MUTUAL SECURITY APPROPRIATIONS, 1960

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP61-00357R000500120004-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 30
• Document Creation Date: December 23, 2016
• Document Release Date: March 12, 2014
• Sequence Number: 4
• Publication Date: September 14, 1959
• Content Type: OPEN SOURCE

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17868
.?
Mr. HARTKE.
tion on the ta
The motion
agreed to.
CONGRESSIONAL RECORD ? SENA
I move to lay that mo-
1-7/ZTUAL SECURITY APPROPRIA-
TIONS, 1960
'The Senate resumed the consideration
of the bill (H.R. 8385) making appro-
priations for mutual security and related
agencies for the fiscal year ending June
30, 1960, and for other purposes.
Mr. KEATING obtained the floor.
Mr. JAVITS. Mr. President, will my
colleague yield to me?
Mr. KEATING. I yield to the senior
Senator from New York.
Mr. JAVITS. Mr. President, I ac-
knowledge the parentage, which has
been attributed to me by the minority
leader, of the proposal for handling the
civil rights problem at this particular
stage in our proceedings.
With the permission of my colleague, I
should like very briefly to state how I see
this problem.
We need legislation on the subject. I
thoroughly agree with the Senator from
Oregon [Mr. MORSE] that we should re-
main here and legislate. Life's realities,
however, being what they are, everyone
knows that if we remain here upon that
theory; in my opinion, the civil rights
legislation itself will suffer, and the
things that need to be done may not be
done, not because the proposals lack
merit, but because of the sheer strain of
the desire to get away from here.
? Certain questions would be shunted
aside, and decided upon an inadequate
basis, merely on the theory that they
would not have to be decided again,
which would be a great shame. Some of
them are very desirable.
There exists what might be termed a
balance of convenience, and a balance
of view, in terms of what is best for this
legislation, as between both sides of this
issue.
The advocates of civil rights legisla-
tion may, if they choose, offer amend-
ments to the pending measure, and, as
the Chair has already noted, notwith-
standing the personal view of any par-
ticular occupant of the Chair, the Sen-
ate will decided what is a germane-
amendment.
In my opinion any amendment which
goes to the power of the Civil Rights
Commission is a germane amendment;
and there are many civil rights meas-
ures which, in my view, would be ger-
mane. In any case, as the majority
leader has often stated, this is an oppor-
tunity for the majority to work its will.
The majority of the Senate can do what
it desires to do in this field.
We therefore have a choice, if there is
to be an opportunity to do this job in
connection with civil rights at a time
when we believe the best job can be done
for civil rights?not the best that can be
done for going home; not the best that
can be done in order to be here when
Khrushchev is here, but the best that
can be can be done for civil rights. We
can stay our hand from proposing
amendments, or we can vote against
them, on the theory that we shall have
an opportunity on another occasion.
If, on the other hand, there is no such
opportunity, we shall be exactly where
we are today.
I could, at? an appropriate point in the
proceedings?and there will be one today
or tomorrow?rise and move for the con-
sideration of my resolution, which is on
the calendar, to discharge the Judiciary
Committee. My colleague from New
York could move for the ccinsideration of
a bill with respect to which he has very
important civil rights amendments. So
could the Senator from Missouri [Mr.
HENNINGS] or any other Senator.
The Senate would be free to work
its will. The question is, What is the
best course of action for this issue? In
our view?and perhaps this arrives at
the point of mutuality with those who
are against civil rights and would just as
soon see consideration of the subject
postponed?under the circumstances,
consideration of this subject should be
postponed until the next session.
During the war I was in the Army
Chemical Warfare Service. Neither side
used gas, which is a very effective and
lethal weapon. Why? Because it suited
them not to do it.
Of course, the Senator from Georgia
has not agreed, nor has the majority
leader or the minority leader; yet this
plan seems to us to be indicated as the
right thing to do.
As to the appropriate time for consid-
eration of this subject, at this particular
moment I do not believe that we ought
to consider it any later than the middle
of January. When we come to February,
we begin to get legislation on the floor of
the Senate, and there is what amounts
to competition of legislation. In Jan-
uary our eye is single with respect to a
particular issue with which we are to
deal. The best example of that was the
debate in connection with the proposal
to amend rule XXII, in which the ma-
jority leader took such, an important
part. The debate was concluded within a
reasonable time, and action?whether
right or wrong?was consummated.
I think there is less likelihood of ex-
tended debate in the middle of January
than there would be imediately after
Lincoln Day celebrations, at which time,
in my opinion, we shall begin to be
pushed by other legislation. That is es-
pecially true, in view of the fact that
next year is a Presidential election year,
and- we shall probably be leaving Wash-
ington in July in order to attend the
political conventions.
I am grateful to my colleague for in-
dulging me for so long. In summary, I
believe that the wise thing, in behalf of
civil rights legislation, is to deal with
this question not later than the middle
of January, And extend the. life of the
Commission now. I hope very much that
this will be the way the question will be
decided. That feeling can be expressed
by either the majority leader or the mi-
nority leader. It is entirely practicable.
That would be the most orderly way, and
every Senator would have full notice.
It would be entirely practicable and or-
derly, and in full accord with the way
the Senate operates, for the minority
leader, for example, to say that he will
TE September 14
feel obliged, on such-and-such a day in
January, to move for the consideration
of this legislation, by whatever means
he chooses.
Senator Knowland brought the sub-
ject up on motion in connection with a
House bill. Our present minority leader
may bring it up on motion in connection
with my resolution to discharge the Com-
mittee on the Judiciary from further
consideration of the subject. It can be
brought up in connection with my col-
leagues' amendments or those of the
Senator from Missouri, on any bill that
may be chosen.
So if we can leave here today, having
extended the life of the Commission and
having obtained an assurance which is
entirely satisfactory to us, and with an
entirely unilateral expression of the in-
tention of the majority leader or the
minority leader that this subject will be
brought before us in the middle of Janu-
ary, I 'think we shall have well served
the cause of civil rights, in which my col-
league and I are so much interested.
Mr. CLARK. Mr. President, in my
opinion, meaningful civil rights legisla-
tion is more important than the adjourn-
ment of the Senate. In my opinion, the
_mere extension of the life of the Civil
Rights Commission, important though
it is, is not meaningful civil rights legis-
lation. In my opinion, if a majority of
the Senate wishes to adjourn within the
next day or two, we should bring the
civil rights matter up as soon as we
come back into session in January. In
my judgment, adequate civil rights legis-
lation is more important than any,Jef-
ferson-Jackson Day dinner, than any
Roosevelt Day dinner, than any Lincoln
Day celebration.
I agree completely that the sooner we
get at this important legislation, with
respect to which my party has firm corn--
mitments, which have not been met, the
better it will be for the country and for
all of us who are happy to be called poli-
ticians, although we are also Members
of the Senate. I thank my friend from
New York for yielding.
Mr. KEATING. Mr. President, L only
wish to add that I believe it would be
paying the greatest honor we could pay
to these distinguished patriots, whom we
will honor early next' year, to have en-
acted civil rights legislation prior to the
celebrations honoring them, or to be con-
sidering it in Congress at that time.
After all, Abraham Lincoln can be said to
be the father of all civil rights legisla-
tion. Certainly if he were here to speak
for himself, I know he would expect that
we would be doing our duty by enacting
legislation rather than in paying hom-
age to him, if that becomes necessary.
Therefore I share the view, if we are
not going to come to grips with this
problem now, which is my first prefer-
ence, that we take it up in a very early
part of the next session in January. I
hope that later in the day the leaders
on both sides will have further confer-
ences to the end that those of us who
have amendments pending may know
definitely what the program is in order
that we may govern ourselves accord-
ingly.
Mr. President, I yield the floor.
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1959 CONGRESSIONAL RECORD ? SENATE
Mr. JOHNSTON of South Carolina.
Mr. President, this is a matter which
is very close to my heart. What hurts
me most with respect to the whole affair
is that we keep following the matter
and keep on having investigations with
regard to it.
I hold in my hand a book which con-
tains 606 pages, and I have not been
able to find in it anything on which
the Commission itself is unanimous. It
shows that when investigations are
made, the kind of report which is going
to be made depends upon who the in-
vestigators happen to be.
The fact that this book contains 606
pages reminds me that we used to have
a medicine called 606, which was sup-
posed to cure pertain diseases. Today
it is claimed that it does not do so. I
think we find the same thing is true
with this report of 606 pages. If I had
the time to take it up line by line and
paragraph by paragraph, I could show
the Senate where it would not cure any-
thing either.
In this book the Commission winds up
by showing that where integration is
taking place, there is trouble between
the white' and the-colored at the present
time.
So. Mr. President, in considering the
issue of whether or not to extend the
life of the Commission on Civil Rights,
I cannot help but wonder if the pro-
ponents of such a move have pondered
the fact that the Commission has made
its study, printed its hearings, reached
its conclusions, made its recommenda-
tions, and therefore has no more busi-
ness to conduct.
There is no recommendation under
the sun that this, or any future com-
mission, to my knowledge, could pos-
sibly make that has not already been
made; except perhaps to abolish State
boundaries, State - governments, and
State elections. I seriously doubt if the
most archfederalists of our Nation's his-
tory could come up with any group of
proposals that would ever be more far-
reaching, more unconstitutional in na-
ture, and more prejudiced than those
found in the final report of the existing?
for not too long, I hope?Civil Rights
Commission. Therefore, I cannot under-
stand why Congress, or -even the Com-
mission itself, would want to prolong the
life of the Commission. It would only be
a waste of money, time, and energy to
duplicate the same prejudiced, uncon-
stitutional, and unreasonable precon-
ceived ideas on how to run the country
-which have already been expressed by
the present Commission.
Mr. President, the Civil Rights? Com-
mission, by its own admission, and as we
can find in the statutes under which it
was created, was expressly set up to do
the following:
First. Investigate allegations in writ-
ing under oath or affirmation that cer-
tain citizens of the United States are be-
ing dePrived of their right to vote and
have that votecounted by reason of their
color, race, religion, or national origin;
which writing, under oath or affirmation,
shall set forth the facts upon which such
belief or beliefs are based;
Second. Study and collect information
concerning legal developments constitut-
ing a denial of equal protection of the
laws under the Constitution; and
Third. Appraise the laws and policies
of the Federal Government with respect
to equal protection of the laws under the
Constitution. The Commission was fur-
there instructed to submit to the Presi-
dent and the Congress A report of its ac-
tivities, of its firidings, and to make rec-
ommendations not later than September
9, of this year.
Mr. President, in my opinion, the Com-
mission on Civil Rights has not confined
its duties to the limits provided by the
statute under which it was created. The
most obvious, glaring abridgment of its
authority was the making of so-called
proposals which supplemented its so-
? called recommendations.
? Mr. President, the Members of this
Senate are not so foolish as to accept
anything a minority of the Commission
had to say to be a "proposal" by the
entire Commission even though some of
the liberal press may be inclined to do so.
The staff which prepared this report
has confused the facts and confused the
recommendations and so-calleed pro-
posals until the average person, at first
glance, would think everything appear-
ing in the report was a unanimous agree-
ment by the Commission, or at least by a
majority of the Commission.
This report, as I charged earlier, is a
hodgepodge of conclusions derived from
preconceived ideas based primarily on
imagination and very little on fact.
There are separate -statements, supple-
mentary statements, proposals, recom-
mendations, general statements, and
minority statements. When we in the
Congress dissent with the opinion of a
majority of- a committee or subcommit-
tee, we submit what we call a minority
? report containing minority views. There
is always a separate and distinct dif-
ference between the two, and on many
occasions the minority and majority re-
ports appear under separate covers to
avoid confusion. The full report of the
Commission contains 557 pages plus an
appendix, making a total of 606 pages.
In addition, to confuse things, it has
issued an abridgment of the report which
contains 201 pages. To further confuse
the issue, the Commission published what
is called "excerpts" containing approxi-
mately 38 or 40 pages from the full re-
port.
Mr. President, I charge that the re-
port, the abridgment of the report, and
even the excerpts from the report -were
prepared so as to confuse anyone read-
ing them .and to lead them to believe
that every conclusion or recommenda-
tion contained in them was something
of a unanimous nature, or something-
which carried the opinion of the corn-
mission as a whole.
Mr. President, for example, on page
534 of the full report we find a section
_entitled "Findings and Recommenda-
tions?Housing the Problem."
For two pages we are greeted with
broad, general, trite phrases regarding
hand-me-down clothing, leftovers of
others' food, secondhand housing, and
.so forth, and then are greeted by a
statement entitled "Findings." These
.finding's are followed by another section
entitled "Recommendation No. 1." Then
17869,
we find some more findings after which
we run into recommendations 2 and 3.
Then we have more findings and recom-
mendation No. 4, and more findings and
recommendation No. 5, and more find-
ings and recommendation No. 6.
At the end of recommendation No. 6,
the reader of this document would have
concluded that these were unanirnous
findings and recommendations of the
whole Commission, or, at the very least,
a majority of the Commission. However,
if one reads on further, one finds what
is entitled "Supplement Statement on
Housing" by Vice Chairnian Storey and
Commissioners Battle and Carlton.
Mr. President, there are only six mem-
bers of the Commission; therefore, the
first six findings and -recommendations
obviously could not be the recommenda-
tions and findings of all six members of
the Commission, but only Of three, and
'therefore these six so-called recom-
mendations are as much a minority or
supplement statement on housing as is
the statement by Vice Chairman Storey
and commissioners Battle and Carlton.
Then we find another supplement
statement on housing by Commissioners
Hesburgh and Johnson. Nowhere in
the report is it stated that the first six
recommendations and findings are those
of the majority of the Commission, the
full Commission, or only the three com-
missioners who did not submit supple-
ment statements. It could be that even
some of those who did not submit sup-
plement statements did not conclude and
find what was in the first six recom-
mendations and conclusions. They
could be the recommendations and con-
clusions of the staff members who wrote
the report, for all I know.
Mr. President, so it goes in nearly
every section of the three documents I
have mentioned. In fact, the pages of
the excerpts from the report of the
Commission on Civil Rights do not cor-
respond with the full report of the Com-
mission on Civil Rights, and, therefore,
double the effort necessary to sift out
fact from fancy, truth from opinion, and
reality from conjecture.
Mr. President, my general observation
of these reports is that they are all a
part of a systematic effort to mount con-
fusion upon confusion. The three vol-
umes published by the Civil Rights Com-
mission are alleged to contain its recom-
mendations, findings, reports, and other
statements and ideas. Frankly, they re-
mind me of a dagwood sandwich into
which has been thrown a little bit of
everything in the icebox. The only dif-
ference is that the civil rights sand-
wich which the Commission expects us
? to digest contains everything except a
little bit of the truth. I am afraid we
will get a bad case of legislative in-
digestion if we swallow this report in
toto.
Mr. President, I do not know whether
to refer to the Civil Rights Commission
report as "the report" or "the reports,"
so if I occasionally refer to "them" in-
stead of "it," you will understand it is
only because of the confusion.
? On page 47 of the full report?and for
the benefit of those who use the abridg-
ment of the report, on page 41?there is
a table entitled "Table 7 in the Full Re-
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17870 CONGRESSIONAL RECORD ? SENATE
port." It Is "Table 6 in the abrfdg-
ment of the report." This table refers
to South Carolina's population, voting
population, and percentage of registered
voters.
For some reason the Commission
states that its source of information
found in this table on this page was ob-
tained from an article published in the
Columbia State of May _25, 1958, .pur-
ported to be figures released by the
Secretary of State of South Carolina to
the press.
Mr. President, for the information of
the Senate and the Civil Rights Com-
mission, there is no Columbia State
newspaper in South Carolina. By some
chance the Commission may have been
referring to the State newspaper, which
is published in Columbia, S.C. I have
great respect for the State, if that is the
newspaper the commission is referring
to, as a newspaper which genuinely at-
tempts to be as accurate as is humanly
possible. However, as anyone will ac-
-7 knowledge, there is many a possible slip
between what the secretary of state of
a State issues and what appears in a
newspaper. It is, in a sense, hearsay
evidence. This is true because, first, a
reporter gathers the information, then
he types it up from his notes, then it goes
to a city desk to be edited, then it is sent
to a proofroom to be proofed, then it
goes to a linotype operator to be set in
type, and so on until it appears in print.
The Civil Rights Commission appar-
ently did not obtain the information di-
rect from the secretary of state. If it
had done so, it would have obtained the
correct information, which it obviously
did not. The Civil Rights Commission
reports that on May 10, 1958, the total
number of registered voters in South
Carolina was 537,689.
Mr. President, the secretary of state
of South Carolina has personally advised
me in writing that on May 10, 1958, there
were actually 538,915 registered voters in
South Carolina. Very obviously the er-
ror in the total number of registered
voters made by the Commission affects
every other statistic and figure on that
page referring to my State. This table
concerning South Carolina's registered
voters is presented in an attempt to de-
monstrate that Negroes have been pre-
vented from registering because of race,
creed, or color. This is not correct.
The Commission used the 1950 census
upon which to base the State's popula-
tion and various percentages, but it used
the 1p58 registration figures. What the
Commission failed to report is the fact
that South Carolina requires registration
by every voter every 10 years, and the
anniversary date for reregistration hap-
pened to be 1958. It began in January.
This is just one instance of the bias
of the members of the Commission, as
reflected in the report. The fact is that
in 1958, white registration in V South
Carolina was down by 30 percent over
that of the preceding year. This is be-
cause we had entered upon a new regis-
tration period, and many citizens had
not yet registered. So the conclusion on
that page that Negroes were not regis-
tering in great numbers, because of re-
fusal to register them on account of
race, creed, or color is a false conclu-
sion. There is no reason in the world
why Negro registration should not be
off, just as white registration was off
in 1958.
? Mr. President, if I were allowed ample
time to prepare a full criticism of the
Commission's report, it could not be
completed before next January. MY
comments would probably fill the Li-
brary of Congress, in order to cover the
instances of inconsistency, error, and the
false conclusions contained in the Cora-
mission's report.
Mr. President, I must admit the Civil
Rights Commission's report has done one
meritorious service: I has brought to
my attention that South Carolina has
47 counties. It reported this as a defi-
nite statement of fact. I have been run-
ning for public office in South Carolina
for 36 years, but since 1922 I have never
campaigned in more than 46 counties
in South Carolina. I am appalled that
I have never sought the votes of the
people in that 47th county; and I hope
the Civil Rights Commission will bring
to my attention the name of South
Carolina's 47th county, and give me its
location, so I will not fail to campaign
there in future elections.
Mr. President, this error cannot be
charged off by the Commission as a typo-
graphical error, because the Commission
not only states as a matter of fact, in
the final paragraph of this chart, "South
Carolina has 47 counties," but it follows
up this statement with a table?which I
hold in my hand?describing the per-
centages and types of registered voters in
those counties under each category. It
lists certain details, and then adds up
all the counties, and again reaches a
total of 47. Is this, then, the factual
report Congress is supposed to accept as
a basis for intelligent action?
Mr. President, the very nature of the
errors involved indicates carelessness,
lack of consideration for fact, and an
overzealous-attempt to intimidate the
Congress with propaganda second only to
that produced by the Kremlin.
I hold the report in my hand. I wish
the Commission had shown how racial
problems have moved into other sections
of the country. But the Commission
failed to call attention to that fact.
For instance, the report states that
28.1 percent of those who registered in
Arkansas in 1958 were nonwhites; and
in Florida, 13.2 percent.
Mr. President, the colored people are
leaving the southern part of the country,
and are going elsewhere; and other sec-
tions are going to have this problem.
I notice in the report that for Georgia,
the percentage of nonwhites is listed as
25.8; for Louisiana, 13.8; for North Caro-
lina, 28.7; for South Carolina, 33.9 of
those voting age. I note than in all
other Southern States the percentages
have decreased.
At one time?not so long ago, perhaps
25 or 30 years ago-60 percent of the
people of South Carolina were colored.
But many of them have moved else-
where. So the people of South Caro-
lina will not be the ones who will be
troubled with the fight that is going on.
September 14
So I am warning some of the Mem-
bers of the Senate that the problem
which the report-claims to exist only in
t the South., or primarily in the South, is
- rapidly spreading to other parts of the
country.
Furthermore, Mr. President, an ex-
? amination of the report shows that all
the charts or tabulations it includes re-
late only to the Southern States, and set
forth figures in regard to the voters and
the number of persons registered ohly in
the Southern States. The Commission
does not include in the report such fig-
ures in regard to other States?but only
in regard to the Southern States.
Mr. President, I realize that many of
these factual discrepancies will appear
insignificant when standing alone?and
especially so to the Commissioners.
However, it is of utmost importance to
remember that the conclusions and rec-
ommendations, and, yes, even the pro-
posals, rest solely' on a foundation of
factual errors such as these. I have
examined only the material relating to
my native State of South Carolina con-
tained in this one table. It will be in-
teresting to note how many other dis-
crepancies appear in tables relating to
other States. Perhaps the Senators
from the various States can sift, for
the benefit of the Senate, fact from fancy
in the report where it refers to their na-
tive States. But if we have to find the
facts for the Commission, then we, the
Menibers of the U.S. Senate, are making
the report for the Commission and the
Commission loses its usefulness.
