Senator ERVIN. Would not this bill, if enacted and upheld, centralize unprecedented powers in the Federal Government?

Mr. MOURE. It would, sir.

Senator ERVIN. Does not the story of man's struggle for freedom and the right to govern himself show that the centralization of all governmental powers inevitably imperils liberty?

Mr. MOURE. If I could go back, sir, to a completely different case, back in 1922, when the 16th amendment of the Constitution was being tested, I believe it was Mr. Woodrow Wilson at that time who stated that the right of the Government to encroach upon the privacy of the individual will, in a short time, ruin the Government that we have established. I believe that this legislation, if it were to be allowed to pass, would do the same thing.

I would like to make a couple of comments that you made earlier to Mr. Emlen, or I believe it may have been Senator Kennedy, when he brought up the question of credit risk. There is a provision in this statute that says if a man complains of humiliation, he can bring you before the court. What is there to prevent a man, if you say, you do not have a good credit risk and I can't show you the house, from hauling you into court and saying, you have humiliated me? And you are subject to damages and humiliation damages? This, in essence, will break the credit that we have established in this country and, in essence, would make a lot of people wonder, should we pull a credit check on this man and see if he can afford to buy this house? Is this going to break the banking industry, the insurance industry, and all the credit industries that are the basis of our big economy? This is a question that I have wondered, and I do not know the answer.

Senator ERVIN. This bill would allow the Federal Government to assume control of the sale and the rental of all residential property in the United States, would it not?

Mr. MOURE. Yes, sir.

Senator ERVIN. It would coerce all American people who have their own homes into selling their homes or renting their homes to members of minority groups, would it not?

Mr. MOURE. It would.

Senator ERVIN. And thereby subordinate the rights of the majority to those of the minority?

Mr. MOURE. It would.

Senator ERVIN. It would also say to all the lending institutions in the United States that the Federal Government is going to control their loans and financing.

Mr. MOURE. It does.

Senator ERVIN. Do you not consider that the provisions of the bill are incompatible with the free enterprise system and incompatible with the provision of the fifth amendment which provides that the Federal Government shall not deprive any person of property without due process of law and that private property can be taken only for public use and then only after payment of just compensation, and incompatible with the very basic freedoms of all Americans?

Mr. MOURE. It is incompatible, sir.

Senator ERVIN. Do you agree with me in the view that it would be hard to imagine any legislation which would vest more tyrannical power in the Federal Government than that proposed in title IV?

Mr. MOURE. The legislation proposed in title IV, sir, is not only tyrannical, but, in my opinion, it puts into the power of the Attorney General of the United States as the head of the Justice Department full control over all real estate in this great Nation of ours. This is a power that no man, not even the President of the United States, has or will ever have.

Senator ERVIN. Has not the due process clause of the fifth amendment been interpreted by the courts to mean that the word "property" is not confined to the physical thing one possesses, but it also embraces all of the attributes of property such as the right to acquire it, the right to use it as one sees fit so long as it does not injure his neighbor's property, and the right to sell it to whom one pleases?

Mr. MOURE. It does, sir.

Senator ERVIN. And if Congress has the power to destroy the right of the individual owner to freely sell or rent his property, then, by the same token, would it not also have the power to dictate to the person exactly how his property could be used?

Mr. MOURE. Congress does not have that right, sir.

Senator ERVIN. I say if it had the power in one case, it would have it in another, would it not?

Mr. MOURE. Yes, it would.

Senator ERVIN. I agree with you that if we have any Constitution left, Congress does not have the power this bill would give it.

Mr. MOURE. I may also say, sir, that the rights and privileges guaranteed by the original Bill of Rights, as stated earlier, are incontestable. They are beyond the Congress, the administration, and the ju diciary and they cannot even be submitted to a vote to the majority. These are inalienable rights and liberties that cannot be questioned. Senator ERVIN. Do you not agree with me that the Bill of Rights was written into the Constitution because those who drafted it and those who ratified it had studied the history of the past and had learned from that history the sad and everlasting truth that the thirst of governmental power is insatiable, and that that thirst will not stop short of tyranny unless it is restrained by an irrefutable law which it cannot change itself?

Mr. MOURE. Yes, it is.

Senator ERVIN. And so the Bill of Rights, which asserts the right of freedom of association and the right of private property was put into the Constitution to prevent the Federal Government from doing the very kind of thing which this bill authorizes.

Mr. MOURE. That is my belief, sir.

Senator ERVIN. Do you have any questions?

Mr. AUTRY. I have no questions.

Senator ERVIN. On behalf of the subcommittee, I want to thank you for a most illuminating presentation of your views.

The subcommittee will stand in recess until 3 o'clock.

(Whereupon, at 12:30 p.m., the subcommittee recessed until 3 p.m. this same day.)

AFTERNOON SESSION

Senator ERVIN. The subcommittee will come to order.

