress should have the right to implement, to enforce this article by appropriate legislation.

It may be that even after Gong Lum v. Rice in 1927, I believe it was, which followed Plessy v. Ferguson in 1896, even after 30 years of acquiescence in that doctrine, it might be that Congress under that section of the amendment would have the right to repeal Gong Lum v. Rice and Plessy v. Ferguson by statutory enactment; but with all respect to the Court, and certainly I am not going into any position of criticizing any court, with all respect to the Court, courts ought not too lightly overturn decisions of that long standing, in my opinion. Senator ERVIN. However, the observations you quoted apply more directly to some of the provisions of the other bills rather than the so-called administration bill. For example, the so-called committee print is a bill which, as I interpret it, attempts to deal with individuals rather than State actions, and the observations quoted that are supposedly very appropriate to it.

Mr. BLOCH. I submit this to you without comment: In the Columbia Law School News, published by the students of the school of law, Columbia University, New York, issue of Thursday, January 17, 1957,

is an article (pp. 2-3), entitled, "Legal Research in Social Progress." It commences:

In 1935, consonant with what the less adventurous would call do-goodism, a group of law students approached Professor Gethorn and asked how they could put their training to use for some practical cause. After considerable discussion, the idea of a student effort to do legal research for organizations which strive for worthy social goals was agreed upon. And Legal Survey was born. From its inception, the survey has centered its activities in the fields of civil liberties, race relations, and human welfare in general. The organizations it serves, which it affectionately calls its clients, include: The National Association for the Advancement of Colored People, the American Jewish Congress, the American Jewish Committee, the New York Civil Liberties Union, and the United Nations. Further in the article is:

That Legal Survey helped to lay the groundwork that eventually led to the final Supreme Court decisions abolishing racial segregation is one of its most gratifying and proudest achievements. Before the inception of the litigation, the group was asked by the NAACP to do research on the possibility of challenging the "separate but equal" doctrine announced in Plessy v. Ferguson. Our organization devoted itself exclusively to this one project that year.

Yet, we of the South, are told when we "challenge" Brown v. Topeka, and allied cases, that we are disobeying the law of the land.

Senator WATKINS. In other words, you want to reverse that and lead into social research?

Mr. BLOCH. No, sir, I am not doing social research. I am doing legal research. I am trying to say you ought to apply the Constitution as it has been repeatedly construed by the Supreme Court of the United States. I am not a social researcher, no, sir.

Senator WATKINS. A legal researcher?

Mr. BLOCH. A legal researcher.

Senator WATKINS. Well, that is what I understood, that they were doing legal research that might help social progress.

Mr. BLOCH. Well, let us see what else they say after that.

Senator WATKINS. Very well.

Mr. BLOCH. The article continues-they answer your question:
Members worked on such questions-

Senator WATKINS. If I may interrupt again, on this legal research, we have a position here, sort of a something that many of the people who do not study law get a little bit tired of-and I will admit that I happen to be doing a lot of legal work recently—I hope you will pardon my questions.

Mr. BLOCH. Senator, I relish questions and I repeat for your benefit a quotation I gave Senator Ervin this morning that I regard this, as a famous Georgia lawyer said, "It is the clash of mind upon mind which causes the spark of truth to scintillate." That is, I will assume what I was doing, Senator-"clash," I am not doing it very well, the "friction of mind on mind," let us put it.

The article continues:

Members worked on such questions as the nature of the action, who should be the plaintiff and even how the complaint should be drafted. The very theory upon which the actions were later litigated was developed by this work. The members probably did not realize that they were helping to set off a chain of events that would lead to a social revolution in America. Among the problems being currently researched are the legality of restrictive convenants in a housing development in Ohio, the right of citizen to a passport and the possible grounds upon which it can be denied, and the right of a teacher who refused to testify as to which of his fellows has been a member of a subversive group. But most

of Legal Survey's work this term has again been submitted to it by the NAACP. Attention is focused upon Virginia where the legislature has attempted to devise methods to circumvent the desegregation edict of the Supreme Cout. In addition to these so-called nullification bills, the Virginia Legislature has passed a series of acts designed to bring to an end the activities of the NAACP in that State, and thus eliminate one of the most effective challenges to the nullification statutes. We have been working on the means by which these statutes may be challenged. The editorial board of the Columbia Law School News, at that time (January 17, 1957) included Chester Apy, Jr., William Yates, Martin J. Fribush, Joel Jay Rogge, Graham Miller, Emanuel Halper, and Henry G. Cohn.

Inasmuch as the National Association for the Advancement of Colored People and the United Nations are included in the list of clients of Legal Survey, I can't help but wonder if an effort will be made to support this bill-some of these bills, I should say--with the Charter of the United Nations.

Senator WATKINS. Some people may do that but I do not think the present members of this committee will do it.

Mr. BLOCH. I do not, either.

Senator WATKINS. We will not go to the United Nations

Senator ERVIN. I believe that argument was made at the last session to sustain the supposed constitutionality of one of the bills. Senator WATKINS. Citing the U. N. Charter as support? Senator ERVIN. Yes.

Senator WATKINS. Of course, I do not know the minds of any members of this committee. I will admit that there are some decisions of the Supreme Court of the United States that I personally would like to see reversed, and we might get this Columbia organization to work on that 1, or 2 or 3 of them that I would like to see reversed and which I do not think very sound-but I have had to go along with them. And since as they go along and reverse once in a while, maybe they will get around to reversing some of the others that I have in mind.

Mr. BLOCH. Justice Tom Clark when Attorney General hinted at that posisbility. (Statement and Analysis by the Attorney General concerning the proposed Civil Rights Act of 1949 which was inserted at p. 157, et seq., of the hearings before Subcommittee No. 2 of the Judiciary Committee of July 13, 14, and 27, 1955 (Serial No. 11) in this language:)

Upon proper congressional findings of the nature set forth in H. R. 46S3, the constitutional basis for this bill would include the power to protect all rights flowing from the Constitution and laws of the United States, the law of nations, the treaty powers under the United Nations Charter, the power to conduct foreign relations, and the power to secure to the States a republican form of Government, as well as the 14th amendment.

The italics are mine.

During a hearing before the Committee on the Judiciary of the House of Representatives during the 84th Congress, Attorney General Brownell appeared before the committee. His attention was called by Congressman Forrester of Georgia to Attorney General Clark's statement as it appeared at page 179 of the July 1955 hearings, Mr. Forrester stating:

Now, I apprehend that what the gentleman had in mind is that there are serious doubts as to the constitutionality or validity of any laws relating to an individual unless you incorporate into that and bring into that the United Nations Charter and the treaty laws (hearing of April 10, 1956),