Mr. President, the simple fact is there
never was a need for a Civil Rights
Commission. The very report, with its
conflicts and errors orfact, makes it ob-
vious that Congress committed a grave
mistake when it created the Commission.
We should never repeat such an error
again. "
Mr. President, the administration,
through the Attorney General of the
United States, when it requested the cre-
ation Of the Civil Rights Commission,
'declared that such a study or congres-
sional inquiry fairly conducted would
"tend to unite responsible people in a
common effort to solve these problems."
The Attorney General in testimony de-
clared:
Investigation and hearings will -bring into
sharper focus the area of responsibility the
Federal Government and of the States under
our constitutional system. Through greater
public understanding, therefore, the Com-
mission may chart a course of progress to
guide us in the years ahead.
Mr. President, in the first place I
charge that the Commission has done
nothing to bring into focus the area 'of
responsibility of the various States in
controlling their own modes of existence
as prbvided for in the Constitution of
the United States. If it had, or if I
thought it could further fairly define
Federal-State responsibility, I would cer-
tainly be in favor of extending the life of
this Commission. Certainly the Attorney
General, of all people, could use some
guidance in distinguishing between State
and Federal rights.
But it is obvious that the Commission,
as reflected in its report, has brought to
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1959 CONGRESSIONAL RECORD ? SENATE 17871
the Congress and to the President noth-
ing but preconceived ideas concerning
integration and further federalization of
the various States. All that anyone can
do to determine the respective responsi-
bilities of the Federal and State govern-
ment is to read the 10th amendment of
the Constitution which declares:
The powers not delegated to the United
States by the Constitution, nor prohibited
to it by the States, are reserved to the States
respectively, or to the people.
That is the Constitution of the United
States speaking.
This very fact, weighed against the ad-
ministration's alleged justification for
this Commission, should be sufficient
evidence to the Congress that there is
really no need for this Commission. The
Commission has not brought any State
right into focus, but, on the contrary,
has magnified federalization to the point
.that it overshadows everything in the re-
port. It delegates to the Federal Gov-
ernment all States' rights in all fields it
enters into. In the second instance, the
Attorney General's contention that ex-
'stance of a Civil Rights Commission
would tend to unite the people and help
solve these problems has been completely
and entirely refuted. To the contrary, in
the past 2 years, since the Commission
was created, racial tensions have con-
tinued to mount until they have reached
the-crisis level in many of the large cities
across the Nation. While the Civil Rights
Commission points its political tentacles
at the South, the North has become a
jungle of bitter racial groups which
fight among themselves, commit murder
and other violence, and continue to break
down all legal and moral order. If the
Congress were to use the same logic as
some of the Commissioners have used in
arriving at their conclusions and recom-
mendations, then we would be justified in
concluding that the rising racial tensions
of the Nation have resulted from the very
existence of the Civil Rights Commission
and the efforts of others who favor
forced integration.
Mr. President, with all due respect to
everyone involved in this controversy, I
cannot help but reach the conclusion
that hearings, held by the Commission
? were nothing but window dressing and
that most of the Commissioners had pre-
conceived notions, ideas, or psychological
theories at the time they were appointed
and that these things have been reflected
in their report.
Not one hearing was held-by the Com-
mission on Civil Rights for the purpose
of determining what makes Negroes and
whites live peacefully in the segregated
South while they war among themselves
in the integrated North. Let that sink
in. Not one hearing was designed to
demonstrate the tremendous progress
that all citizens of all races, creeds, and
colors have made in our Nation, and
particularly in the South. Let that sink
in.
Mr. President, not once did the Com-
mission attempt to demonstrate the good
that is contained in the practice of
segregation in the South. The Com-
mission did not mention that thousands
upon thousands of Negroes holding col-
No. 163-5
a
lege degrees are now teaching in the
schools of South Carolina and other
States and that many Negro children of
South Carolina and other segregated
States enjoy schools far more modern
and more expensive and more adequately
equipped than do many white children.
The Commission did not report the great
efforts and the great progress being made
by citizens all across the United States
who believe in segregation to insure that
equal facilities and equal opportunities
to people of both races exist.
The newspapers are replete with state-
ments, comments, petitions, and other
expressions of members of the Negro race
In many areas of the country demanding
and insisting upon segregated existence.
It is curious to me that the Civil Rights
Commission attempted, at no time, to set
up hearings to permit these citizens, re-
gardless of race, creed, or color, to be
heard in defense of the mode of life we
call segregation.
For your information, Mr. President,
the Subcommittee on Constitutional
Rights of the Committee on the Judi-
ciary, on which I happen to serve, held
hearings for about 3 or 4 months, but
we had this question before us from
January until July. We had bills be-
fore the committee for that long. Then
we had the matter discussed. I think
I still have the floor in the Senate judi-
ciary Committee on the bill that is
pending here. We are still discussing
pro and con in the committee the civil
rights issue, and ?whether -or not the
life of the Civil Rights Commission
should be extended, or what to do. We
have never reached a conclusion in the
Judiciary Committee yet.
Nearly every statement and conclu-
sion of the Commission except for the
statement of Gov. John S. Battle, of
Virginia, has been directed at devices
? to force integration. The Commission
has heard from a few dissenters who
favor integration, but has bypassed the
multitude which prefers segregation.
The contented and happy vast majority,
? by arbitrary action of the Commission,
have been whirlpooled into a loftily
languaged, highly erroneous report
against their will. I have only but to
quote Commissioner Battle to back up
the charge that this report is filled with
preconceived ideas and is not based upon
fact. I wish to read Commissioner Bat-
tle's statement:
I have stated my objections to certain spe-
? cific ' recommendations contained in the
report.
In addition thereto, and without in any
way impugning the motives of any member
of the Commission, for each of whom I have
the highest regard, I must strongly disagree
? with the nature and tenor of the report. In
my judgment it is not an impartial factual
statement, such as I believe to have been
the intent of Congress, but rather, in large
part, an argument in advocacy of precon-
ceived ideas in the field of race relations.
Mr. President, that is the only thing
in the Civil Rights Comission's report
with which I believe I could say I fully
agree.
Under the subject of "Voting" the Civil
Rights Commission finds "there is a gen-
eral lack of reliable information on vot-
ing according to race, color, or national
origin, and there is no central repository
of the fragmentary information avail-
able." The Commisison stated further
that lack of such information made its
study of voting rather difficult.
Mr. President, the lack of this infor-
mation and these facilities to enable the
Commission to make such a study is not
available for one obvious reason: The'
Constitution of the United States gives
unto all States the right to establish vot-
ing requirements for its citizens and to
conduct the elections in each State.
There are no Federal elections in these
United States: there are only statewide
.elections. Even when we elect a Presi-
dent the various States elect presidential
electors who then go to cast their ballot
for their State's presidential choice.
I remember well reading the history of
South Carolina. In 1876 our electors,
when voting for President, cast their
votes for a man who would get the
troops out of South Carolina though he
was not the people's choice. Their
votes were among the necessary votes
to elect a President in 1876.
Therefore, there could be no Federal
repository for information concerning
voting according to race, color, or na-
tional origin. The very lack of this in-
formation, to me, would be a strong
indicator that there is little if any dis-
crimination in this field. If there was
discrimination, there would have to be
some master file or index on each voter's
race, color, or national origin to enable
officials to apply prejudice.
Mr. President, recommendation No. 1
of the Civil Rights Commission seeks to
charge the Bureau of the Census with the
duty of compiling in the next national
census a complete list of registration and
voting statistics of every individual, ac-
cording to race, color, and national
origin.
Mr. President, such a storehouse of in-
formation housed in the Federal Gov-
ernment's bureaucratic structures in
Washington would really set the stage
for the worst kind of discrimination and
prejudice this Nation has even seen.
Made accessible to a tyrannical ad-
'ministration, this information housed in
the Federal Government's bureaucratic
structures in Washington would really
set the stage for the worst kind of dis-
crimination and prejudice this Nation
has ever seen or ever could seen.
Made accesible to a tyrannical admin-
istration, this information about each
voter's race, color, creed, and national
- origin could become a pandora's box that
would haunt our Nation as long as it
exists. I shudder to think now this com-
pilation of "every individual's race, creed,
and color in America could be-used in a
spirit of prejudice, which it would be.
Hitler did not even have such a file avail-
able for his use when he persecuted
millions in Nazi Germany because of race
and creed.
Mr. President, the Commission reports
found lack of uniform provision for the
? preservation and public inspection 'of all
records pertaining to registration and
voting. It further charged that this lack
of uniform provision hampers and im-
pedes investigations of alleged denials of
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17872 CONGRESSIONAL RECORD ? SENATE
the right to .vote by reason of race, color,
religion, or national origin.
The Commission did not state that it
did not find this information stored any-
where in the North or in any other State.
We are led to believe it is only in the
South that this situation prevails. How-
ever, I want Senators to know this in-
formation is not stored anywhere at the
present time.
For the information of the Civil Rights
Commission, it should be pointed out
here that the provisions of any State
looking toward the? preservation of vot-
ing and registration records are designed
by the individual States to facilitate reg-
istration and secret and expedient bal-
loting._ They were not designed to be
convenient for some Federal bureau that
wants to pry.
It happened that I had a chance to
look at a publication containing voting
? laws of every State. Attention was not
brought to these laws by the Commission.
? I saw that South Carolina required only
about a half a page, with reference to
voting qualifications and registration,
and then I turned to New York and saw
that New York required about four pages.
The Commission did not say anything
about these laws.
A system that is suitable for the people
of one State may not be as suitable to the
people of another State. Simply because
a Federal Commission wants to come in
and pry does not. mean that we should
be required to revamp all'State laws per-
taining to voting and registration for the
convenience of the Federal Commission.
I have been informed that in Russia
the voting system has been so smoothed
out and federalized, as apparently the
Civil Rights Commission is seeking to
do, that whenza person goes to vote at
? the Russian polls, he does not have to do
anything, not even decide for himself for
whom to vote. I fear that if we begin to
systemize everything along a streamlined
Federal system as the Commission de-
sires we will lose the basic American
principle of privacy and individualism.
I cannot see where the preservation
of such records would have anything to
do with whether or not a person was im-
peded in registering or voting.
That is one thing the people have been
crying for, the right to vote. It has been
said that the people will know how to
vote. In this instance the Federal Gov-
ernment wants to tell everybody how
everybody votes.
If one were impeded from these proc-
esses, then one would not be in the rec-
ords. So what is the purpose of main-
taining these records? The charge that
one was denied- the right to register and
vote is a charge which stands upon it-
self. There could be no record of this
charge contained in the registration or
voting records of a State because those
records are records of people who ex-
. ercised those rights.
Mr. President, if what the Commission
meant in its second recommendation is
that the voting records should be pre-
served in cases of alleged fraud where
one had exercised his right to vote, but
through a fraudulent act his vote was
not counted, that is a different matter.
This is an entirely different situation.
Fraud is a punishable offense in every
State in the Union. In my own State of
South Carolina there have been instances
in which fraud was charged; and always,
to my knowledge, the voting and regis-
tration records involved were available
for the proper officials to examine.
Mr. President, the Civil Rights Com-
mission recommends that all registra-
tion and voting records shall be made
public records and be preserved for 5
years. During this time they shall be
subject' to public inspection, provided
that all care be taken to preserve the
secrecy of the ballot.
Mr. President, here again we run into
one of those dreamy-eyed proposals that
are about as practical as a soupspoon
with a hole in the middle of it. How can
any State, or the Federal Government, or
any agency thereof, preserve voting and
registration records that are to be made
public records, and yet preserve the se-
crecy of the ballot? To me, this is an
impossibility. How an individual' votes is
the most secret and private thing that a
citizen can have under our form of gov-
ernment. People guard their voting rec-
ords more privately and personally than
they do almost anything else.
Mr. President, in my opinion the Civil
Rights Commission is tampering with
one of the most important belongings of
the -American people, and it is attempt-
ing to get the Federal Government to
legislate in a field which is purely a State
matter. This requirement to preserve
voting records under a Federal statute,'
in my opinion, violates more than half a
dozen rulings by Federal courts on this
issue.
I should like to cite a few of the cases
which substantiate my, position. I think
when they read them they will agree
with the findings in those cases.
Among them are McPherson v. Black-
er, 146 U.S. 869; Minor v. Hapversett, 88
U. S. 627; Breedlove v. Suttles, 302 U.S.
277; and Pirtle v. Brown, 188 F. (2d) 218.
Mr. President, from the little I can
- make out of the Cvil Rights Commis-
sion's report, what the Commissioners
and proponents of such legislation are
after is for the States to eventually wipe
out all registration requirements, They
would have us throw the door open on
election day and declare that everybody
may come in and vote, whether he is a
criminal, a non compos mentis, or re-
gardless of what he is. The Commission
proposes that no State should have the
right to bar anyone, for any reason,
'from voting. The recommendations go
far beyond any race, creed, or color dif-
ferences that may be involved.
? Mr: President the Midi. Rights Com:-
mission also seeks the power to subpena
witnesses by directly going to a district
court instead of going through the At-
torney General to obtain such a subpena.
The Commission says that the normal
procedure is "a needlessly cumbersome"
one and is not "a sound system of ad-
ministration."
Mr. President, one of the problems of
this country today is that we have made
it too easy for the Federal Government
to reach down and delve into matters
which are solely of a State nature. If
the Commission seeks to speed up, the
September 14
procedures for obtaining true justice, it
would probably prefer -that the States
do away with the jury trial in criminal
cases, and eliminate the right to appeal.
I do not think that the quickest way is
the best way. On the contrary, it is
a dangerous substitute.
Mr. President, I noticed that the Com-
mission, in recommendation No. 5 under
the subject of "voting" is suggesting that
whenever the President of the United
States receives sworn affidavits by nine
? or more individuals from any district, ?
county, parish, or other political sub-
division of a State, alleging that the
affiants have unsuccessfully attempted to
register with the duly constituted State
registration office, the President shall
refer such affidavits to the Commission
on Civil Rights. Following that, the
Commission will first investigate the al-
legations, and subsequently overrule the
-local registration boards whenever, in
the Commission's opinion, it feels any
of the affiants qualified to register. I
have never heard of a more baldfaced
attempt to destroy the rights of a State
? to govern itself.
I am wondering, first, why the Com-
mission picked the figure "nine or
more." Why should nine people, if so-
called justice is to be rendered by the
Commission, be the criteria? Why not
"one or more''? Could it be that "nine"
was a figure that is resting on the minds
of some of the Commissioners, such as
the nine members of the Supreme Court?
- The more I delve into this report, the
more I believe the Civil Rights Com-
mission would like to be constituted as a
permanent quasi-judicial Federal body
with the unofficial title of "The Junior
Supreme Court."
This recommendation even goes much
? further than I have described, for it pro-
vides that the President shall designate
an existing Federal officer or employee
in the given area from whence the com-
plaints came to act as a registration
officer. I wonder what Federal officer it
would choose to operate the registration
certification program in Columbia, S.C.,
or in my hometown, Spartanburg, S.C.
Mr. President, I do not 'believe the
people living in South Carolina had to
face conditions worse than those recom-
mended by the Civil Rights Commission,
back in the Reconstruction era, when
,carpetbaggers took over our State gov-
ernment and robbed our treasury, ran-
sacked our laws, and stole our civil
? rights.
Mr. President, the proposal of the
Civil Rights Commission in this instance
would deprive the people of nay State,
and the people of any other State in-
volved, of a basic right?the State right,
if you please, to control its own regis-
tration and election machinery.
Any attempt to place Federal control
over such machinery is an obvious viola-
tion of several court rulings in this re-
' spect. These cases have upheld the
time-honored constitutional provision
that there is no Federal election; that
all elections are State elections, and that
those elected are representatives of the
State, and not the Federal Government.
Therefore, the Federal Government has
no business meddling with the registra-
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1959 . CONGRESSIONAL RECORD?SENATE
tion and voting systems of the various
States.
In this respect, let me quote from
Minor v. Happersett, 88 U.S. 627, at page
629, where Justice Waite declared:
The United States has no voters in the
States of its own creation. The elective
officers of the United States are all elected
directly or indirectly by State voters. The
Members of the House of Representatives are
to be chosen by the people of the States,
and the electors in each State must have
the qualifications requisite for the electors
of the most numerous branch of the State
legislature..
Mr. President, I believe the dissent by
Commissioner Battle to the recom-
mendations of the other Commissioners
on Federal confiscation of voting and
registration machinery in the various
States should be read into the RECORD
at this point:
I concur in the proposition that all prop-
erly qualified American citizens should have
the right to vote but I believe the present
laws are sufficient to protect that right and
I disagree with the proposal for the appoint-
ment of a, Federal registrar which would
place in the hands of the Federal Govern-
ment a vital part of the election process so
Jealously guarded and carefully reserved to
the States by the Founding Fathers.
Mr. President, no one could appraise
the so-called recommendations of the
other Commissioners any finer than
Commissioner Battle has done.
Mr. President, as to the proposal for
a constitutional amendment to estab-
lish universal suffrage made by Chair-
man Hannah and Commissioners Hes-
burgh and Johnson, I believe it is ade-
quate to state that the proposed amend-
ment violates the very, concepts of the
preamble of the Constitution. However,
one cannot argue with the right of any
American to propose any amendment to
the Constitution. It should be of great
importance to the Senate, however, that
three of the Commissioners opposed this
so-called recommendation. Let us bear
in mind that there are only six. Once
again the authors of the Civil Rights
Commission report have inferred that
a recommendation by three members of
the Commission is a recommendation by
a majority of the Commission, while, in
fact, it is simply a minority view ex-
pressed by one-half of the Commis-
sioners. ?
As I read the contentions of the Civil
Rights Commission in the field of educa-
tion, I was appalled at the inconsisten-
cies and contradictions contained in the
report. However, I was not surprised to
find all through this report an attempt
to enlarge upon the Supreme Court
rulings in this area and to find a very
definite flavor of prointegration in the
report.
In the first instance, I do not believe
the Civil Rights Commission had any
proper right to go into the field of educa-
tion. It is not what I would consider a
civil rights problem. It is a matter which
has been and always will be a controversy
of States' rights against Federal rights.
The people of various States feel that
school systems and educational facilities,
because they are supported with local tax
funds and are controlled by local school
boards, should not be tampered with by
Federal intervention. The Suprerne
Court in its 1954 decision ruled that it
was unlawful for any school to practice
segregation where the people desired to
integrate, but, it should be made plain,
the Supreme Court did not say that
segregation in itself was illegal.
To say that the Supreme Court's in-
terpretation on any part of the Constitu-
tion is the law of the land is an incorrect
conclusion. Such -a conclusion would
place the Supreme Court above the Con-
*stitution and above the people. I want
to make it plain that I oppose the Su-
preme Court's 1954 ruling in its entirety
and, although I am a Senator charged
with upholding the Constitution of the
United States, I am obliged to say that
I will do everything in my power to re-
verse the ruling of the Supreme Court as
it is applied -in the field of education.
The Civil Rights Commission in its
report adheres to the theory that the
Constitution, as interpreted by the Su-
preme Court, is the" supreme law of the
land. Mr. President, I wish to quote
that again for the Senate. The Civil
Rights Commission in its report said:
The Constitution, as interpreted by the
Supreme Court, is the supreme law of the
land.
Mr. President; this statement is a fal-
lacious, misleading conclusion and the
Constitution itself contains the language
to bear me out. Let me quote from the
Constitution. Article 6, section 2, of the
Constitution declares:
This Constitution, and the laws of the
United States which shall be made in pur-
suance thereof, and all treaties made, or
which shall be made, under the authority of
the United States, shall be the supreme law
of the land ? * *.
Mr. President, there is no question but
that the Constitution is the supreme law
of the land and needs no help from the
Supreme Court on this score. Article 6,
section 2, makes no mention of the Su-
preme Court of the United States, and
when the Supreme Court makes an in-
terpretation that is erroneous, I say the
supreme law of the land is still the Con-
stitution and not the interpretation
made by the Supreme Court.
The proposal by the Civil Rights Com-
-mission to direct the U.S. Office of Edu-
cation, in cooperation with the Bureau
of the Census, to conduct an annual
school census would be a wasteful, ridic-
ulous, and downright absurd program to
follow. Such a census would reflect no
true picture as regards to whether or not
integration or segregation is being prac-
ticed in accordance with the so-called
Supreme Court ruling of 1954. This is
especially true because in many areas of
.the Nation segregation is practiced vol-
untarily by beth groups and any sta-
tistical report by the Bureau of the Cen-
sus or the Office of Education would not
reflect the feelings and desires of the
people. However, it would possibly pre-
sent an invitation to agitators and out-
siders to come into a segregated area
and attempt to force integration upon
unwilling people. This would even be
contrary to the wild and ridiculous 1954
decision of the Supreme colfrt which, in
effect, placed the practice of integrated
or segregated schooling on a voluntary
17873
basis. The Commission itself, quite in-
advertently I am sure, used this inter-
pretation in one of its findings by citing
Briggs v. Elliott-132. Federal Supple-
ment 776). In that decision the late
Judge John J. Parker, of the U.S. Fourth
Circuit Court of Appeals, declared:
What it (the Supreme Court) has decided,
and all that it has decided, is that a State
may not deny to any person- on account of
race the right to attend any school that it
maintains. This, under the decision of the
Supreme Court, the State may not do di-
rectly or indirectly; but if the schools which
it maintains are open to children of all races,
no violation of the Constitution is involved
even though the children of different races
voluntarily attend different schools, as they
attend different churches.