At the request of Representative Martha W. Griffiths, of Michigan, a statement prepared by her will be printed at this point in the body of the record.

(The statement referred to follows:)

TESTIMONY OF HON. MARTHA W. GRIFFITHS

Mr. Chairman and Members of the Subcommittee, I appreciate your courtesy in allowing me to testify on the Civil Rights Bill now pending before you.

There will be many witnesses on most of the aspects of the proposed bills. Because of time limitations, I shall, therefore, limit my testimony to one point which I believe has been given inadequate attention, namely, the provisions of sec. 201 of the bill dealing with discrimination in the selection of jurors in state courts, particularly as it deals with discrimination based on sex.

The President of the United States, in two major messages to the Congress, has urged the enactment of legislation "to establish unavoidable requirements for non-discriminatory jury selection in Federal and State courts" (Message of January 12, 1966; H. Doc. No. 321, 89th Cong.) "and also to create forceful guaranties that state court juries will be selected without discrimination of any kind" (Message of Apr. 28, 1966; H. Doc. No. 432, 89th Cong., p. 2).

Actually, this testimony should be unnecessary. The Supreme Court, long ago, should have determined that the 5th and 14th Amendments protected women equally with men; but when cases have come before that Court objecting to a jury verdict because of the lack of women on that jury, the Court, unlike all other cases, in which it concerns itself with the right of a defendant to a fair trial, has instead directed its attention to whether or not one-half the population at birth can automatically be excused from jury duty.

I am sure all of us agree that discrimination in the selection of a jury undermines the very foundation of democracy and the administration of justice. It denies the most fundamental condition of a fair trial to persons involved in both civil and criminal litigation It erodes the basic rule of law which depends on impartial juries selected from a cross section of the community. It takes away from members of any group which is discriminated against their constitutional rights to participate in the administration of justice and to fulfill their civic responsibility.

These evil consequences follow from discrimination in jury selection whether such discrimination is based on race, religion, economic class, political affiliation, or sex. I do not think that there is a single Member of Congress, either in the Senate or in the House, who will disagree with the proposition that juries must be fairly constituted if the jury system is to function properly in the administration of justice.

Unfortunately, the Administration's bill now pending before you (S. 3296), used language which will fail to accomplish the goal of a fair jury, particularly with reference to discrimination based on sex in state jury service.

We must, at this point, look at the precise language of the bill.

SEC. 201 of S. 3296 provides as follows:

"SEC. 201. No person or class of persons shall be denied the right to serve on grand and petit juries in any State court on account of race, color, religion, sex, national origin, or economic status."

Please note that Sec. 201 uses the words "No person *** shall be denied the right to serve * * *." This language is perhaps sufficient to cover discrimination based on race, color, religion, national origin or economic status. But it is not adequate to cover discrimination based on sex. This is because most of the states which have laws discriminating on the basis of sex in the selection of state juries are phrased in terms of differential treatment particularly with respect to exemptions and excuses.

Only 22 states treat men and women equally with regard to jury service. The other 28 states and the District of Columbia make various distinctions solely on the basis of sex which result in distorted and unrepresentative juries.

Only 3 states (Alabama, Mississippi and South Carolina) totally exclude women from juries. 3 other states (Florida, Louisiana and New Hampshire) permit women to serve on juries only if they first register with the clerk of the

court.

14 jurisdictions excuse women from jury service solely because of their sex (Arkansas, District of Columbia, Georgia, Kansas, 4 counties in Maryland, Minnesota, Missouri, Nevada, New York, North Dakota, Rhode Island, Tennessee, Virginia and Washington).

2 states permit women to serve on juries only where courthouse facilities permit (Rhode Island and Nebraska).

2 states exempt women from jury service in cases involving certain crimes (Massachusetts, Nebraska).

S states discriminate between men and women by exempting women, but not men, who have certain family responsibilities (Connecticut, Massachusetts, Nebraska, North Carolina, Oklahoma, Texas, Utah and Wyoming).

When Attorney General Katzenbach testified before the House Judiciary Committee, he interpreted the language "No person *** shall be denied the right to serve ***" as applying only to the six states I just mentioned which totally exclude women (Alabama, Mississippi and South Carolina); and which require prior registration (Florida, Louisiana and New Hampshire).

The language of Sec. 201 would not affect the laws making sex distinctions in jury service in the other 25 jurisdictions. Those laws give women a theoretical "right to serve," but the sex distinctions in these laws nevertheless result in great evil. They form the basis for discouraging women from serving on a jury. Informal suggestions or pressures often cause women to seek excuses because of alleged inconvenience of jury service, uncertainty of time requirements, unwholesomeness of the surroundings, or the probability that distasteful facts will be involved in some cases. The sex distinctions in the jury service laws of these 25 jurisdictions undermine women's sense of civic responsibility and produce grave distortions in the selection of juries.