The Supreme Court's biased 1954 de-
cision without precedent is exceeded only
in deceitfulness by the biased Commis-
sion's 1959 report which is a finding
without fact.
As Vice Chairman Storey and Commis-
sioners Battle and Carlton declared con-
cerning the educational recommenda-
tions:
The text preceding the findings and recom-
mendations is to a large extent argumenta-
tive and colored by the authors' views of the
sociological and philosophical aspects of the
school integration problem.
Here bgain is a divided opinion on a
field of study that the Commission should
have never even entered.
Any man who is unbiased in his think-
ing, I think, will surely admit that edu-
cation is a State matter and certainly
does not fall in the category of a Federal
civil right.
Mr. President, I shall not spend a great
deal of time on the Civil Rights Com-
mission's housing recommendations for
they, too, are for the most part nothing
but attempts to promote further federal-
ization and integration.
It is evident from the Commission's re-
port that housing problems arise in large
cities. In the South there are very few
cities equal in population to the crowded
cities of the North. Therefore, I feel
that housing is not a problem which we
face in the South. I trust that the true
purpose of this Commission is to prevent
further racial difficulties. After reading
the report, I fear that this has not been
their purpose.
There have been, to my knowledge, no
racial problems because of segregated
housing in the South. This statement
cannot be made by the large integrated
cities of the North. Thus, another point
of attack on the southern way of life has
failed because no problem exists.
The Commission's report clearly states
that the housing problems are caused to
a great extent by migration. It says that
many people who are unable to afford
good housing in the suburbs migrate to
the cities filling existing slums and cre-
ating new slum areas. It goes further
and makes this clear observation in re-
gard to these slum conditions causing
housing problems;
This is true irrespective of race or nation-
ality.
Thus, the Commission admits that any
problem of housing is not due to segre-
gation. The only racial problems in the
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17874 CONGRESSIONAL RECORD ? SENATE .
housing field are found where integra-
tion exists.
Mr. President, as I look through the
final report of the Civil Rights Commis-
sion, I am reminded of an often quoted
line of Shakespeare. Hamlet, who was
reading a book, was asked by a friend,
"What do you read?" Hamlet, in utter
disgust, replied, "Word, words, words."
My colleagues, it is with utter disgust
that I Make the same observation re-
garding this report: the efforts of 2 years
investigation. It is 683 pages of "words,
words, words."
I honestly believe that an extension of
this Commission on Civil Rights will pro-
duce for us at great expense only one
thing: another volume of trite phrases,
preconceived findings, and lawless rec-
ommendations. I defy the Senate to
show me one thing this Commission has
accomplished other than a volume of
"words, words, words."
. Mr. President, to vote against this pro-
posed legislation will be the easiest vote
. of the year for me to cast. I have always
-opposed foreign aid and I have always
opposed civil rights legislation. I op-
pose foreign aid so strongly that even
if I were an advocate of continuing the
Civil Rights Commission, I would still
vote against this measure. But, to have
both civil rights legislation? and foreign
aid legislation wrapped up in the same
package makes it possible for me to vote
to kill two birds with one stone.
I believe tacking on civil rights legisla-
tion to the foreign aid bill is a flagrant
violation of the orderly procedures of the
Senate and a direct assault upon the Ju-
diciary Committee of the Senate. The
Precedent being established here in by-
passing the Senate Judiciary Committee
is a far-reaching step that will open the
door to other such moves in other fields
and may start the general deterioration
of all Senate rules and order. We can-
not legislate from the floor of the Senate
in an intelligent manner by suspending
the rules at every turn and at every time
the leadership predetermines he has the
power to do so. To do this is to turn.
the Senate into a body run by dictators.
Except for the direct appropriation,
the Committee on Appropriations has
no right to legislate in this field. It is
a question for the Committee on the Ju-
diciary of the Senate to handle. I can
imagine the furor that would emit on
the floor of the Senate if the Judiciary
Committee attempted to tack onto some
legislation an appropriation measure not
cleared by the Appropriations Com-
mittee.
- If the 'Senate sustains the motion to
suspend the- rules and considers the
Civil Rights Commission extension
amendment, then a terrible precedent
will have been established which will re-
turn to haunt this body forever. It will
amount to dictatorship of the Judiciary
Committee by the Committee on Appro-
priations in a field of legislation that is
entirely the business of the Judiciary
Committee.
The business of the Appropriations
Committee is to report out appropria-
tions bills to provide funds to pay for ex-
penditures already authorized by the
Congress. It is not the business of the
Appropriations Committee to write au-
thorizations in appropriations bills and
that is what is being done here in the
Senate now. The Appropriations Com-
mittee should not consider appropria-
tions for extending the-life of the Civil
Rights Commission until and unless Con-
gress has previously voted to extend the
? life of the Commission and made proper
authorizations.
Also, it is highly inappropriate, to say
the least, to tack appropriations onto a
foreign aid bill that provides for a strict-
ly domestic program. Although, I guess
if money is to be wasted on civil rights
? studies such as the extension of the life
of the Civil Rights Commission, it could
not be in better company than the for-
eign aid bill. It is a matter that is for-
eign to the Constitution of the United
States and it is a waste of the people's
tax money, so in those two categories I
presume civil rights and foreign aid do
have common denominators.
Mr. President, the rules of the Senate
do the same for the Senate as the laws of
the Nation do for our land. Law brings
order out of chaos for our Nation, and
rules bring order out of chaos- for the
Senate.
The Supreme Court on many occasions
in recent years has suspended the laws
of the land in many fields and brought
chaos out of order.
The U.S. Senate would be setting a very
bad example to the rest of the Nation if
it now suspends its rules and brings
chaos out of order just to satisfy the
political desires' of a few for the moment.
Mr. President, I hope the Members of
the Senate will not vote to suspend the
rules of this body, but will vote to main-
tain law and order. '
It is quite that simple.
Mr. ROBERTSON. Mr. President,
when the Senate had under considera-
tion the Civil Rights Act of 1957, I op-
posed it generally, and objected specifi-
cally to part I, which established a Com-
mission on Civil Rights.
I said such a Commission would be
political in nature and disruptive in its
effect; that its hearings and reports
could be manipulated with an eye on
minority blocks of votes in pivotal States,
and that it would lead only to harass-
ment of the States in their efforts to ad-
minister their internal affairs.
The 1959 report of the Commission,
authorized in 1957, has confirmed those
fears; and I am more than ever con-
vinced that it does not, and cannot, serve
a' useful purpose, and that the extension
of its life would be a waste of money and
a disservice to the people of 'the Nation.
We have the authoritative statement
of one of the Commissioners, former Gov.
John S. Battle, of Virgina, that the re-
port "is not an impartial factual state-
ment, such as I believe to have been the
intent of Congress, but, rather, in large
part, an argument in advocacy of pre-
conceived ideas in the field of race rela-
tions." -
At the time of its establishment, this
Commission was represented as a f act-
finding body which would do a temporary
job, investigating charges of violations
of civil rights and assembling impartially
weighed evidence which would be useful
? TA_
September 14
when proposals for future legislation in
this field, were considered.
The departure from the intent of
Congress is disclosed in the Commission's
report not only by its argumentative na-
ture, referred to by Commissioner Battle,
but also by open pleas for its continu-
ance, not merely for an additional pe-
riod during which to complete studies
which have been started, but also as a
permanent agency, with regularly as-
signed administrative functions.
The report recommends that after
Federal registrars have been. appointed
to usurp the State function of determin-
ing qualifications of voters, the Com-
mission shall investigate the validity of
charges that voting rights have been
denied, and shall certify to the President
and to the Federal registrars affidavits
which it considers well founded. That
assignment presumably would continue
so -long as there were a possibility that
any would-be voter might file a com-
plaint that he was discriminated against
because of race, color, religion, or na-
tional origin.
The report , also recommends that the
Commission serve as a clearinghouse to
collect and make available to States and
to local communities information on
programs and procedures to bring about
desegregation of schools?another as-
signment of lengthy and indefinite dura-
tion.
A' third bid to make permanent the
-jobs of the Commission staff and to add
future employees is contained in the
recommendation that the Commission be
requested by the President "to continue
-to study and appraise the policies of
Federal housing agencies, to prepare and
propose plans to bring about the end
of discrimination in all federally assisted
housing and to make appropriate recom-
mendations."
So, Mr. President, the real question to
be decided by Congress is not whether
we shall extend the Commission for an-
other 2 years, and let it spend an addi-
tional $500,000, but whether we are will-
ing to accept it as a new bureaucratic
agency, a source for administrative
patronage, an adjunct to political cam-
paign organizations, and a constant ir-
ritant against national unity and vol-
untary racial cooperation.
Let us make no mistake: If we allow
the professional organization which
handles the detailed work of this Com-
mission, on behalf of its part-time vol-
unteer members, to entrench itself dur-
ing another 2 years, it will find so many
ways to make itself politically useful that
it will be extremely difficult to dislodge
thereafter.
But those who might benefit from its
operations at one period, might become
the victims at another. The Commis-
sion was aimed at the Southern States,
which have had the major problem of
dealing with racial minorities of large
proportions. But that problem is
spreading to metropolitan centers in
other areas.
A politically motivated organization
which continues to delve into the fields
of voting, education, and housing, and
which exhibits, as the report of this
Commission has, an utter disregard for
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a.
1959 CONGRESSIONAL RECORD ? SENATE
the fundamental principles of the Con-
stitution and a willingness?as a pro-
testing half of its members have recog-
nized?to "ignore historical fact and dis-
regard the development of constitutional
law," poses a threat to all, including its
original sponsors.
I shall not take the? time on this oc-
casion to analyze the Civil Rights Com-
mission's report and to point out its un-
reliable and irresponsible nature, but I
want to give just one illustration of what
amounts to outright dishonesty in citing
the Constitution of the United States.
In the chapter devoted to findings and
recommendations on the subject of
voting, the report says (p. 135) :
Article I, section 2 of the U.S. Constitu-
tion has long stood for the proposition that,
while the qualifications of electors of Mem-
bers of Congress are governed by State law,
the right to vote for such representatives is
derived from the U.S. Constitution. Article
I, section 4, authorizes Federal protection of
voting in Federal elections against inter-
ference from any source.
The report will be read by many per-
sons not familiar with the text of the
Constitution; and they will accept these
statements at face value. But what does
the Constitution say?
Article I, section 2, says this, and no
more:
The House of Representatives shall be
composed of Members chosen every second
year by the people of the several States, and
the electors in each State shall have the
qualifications requisite for electors of the
most numerous branch of the State legis-
lature.
What words in that sentence -stand
for the proposition that the right of an
individual to vote is derived from the
Constitution? Actually, the wording of
that section, and more especially its
history, as revealed in the Constitutional
Convention debates, State ratifying con-
vention debates, and the Federalist
papers, make it clear that the purpose
was to leave to State decision the ques-
tion of who should be qualified to vote
in State elections, and then to allow the.
same persons, and no others, to vote in
Federal elections.
Let us look now at article I, section 4.
It says:
The times, places, and manner of holding
elections for Senators and Representatives,
shall be prescribed in each State by the legis-
latiare thereof; but the Congress may at any
time by law make or alter such regulations,
except as to the places of choosing Senators.
That is the complete text. 'How can its
limited grant of reserve power to the
Federal Government to alter "times,
places, and manner of holding elections"
be interpreted as authorization for "Fed-
eral protection of voting in Federal elec-
tions against interference from any
source"?
/ The Commission report goes on to say
correctly that the 14th amendment af-
fords protection against State inter-
ference with equality of opportunity to
vote; that the 15th amendment pro-
hibits interference by the United States
or a State with the right to vote, because
of race, color, or previous condition of
servitude, and that the 19th amendment
prohibits State interference with the
right to vote, because of sex.
But the misstatement about article I,
section 2 is repeated when the report
says:
The 17th amendment provides that a per-
son possessing State qualifications has a
right to vote which is derived not merely
from the Constitution or the laws of the
State from which the Senator is chosen, but
has its foundations in the Constitution of
the United States.
Mr. President, the 17th amendment
merely says the Senate shall be composed
of two Senators from each State, "elected
by the people thereof," and then repeats
the language of article I, section 2:
The electors in each State shall have the
qualifications requisite for electors of the
most numerous branch of the State legis-
latures.
This language, reaffirmed and repeated
after a century of experience under the
Constitution, makes no pretense of con-
ferring voting rights on individuals, but
simply extends the right to vote in Sen-
atorial elections to those who have quali-
fied to vote in State elections.
It is on the basis of this twisting of
constitutional language that the Com-
mission recommends appointment of
Federal registrars who would pass on
qualifications of voters, and thereby, as
Commissioner Battle said, "place in the
hands of the Federal Government a vital
part of the election process so. jealously
guarded and carefully reserved to \ the
States by the Founding Fathers."
Mr. President, even Alexander Hamil-
tion, the arch advocate of a strong Cen-
tral Government, would have been
shocked by this proposal, for Hamilton
himself said in the 59th Federalist paper:
Suppose an article had been introduced
into the Constitution empowering the United
States to regulate the elections for the par-
ticular States, would any man have hesitated
to condemn it, both as an unwarranted
transposition of power and as a premeditated
engine for the destruction of State govern-
ments?
Mr. President, the Civil Rights Com-
mission can be an engine for the de-
struction of State governments. I am
opposed to the authorization to extend
its existence, and I am opposed to the
appropriation to continue its operations.
MESSAGE FROM THE HOUSE?
ENROLLED arr.T.S SIGNED
A message from ,the House of Repre-
sentatives, by Mr. Bartlett, one of its
reading clerks, announced that the
Speaker had affixed his signature to the
following enrolled bills, and they were
signed by the President pro tempore:
S. 1575. An act to amend the act of
August 1, 1958, tO authorize and direct the
Secretary of the Interior to undertake con-
tinuing studies of the effects of insecticides,
herbicides, fungicides, and other pesticides,
upon fish and wildlife for the purpose of
preventing losses of those invaluable natural
resources, and for other purposes;
S. 1845. An act to provide for the reestab-
lishment of the rates of basic? compensation
for certain Government positions, and for
other purposes;
S. 2181. An act to amend the Mineral
Leasing Act of February 25, 1920;
S. 2208. An act to provide that Alaska and
Hawaii be eligible for participation in the
distribution of discretionary funds under sec-
tion 6(b) of the Federal Airport Act;
17875
S.2504. An act to authorize the sale at
current Support prices of agricultural com-
modities owned by the Commodity Credit
Corporation to provide feed for livestock in
areas determined to be emergency areas, and
for other purposes;
S. 2568. An act to amend the Atomic
Energy Act of 1954, as amended, with respect
to cooperation with States; and
S.2569. An act to amend the
Energy Act of 1954, as amended.
Atomic
MUTUAL SECURITY APPROPRIA-
TIONS, 1960
The Senate resumed the consideration
of the bill (H.R. 8385) making appro-
priations for mutual security and related
agencies for the fiscal year ending June
30, 1960, and for other purposes.
Mr. HARTKE. Mr. President, I was
extremely impressed as I read, while
confined in the Bethesda Naval Hospital,
the report of the U.S. Commission on
Civil Rights. I was impressed with the
factual nature of the report?and its very
fair analysis of a difficult problem, one
often fraught with emotion.
It is interesting to note, Mr. President,
that the Commission found no geo-
graphic section of our country offering
full opportunity and rights of citizen-
ship to all Americans; regardless of race,
creed, or color.
Of all the rights Americans hold dear,
the 'keystone of all is the right to vote.
It is interesting to note that all the
Commissioners have agreed that this
right should be protected and extended
to all citizens, even though among them
there may be some differences as to how
this should best be done.
I applaud, Mr. President, the excel-
lent manner in which the Commission
has proceeded with its business, as well
as the report coming from its investiga-
tions and deliberations. It is proof
positive that the issues which seem to
divide us as a Nation are not insoluble.
When I came to the Senate, last Janu-
ary, it was my profoUnd hope that in
this session we would be able to write a
meaningful civil rights bill?a law which
would recognize basic rights of all
Americans, indeed all human beings,
and would protect and insure these
rights for all citizens. Unfortunately,
we have been faced with so many prob-
lems and with so many obstructions in
this divided Government that we did not
give this matter the attention on the
floor of the Senate that it should have
had. Unfortunately-, too, we did not re-
ceive the report of the Commission until
the 11th hour before adjournment.
Mr. President, I wholeheartedly sup-
port the move to continue the life of this
Commission of reasonable Americans
who earnestly are seeking a common
ground on which to unite all Americans
and to see that everyone in this blessed
land receives an equal opportunity for
housing, education, employment, and
voting.
Furthermore, Mr. President, it is my
sincere hope that the Senate will, when
it meets again, next January, turn its
attention to consideration of these rec-
ommendations as some of the first items
of business. It seems to me that protec-
tion and extention of voting rights for
all Americans should ba one of the very
first things we do next January.
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17876 CONGRESSIONAL RECORD ? SENATE
Without such action, we cannot truth-
fully say that every citizen has a voice
in his Government. With such action
we can proudly say,that we are making
representative democracy work for all
Americans, -no matter what race, creed,
or color. Thereafter, we may look for-
ward with the hope and expectation that
the full, unalienable rights called by our
Founding Fathers, "life, liberty, and the
pursuit of happiness," .will truly be en-
joyed by all our citizens.
Mr. HILL. Mr. President, I rise in
opposition to the attempt to extend the
life of the U.S. Commission on Civil
Rights. I do so out of a sense of devo-
tion to the people of Alabama, the South,
and the Nation, and out of a sense of
devotion to the Constitution which the
Founding Fathers bequeathed us.
We are all now familiar With the re-
port of the U.S. Commission on Civil
Rights, and I think the report itself
should in large measure determine the
merits of this debate.
There is nothing in that report to
merit the approbation of a free people.
I am against it, and I believe the report
itself is an unanswerable argument in
favor of permitting the Commission to
die its natural death. The report of the
Commission constitutes, in my judgment,
one of .the most indefensible and irre-
sponsible statements of a public agency
that I have ever read. The recominen-
dations and alleged "findings" of some
of the members of the Commission, if
accepted generally, would be a grave
threat to the rights guaranteed by the
Constitution and the liberties sought to
be held forever sacrosanct by the Bill of
Rights.
At this time, when all of us need to
get back to our people to ascertain their
thoughts, their desires, their aspirations,
and once more be invigorated by the
spirit of grassroots democracy which has
made our Nation indestructible, we find
ourselves squandering our time, our en-
ergies, and the people's money on this
debate to extend the life of the U.S.
Commission on Civil Rights.
In order that the record may be clear
?as to my position in opposition to the
extension of the life of this Cmmission,
I wish now to consider the incredible
recommendations of the Commission.
First of all, the Commission, in the re-
port of its study on voting, recommends
a census of voting by race, color, and
national origin. The alleged "findings"
of the Commission ar as follows:
The Commission finds that there is a gen-
eral deficiency of information pertinent to
the phenomenon of nonvoting. There is a
general lack of reliable information on voting
according to race, color, or national origin,
and there is no final repository of the frag-
mentary information available. The lack of
this kind of information presents real diffi-
culties in any undertaking such as this
Commission's.
The Commission, which has spent so
much of our people's money so fruit-
lessly, next proceeds to make a recom-
mendation that would accomplish noth-
ing but a sure waste of the taxpayers'
hard-earned dollars. The Commission
then makes its "recommendation No. 1,"
as followts:..
Thereftre, the Commission recommends,
that tile Bureau of the Census be authorized
and directed to undertake, in connection
with the census of 1960 or at the earliest
possible time thereafter, a nationwide and
territorial compilation of registration and
voting statistics which shall include a count
of individuals by race, color, and national
origin who are registered, and a determina-
tion of the extent to which such individuals
have voted since the prior decennial census.
Mr. President, such a recommenda-
tion, if put into effect, would accomplish
nothing toward contributing to life, lib-
erty, and the pursuit of happiness of our
people. This is but an illustration of the
irresponsibility of the Commission in
making its report and in endeavoring to
justify its 2-year existence.
After recommending this waste of the
taxpayers' money, the Commission pro-
ceeds into the field of States rights and
proposes Federal intrusion therein by
making a recommendation in favor of
the preservation and inspection of vot-
ing 'records of the States and of the
people.
The so-called findings of the Commis-
sion are as follows:
The Commission finds that lack of uni-
form provision for the preservation and pub-
lic inspection of all records pertaining to
registration and voting hampers and im-
pedes investigation of alleged denials of
the right to vote by reason of race, color,
religion) or national origin.
The Commission then makes its rec-
ommendation No. 2, as follows:
Therefore, the Commission recommends
that the Congress require that all State and
territorial registration and voting records
shall be public records and must be pre-
served for a period of 5 years, during which
time they shall be subject to public inspec-
tion, provided that all care be taken to pre-
serve the secrecy of the ballot.
I ask, Mr. President, how is it humanly
possible to preserve all,voting records for
a period of 5 years and hold those rec-
ords up for public inspection and at the
same time preserve the secrecy of the
ballot.
It cannot, in my judgment, be done.
At first appearance, this recommen-
dation of the Commission would seem
to be a further effort to encroach on the
rights of the States only, but a close
scrutiny of the proposal reveals it to be
an effort on the part of the Federal Gov-
ernment to desecrate one of our most
precious inheritances?the right to a
secret ballot.
The right of a citizen to cast his bal-
lot in all secrecy is one of the greatest
bastions of human liberty that the mind
of man created. This right, like the right
of trial by jury, is an indispensable com-
ponent of American democracy. Once
this right is infringed upon, our concept
of American democracy will have been
drastically altered, for it will never be
the same. Once this right is infringed
upon, we would have to adjust ourselves
to a new mode of self government, for
the enlightened concept of government
of the people, by the people, and for the
people will have been seriously abridged.
There is no substitute for the secret
ballot. No procedural device ever con-
ceived can take its place. It is? unique.
There is nothing like it that has ever
been engendered. The secret ballot
alone is the sure protector of the contin-
ued preservation of our American dem-
September n
ocratic way of life. Once that is lost
all that we hold dear may well be lost.
This right is so jealously guarded and
is so dearly prized by the American peo-
ple that I devoutly believe any attempt
to abrogate it will be renounced at once
as an outrage to which an enlightened
people will never acquiesce.
How, Mr. President, can this Senate
give its stamp of approval to a public
agency which has made such an inde-
fensible recommendation?
The Commission, in its report, then
proceeds to launch into a further assault
on State sovereignty by its finding, as
follows:
The Commission finds that the lack of
an affirmative duty to constitute boards of
registrars, or failure to discharge or enforce
such duty under State law, and the failure
of such boards to function on particular oc-
casion or for long periods of time, or to re-
strict periods of functions to such limited
periods of time as to make it impossible for
most citizens to register, are devices by
which the right to vote is denied to citizens
of the United States by reason of their race
or color. It further finds that such failure
to act is arbitrary, capricious, and without
legal cause or justification.
The Commission then makes its rec-
ommendation No. 3, as follows:
Therefore, the Commission recommends
that part IV of the Civil Rights Act of 1957
(42 U.S.C. 1971) shall be amended by inser-
tion of the following paragraph after the
first paragraph in section 1971 (b) :
"Nor shall any person or group of persons,
under color of State law, abritrarily and with-
out legal justification or cause, act, or being
under duty to act, fail to act, in such man-
ner as to deprive or threaten to deprive any
individual or group of individuals of the op-
portunity to register, vote, and have that
vote counted for any candidate for the office
of President, Vice President, presidential
elector, Member of the Senate or Member
of the House of Representatives, Delegate or
Commissioner for the territories or pos-
sessions, at any general, special, or primary
election held solely or in part for the pur-
pose' of selecting or electing any such candi-
date."
This recommendation typifies some of
the ambiguity of the Commission's re-
port, which, if so construed by the courts,
could possibly be fraught with interpre-
tations that would harass and surely un-
dermine the honest efforts of local citi-
zens to manage their governmental af-
fairs. Is it not possible that this recom-
mendation, if enacted into law, could
mean that a local registrar who sought to
resign his job for reasons of health, or
of business, or for any good cause, would
be guilty of a violation of this section,
in the event any individual or group of
individuals brought charges against him
for his failure to register them to vote?
The mere possibility that this is true
dooms such a recommendation to ulti-
mate failure and renounces the desirabil-
ity of continuing the existence of any
public agency which conceived the rec-
ommendation.
In its next recommendation, the
Commission would arrogate unto itself
judicial powers which I think have never
before been given to a purely investiga-
tive body.
The Commission "finds," as follows:
The Commission finds that the necessity
for securing the aid and cooperation of a
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1959 CONGRESSIONAL RECORD ? SENATE
separate agency of the Federal Government
in order to discharge the Commission's ? re-
sponsibilities under law is a needlessly cum-
bersome procedure. It is not a sound sys-
tem of administration. Full and effective
implementation of Commission policy in the
discharge of Commission responsibilities un-
der law requires full and exclusive control
of any necessary report to the courts by the
Commission itself.
The Commission's "recommendation
No. 4" follows:
Therefore, the Commission recommends
that in cases of contumacy or refusal to obey
a subpena issued by the Commission on
Civil Rights (under sec. 105(f) of the Civil
Rights Act of 1957) for the attendance and
testimony of witnesses or the production of
written or other matter, the Commission
should .be empowered to apply directly to
the appropriate U.S. district court for an
order enforcing such subpena.
Not satisfied with having the full re-
sources and authority of the Office of the
Attorney General of the United States
to enforce their subpena ? powers, the
Commission now comes forward and
asks for the unrestricted right to go into
the Federal courts and invoke the con-
tempt processes thereof to compel the
testimony of witnesses who have been
hauled before it to answer harassing
questions and to do the bidding of this
select and powerful body.
This recommendation illustrates one
of the reasons why I was so opposed to
the establishment of this Commission.
This demonstrates the perennial truth
that, when there is established an
agency for bureaucrats who have no
legitimate end to serve, they will spend
their time and the taxpayers' money in
an effort to justify their existence and
to reach out and grab more and more
power. As Thomas Jefferson expressed
it, they cast anchors ahead to grapple for
more power.
One' of the worst recommendations of
the Commission is recommendation No.
5 on voting. It reads as follows:
Therefore, it is recommended that, upon
receipt by the President of the United States
of sworn affidavits by nine or more individ-
uals from any district, county, parish, or
other recognized 'political subdivision of a
State alleging that the affiants have unsuc-
cessfully attempted to register with the duly
constituted State registration office, and that
the affiants believe themselves qualified un-
der State law to be electors, but have been
denied the right to register because of race,
color, religious, or national origin, the Pres-
ident shall refer such affidavits to the Com-
mission on Civil Rights, if extended.
A. The Commission shall:
1. Investigate the validity of ?the allega-
tions.
2. Dismiss such affidavits as prove, on in-
vestigation, to be unfounded.
3. Certify any and all well-founded affida-
vits to the President and to such temporary
registrar as he may designate.
B. The President upon such certification
shall designate an existing Federal officer or
employee in the area from which complaints
are received, to a? as a temporary registrar.
C. Such registrar-designate shall admin-
ister the State qualification laws and issue
to all individuals found qualified, registra-
tion certificates which shall entitle them to
vote for any candidate for the Federal office
of President, Vice President, presidential
elector, Members of the Senate or Members
of the House of Representative, Delegates or
Commissioners for the territories or posses-
sions, in any general, special, or primary
election held solely or in part for the pur-
pose of selecting or electing any such candi-
date.
D. The registrar-designate shall certify to
the responsible State registration officials
the names and fact of registration of all
persons registered by him. Such certifica-
tion shall`permit all such registrants to par-
ticipate in- Federal elections previously
enumerated.
E. Jurisdiction shall be retained until
such time as the President determines that
the presence of the appointed registrar is no
longer necessary.
The dissent by John S. Battle, a for-
mer distinguished Governor of the State
of Virginia, demolished the validity of
any argument in favor of this recom-
mendation when he stated, "I disagree
with the proposal for the appointment
of a Federal Registrar which would place
in the hands of the Federal Government
a vital part of the election process so
jealously guarded and carefully reserved
to the States by the Founding Fathers."
The dissent by Commissioner Battle con-
tinues:
I concur in the proposition that all prop-
erly qualified American citizens should have
the right to vote but ,I believe the present
laws are sufficient to protect that right and
I disagree with the proposal for the appoint-
ment of a Federal registrar which would
place in the hands of the Federal Govern-
ment a vital part of the election process
so jealously guarded and carefully reserved
to the States by the Founding Fathers.
In my judgment, Mr. President, the
proposal to have a Federal registrar to
supplant the duties, functions, rights
and privileges of State and local regis-
trars is wholly unconstitutional.
It is in violation of section 2 of article
I of the Constitution, and the 17th
amendment which reserves exclusively
to the States the right to determine the
qualifications of electors.
It is in violation of the 10th amend-
ment to the Constitution, which states:
The powers not delegated to the United
States by the Constitution nor Prohibited by
it to the States, are reserved to the States
respectively, or to the people.
It is in violation of the ninth amend-
ment to the Constitution, which states:
The enurneraion in the Constitution, of
certain rights, shall not be construed to
deny or disparage others pertaining to the
people.
It contravenes the spirit of the sixth
amendment to the Constitution, which
states:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be in-
formed of the nature and cause of the accu-
sation; to be confronted with the witnesses
against him; to have cornpulsory process for
obtaining witnesses in his favor, and to have'
the assistance of Counsel for his defense.
It is in violation of the spirit of the
sixth amendment, Mr. President, because
it would remove a local registrar from
his duties and, in effect, condemn him
as being guilty of a crime?the crime of
unlawfully denying a qualified person of
the right to exercise his franchise as a
voter in violations of sections 241 and 242
of title '18 of the United States Code.
17877
Regardless of whether or not such regis-
trar should ever be prosecuted, he shall
forever remain an accused who did not
enjoy the right to a speedy and public
trial, an impartial jury of the State and
area wherein the crime ? allegedly was
committed. He shall have been denied
his constitutional right to be informed
of the nature and the cause_ of the accu-
sations brought against him. He shall
have been denied the right to be con-
fronted with witnesses against him. He
shall have been denied the right to have
compulsory process for obtaining wit-
nesses in his favor.
And whether or not he employed the
assistance of counsel will make no dif-
ference, for he shall have had no defense
nor any right to present his defense.
When the representatives of the free,
independent, sovereign American col-
onies met in Philadelphia in 1787 to de-
termine what form of government would
succeed the tyranny of the British
Crown they had, for their benefit, the
benefits of the works and labors of great
thinkers, philosophers, statesmen, and
writers. They had the rich traditions of
Montesquieu, John Locke, and all the
thoughtful historians and warriors for
liberty that preceded them in the vast
concourse of history. But that was not
enough. It was only through the great
assemblage of patriots?deeply devout,
dedicated men, dedicated to God and
country?that they were able to pen the
most nearly perfect legal document that
has ever been drafted, the Constitution
of the United States.
They had- so many questions to an-
swer, so many issues to determine. It
was their task to determine whether or
not we should have a parliamentary sys-
tem of government, or a centralized sys-
tem of government, or a confederated
government, or a Federal system in
which the rights and sovereignty of the
people would be carefully divided be-
tween the State and local governments
on the one hand and the National Gov-
ernment on the other.
They fortunately chose the latter.
They did so after carefully considering,
studying, and evaluating the blessings
and shortcomings of each system that
had theretofore been conceived by the
mind of man.
And what was their foremost consid-
eration in implementing this govern-
ernment?in effectuating every detail of
its mechanism? Their foremost consid-
eration, Mr. President, was not how
much of the sovereign rights of the peo-
ple they desired to yield. It was not how
much of those precious rights they, as
individual men, were willing to yield.
The sole consideration was how much of
those precious rights and that sover-
eignty which had been won at such cost -
and sacrifice, they would have to yield
in order to establish a stable society that
would secure the blessings of liberty to
themselves and to their posterity.
Madison's notes clearly point up the
jealousy and the great reluctance with
which they yielded every power to the
Federal Government. The great Madi-
son himself, whi) has so aptly been hon-
ored as the "Father of the Constitution,"
frequently spoke in protest against the
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17878 CONGRESSIONAL RECORD ? SENATE
efforts ,of some of the delegates to yield
to the Federal Government unwarranted
powers.
When that magnificent assemblage of
patriots wrote the Constitution and
drafted the mechanics of our form of
government their every consideration,
therefore, was not how much power they
would give away to the central Govern-
ment, but rather, hoW much of the lib-
erty of the people the necessities of time
and circumstances demanded that they
entrust to this one coordinate branch of
our Government.
We recall that two of the foremost
patriots of the revolution could not, in
all good conscience, affix their signatures
to this noble document. Patrick Henry,
who sounded the tocsin of war and gave
us the battle cry of the revolution, and
George Mason, who wrote the Virginia
bill of rights which gave birth to our
Federal Bill of Rights and to almost
every State bill of rights?both these
great patriots who had done so much
to win our independence from the Brit-
ish Crown, to lift the mantle of despot-
ism from the backs of our people,-to win
our freedom, opposed the ratification of
the Constitution. They felt, as did many
of their compatriots, that ratification of
the Constitution might mean too great a
surrender of sovereignty on the part of
the States, that there might have been
too much yielding of power and author-
ity to the Federal Gpvernment.
I emphasize these facts because the
history of the ratification of the Consti-
tution shows clearly that our Federal
Government, as we know it, would never
have come into existence if the sover-
eignty of the States and the rights of the
people had not been positively recognized
in the Constitution itself.
Indeed, there were many who were the
special champions of the Constitution
who would never have been such cham-
pions had they not had the absolute as-
surance that the Bill of Rights would
soon be made a vital, living part of that
great document.. Jefferson, Madison,
Hamilton, and other inspired leaders in-
sisted that the Bill of Rights would
shortly be made a part of the Consti-
tution.
Of all the liberties which the Found-
ing Fathers enshrined in the first 10
amendments they specifically designated
articles IX and X as the impregnable
guardians of the sovereign rights of the
States and of the people.
The ninth amendment declares:
The enumeration in the Constitution, of
certain rights, shall not be construed to deny
or disparage others retained by the people.
The 10th amendment declares:
The powers not delegated to the United
States by the Constitution, nor prohibited by
it to the States, are reserved to the States re-
spectively, or to the people.
Our progenitors of that day insisted
that as a condition of their ratification
of the Constitution, it should contain the
ninth amendment which retained in
them absolutely the rights not specifi-
cally enumerated as the rights, powers,
and authority of the Federal Govern-
ment.
But they did not stop there. The peo-
ple went further,and demanded that the
10th amendment be included as a part of
their basic, legal protection. No lan-
guage could be stronger, more definitive.
More absolute in safeguarding and pro-
tecting the rights of the States and of
the people from encroachment by the
Congress, by the Federal judiciary, or by
the executive branch of the Central Gov-
ernment than the 10th amendment.
The 10th amendment has been appro-
priately described as "saying what it
means and meaning what it says."
No one sentence ever penned by the
hand of man could be more lucid. Those
few simple words rise up out of the book
and speak loudly, clearly, intelligently,
and unanswerably to all the Nation.
They speak one single, cogent thought
which no man, in all honesty, can deny. ?
They say that the rights of the States
and of the people are to be preserved at
all cost. They say that any effort to
usurp those rights is greatly to be ab-
horred, that it is condemned, by the
Constitution itself and that the con-
science of the country would not tolerate
any attempt by anyone, directly or indi-
rectly, to change this basic concept of a
government of freemen.
Not satisfied with the recommenda-
tion to substitute a Federal registrar for
State and local registrars, three of the
Commissioners go even further and rec-
ommend a constitutional amendment
which would destroy the rights of the
States to set any qualifications for voters,
except age and residence requirements.
This proposal is set out in the report as
follows:
PROPOSAL FOR A CONSTITUTIONAL AMENDMENT
To ESTABLISH UNIVERSAL SUFFRAGE
(By Chairman Hannah and Commissioners
Hesburgh and Johnson)
The Commission's recommendation for
temporary Federal registration should, if
enacted by Congress, secure the right to
vote in the forthcoming national elections
for many qualified citizens who would other-
wise, because of their race or color, be denied
this most fundamental of American civil
rights. But the proposed measure is clearly
a stopgap. .
In its investigations, hearings, and studies
the Commission has seen that complex voter
qualification laws, including tests of literacy,
education, and interpretation, have been
used and may readily be used arbitrarily to
deny the right to vote to citizens of the
United States.
Most denials of the right to vote are in
fact accomplished through the discrimina-
tory application and administration of such
State laws. The difficulty of proving dis-
crimination in any particular case is consid-
erable. It appears to be impossible to en-
force an impartial administration of the
literacy tests now in force in some States,
for where there is a will to discriminate,
these tests provide the way.
Therefore, as the best ultimate solution
of the problem of securing and protecting
the right to vote, we propose a constitutional
amendment to establish a free and universal
franchise throughout the United States.
An important aim of this amendment
would be to remove the occasion for further
direct Federal intervention in the States
administration and conduct of elections, by
prohibiting complex voting requirements and
providing clear, simple, and easily enforcible
standards.
The proposed constitutional amendment
would give the right to vote to every citizen
who meets his State's age and residence re-
quirements and who is not legally confined
at the time of registration or election.
September 14
Age and residence are objective and simple
standards. With only such readily ascer-
tainable standards to be met, the present
civil remedies of the Civil Rights Act should
prove more effective in any future cases of
discriminatory application. A court injunc-
tion could require the immediate registration
of any person who meets these clear-cut
State qualifications.
The proposed amendment is in harmony
with the American tradition and with the
trend in the whole democratic world. As
noted in the beginning of this section of the
Commission's report, the growth of Ameri-
can democracy has been marked by a steady
expansion of the franchise; first by the
abandonment of property qualifications and
then by conferral of suffrage upon the two
great disfranchised groups, Negroes and
women. Only 19 States now require that
voters demonstrate their literacy. Michi-
gan, New Hampshire, Pennsylvania, Ten-
nessee, and Vermont have suffered no appar-
ent harm from absence of the common pro-
visions disqualifying mental incompetents.
With minor exceptions, mostly involving
election offenses, Colorado, Maine, Massachu-
setts, Michigan, Pennsylvania, Utah, Ver-
mont, and West Virginia have no provisions
barring certain ex-convicts from the vote,
and of the States which do have such pro-
visions, all but eight also provide for restora-
tion of the former felon's civil rights. In
only five States is the payment of a poll tax
still a condition upon the suffrage.
The number of Americans disqualified
under each of these categories is very small
compared with the approximately 90 mil-
lion now normally qualified to vote. It is
also small in, relation to the numbers of
qualified nonwhite citizens presently being
disfranchised by the discriminatory appli-
cation of these complex laws. The march of
education has almost eliminated illiteracy.
In a Nation dedicated to the full develop-
ment of every citizen's human potential,
there is no excuse for whatever illiteracy
that may remain. Ratification of the pro-
posed amendment would, we believe, pro-
vide an additional incentive for its total
elimination. Meanwhile, abundant infor-
mation about political candidates and issues
is available to all by way of television and
radio.
We believe that the time has come for the
United-States to take the last of its many
steps toward free . and universal suffrage.
The ratification of this amendment would
be a reaffirmation of our faith in the prin-
ciples upon which this Nation was founded.
It would reassure lovers of freedom through-
out a world in which hundreds of millions
of people, most of them colored, are becom-
ing free and are hesitating between alterna-
tive paths of national development.
For all these reasons we ?propose the? fol-
lowing 23d amendment to the Constitution
of the United States.
"ARTICLE XXIII
"Section 2
"The right of citizens of the United States
to vote shall not be denied or abridged by
the United States or by any State or by any
person for any cause except inability to meet
State age or length-of-residence require-
ments uniformly applied to all persons
within the State, or legal confinement at the
time of registration or election. This right
to vote shall include the right to register or
otherwise qualify to vote, and to have one's
vote counted.
"Section 2
"The Congress shall have power to enforce
this article by appropriate legislation."
Mr. President, this destructive pro-
posal would permit criminals, incom-
petents, and others deprived of voting
rights by State laws for any reason, to
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1959 CONGRESSIONAL RECORD ? SENATE
vote along with all the duly qualified
electors. .
This proposal would destroy one of the
last vestiges of State sovereignty by de-
priving the people through their State
governments of the right to set the
qualifications for the electors who choose
State and local public officials. I recog-
nize that this outrageous recommenda-
tion was made by only three of the Com-
missioners, but it points up lucidly the
dangers that are inherent in a continua-
tion of such an irresponsible public
agency. This recommendation alone
should foredoom the Commission to ex-
pire.
The recommendations in the field of
educatiOn are equally obnoxious and
they appear to represent a preconceived
advocacy by certain members of the
Commission to force the integration of
the races upon the people of the South
and of the Nation.
First of all, the Commission requests,
not only that the Congress extend its
life, but that it be given additional au-
thority by permitting the Commission
to serve as a "clearinghouse to collect
and make available to States and to local
communities information concerning
programs and procedures" to integrate
the races in the public schools.
The Commission also asks that it be
authorized to establish "an advisory and
conciliation service" to implement the
forced integration of the races in the
public schools.
Its findings and recommendations in
this regard are as follows:
FINDINGS'
1. The case of adjustment of a school sys-
tem to desegregation is influenced by many
factors including the relative size and loca-
tion of the white and Negro population, the
extent to which the Negro children are
culturally handicapped, segregation prac-
tices? in other areas of community life, the
presence or absence of democratic participa-
tion in the planning of the program used
or preparation of the community for its ac-
ceptance, and the character of the leader-
ship in the community and State.
, 2. Many factors must be considered and
weighed in determining what constitutes a
prompt and reasonable start toward full
comfiliance and the means by which and
the rate at which desegregation should be
accomplished.