Most of the women Members of Congress, including both Democrats and Republicans, have written to the President urging the elimination of any discrimination in jury service on the basis of sex as well as other irrelevant factors such as race, religion, etc. These include Senator Margaret Chase Smith (R-Maine) and Senator Maureen Neuberger (D-Ore.) and Congresswoman Florence P. Dwyer (R-N.J.); Julia Butler Hansen (D-Wash.); Catherine May (R-Wash.); Patsy Mink (D-Hawaii); Charlotte T. Reid (R-Ill.); Frances P. Bolton (R-Ohio) and myself.

Two weeks ago, the House Judiciary Committee reported an amended bill (H.R. 14765, H. Rept. 1678) which amended Sec. 201 to read as follows:

"Sec. 201. No citizen shall be excluded from service as grand or petit juror in any State court on account of race, color, religion, sex, national origin, or economic status."

Please note that the House Committee amendment changes the phrase "shall be denied the right to serve" to read "shall be excluded from service."

If the word “excluded” were given its literal meaning, the House Committee language would apply solely to Alabama, Mississippi and South Carolina which were the only states whose laws specifically exclude women from jury service. Such provision would have very little practical effect even in those states since the Federal courts are moving to declare such exclusionary laws unconstitutional. On February 7, 1966, a three-judge Federal court issued a decision (which is now final) declaring Alabama's law unconstitutional (251 Fed. Supp. 401).

I and the other women Members of this Congress who have joined with me, think that neither the language in the Administration's bill, nor the language proposed by the House Judiciary Committee, will "establish unavoidable requirements for nondiscriminatory jury selection." We believe that men and women should be dealt with equally in the selection of juries and that none should be excused from jury service solely on the basis of sex. Such equality of treatment will not drag the mother away from her homemaking and child care duties. Those duties are a proper basis for the court to excuse a woman, or a man, from jury duty. But there is no valid reason for excusing a woman from jury service just because she is a woman.

I want to point out that the President's Commission on the Status of Women specifically recommended, in its 1963 report entitled "American Women" that there should be “equal jury service without distinction as to sex." Many other women's organizations support this position, including the National Federation of Business and Professional Women's Clubs, various State Commissions on the Status of Women, the District of Columbia Women's Bar Association, and others.

Therefore, we urge that section 201 be amended to read as follows:

"It shall be unlawful to make any distinction on account of race, color, religion, sex, national origin or economic status in the qualifications for service, and in the selection, of any person to serve on grand or petit juries in any state." Senator ERVIN. Call the next witness.

Mr. AUTRY. The witness this afternoon is Hon. Lawrence Speiser, the Washington representative of the American Civil Liberties Union.

STATEMENT OF HON. LAWRENCE SPEISER, WASHINGTON REPRESENTATIVE OF THE AMERICAN CIVIL LIBERTIES UNION

Senator ERVIN. We are delighted to welcome you to the subcommittee.

Mr. SPEISER. Thank you, Mr. Chairman.

I have a statement. I will not read it all but will submit it for the record and will summarize the points that I have made in the statement.

Senator ERVIN. That will be satisfactory.

Let the record show that the entire statement will be printed in the body of the record immediately after Mr. Speiser's testimony.

Mr. SPEISER. The American Civil Liberties Union supports S. 3296, the administration's civil rights bill, and the four amendments proposed by Roy Wilkins, chairman of the Leadership Conference on Civil Rights.

In his testimony before the committee he proposed amendment which would establish an indemnification board which would award damages to victims of civil rights violence, administrative remedies for the enforcement of the fair housing section, which is included in the version of the housing section reported out by the House Judiciary Committee, the inclusion of triggering devices for instituting procedures for ending jury discrimination, and lastly, extending the coverage of title VII of the Civil Rights Act of 1964, the equal employment opportunities section so that it would cover State and local government employees.

But in addition we have some suggested amendments of our own. The title on juries, for Federal juries, provides for a questionnaire on which the question of religion is asked. We believe such a question should be stricken as it has been in the version of the bill reported out by the House Judiciary Committee.

Our opposition to including that question is not because we are in favor of religious discrimination but because we feel that the asking of the question by the Government and forcing people to answer the question would be a violation of freedom of religion.

There is a case, Torcaso v. Watkins, in which the Supreme Court states that neither the State nor Federal Government can force a person to profess a belief or disbelief in any religion. If people were forced to disclose they had no religious beliefs, for example, this might very well provide the means for discrimination in itself.

There are other questions on the questionnaire but they don't cover all the kinds of discrimination that would be prohibited under section 201 of that title.

For example, the act would prohibit discrimination in the selection of State juries on the basis of national origin or economic status.

It is true there is a question concerning occupation which may perhaps be an indication of economic status, but certainly it is not clear that it is. There is also a question on citizenship. There again that doesn't necessarily cover the factor of national origin, so it seems clear that the questionnaire is not intended to elicit all the kinds of information which might be utilized in order to ferret out all discrimination in selection of State juries.