3. Desegregation by court order has been
notably more difficult than desegregation by
voluntary action wherein the method and
timing have been locally determined.
4. Many school districts in attempting to
evolve a desegregation plan have had no
established and qualified source to which to
turn for information and advice. Further-
more, many of these districts have been con-
fused and frustrated by apparent incon-
sistencies in decisions of lower Federal
courts.
Recommendations Nos. 1(a) and 1 (b)
Therefore, the Commission recommends:
1. (a) That the President propose and
the Congress enact legislation to authorize
the Commission on Civil Rights, if extended,
to serve as a clearinghouse to collect and
make available to States and tolocal com-
munities Information concerning programs
and procedures used by school districts to
comply with the Supreme Court mandate
either voluntarily or by court order, includ-
ing data as to the known effects of the pro-
grams on the quality of education and the
cost thereof.
No. 163-8
(b) That the Commission on Civil Rights
be authorized to establish an advisory and
concilation service to assist local school of-
ficials in developing plans designed to meet
constitutional requirements and local con-
ditions; and to mediate and conciliate, upon
request, disputes as to proposed plans and
their implementation.
Mr. President, the granting to the
Commission of the authority to establish
"an advisory and conciliation service" in
the field of race relations would be but
an exercise in futility. If this proposal
has as its purpose the mediation of dis-
putes or misunderstandings between
persons of the different races, as appar-
ently it does, it fails to recognize the
inescapable lesson of history '?that dis-
putes between man and man, or among
members of a community, can volun-
tarily be resolved not by Strangers whose
very presence is resented but only by the
working out of an accommodation by the
persons involved. The creation of such
a functi6n for the Commission would be
a waste of public funds and would con-
tribute nothing to the betterment of
racial relations.
Next, the Commission recommends
that the spending of the public moneys
be shared by another agency of the
Federal Government, the Office of Edu-
cation of the Department of Health,
Education, and Welfare for the purpose
of conducting an annual school census
which could serve no useful purpose.
Three members of the Commission, as
a climax-to its recommendations in the
field of education, recommend a propo-
sal to require the integration of the
races as a condition precedent to the
granting of Federal funds to higher edu-
cation.
They state:
We recommend that Federal agencies
? * * be authorized and directed to with-
laold funds in any form to institutions of
higher learning, both 'publicly supported
and privately supported, which refuse, on
racial grounds, to admit students otherwise
qualified for admission.
The other three members of the Com-
mission absolutely rebut this argument
with the statement that "the findings and
recommendations," in the field of educa-
tion are, "to a large extent argumentative
and colored by the authoi's views of the
sociological and psychological aspects of
the school integration problem."
They further state:
We cannot endorse a program of economic
coercion as either a substitute for or a sup-
plement to the direct enforcement of law
through the orderly processes of justice, as
administered by the courts.
In the field of housing the findings and
the recommendations of the Commission
are equally to be condemned.
The report written by the staff of the
Commission relating to housing is even
more drastic and sweeping. It recom-
mends the integration of all feder-
ally assisted housing, including housing
constructed with the assistance of Fed-
eral mortgage insurance or loan guar-
antees as well as federally aided public
housing and urban renewal projects.
This recommendation prompted Vice
Chairman Storey and Commissioners
Battle and Carlton to denounce such
17879
parts of the report as being keyed to in-
tegration rather? than housing, and as
suggesting a fixed program of mixing
the races anywhere and everywhere re-
gardless of the wishes of either race.
They further declare that if such sug-
gestions were carried out in full, they
will result in delay and in many cases
defeat of adequate housing.
These recommendations of the staff
are repugnant to the fundamental consti-
tutional and legal concept that Ameri-
cans should have the freedom to select
their own associates. They would be
likely to foredoom to failure federally as-
sisted housing programs because they
would divert such programs from the
primary objective of providing adequate
housing for American families to the ob-
jective of forcing the mixing of the races
as a result of such housing programs.
As Senator Eavnkr, the able and distin-
guished senior senator from North Caro-
lina, declared in his powerful and mas-
terful address of F..aturday night:
When all is said, the report of the Com-
mission leaves me with the abiding convic-
tion that the staff of the Commission is in-
separably wedded to the propositions that
Americans ought not to have the freedom to
select their own acsociates, and that all pos-
sible governmental powers ought to be di-
verted from their primary functions to that
of compelling the involuntary association of -
the races.
All of the recommendations represent,
in my judgment, the personal predilec-
tions of certain members of the Com-
mission in favor of forcing the integra-
tion of the races on the people of the
South and the country. I agree whole-
heartedly with the statement of Gover-
nor Battle in his final dissent:
I must strongly disagree with the nature
and tenor of the report. In my judgment,
it is not an impartial, factual statement,
such as I believe to have been the intent of
Congress, but rather, in large part, an argu-
ment in advocacy of preconceived ideas in
the field of race relations.
At this time of danger and of decision
when we must be united as a Nation,
when there is so much that needs to be
done, so much good that can be done, so
much wrong that must be undone, and so
much work that our people demand to
be done, it is regrettable that we must
digress from high purposes and good
works and concentrate our attention and
energies on extending the life of a bu-
reaucratic agency which has made such
drastic, sweeping, and indefensible pro-
posals.
Let us be done, Senators, with this
measure brought here under the pres-
sure of political expediency, which dis-
tracts and misguides our people and
which separates and divides us. Let us
be done with this measure.
Let us stand united, strong, and reso-
lute in our unity. Let us support
squarely the rights of the people of the
United States and the rights of the
States of the United States that our
Government may be preserved. Let us
stand squarely upon the Constitution of
the United States?rock of freedom, age-
less and enduring foundation of our
rights, our hopes, and our democratic
faith.
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('I
17880 CONGRESSIONAL RECORD SENATE
Mr. EASTLAND. Mr. President, / am
opposed to the suspension of the rules
for the purpose of legislating an exten-
sion of the life of the Civil Rights ca-
mission on the mutual security appro-
priation bill. I am opposed to the exten-
sion of the life of the Civil Rights
Commission by legislation in any man-
, ner, form or character. I am opposed to
the appropriation of even one thin dime
of public funds to finance any further
activity on the part of this Commission.
Its life should not only be terminated
but the corpse should also be buried very
? deep. When a creature of this Congress
? places before us recommendations and
proposals which, if adopted, would com-
pletely transform and destroy our estab-
lished systems of government in this
country, from the smallest of our local
communities through the cities, counties,
? and States and on into Federal frame-
work, it is time for serious thought, con-
sideration and action. The first 'action
should and must be the immediate de-
-mise of the Commission.
- Mx. President, I do not know who wrote
the text of the 668-page report that the
ComMission sent to Congress. After
. scanning the manuscript. I turned to the
. acknowledgments to see if Gunnar
? Myrdal, the Swedish social engineer, had
been retained as a consultant or given
any credit for assisting on the project.
His name did not appear. I then turned
.to the selected bibliography to see if the
.name Gunnar Myrdal or his book "An
American Dilemma" were mentioned or
noticed. They were not. My conclusion
.is that the U.S. Supreme Court has more
. courage than did the Civil Rights Com-
mission. The Court at least admitted
that its integration decision was based
on the alleged modern scientific authori-
ties in the fields of sociology, anthropol-
ogy, and psychology such as Myrdal and
-his ilk. The Civil Rights Commission,
both in the fields of constitutional inter-
pretation and the pseudo sciences, needs
no authorities? other than the facile
minds of the Commission staff.
Congress created the Civil Rights
Commission as a factfinding body. I
see nothing in the Civil Rights Act of
1957 that either , directs or authorizes
the Commission to concern itself with the
legal assignment of interpreting or re-
interpreting the Constitution of the
-United States and the history of judicial
decisions of this country. I see nothing
in the act that either authorized or di-
rected the Commission to write a new
and revised history of the United States.
? Both of these tasks, and many others,
have been performed by the Commission
with vengeance. They so drip with bias,
prejudice, animosity, and even down-
right hatred toward the South and
southern people that imagination itself
is staggered.
In the 1957 hearings before the Sen-
ate Judiciary Subcommittee on the Civil
Rights Act, Attorney General Brownell
was asked by Senator HENNINGS to give
the committee a little bit of his philoso-
phy about the proposed Commission.
Senator HENNINGS asked the Attorney
General further:
You have read everything from the Gun-
nar Myrdal survey, "An American Dilemma,"
in two volumes. Myrdal is the well-known
Swedish sociologist.
You have read the Gunnar Myrdal survey,
I am sure.
Now here we have the report of the Pres-
ident's Committee on Civil Rights. It is
dated Washington 1947, and of course as
you repeat with much better phraseology
than I can devise or use or come by, by any
means "the American heritage comes from
freedom and equality."
All these things are fine, but don't we all
know?you are familiar with this volume,
are you not, Mr. Attorney General?
Mr. BROWNELL. Yes, I am.
Senator Hztrwincs. I would like to inquire
as to just what such a commission would
do. ?
We have seen these commissions come and
go to the point where learned men sit
around tables every now and then when
:they can get themselves together and hire
somebody to make a report and they make
a report and that is put away in the ar-
chives.
Don't you think what we need is legis-
lation?
Don't we need action rather than another
study?
What are we going to study, Mr. Attorney
General, if I may inquire?
? Mr. BROWNELL. I think the difference be-
tween a study like the Myrdal study and
what we have in mind here is that that is
really- a collection of opinions. What we
would really like to have for the benefit
of our work would be a factual study where
testimony could be taken under oath from
people as to any patterns or practices which
exist in any area of discriminations based
on color, religion?
Senator HENNINGS. But if we have all the
.legislation we should have, do we need to
have any more testimony taken under oath?
Mr. BROWNELL. I think we would prob-
ably find, it would be my hope and in fact
my belief, that a bipartisan commission of
this kind with authority to subpena wit-
nesses and study the facts would be able
to bring back sworn specific testimony
:which would not only be of benefit to us
in the area Of law enforcement, but would
be of vital benefit to the Congress in deter-
mining the need for additional legislation.
Mr. President, if legislative history has
any meaning or purpose, the Attorney
General has herein stated the exact heart
of what he and President Eisenhower in-
? tended for the legislation to authorize
the Commission to do. The result of the
Commission's study has achieved the
exact opposite purposefrom that which
was intended. The Commission, insofar
as the report is concerned, is damned in
the words of one of the six Commission-
ers. Commissioner Battle says: -
In my judgment it [the report] is not an
impartial factual statement,- such as I be-
lieve to have been the intent of Congress,
but rather, in large part, an argument in
advocacy of preconceived ideas in the field
of race relations.
Part 1 of the report is entitled "Consti-
tutional Background of Civil Rights."
Chapter I is styled "The Spirit of Our.
Laws." The very first noun employed
departs so far from the field of fact that
we enter the realm of metaphysics. Just
what does this word "spirit" mean, Mr.
President? Here is what Webster says:
1. The breath of life; life, or the life prin-
ciple, conceived as a kind of vapor animating
the body, or, in man, mediating between
body and soul.
2. The life principle viewed as the "breath"
or gift of deity; hence, the agent of vital
and conscious functions in man; the soul.
September 14
3. In the abstract, life or consciousness
viewed as an independent type of existence.
4. One manifestation of the divine nature;
the Holy Spirit.
5. Any supernatural being, esp. one able
to possess a person, an apparition; a specter;
also, sometimes a sprite; elf.
Mr. President, I do not know what con-
notation the Commission desired to place
on the word "spirit." But regardless of
the application, of the word "spirit" to
our laws, I am at a loss to see what pos-
sible purpose it can have with a fact-
finding survey. Then, too, when they
speak of our "laws" they are obviously re-
ferring to our basic charter?the U.S.
Constitution. So by transposition we
start the report with "The Spirit of the
.
Constitution." While the Commission-
ers and Myrdal arrive finally at the same
conclusions as to race mixing, at least
three of the Commissioners violently dis-
agree with Myrdal on constitutional in-
terpretation.
Myrdal charged that the Constitution
of the United States was- "impractical
and unsuited to modern conditions" and
its adoption was "nearly a splot against
? the common people." Commissioners
Hannah, Hesburgh, and Johnson reverse
Myrdal and predicate the entire report
'on the amazing assertion that the right
to vote and the right of all persons to
equal protection of the laws are implied
in the original Constitution itself. In-
stead of my 'replying to this fantastic
predicate and assertion, I now offer as
my witnesses, Cormnissioners Storey,
Battle, and Carlton. They say in a foot-
note on page 1,-titled "Exception to the
-Statement of the ? Constitutional Back-
ground of Civil Rights," that?
' We take exception to this and all ? suc-
ceeding passages to the effect that a provi-
sion- on the equal protection of the laws
'properly may be implied in the original Con-
stitution itself. Such assertions ignore his-
torical fact and disregard the development of
constitutional law pertinent to recognition
'Of the human dignity of the individual in
our democratic society.
There then follows a seven-point anal-
ysis of their position.
Mr. President, as amazing as it may
sound coming from me, I say with con-
fidence that even the presently consti-
tuted U.S. Supreme Court will agree with
Commissioners Storey, Battle, and Carl-
ton. And the most puzzling point to me
in this whole business is this: Why, when
a six-man 'Commission is split 3 to 3, do
three of the Commissioners have their
constitutional opinions taken as the Holy
Writ and placed in the body of the text
of the report while the other three are
relegated to the small print of the foot-
note? I do not know the answer to this
question, but I do know this?every sin-
gle recommendation and proposal which
this Commission has made to Congress
is squarely based on this fundamental
and false interpretation or opinion as to
the meaning of the U.S. Constitution.
Further, in order to sustain this premise
the Commission was forced to declare
the U.S. Supreme Court unconstitutional
in a line of decisions stretching from the
Infancy of the Republic to the present.
Mr. President, in 1957 the then Attor-
ney General, Mr. Brownell, declared that
the Commission's study should be objec-
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1959 CONGRESSIONAL RECORD ? SENATE
tive and free from partisanship, broad
and at the same time thorough, and that
such a study, if fairly conducted, would
tend to unite responsible people in a
common effort to solve these problems.
If that solemn objective had been fol-
lowed by the Commission and reflected
in its report, there would be few who
could quarrel with that basic approach.
I am sure thateevery well-intentioned
Member of Congress who voted in 1957
to create this Commission expected such
aims to be carried out and reflected in \
any report submitted by this body to the
Congress. Unfortunately, this is not the
case. I challenge any fair-minded per-
son who has made a careful study of the
report and recommendations to say that
the report is objective, free from parti-
sanship, broad, or thorough. It is not
objective. There runs through the 668-
page dissertation the utopian theme that
the world owes everyone a living, irre-
spective of one's ability, intellectual ca-
pacity, or ambition. The premise ap-
pears to be that the Government is to
be an absolute insurer of everyone's well-
being.
The lack of objectivity is apparent
from the very first page of the report,
whereby the,Commission arrogated to it-
self its own definition of what Congress
intended by creating that body.
? The report states that its first con- '
cern is with the right of citizens to vote
and the right of all persons to equal pro-
tection of the laws. Certainly, the Con-
gress was concerned with the right to
vote, but, as the Commission failed to
state, it is the right of qualified citizens
as declared by the Constitution and the
laws of the sovereign States. The re-
port starts out on the lofty note of the
right of all citizens, ignoring the plain
delegation of section 2, of article I of
the Constitution, that the States them-
selves shall determine the qualifications
of its voters. From this untenable
premise the report runs the gamut of
the Declaration of Independence, the
Constitution, the Bill of Rights, the Su-
preme Court decisions, Patrick Henry
and DeTocqueville. From this collection
of authorities are selected only those
ideas and statements that lend assist-
ance and fortification to the basic theme
that this is to be a new pattern for life
in America declared by this Commis-
sion to be superimposed over all our
citizens.
If this is the objective, it has achieved
one purpose, in that it will tend to unite
those who firmly believe that this Na-
tion can only exist so long as our form
of government, as we have known it, is
based upon the idea that the National
Government exercises those powers
granted to it by the Constitution and all
other powers reserved to the individual
States.
The framers of this report, by at-
tempting to impress a new ideology, have
brought into sharp focus the basic dif-
ference between those who believe that
all powers should vest in the Central
Government and those who believe, on
the other hand, as the framers of the
Constitution wrote into that document,
that the States should have coequal au-
thority with the Federal Government.
Those who prepared the report ignored
the plain mandate of the Congress that
the primary duty and function of the
Commission was to gather facts. Those
who participated in the actual drafting
of the report either did not care or did
not wish to take the trouble of reading
the hearings on the nominations of the
Commissioners themselves, who stated
under questioning that the act itself
called for a factfinding body and not a
vehicle created to disseminate ideas
alien to our American way of life.
Recommendation No. 5 of the Com-
mission, providing for the Federal vot-
ing registrars, is thoroughly unconstitu-
tional and would constitute a violation
of article I, section 2, clause 1, and sec-
tion 3, clause 1, of the Constitution, as
amended- by the 17th amendment, in
that the Federal Government, through
registrars, Federal officials, would be
taking over from State officials and
contrary .to State law the determi-
nation of who were and were not quali-
fied electors in that State for members
of the most numerous branch of the
legislature of each State.
Mr. RUSSELL. Mr. President, will
the Senator yield?
Mr. EASTLAND. I yield.
Mr. RUSSELL. I point out to the
distinguished Senator from Mississippi
that that is the only language in the
Constitution of the United States which
appears in two places in identically the
same words. It appears where the Sen-
ator has stated, in section 2 of article I;
and in the 17th amendment, providing
for the popular election of Senators, the
identical language appears again.
There are those who like to contend
that the 15th amendment somehow was
a restriction upon ,section 2 of article I
of the Constitution. That, of course,
cannot be true since the 17th amend-
ment, which was ratified some years
after the 15th amendment, repeated the
earlier language of the Founding Fath-
ers in article I and is the latest expressed
of the will of the people in the writing of
their Constitution.
Mr. EASTLAND. The distinguished
Senator from Georgia is certiinly cor-
rect. It goes to the qualifications of the
members of the Commission, who are
recommending to Congress that 'we de-
stroy the basic charter of our liberties?
our Constitution.
The determination of who possesses
the qualifications required of qualified
electors in each State is part and parcel
of the qualifications of those electors.
One cannot become a qualified elector
in a State and entitled to vote for the
Members of its most numerous branch
of the legislature without having evi-
denced his qualifications in accord with
State law.
This recommendation would destroy
this and other features of the electoral
processes in each State. The persons
qualified to vote for Senators and Rep-
resentatives are by the said section of
the Constitution asserted by it to be
those who are qualified to vote for the
members of the most numerous branch
of the State legislature. This recom-
mendation makes the Federal Govern-
ment the arbiter of who is 'and who is
17881.
not qualified to be and become a mem-
ber of the legislature of each of the
States, because members of the legisla-
ture of each State' must be qualified
electors in and of that State.
If as many as nine persons in a dis-
trict, county, parish, or other political
subdivision of a State make oath that
they believe each is qualified under the
law of the State of their residence to be
electors but have been denied the right
to register because of their race, color,
religion, or national origin and deliver
these affidavits to the President of the
United States, he is then required, with-
out any discretion on his part, to refer
those affidavits to the Civil Rights Com-
mission. Upon receipt of them by the
Commission, it is required mandatorily
to investigate the allegations of the affi-
davits and if they find that the allega-
tions of any affidavits are well founded,
they shall then certify such -affidavits
with their findings, to the President, and
to such temporary registrar as he may
designate.
Upon receipt of such certificate and
the affidavit so certified to him, the Pres-
ident is mandatorily required, with no
discretion on his part, to then appoint
any Federal officer or employee in the
area from which such complaints are
received, as a temporary registrar. Such
registrar shall then take over and ad-
minister the State qualification laws and
determine who are and who are not qual-
ified electors under the State laws and
determine who are, and who are not,
qualified to register under the State law.
Those found to be qualified he will reg-
ister. Such registrar shall then certify
to the State authorities the names of the
persons he has registered. Such regis-
trar shall issue a certificate to all persons
registered by him and such certification
shall permit all such registrants to par-
- ticipate in Federal elections mentioned
In the act, being all primary, general,
and special elections for the election of
presidential electors, Senators, and Rep-
resentatives. Such registrar shall re-
main in office and discharge his function
as long as the President in his discretion
thinks the registrar should remain in
power.
The criterion adopted by this recom-
mendation by which all State laws and
officers may be displaced in the determi-
nation of who is qualified to register and
vote is. as ridiculous as it is invalid.
Under it all State control over the regis-
tration and the determination of who are
qualified electors eligible to vote for the
members of the most numerous branch
of the State legislature and thusly to vote
for Senators and Representatives, is not
who is in fact qualified to register and
who is in fact qualified to vote, but on the
other hand, is whether as many as nine
persons believe that they are qualified
electors and believe that they have been
denied the right to register because of
race, color, religion, or national origin.
There is no certainty and no objectivity
whatever in the test of an individual be-
lief. What an intelligent man may believe
may perplex an ignorant man. What an
ignorant man may believe may be imme-
diately rejected by an intelligent man.
What a ma,n may believe who has no
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17882 CONGRESSIONAL RECORD? SENATE
real knowledge or understanding of the
State law requirements of registration
certainly would-not be the same belief
there as to which which be entertained
by a person who did understand the-
-State law requirements. What one per-
son may believe would constitute a denial
of the right to register because of race,
color, religion, or national origin, may or
may not be what another person would
believe upon the same facts. In this
connection I ' have read many cases
wherein people of both races have be-
lieved in their own mind that they were
discriminated against because of race or
color but both Federal and State courts
disagreed with them when the facts were
disclosed.
The criteria here permit every man in
his own mind to be both the judge and
the jury. How can any person say what
another believes? I can think of many
instanoes in which I could say that a
person's belief in a certain thing was well
founded?but at the same time, on the
same facts, I would know that his belief,
however sincere or insincere it may be,
was erroneous and incorrect.
This recommendation shows the ex-
tent to which its advocates are willing to
go in order to satisfy certain pressure
groups in this Nation and to destroy the
basic principles of this Government in
the Federal and State relationships, and
actually the provisions of the Constitu-
tion of the United States.
This recommendation usurps all power
and authority under the franchise and
election processes now vested in the
State and Federal judiciary. The en-
actment of this recommendation would
prevent any court, Federal or State,
from dealing with or passing upon any
question in connection with the fran-
chise and the electoral processes in the
election of the officers specified. It is
conclusive evidence that the Civil Rights
Commission wishes to actually control
, the most vital features of the Federal
and State Governments. The Commis-
sion under this provision would be the
most powerful agency in the U.S. Gov-
ernment. The States and the President
would be subservient to its findings.
Actually, in addition to the foregoing,
the recommendation is totally without
any of the safeguards required by the
rules of due process of /5.w, and there-
fore it is invalid and unconstitutional.
Presidential electors are officers.of each
State, and, as such, the qualifications of
the persons who register and vote for
them are vested exclusively in each
State.
No provision in the Constitution of
the United States or no amendment
thereto in any way authorizes Congress
to legislate with reference to religion, or
national origin, in connection with the
franchise or voting; and, therefore, Con-
gress would have no right so to do.
This recommendation is, I say,
squarely-held to be unconstitutional by
the decisions of the Supreme Court of
the United States, in McPherson v.
Blacker, 146 U.S. 1, 36 L. ed., 869; Mi-
nor v. Happeisett, 88 U.S. 162,22 L. ed
627; U.S. v. Cruikshank, 92 U.S. 942, 23
L. ed. 588; Breed Love v. Suttles, 302
U.S. 276, 82 L. ed 252; In re Green, 134
U.S. 337, 33 L. ed. 951;-Walker v: U.S.,
93 Fed. 2nd, 383; U.S. v. Classic, 313,
U.S. 298, 85 L. ed. 1368.
From the outset it is apparent that
the Commission ignored the mandate
of Congress to study facts and report
those facts. - To the contrary, it is at-
tempting to interpret the Constitution
and our judicial decisions in accord-
ance with its own views, not of what the
law is, but of what the Commission
thinks the law should be.
Commissioner Battle very forthright-
'edly stated his disagreement with the
nature and tenor of the report. I con-
cur in his criticism that this report is
not an impartial, factual statement, but
rather, is an argument in advocacy of
preconceived ideas in the field of race
relations.
For the life of me, I cannot under-
stand how members of this Commission,
fully cognizant of the duties placed upon
them by the Congress in this import-
tant field, could so blithely ignore the
plain meaning of the Constitution, in
the various recommendations and con-
clusions set out in this report. To
justify its recommendations, the Com-
mission makes a strained interpreta-
tion of the Constitution and interprets
Supreme Court opinions to suit its own
purposes.
The report, in dealing with voting,
and the recommendations based on the
Commissiores study, reveal just how far
its framers seek to go in making the
National Government supreme in the
voting field, to the utter exclusion of
the States. Chapter IX on voting makes
the statement that few Americans would
deny, at least in theory, the right of all
qualified citizens to yote, but then qual-
ifies that statement' by stating that a
significant number differ as to which
citizens are qualified, and then observes
that the goal of universal adult suffer-
age has not yet been achieved in this
country.
It is obvious that recommendations on
voting, which have the endorsement of
Commissioners Hannah, Storey, and
Hesburgh, cavalierly disregard the fact
that, throughout our history, regula-
tion of voting has been traditionally
and appropriately a function of the
States, and that the intrusion of the
Federal Government into the regulation
of voting has been generally considered
unconstitutional, except in the instances
precisely defined in the 14th and 15th
amendments.
These voting recommendations, which
attempt to confer universal sufferage by
taking from the States their traditional
and constitutional right to determine
the qualifications of their own voters, fly
squarely in the face of the consistent
holdings of the Supreme Court that the
States alone are to determine the quali-
fications of their voters. Disregarded is
the declaration of the Supreme Court
in Minor v. Happerset, 88 U.S. 162, page,
170, wherein the Court said:
Certainly, if the courts can consider any
question settled, this is one. For nearly 90
years the people have acted upon the idea
that the Constitution, when it conferred citi-
zenship, did not necessarily confer the right
of suffrage.- If uniform practice long con-
September 14
tinued can settle the construction of so im-
'portant an instrument as the Constitution
of the United States confessedly is, most
certainly it has been done here. Our prov-
ince is to decide what the law is, not to de-
clare what it should be.
Ignoreclare the words of our highest
Court iri;Breedlove v. Suttles, 302 U.S.
277, pager238, wherein the Court said:
Privilege of voting is not derived from the
United States, but is conferred by the State
iand, save as restrained by the 15th and 19th
amendments and other provisions of the Fed-
eral Constitution, the State may condition
suffrage as it deems appropriate.
Commissioners Storey, Carlton, and
Battle oppose the recommendation for a
constitutional amendment which would
take from the States the power to fix the
qualifications of their voters. They do
so because such a proposal would alter
the longstanding Federal-State relation-
ship, and should not be proposed in the
absence of clear proof that no other ac-
tion will correct an existing evil; and
they conclude 'that no such proof - is
apparent.
The attempt to foist this proposal of
universal suffrage in the guise of a "re-
affirmation of the faith in the principles
upon which this Nation was founded"
demonstrates the clever way that the
writers of the report distort our consti-
tutional principles. No greater principle
has been observed over the past 150
. years?and this principle was in effect
.long before our Constitution was
drafted?than the principle that the
States, themselves, are to determine the
qualifications of voters. Yet, three of
the Commissioners state that universal
suffrage, as determined by the Federal
Government, is a principle upon which
the Nation was founded. Nothing could
be farther from the truth. Article I,
section 2, of the Constitution would thus
be nullified by the Commissioners who
espouse such action.
This proposal of universal suffrage is
advocated by Commissioners Hannah,
Hesburgh, and Johnson as "in harmony
with the American tradition and with the
trend in the whole democratic world."
I thoroughly disagree that such a pro-
-posal is in harmony with otir American
tradition. If these gentlemen are seek-
ing to march the United States down the
road to totalitarian government, this re-
port is an apt vehicle to carry out their
purpose.
Mr. President, it is fairly evident that
those who framed this report are seek-
ing to accomplish and bring about to-
tal and complete integration, mixing,
and amalgamation of the races in this
Nation. This aim is demonstrated very
clearly in the recommendations in re-
gard to the fields of education and
housing.
Among other things, Commissioners
Hannah, Hesburgh, and Johnson would
have the Federal Government withhold
.Federal funds, not only from public edu-
eational institutions of higher learning,
but also from private and religious in-
stitutions of higher learning, who refuse
to integrate and mix the races. Com-
missioner Johnson went even further,
and recommended that this policy be
extended to the elementary and sec-
ondary schools.
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1959 CONGRESSIONAL RECORD ? SENATE
The sum and substance of this pro-
posal to cut off all public funds from
any schools which deny admis' sion on the
grounds of race is that this proposal
strikes right at the heart of our educa-
tional system as it has existed in this
country. It strikes in two ways: First, it
disrupts the heretofore autonomous au-
thority of local agencies over the conduct
of its own school systems; and, second,
it strikes a blow at schools which need
the grants for these special programs of
education, which would not be possible
without aid from the Federal Govern-
ment. This effort to exert economic
pressure to compel integration in not
only public but private schools,will in-
evitably destroy our school system in
America, if carried out. - This proposal is
certainly alien to our thinking, and is ab-
solutely contrary to the history and de-
velopment of our educational system, as
it exists today. This proposal, if carried
out, will run counter to what the Com-
mission states in its own report is neces-
sary if the American system of public
education is to be preserved without im-
pairment. Certainly the denial of pub-
lic funds to educational institutions will
irreparably harm programs which could
not be sustained except for these Fed-
eral grants. Our public school system
in America has been the great factor in
the dominance of America over other Na-
tions in the world. Any diminution of
our educational system, therefore, will
weaken our power in world affairs. The
further step now advanced, and directed
toward one section of the country and its
educational system, can only create
chaos.
I feel that all serious-minded Ameri-
cans who -are concerned with the neces-
sity of higher 6ducation for our children
will oppose any plan which has for its
purpose the forcing of State and local
educational systems to bow to the will
of the Centralized Government. The
past few years have amply demonstrated
the feelings of the States and local com-
munities about legislative proposals
whereby control over education would be
taken from local authorities and would
be placed in the Federal Government.
This proposal will? engender the same
animosity, in that what is here proposed
is coercion from the Federal Govern-
ment over the States and local educa-
tional bodies by forcing those institutions
and school boards to compel integration
or else to suffer the loss of needed Federal
grants.
This proposal was opposed by Com-
missioners Storey, Battle, and Carlton.
Their opposition, in my opinion, was
' based on very strong grounds. They
stated that they could not endorse a
program which would undermine the
preservation and improvement of our
educational system. These Commission-
ers very cogently observed that this
serious and social problem of integration
in the public schools cannot be solved
by hasty or precipitous action, but must
have the careful and sympathetic con-
sideration of all, and that due regard
must be given to the way of life of large
numbers of loyal Americans.
Commissioners Storey, Battle, *and
Carlton further opposed this idea of
denying public funds as a program of
economic coercion, as a substitute for,
or a supplement to, direct enforcement
of law through the orderly processes of
justice, as administered by the courts.
In view of the fact that problems of equal
protection pertaining to education fall
within the purview of the 14th amend-
ment, an area Ding since preempted by
the courts, they cannot support this
proposal.
I submit that such a proposal as the
one here espoused in the report could
more be expected to be raised in a totali-
tarian state rather than here in America.
The use of economic pressure, no mat-
ter for what purpose, has long been con-
demned as distateful to our forth of gov-
ernment. Yet, in the report we are
being told that schools must either inte-
grate or must be cut off from Federal
funds. If this proposal were to be
adopted, the cause of education would
be set back 100 years.
Mr. President, the housing recom-
mendations of the Commission consti-
tute a blueprint for forced integration in
America. In substance, the report de-
clares that the Federal Government
should insure, in its public- housing pro-
gram, that that program will continue-
to aid only low-income families in
America, if integration of the races takes
place. In other words, Congress must.
cease to disburse public funds in the
housing field, unless integration takes
place.
While these housing recommenda-
tions have the concurrence of all mem-
bers of the Commission, Commissioners
Storey, Battle, and Carlton depart from
their fellow brethren on the Commission
and make it readily -apparent that they
cannot subscribe to the philosophy that
. the Government owes everyone a house.
I think that their supplementary state-
ment on the housing recommendations is
worthy of being noted at this point:
We yield to no one in our good will and
anxiety for equal justice to all races, in the
field of housing as elsewhere. A good home
should be the goal cff everyone regardless of
color, and the Government should aid in
providing housing in keeping with the means
and ambitions of the people. Government
aid is important where public improvements
have displaced people and where slums be-
come a liability to the community. This
does not mean, however, that the Govern-
ment owes everyone a house regardless of
his ambition, industry, or will to provide for
himself. When generosity takes away self-
reliance or the determination of one to im-
prove his own lot, it ceases to be a blessing.
We should help, but not pamper. But there
remains a financial limit beyond which the
Government cannot go.
The recommendations on housing and
education put forth by the Commisison
clearly disclose a patternthat is proposed
by the Commission to be superimposed
over our present way of life. The objec-
tive sought to be accomplished is Inte-
gration of the races. It is to be carried
out through economic pressures exerted
by the Federal Government. The report
proposes that the Federal Government
deny to its own citizens, in the respective
States, funds for housing and educa-
tional grants, unless integration of the
races takes place.
17883
I submit that these proposals advo-
cated in this Commission report go far
afield, and extend far beyond, the au-
thority delegated by the Congress to
this Commission, under the Civil Rights
Act of 1957. Rather than being a state-
ment of facts presented to the Congress,
the report is an ideological and social
discussion in the field of race relations.
This is a far cry from the then Attorney
General Brownell's statement that the
Commission was necessary in order to
make a study to bring out the facts and
to unite responsible people of good will
in a common effort to solve these prob-
lems.
Mr. President, the report of the Civil
Rights Commission categorically con-
demns the governifients of the sovereign
States of the South and the elected
officials, representatives, and appointees
therein. They charge that these offi-
cials, representatives, and appointees
have acted arbitrarily, capriciously, and
without legal cause or justification in
an alleged denial of voting rights to
certain individuals within the States.
They propose to turn over to Federal
officials the business of registering voters
under State law, and to let the Post-
master tell the county registrar or elec-
tion board who can or who cannot vote.
The Commission reasons that, since no
one yet has been registered through civil
remedies- under the Civil Rights Act of
1957, the Federal district courts are in-
effective for this purpose. Then, too,
the Commission charges that lawsuits
have rarely been successful, courts act
too slowly, and litigation often proves
fruitless. The simple solution the Com-
mission proposes is to bypass the courts
and extend the life of the Commission,
and then the Commission will register
the qualified voters.
At page 61 of the report, Jefferson
Davis County, Miss., is referred to as
being 55 percent Negro, with an alleged
3,923 Negroes of voting age, and 1,038
registered. The report states:
Most of the sworn complaints were filed by
Negroes who were registered voters until
1956, when their names were removed from
the registration books.
The Commission does not state, and
the report does not mention at any place,
top, side, or bottom, that under the Civil
Rights Act of 1957, a suit was filed by
Negro residents of Jefferson Davis Coun-
ty. Nowhere in the Commission report
do I find mention of the fact that a
three-judge constitutional court, after
full and complete hearings, found both
for an individual plaintiff and for a
class that there was no discrimination
against Negroes, as such, in being denied
the right to vote in Mississippi.
Clarence Mitchell, of the NAACP, in
testifying in 1957 before the House Ju-
diciary Subcommittee on Civil Rights,
offered, as part of his testimony, what
he called specific examples of persons
denied the right to vote in Mississippi.
One of these examples was an affidavit
submitted by one H. D. Darby, which
says:
To Whom It May Concern:
I, Rev. H. D. Darby of Post Office Box 116,
Prentiss, Miss., did on the 29th day of June
1956 go to the Jefferson Davis County court-
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17884 CONGRESSIONAL RECORD ? SENATE
house and the office of the circuit clerk for
the purpose of restoring my name to the
roll of registered voters. After having filled
Out the required form for registering, I
presented it to the circuit clerk, who looked
at the form and promptly said, "I have to
turn you down."
I had been given the 123 section of the
Mississippi constitution to interpret to the
satisfaction of the circuit clerk.
I had been a qualified elector for 4 years
before the county supervisors called for a
reregistration under the State's new consti-
tutional amendment.
I hereby affirm that the above statement
Is true. -
Rev. H. D. DARBY.
[SL] MARGARET A. LEWIS,
Notary.
My commission expires April 10, 1958.
Please note particularly the polished
and correct language that is utilized in
this affidavit. On the basis of the evi-
dence which I will submit, I charge cate-
gorically that the affidavit was not pre-
pared by Darby. The NAACP simply
had him sign it.
The complete story can best be under-
stood from an examination of the long
and comprehensive opinion in the case
of H/D. Darby, on behalf of himself
and others similarly situated, against
James Daniel, circuit clerk of Jefferson
Davis County, Miss., and Joe T. Patter-
son, attorney general of the State of
Mississippi. The case was brought in
the U.S. District Court for the Southern
District of Mississippi. It was heard by
a three-judge constitutional panel. The
others similarly situated involved in-
dividuals who were also used as exam-
ples by Clarence Mitchell in his NAACP
testimony before the House Judiciary
Subcommittee in 1957.
The suit sought an injunction under
the Civil Rights Act of 1957, and other
pertinent statutes. The opinion states
that the gravamen,of the plaintiff's com-
plaint is that he and other Negro citizens
have been denied the right to register
in order that they might vote, solely be-
cause of their race and color, through
the enforcement of a policy of discrimi-
nation against Negro voters, the en-
forcement of unconstitutional voting re-
quirements and the discriminatory ad-.
ministration of valid requirements.
Prior to January 1, 1954, plaintiff
Darby was a qualified elector in Jeffer-
son Davis County and exercised his right
to vote in various elections between
1950 and 1955. In February 1956, the
board of supervisors of Jefferson Davis
County ordered a new registration.
Darby presented himself before de-
fendant Daniel in June 1956, was given
a questionnaire, then completed part of
the written examination, signed his
name and left.
The opinion states:
He (the plaintiff) had consulted the at-
torney now representing him and had writ-
ten a letter of complaint to the President of
the United States some weeks before that,
which resulted in an investigation of de-
fendant Daniel being made by the Federal
Bureau of Investigation. About October 1,
1956, defendant Daniel received a letter from
the U.S. attorney in Jackson, Miss., request-
ing that Daniel come to his office for con-
ference. He responded to the request, going
in company with the county attorney to the
office of the U.S. attorney. There he was ad-
-
vised that the Department of Justice took
the position that persons who, like plaintiff
.Darby, had been registered prior to Jan-
uary 1, 1954, were required to take only the
oral examination covering the qualifications
as set forth in the original section 244 of
article 12 of the Mississippi constitution.
Daniel left the U.S. attorney and went to the
attorney general of Mississippi, who advised
him in writing October 12, 1956, that no per-
son registered prior to January 1, 1954 was
required to take the written examination
provided by the amendment. Thereafter,
Daniel pursued the policy of giving all ap-
plicants of Darby's class the option to take
the oral examination provided by the origi-
nal section or the written examination pro-
vided by the amendment.
Notice here that from the outset the
U.S. attorney was advising Darby, the
Department of Justice was advising
Darby what to do and what not to do,
and the FBI was investigating defend-
ant Daniel and the operation of his
office.
The question of a written or oral ex-
amination was resolved by Darby be-
ing given an oral examination. He
failed. He again presented himself for
an oral examination and again failed.
According to the opinion:
A short time thereafter the FBI made a
further examination into Daniel's Operation
of his office in which Daniel explained freely
what happened.
Next, Darby came back and asked that
he be given the written examination. It
was given to him on forms furnished to
Daniel by the State officials, and again
Daniel ruled he had not qualified for
registration.
Mr. President, at this time I do not
proposed to review the constitutional and
statutory provisions of Mississippi law
which are involved in this controversy.
They are fully covered in the opinion,
for which I now ask unanimous consent
to have inserted in the RECORD immedi-
ately following my remarks.
The PRESIDING OFFICER. Is there
objection? Without objection, it is so
ordered:
? (See exhibit 1.)
Mr. EASTLAND. Mr. President, it is
sufficient for my present purpose to only
say that Darby attempted in every way
to qualify and was denied by the applica-
tion of the law. The important thing is
what the Court actually found in regard
to Darby's capacity and ability to meet
the standards for voter registration. Here
is the finding and opinion of the Court:
According to the testimony of his attorney,
Plaintiff Darby approached him in April or
May 1956, about the time he wrote to Presi-
dent Eisenhower. The attorney called the
NAACP, which, sometime later, agreed that
its legal fund would pay the attorneys and
the expense of any litigation which might be
brought by Reverend Darby.
This was before his first written applica-
tion of June 29, 1956, in Which he stated that
he was a farmer. The application was signed
by him but was not filled in. It is not
claimed that, in this application or the oral
tests which came after it, plaintiff Darby
showed himself qualified to register. The
entire case is predicated on the sworn writ-
ten application of June 22, 1957, which he
took under hid attorney's advice and direc-
tion. This document, read in the light of the
testimony of Plaintiff Darby, reveals several
deficiencies.
September 14
He made no answer to question 14 inquir-
ing if he had ever been convicted of the
.crimes enumerated in the question; consid-
erable portions of the answers written by
plaintiff are illegible. In response to ques-
tion 18 calling upon him to copy section 123
of the Constitution of Mississippi,' he wrote
six lines not called for by the question and
not possessing marked coherence. In giving
his reasonable interpretation of that section
he wrote, "the Govenner govends all the
works of the state and he is to see that all
the voilatores be punished and als he can
pardon out the penetenter ane pherson." In
answering question 26 which directed him
to write his understanding of the duties and
obligations of citizenship under a constitu-
tional form of government, he wrote five
lines which could hardly be called accurate
or responsive to the question.,
The Couk found as a fact that Darby
did not compose and write the letter of
protest to the President. I now ask you
to find with me, in view of the Court's
finding as to Darby's degree of literacy,
that he did not compose arid write the
affidavit previously quoted from the
House hearings. Please note also that
the Court found that defendant Daniel,
while dealing with Darby, knew that he
was under constant surveillance by Fed-
eral officials and that he was dealing
with a party who was acting under ad-
vice of counsel.
As to other Negro witnesses who were
called as having been denied the right
to register and vote, the Court said:
Plaintiffs served subpena.s on 25 Negro wit-
nesses, of whom 15 were placed upon the
stand. Despite the principles last above
quoted and such cases as Reddis v. Lucky (5
Cir.; 1958) 252 F. 2d 930, 938, holding that
"obviously the right of each voter depends
upon the action taken with respect to his
Own case," we permitted this testimony to
be introduced over objection to give plain-
tiffs a chance to show that there was a class
whose rights they might carry if they estab-
lished their own case, and also that the testi-
mony might be considered as furnishing cir-
cumstantial evidence of discrimination in
favor of the case of plaintiffs. Although
some of the written applications exhibited
in connection with the testimony of these
witnesses were sufficient to raise an issue of
fact as to ?their qualifications, it is not our
providence to set ourselves up as registrar of
voters.
Some of the testimony certainly demon-
strated the absence of qualifications of the
applicants. For example, when called upon
by question 18 to copy section 198 of the
Mississippi Constitution, Johnnie B. Darby,
Plaintiff Darby's wife, wrote: "I have so
agreed to be as good a citizen as I pos-
sibly can I have not yet read the Constitution
of Mississippi I do try to abide by truth and
right as the Almighty God provide the Under-
standing and wisdom."
Another witness called upon to copy sec-
tion 16 of the constitution, wrote: "E3c post
facto laws or laws impaitring obligations
contrace St. Shall Be passed." Interpreting
,that section this same witness wrote: "a man
must pay pold tax befor he eagable to voat."
This witness gave his occupation as that of
teacher.
None of these witnesses took appeals from
2 The Governor shall see that the laws are
faithfully executed.
2A citizen is persn has in been in the
U.S.A. all his days, and is not been con-
victed of enny crimes and has been loyal,
to his country and pose all his tax.
24,1F poM facto laws, or laws impairing the
oblirttion of contracts, shall not be passed.
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1959 CONGRESSIONAL RECORD ? SENATE 17885
Daniel's riling declining to permit them to
register. Four of the fifteen passed the writ-
ten examination, and of those who failed, the
wives of two passed. He gave the test to
some of the witnesses as many as four times
and he invited plaintiff Dillon to come back
and try again. The testimony of these wit-
nesses adds little to the solution of the
problem before us.
Then the Court said:
The essence of the action before us, there-
fore, is discrimination on the part of the
defendant Daniel?discrimination against
plaintiffs, Negroes, and in favor of white per-
sons. After listening to the oral testimony
and, examining the documents carefully we
are unable to find any tangible or credible
proof of discrimination. There is no proof
that any white person was ever treated in
any manner more favorably than plaintiffi
or any other Negroes. The mere showing
that of 3,000 qualified voters, in Jefferson
Davis County only 40 to 50 are Negroes is
not sufficient. Plaintiffs carry the burden of
showing that plaintiffs have been denied the
right to register because they are Negroes,
and that white people similarly situated have
been permitted to register. This record con-
tains no such proof. The disparity between
numbers of registrants, as has been so often
pointed out, results doubtless from the fact
that one race had a start of several centuries
over the other in the slow and laborious
struggle toward literacy. This record does
not, in our opinion, show that defendant has
practiced discrimination. From our observ,a-
tion of his demeanor during the trial and
while on the witness stand and of the evi-
dence generally we are convinced that he has
shown himself to be a conscientious, pa-
tient, and fair public official, exerting every
effort to do a hard job in an honorable way.
As to the constitutional principles in-
volved in the Darby case, the Court
held:
We are importuned to rule without proof
that, on its face or by reason of its un-
revealed sinister purpose, the constitutional
amendment is void. The showing before us
wholly fails to warrant serious consideration
of so condemning a whole people, which is
what -we would have to do if we accepted
plaintiffs' argument. Neither proof nor
judicial knowledge tend to sustain plain-
tiffs' position.
Even if we had such knowledge by some
sort of occult power of divination, we would
not have the competence to do what plain-
tiffs advocate. No case is cited as a prece-
dent for such action, and no proof is of-
fered to sustain it. If we should imagine
ourselves possessed of such omniscience and
omnipotence, we would find ourselves con-
fronted by a vast array of authority which
forbids questioning the motives even of a
legislature, certainly of a sovereign people.
(b) Commenting upon the immunity of
State legislators from having their motives
scrutinized, Judge Learned Hand exclaims:
"But of all conceivable issues this would
be the most completely `political,' and no
court would undertake it." He also quotes
Chief Justice Taney's statement in The
License Cases, 5 How. 504, 583: "Upon that
question the object and motive of the States
are of no importance, and cannot influence
the decision. It is a question of power."
Mr. Justice Douglas, in Ferandez V. Wiener,
326 U.S. 340, quoted the language of Chief
Justice Stone in Sonzinsky v. United States,
1937, 300 U.S. 506, 513: "Inquiry into the
hidden motives which may move Congress
to exercise a power constitutionally con-
ferred upon it in beyond the competency of
the courts." Upon a principle so unques-
tionable it is sufficient to add to the cases
already cited a list of more recent decisions
affirming it.
We hold, therefore, that plaintiffs have
wholly failed to establish that the amend-
ment to section 244 of the Mississippi con-
stitution of 1890 is void on its face or be-
cause it was the product of base motives.
We hold, on the other hand, that said
amendment and the statutes passed in con-
nection with it are valid on their face and,
in fact, and are a legitimate exercise by the
State of its sovereign right to prescribe and
enforce the qualification of voters.
Finally, and most significant, no ap-
peal was taken from the decision of this
three-judge constitutional court to the
U.S. Supreme Court. It is final?it is
complete. Mississippi's constitution and
statutes in regard to registration and
voting requirements meet the demands
of the U.S. Constitution.
Mr. President, it was always my un-
derstanding in the operation of our sys-
tem of government, both State and Fed-
eral, that the courts were the final ar-
biters in interpreting the respective con-
stitutions, laws, and statutes adopted by
the several legislatures and the U.S.
Congress. We now find a Commission
arrogating unto itself the power and
right to overrule the solemn judgments
of courts. The Commission denies the
court's conclusion that the Mississippi
constitution and statutes in regard to
registration and voting requirements
meet the demands of the U.S. Constitu-
tion. In addition to all of its other con-
stitutional deficiencies, the Commission's
recommendation to establish Federal
registrars in local communities is a gross
invasion on the part of the executive
branch of the Federal Government
against the judicial branch. It upsets
completely the scheme of checks and
balances in the 'division of powers. The
Commission is asking this Congress to
constitute it as the court to determine
who has or has not been denied voting
rights. Not even in the days of recon-
struction was a more monstrous plan
devised to destroy and emasculate the
constitutional rights and powers of the
sovereign States.
Those who advocate and approve the
recommendations and proposals of the
Commission, together with the reasoning
and support thereof, predicate them
upon many unsound, erroneous, and fal-
lacious facts, interpretations of the Con-
stitution, and nonexistent powers and
policies of the Federal Government;
among such theories, principles, and er-
roneous constructions are the following:
That the Federal Constitution, either
specifically or impliedly, provides for and
requires it to assure and guarantee to
all citizens of the United States and of
the States equal protection-of the laws;
That the principle that all persons in
the United States, including citizens,
have equal rights granted by the Con-
stitution to everything in every phase
of voting, education, housing, and other
fields of social and political life in this
Nation;
That the privileges and immunities of
a citizen of the United States include
the right of suffrage; '
That the States are required to estab-
lish only what the Federal Government
considers to be reasonable qualifications
or restrictions on the right? to vote;
That universal suffrage and total
equality are basic requirements for every
person under the Constitution of the
United States and that such is guaran-
teed unto them by the Constitution;
That if integration and total equality
in every respect has not been granted
to and received by every citizen of each
State and this Nation by the courts, then
the courts should be bypassed and all
questions of qualification of voters
should be withdrawn from the courts
and placed in the hands of the Civil
Rights Commission;
That it is proper and within the provi-
sions of the Constitution that the execu-
tive department of the Government per-
form judicial functions;
That the Constitution, and particu-
larly the 14th and 15th amendments,
are designed to make the "nonwhite"
race in this Nation members of the
privileged class and give to them rights
and privileges not given or secured to
members of the white race.
There are many provisions of the re-
port in advocacy and support of the
recommendations and proposals which
sustain the foregoing statements but the ?
following are selected for your immedi-
ate consideration: ,
To show the fallacy and incorrectness
of the foregoing, we must review some of
the historical facts surrounding the
drafting of the Constitution and the
status of the franchise at the time of the
drafting and adoption of r the Constitu-
tion, and the pronouncements of the
Supreme Court of the United States and
other Federal Courts since 1788.
At the time of the adoption of the
Constitution the various States had their
own requirements which must have been
met for a person to be a qualified elec-
tor. Among them were property re-
quirements, financial worth, age, and
residence. Only males were permitted
to vote. During the Constitutional Con-
vention each State refused to give up
the right to set the qualifications of its
electors Efforts were made by Gouver-
neur Morris and others to permit the
Federal Government to set the qualifica-
tions of the electors in each State meas-
ured by the qualifications of State elec-
tors for members of the most numerous
branch of their respective State legisla-
tures?this was overwhelmingly de-
feated. Nowhere in any State law, as it
then existed, was there any idea of or
requirement of equality among all the
people as to all things. The right of suf-
frage was most unequal.
The selection of the people or the class
of people qualified to vote for represen-
tatives was as set out in article I, sec-
tion 2. Senators were to be elected ac-
cording to article I, section 3, clause 1,
by the State legislatures. The selection
of presidential electors was left exclu-
sively to the States, with the exception
of the time and day on which the elec-
tors were to cast their ballots for Presi-
dent and Vice President.
Until the adoption of the 14th amend-
ment the State could condition suffrage
as each State saw fit. This amendment
did not grant the franchise to any per-
son. It merely recognized the difference
between citizenship in the United States
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17886 CONGRESSIONAL RECORD ? SENATE
or national citizenship and State citizen-
ship; it further made all Negroes citizens
of the United States; it further required
that the laws of each State be applied
equally to all persons therein.
As to voting we find the source of the
franchise, whom it may be exercised by,
what is the true meaning of the words
"right to vote," and to whom it is given,
and the correct meaning of the 14th and
15th amendments well stated in varibus
cases from the Supreme Court of the
United States and other Federal Courts.
The right of suffrage is not one of the
privileges and immunities of national
citizenship; it is not one of the privileges
and immunities of State citizenship. In
Minor v. Happerset, 21 Wall 627, 22d
Law Ed. 162, we find, page 629:
The United States has no voters in the
state of its own creation. The elective offices
of the United States are all elected directly
or indirectly by State officers.
Speaking of the 14th amendment, the
Court said:
The amendment did not add to the privi-
leges and immunities of the citizen, It simply
furnished an additional guaranty for the
protection of such as he already had.
It is clear, therefore, we think, that the
Constitution has not added the right of suf-
frage to the privileges and immunities of
citizenship as they existed at the time it was
adopted.
The Court holds that the franchise is
not a privilege and immunity of State
citizenship.
As to the true meaning of the 14th
amendment as interpreted by the
Slaughterhouse Cases, 83 U.S. 16, Wall
36, 21 L. Ed. 394, and as to the right of
suffrage as effected by the 14th and 15th
amendments, we find as follows in Mc-
Pherson v. Blacker, 146 U.S. 1, 36 L. Ed.
869-878:
This Court held that the first clause of the
14th article was primarily intended to confer
citizenship on the Negro race; and secondly,
to give definitions of citizenship of the
United States, and citizenthip of the States,
and it recognized the distinction between
citizenship of a State and citizenship
of the United States by those defini-
tions; that the privileges and immuni-
ties of citizens of the S Sates embrace gen-
erally those fundamental civil rights for
the security and establishment of which or-
ganized society was instituted, and which
remain, with certain exceptions mentioned
In the Federal Constitution, under the care
of the State governments; while the priv-
ileges and immunities of citizens of the
United States are those which arise out of
the nature and essential character of the
national Government, the provisions of its
Constitution, or its laws and treaties made
in pursuance thereof; and that it is the lat-
ter which are placed under the protection
of Congress by the second clause of the 14th
,amendment.
We decided in Minor v. Happersett, 88 U.S.
21 Wall. 162 (22: 627), that the right of suf-
rage was not necessarily one of the priv-
ileges or immunities of citizenship before
the adoption of the 14th amendment, and
that that amendment does not add to these
privileges and immunities, but simply fur-
nishes as additional guaranty for the pro-
tection of such as the citizen already has;
that at the time of the adoption of that
amendment, suffrage was not coextensive
with the citizenship of the State; nor was
it at the time of .the adoption of the Con-
stitution; and that neither the Constitution
nor the 14th amendment made all citizens
voters.
The 15th amendment exempted citizens
of theUnited States from discrimination in
the exercise of the elective franchise'
on account of race, color, or previ-
ous condition of servitude. The right to
vote in the States comes from the States,
but the right of exemption from the pro-
hibited discrimination comes from the
United States. The first has ,not been
granted or secured by the Constitution of
the United States, but the last has been.
United States v. Cruikshank, 92 U.S. 542
(23: 588); United States v. Reese, 92 U.S.
214 (23: 563).
If because it happened, at the time of the
adoption of the 14th amendment, that those
who exercised the elective franchise in the
State of Michigan were entitled to vote for
all the presidential electors, this right was
rendered permanent by that amendment,
then the second clause of article II, has been
so amended that the States can no longer
appoint in such manner as the legislatures
thereof may direct; and yet no such result
is indicated by the language used nor are
the amendments necessarily inconsistent
with that clause. The first section of the
14th amendment does not refer to the exer-
cise of the elective franchise, though the
second provides that if the right to vote is
denied or abridged to any male inhabitant
of the State having attained majority and
being a citizen of the United States, then
the basis of representation to which each
State is entitled in the Congress shall be
proportionately reduced. Whenever presi-
dential electors are appointed by popular
election, then the right to vote cannot be
denied or abridged without ' invoking the
penalty, and so of the right to vote for
representatives in Congress, the executive
and judicial officers of a State or the mem-
bers of the legislature thereof. The right to
vote intended to be protected refers to the
right to vote as established by the laws and
constitution of the State. There is no color
for the contention that under the amend-
ments every male inhabitant of the State
being a citizen of the United States has from
time of his Majority a right to vote for presi-
dential electors.
At page 879 of the Law Edition, re-
port of McPherson, we find the Court
pointedly summing up the 14th amend-
ment insofar as equal protection of the
laws is concerned.
It merely requires that all persons subject
to such legislation shall be treated alike,
under like circumstances and conditions,
both in the privileges and in the liabilities
imposed.
The Court further held in McPherson
that the fact that the constitution and
laws of the State of Michigan did not
grant the franchise to women, did not
prevent the State of Michigan from
having a republican form of govern-
ment. This holding squarely contra-
dicts the assertions of the Commission's
report to the effect that in order to have
a republican form of government there
must be universal suffrage and that
everyone must have equal right to every-
thing at the same time.
The case of Pope v. Williams, 193 U.S.
621, 48 L. Ed. 817, squarely refutes and
condemns the statement in the report
at page 5, that:
It was understood then (referring to the
time when the constitution was adopted) as
now, that States could establish reasonable
restrictions on the right to vote saying in
effect that the Federal Government had the
power to require the States to prescribe only
September 14
what the Federal Government thought were
reasonable restrictions on the right to vote.
Here the Court dealt with the conten-
tion of a former citizen of the District
of Columbia who had become a citizen
of Maryland but who had not registered
with the circuit clerk of the county of
his residence, at least 1 year before he
offered to register and vote, and who
claimed that such was an unreasonable
qualification. The Court rejected his
contention that the Federal Government
had a right to determine whether such
requirement- was reasonable or unrea-
sonable. The Court held the Federal
Government had no right to determine
that question but as long as a require-
ment did not violate the Constitution, the
State had the exclusive right to deter-
mine whether the requirement was rea-
sonable or unreasonable at page 822 of
the law edition, as follows:
We are of the opinion that the statute
does not violate any Federal right of the
plaintiff in error which he seeks to assert
in this proceeding. The statue, so far as it
concerns him and the right which he urges,
is one making regulations and conditions
for the registry of persons for the purpose
of voting. It was only for the purpose of
thereafter voting that the plaintiff in error
sought to be registered, and it was the denial
of that right only which he can now review.
His application for registry as a voter was
denied by the board of registry solely because
of his failure to comply with the statute.
Whatever other right he may have as a citi-
zen of Maryland by reason of his removal
there with an intent to become such citizen
is not now in question. So far as appears
no other right, if any he may have, has been
Infringed by the statute. The simple mattes
to be herein determined is whether with
reference to the exercise of the privilege of
voting in Maryland, the legislature of that
State had the legal right to provide that a
person coming into the State to reside should
make the declaration of intent a year before
he should have the right to be registered as
a voter of the State.
The privilege to vote in any State is not
given by the Federal Constitution, or by any
of its amendments. It is not a privilege
springing from citizenship of the United
States (Minor v. Happersett, 21 Wall. 162,
22 L. Ed. 627). It may not be refused on
account of race, color, or previous condition
of servitude, but it does not follow from
mere citizenship of the United States. In
other words, the privilege to vote in a State
is within the jurisdiction of the State itself,
to be exercised as the State may direct, and
upon such terms as to it may seem proper,
provided, of course, no discrimination is
made between individuals, in violation of
the Federal Constitution. The State might
provide that persons of foreign birth could
vote without being naturalized, and, as
stated by Mr. Chief Justice Waite in Minor
V. Happersett, 21 Wall. 162, 22 L. Ed. 627,
such persons were allowed to vote in several
of the States upon having declared their in-
tentions to become citizens of the United
States. Some States permit women to vote;
others refuse them that privilege. A State,
so far as the Federal Constitution is con-
cerned, might provide by its own constitu-
tion and laws that none but native-born
citizens should be permitted to vote, as the
Federal Constitution does not confer the
right of suffrage upon any one, and the con-
ditions under which that right is to be ex-
ercised are matters for the States alone to
prescribe, subject to the conditions of the
Federal Constitution, already stated;
although it may be observed that the right
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1959 CONGRESSIONAL RECORD ? SENATE
to vote for a Member of Congress is not de-
rived exclusively from the State law. See
Fed. Const. art. 1, sec. 2; Wiley v. Sinkler,
179 U.S. 58 L. Ed. 84, 21 Sup. Ct. Rep. 17.)
But the elector must be one entitled to vote
under the State statute. Id., Id. (See also
Awallord v. Templeton, 185 U.S. 487, 491,
46 L. Ed. 1005, 1007, 22 Sup. Ct. Rep. 783.)
In this case no question arises as to the
right to vote for electors of President and
Vice President, and no decision is made
thereon. The question whether the condi-
tions prescribed by the State might be re-
garded by others as reasonable or unreason-
able is not a Federal one. We do not wish
to be understood, however, as intimating
that the condition in this statute is un-
reasonable or in any way improper.
The Court further held in Pope that
the reasons which may have caused the
State legislature to enact the statute in
question were matters solely for its de-
termination and that the Federal Court,
and thus the Federal Government, had
no concern with them.
In the case of 'Lassiter against North-
ampton County Board of Electors, de-
cided June 8, 1959, .the Supreme Court
of the United States sustained the
validity of the literacy tests of the State
of North Carolina against the conten-
tion of the Negro plaintiff that they were
invalid and violated the Constitution of
the United States, including the 14th
and other amendments ',thereto.- The
Court at pages 6, 7, and 8 of the opinion
said:
Section 2 of the 14th amendment, which
provides for an apportionment of repre-
sentatives among the States acocrding to
their respective numbers, counts the whole
number of persons in each State (except
Indians not taxed), speaks of the right to
vote, the right protected, refers to the right
to vote as 'established by the laws and con-
stitution of the State. (McPherson v.
Blacker, 146 U.S.)
Residence requirements, age, previous
criminal record (Davis v. Beason, 133 U.S.
333, 345-347) are obvious examples indicat-
ing factors which a State may take into con-
sideration in determining the qualifications
of voters. The ability to read and write like-
wise has some relation to standards designed
to promote intelligent use of the ballot.
Literacy and illiteracy are neutral on race,
creed, color, and sex, as reports around the
world show. Literacy and intelligence are
obviously not synonymous. ' Illiterate people
may be intelligent voters. Yet in our society
where newspapers, periodicals, books, and
other printed matter canvass and debate
campaign issues, a State might conclude
that only those who are literate should ex-
ercise the franchise. (Cf. Franklin v. Har-
per, 205 Ga. 779, appeal dismissed 339 U.S.
946.) It was said last century in Massa-
chusetts that a literacy test was designed to
insure an independent and intelligent exer-
cise of the right of suffrage. (Stone V.
Smith, 159 Mass. 413-414.) North Carolina
agrees. We do not sit in judgment on the
wisdom of that policy. We cannot say,
however, that it is not an allowable one
measured by constitutional standards.
Commissioners Battle, Storey, and
Carlton in the footnotes at pages 1 and
2 of the report say that equality was not
made part of our fundamental law.
The contents of the report in advo-
cacy of the the recommendations and
proposals rely upon the Declaration of
Independence and many sociological and
historical documents together with the
Dred Scott decision. As to such contents
?
I No. 163-7
of the report, I think it sufficient to say
that the Constitution of the United
States supersedes all documents prior
thereto and, of course, the 14th amend-
ment was passed for the purpose of over-
riding the doctrine and holding in the
Dred Scott decision.
The Commission's report is no more
and no less overall than a complaint, or
advocacy, respectively, as indicated: a
complaint that under the Constitution of
the United ,States as interpreted by its
courts, it is impossible for the Federal
Government, Congress, the President, or
the courts to order, direct, or require in-
tegration and mixing of the races in
every phase of the life of this Nation; a
complaint that the courts have refused
to depart from the true meaning of the
Constitution; the report advocates rec-
ommendations and proposals, on the
basis laid in the reasoning and language
thereof which would cause integration
and mixing of the races in every phase of
the life of this Nation; the report advo-
cates that the nonwhites in this Nation
should be made members of a privileged
class and given rights and privileges not
enjoyed by members of the white race;
the report advocates that the Federal
Government should by executive or legis-
lative power bypass the courts if such is
necessary to bring about integration and
mixing of the races; the report advocates
a constitutional amendment which would
permit criminals, mental incompetents,
illiterates, and so forth, to be given the
right to vote in all elections for State
officials and for Senators and Represent-
atives in the U.S. Congress, thus destroy-
ing the basic principle of State power and
Federal power under the Constitution of
the United States and denying to the
States the rights and powers which they
have enjoyed since 1788, a period of 171
years, and even before that from the
time of the organization of the respective
States which adopted the Constitution;
the report advocates the enactment of
Federal statutes patently unconstitu-
tional in order to accomplish integration
and mixing of the races; it advocates
jeopardizing the right of most Negroes
and most white persons to choose asso-
ciates and the right to select voluntarily
with whom they shall mix and mingle;
and to give to the members of the non-
white races in this Nation the over-rid-
ing power to determine who everybody
else will associate with and mix with.
All recommendations are either un-
necessary, unwise, or unconstitutional.
Voting recommendation No. 2 would
require preservation of all State registra-
tion and voting records for a period of
5 years, that they be public records and
subject to public inspection.
Any act of Congress requiring the
above would be absolutely unconstitu-
tional and void. It would violate the
provisions of article I, section 2, clause
1, and article I, section 3, clause 1, to-
gether with many cases decided by the
Supreme Court of the United States. It
cannot be justified under article I, sec-
tion 4, clause 1, or any other provision
of the Federal Constitution.
Recommendation No. 3 proposes that
the Federal Government cast burdens
upon Sate officers without the consent
?
17887
of the State and seeks to exercise Fed-
eral control over the selection of Presi-
dential electors who are State officers;
it seeks to extend Federal authority and
power in control and regulation of State
officers and vests in the Federal courts
jurisdiction of matters which are not
otherwise within the scope and sphere
of Federal power.
Mr. President, since the days of Re-
construction the white and Negro peo-
ple of the South, slowly and laboriously,
evolved a pattern of life that gave to
each race the maximum opportunities
for progress and advancement and pro-
moted mutually respected, peaceful, and-
harmonious relations between the two
races. You are never, either by com-
mission reports or statutes, going to
force the white people of the South into
social relationships with the Negro race.
What can be done, and is fast being done,
is the destruction of the harmonious re-
lationships and the erection of a wall
that prevents and prohibits communica-
tion between the races, mutual trust and
confidence.
Mr. President, let me say that the rave,
the murder, the other crimes, and the
filth in New York and in other great
metropolitan areas of the country are
due to the attempts at racial integration;
but the newspapers in those areas will
not tell the public the truth.
It is on the sidewalks ef the cities of
the North, East, and West that terror
stalks the streets?where rape, murder,
assaults, crime, and violence of all kinds
now run rampant. In the South, we do
not have juvenile delinquency, gang rule
and gang murder. We do not/have those
things, because we have a segregated
society that has been built throughout
the years.
The fundamental cause of this de-
plorable situation is the continual agita-
tion for the intermingling of the races
on a social plane. You cannot put white
and Negro children in school together
and not have social contacts result.
When Negro families move into whita
neighborhoods, the whites are either go-
ing to move out, as they usually do, or
social intermingling will result. What
will happen in the North, East, or West
may be problematical. In the Deep
South there is no doubt or question?
the races are not -going to be inter-
mingled.
Mr. President, no geographic area of
the United States contains a higher pro-
portion of population whOse lineal an-
cestors were living in this country prior
to the Revolutionary War than does the
South. When we speak of a birthright.
we speak of and through our fathers,
grandfathers, and gandsires who lived.
fought, bled, and died to create and build
this great country. When we speak of
our Founding Fathers, we are calling
them fathers, a.1 such, and not referring
to them as abstract symbols for meta-
physical fulminations. When we speak
of the Constitution we are talking about
a document which means exactly what
these men of life and blood intended it
to mean and we refuse to accept or con-
sider the monstrous misinterpretations
placed on this charter by modern-day
witch doctors who would pervert it into
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17888 -
an instrument for the destruction of the
white race of the South.
If the South is forced to stand again
today, where it once stood in the dark
and hopeless days of reconstruction, I
remind my colleagues that they are deal-
ing- with a people who hold the same
ideas of freedom and liberty under law
their fathers held before them. They
will meet today both the description and
challenge so eloquently stated by Henry
W. Grady in 1889, when he said:
If there is any human force that cannot
be withstood, it is the power of the banded
intelligence and responsibility of a free com-
munity. Against it, numbers and corruption
cannot prevail. It cannot be forbidden in
the law, or divorced in force. It is the in-
alienable right of every free community. It
is. on this, sir, that we rely in the South.
Not the cowardly menace of mask or shot-
gun, but the peaceful majesty of intelligence
and responsibility, massed and united for
the protection of its homes and the preser-
vation of Its liberty.
EXHIBIT I
IN THE U.S. DISTRICT COURT FOR THE SOUTH-
ERN DISTRICT OF MISSISSIPPI, JACKSON DI-.
VZSION-H. D. DARBY, ON BEHALF OF HIM-
SELF AND OTHERS SIMILARLY SITUATED,
PLAINTIFF'S, V. JAMES DANIEL, CII2ELTIT
CLERK OF JEFFERSON DAVIS COUNTY, MIS
SISSIPPI AND JOE T. PATTERSON, ATTORNEY
GENERAL OF THE STATE OF MISSISSIPPI, DE-
FENDANTS-CIVIL ACTION NO. 2748
Before Cameron, circuit judge, and Mize
and Clayton, district judges.
Cameron, circuit judge:
The case before us, with some of the facts,
Is thus stated in plaintiff's brief: "This is
an action for a declaratory judgment and in-
junction brought by plaintiff on behalf of
himself and others similarly situated. The
gravamen of plaintiff's complaint is that he
and other Negro citizens of Jefferson Davis
County, Miss.,-haye been denied the right to
register in order that they might vote, solely
because of their race and color, through the
enforcement of a policy of discrimination
against Negro voters, the enforcement of un-
constitutional voting requirements, and the
discriminatory administration of valid re-
quirements. The plaintiff also seeks to en-
join enforcement of a State statute which
makes it a crime, punishable by imprison-
ment for 1 year, for him to accept financial
and legal assistance in the prosecution of
this action and for his attorneys and others
to give such assistance."
"The plaintiff in this case is an adult Ne-
gro citizen of the United States and of the
State of Mississippi; residing in Prentiss,
Jefferson Davis County, Miss. since 1947.
He is not an idiot, an insane person, or an
Indian who is not taxed, and is more than
21 years of age. His occupation is that of a
minister of the Gospel. He has never been
convicted of any crime enumerated in the
Mississippi constitution as grounds for dis-
qualification as a voter. He has paid his poll
tax for the years 1956 and 1957. He was a
duly qualified and registered voter of Jef-
ferson Davis County prior to January 1, 1954,
and exercised his right to vote in various
elections held in the county between 1950
and 1955, having In,
for the first time
in the early part of 1950.
"In 1954 the Legislature of ;the State of
Mississippi proposed that section 244 of the
Mississippi constitution of 1890 be amended,
and after the proposed amendment was rati-
fied by a vote of the electorate, it became
law in 1955." Defendant Daniel was and is
circuit clerk and registrar of Jefferson Davis
County and will be referred to as defendant
unless otherwise noted.
CONGRESSIONAL RECORD - SENATE
The qualifications of electors are set forth
In article 12 of the Mississippi constitution
of 1890, as amended, titled "Franchise," and
the article embraces sections 240-243, in-
clusive.
? The sections of the article, other than sec-
tion 244 which is challenged by plaintiff,
grant the right to vote to inhabitants of the
State, except idiots, insane persons and In-
dians not taxed, who are citizens of the
United States, 21 years old or over, with cer-
tain residence requirements, who have duly
registered as provided in the article and who
have never been convicted of certain listed
crimes and who have paid all poll taxes
legally required of them before February 1
of the year in which they offer to vote. Sec-
tion 249 provides: "And registration under
the constitution and laws of this State by
the proper officers of this State is hereby de-
clared to be an essential and necessary qual-
ification to vote at any and all elections."
Section 244 of article 12, prior to the
amendment attacked, was in these words:
"I 244. On and after the first day of Janu-
ary, A.D. 1892, every elector shall, in addition
to the foregoing qualifications be able to
read any section of the constitution of this
State; or he shall be able to understand the
same when read to him, or give a reasonable
interpretation thereof. A new registration
shall be made before the next erisuing elec-
tion after January the first, AD. 1892."
Amended section 244 1 reads as follows in
Its pertinent portions:
"SEC. 244. Every elector shall, in addition
to the foregoing qualifications be able to
read and write any section of the constitu-
tion of this State and give a reasonable in-
terpretation thereof to the county registrar.
He shall demonstrate to the county regis-
trar a reasonable understanding of the duties
and obligations of citizenship under a con-
stitutional from of government."
Following the quoted language the
amended section goes on to provide that a
person applying to register shall make a
sworn written application on a form to be
prescribed by the State board of election
commissioners, and concludes with these
words: "Any new or additional qualifications
herein imposed shall not be required of any
person who was a duly registered and quali-
fied elector of this State prior to January
1, 1954. The legislature shall have the power
to enforce the provisions of this section by
appropriate legislation."
In February 1956 the Board of Supervisors
of Jefferson Davis County ordered a new reg-
istration and due notice thereof was given
by publication as required by law. This new
registration was in line with the practice
which had been followed in the county for
a number of years, new registrations having
been had in the years 1906, 1923, 1934, and
1949.
Defendant Daniel first became circuit
clerk and registrar of Jefferson Davis County
January 1, 1956. Without dispute and based
upon his opinion that, since a new registra-
tion had been ordered and forms had been
sent to him by the State election commis-
sioners, he was so obligated, he began the
practice of requiring all applicants, regard-
less of color, to take the examination pro-
vided by the amendment and covered by the
questionnaire, which policy he pursued un-
til about October 15, 1956. Plaintiff Darby
first entered his office to register on June 29,
1956; and Defendant Daniel handed him the
questionnaire to be completed pursuant to
the custom then universally followed by
him. No discussion was had between plain-
11n 1954 the Legislature of Mississippi pro-
posed that section 244 of the constitution of
1890 be amended, and after the proposed
amendment was ratified by a vote of the
people it became a part of the constitution
in 1955.
September 14
tiff and defendant. Plaintiff completed a
part of the written examination and signed
his name and left.
He had consulted the attorney now repre-
senting him and had written a letter of
complaint to the President of the United
States some weeks before that, which re-
sulted in an investigtion of Defendant
Daniel being made by the Federal Bureau
of Investigation. About October 1, 1956, De-
fendant Daniel received a letter from the
U.S. attorney in Jackson, Miss., requesting
that Daniel come to his office for conference.
He responded to the request, going in com-
pany with the county attorney to the office
of the U.S. attorney. There he was advised
that the Department of Justice took the po-
sition that persons who, like Plaintiff Darby,
had been registered prior to January 1, 1954,
were required to take only the oral exami-
nation covering the qualifications as set
forth in the original section 244 of article
12 of the Mississippi constitution. Daniel
left the U.S. attorney and went to the at-
torney general of Mississippi, who advised
him in writing October 12, 1956, that no
person registered prior to January 1, 1954,
was required to take the written examina-
tion provided by the amendment. There-
after, Daniel pursued the policy of giving all
applicants of Darby's class the option to take
the oral examination provided by the origi-
nal section or the written examination pro-
vided by the amendment.
About November 2, 1956, Plaintiff Darby
again presented himself for registration and
was given the oral examination. He did not
pass in the opinion of Daniel and was so
advised. Neither Darby nor Daniel remem-
bered what section of the constitution
Darby was called upon to interpret. About
June 8, 1957, Darby came to Daniel's office
again to register and was given the oral ex-
amination, and again failed to pass. A short
time thereafter the FBI made a further
examination into Daniel's operation of his
office in which Daniel explained- freely what
happened.
On June 22, 1957, Plaintiff Darby again
presented himself to Defendant Daniel, this
time requesting that he be given the written
examination as provided by the amendment.
Without dispute, Plaintiff followed this
course on the advice of his attorney, whom
he had first consulted more than a year be-
fore. He was given the written examination
on the forms furnished to Daniel by the
State officials, and again Daniel ruled that
he had not qualified for registration.2
2 After the Court had _concluded the hear-
ing of this action July 22-25, 1958, Rutha,
Dillon presented a motion to intervene served
and filed September 16, 1958, setting forth
that she had testified as a witness for Plain-
tiff Darby and that her interest "may not
be adequately represented by plaintiff and
applicant may be bound by a judgment in
this action." The application was filed by
the attorneys already representing Plain-
tiff Darby and with it was filed a memoran-
dum brief in which she claimed that she
was filing the application under rule 20(a)
and rule 24(b) (2) FRCP. Her application
asked that she be permitted to intervene
upon her testimony already given and upon
the testimony introduced at the hearing.
Her desire to intervene was grounded on her
apprehension that Plaintiff Darby might not
represent her inasmuch as she had not reg-
istered prior to January 1, 1954, whereas
Darby had registered prior to that time and
had requested and taken the written exam-
ination provided by the amendment to sec-
tion 244, although not required so to do.
The defendants resisted the requested in-
tervention, taking the position that the ap-
plication came too late and that Plaintiff
Darby, having volunteered to take an exam-
ination he was not required to take, was
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1959 CONGRESSIONAL RECORD ? SENATE
Plaintiff Darby appealed, as provided by
law, from the ruling of Defendant Daniel re-
jecting his written application (he had not
appealed from the other three rejections),
and the evidence shows that in so doing he
was guided by one of his attorneys of record
who had been employed by the NAACP legal
defense and educational fund. His attorney
filed with the registrar a writing bearing the
heading "Appellant's Contentions." Plain-
tiff Darby and his attorney appeared at the
office of Daniel on October 7. 1957, but there
was no meeting of the commissioners sched-
uled or held at that time.' Said plaintiff
and his attorney were advised that the com-
missioners would meet at the registrar's
office on the Tuesday after the third Mon.-
day in March 1953; Plaintiff Darby testified
that Daniel told them of a March meeting.
No provision is made for notice to persons
desiring to present contests of the actions
of the registrar and we do not find that
Defendant Daniel made any agreement to
give any notice to plaintiff or that such an
not in position to maintain the action
brought. by him. The amendment provides
that Darby should not be "required" to sub-
mit to its terms, but contains no prohibition
against his voluntarily doing so. Both he and
Defendant Daniel proceeded in the written
examination before us in obedience to the
terms of the amendment, and we do not
pause to resolve this question, arising as it
does afer all of the briefs have been sub-
mitted and much study given to the funda-
mental issues inyolved.
We see no harm to ensue from granting
the application to intervene and have en-
tered an order permitting the requested in-
tervention upon the terms set forth. The
intervenor will be referred to hereafter as a
plaintiff.
This document set forth that Plaintiff
Darby had appealed to the board of com-
missioners within 5 days from the refusal
of Defendant Daniel to register him, that
section 244 of the Mississippi constitution
as amended "is unconstitutional and void
on its face since it bestows upon the regis-
trar of voters an uncontrolled discretion to
determine who is able to interpret the con-
stitution of the State of Mississippi and who
is able to demonstrate an understanding Of
the duties and obligations of citizenship in
a democratic form of government," and alle-
gation being applied also to the Mississippi
statutes implementing the constitutional
provision.. The document further set up
that the constitutional and statutory pro-
visions "are unconstitutional and void be-
cause the purpose of said provisions was to
enable the registrar of voters to discrim-
inate against otherwise qualified Negroes,
solely because of their race and color," and
that said provisions were being administered
by Defendant Daniel "in such a manner as
to discriminate against Rev. H. B. Darby and
other Negroes otherwise qualified, solely be-
cause of their race and color." The docu-
ment further contended that since Plain-
tiff Darby had registered prior to January 1,
1954, the new provisions were not appli-
cable to him.
'This appearance by Plaintiff Darby and
his attorney resulted, no doubt, from the
language of section 3226 of the Mississippi
Code of 1942 providing that the commission-
ers should meet "on the first Monday in
October after appointment." The commis-
sioners had been appointed in 1956 and had
held the October meeting that year. No
provision being made in that section for
meeting in any year except that of their
appointment, the Mississippi Legislature in
1938 passed a statute appearing as section
3240 of the Mississippi Code of 1942 provid-
ing that: "On the Tuesday after the third
Monday in March, A.D. 1939, and every year
thereafter the commissioners of election
shall meet at the office of the registrar."
agreement, if made, would have any legal
effect. The appeal, apparently begun as a
test of the provisions of the constitution
and statutes here under attack, was not
prosecuted, but this civil action was tiled
4 days before he election commission met in
Jefferson Davis County. The appeal? is still
pending before them.
Other portions of the testimony will be
referred to under the discussion of the sev-
eral points raised by the parties.
From the written contentions so filed on
the appeal, the averments of the complaint
and plaintiff's brief it appears that the at-
tack on the Mississippi Constitution and
implementing statutes is based upon three
grounds: that section 244 is unconstitu-
tional and void on its face because it be-
tows upon the registrar "an uncontrolled
discretion to determine who is able to inter-
pret the constitution of * * * Mississippi"
and who is able to demonstrate an under-
standing of the duties of citizenship; that
the section is unconatitutional and void be-
cause the purpose of said provisions was to
enable the registrars to "discriminate
against otherwise qualified Negroes;" and
that said section is being administered "in
such a manner as to discriminate against
Rev. H. B. Darby and other Negroes other-
wise qualified, solely because of their race
and color."
The complaint specifies that the uncon-
trolled discretion referred to results from
the amendment's vague and uncertain lan-
guage which fails to set up a standard of
reasonableness capable of objective measure-
ment. The precise prayer of the complaint
asks an injunction restraining defendant
from enforcing those parts of said constitu-
tional and statutory provisions which re-
quire an elector to give to defendant a
reasonable interpretation of a provision of
the Constitution of the State of Mississippi
and which require that an elector demon-
strate to defendant a reasonable under-
standing of the duties and obligations of
citizens under a constitutional form of gov-
ernment. The allegations of unconstitu-
tionality are predicated upon the due proc-
ess clause of the 14th amendment and the
provisions of the 15th amendment. ?
(1) Any consideration of the constitution-
ality of the challenged portions of this
amendment begins with the fundamental
fact that, under our constitutional system,
the' qualification of voters is a matter com-
mitted exclusively to the States. The Su-
preme Court has spoken on the subject in
language aS clear as it is decisive. Witness,
for example, what it said in Pope v. Williams.,
1904, 193 U.S. 621:' ,
"The privilege to vote in any State is not
given by the Federal Constitution, or by any
of its amendments. It is not a privilege
springing from citizenship of the United
States (Minor v. Happersett (21 Wall. 162) ).
It may not be refused on account of race,
color, or previous condition of servitude, but
it does not follow from mere citizenship of
the United Otates. In other words, the privi-
lege to vote in a State is within the jurisdic-
tion of the State itself, to be exercised as the
State may direct, and upon such terms as
to it may seem proper ? * *. The State
might provide that persons of foreign birth
could vote without being naturalized, and,
as stated by Mr. Chief Justice Waite in Minor
V. Happersett, supra, such persons were al-
lowed to vote in several of the States upon
having declared their intentions to become
citizens of the United States. Some States
permit women to vote; others refuse them
that privilege. A State, so far as the Federal
Constitution is concerned, might provide by
'The Court was then composed of Chief
Justice Fuller and Associate Justices Harlan,
Brewer, Brown, White, Peckham, McKenna,
Holmes, and Day, and the decision was
unanimous.
17889
its own constitution and laws that none but
native-born citizens should be permitted to
vote, as the Federal Constitution does not
confer the right of suffrage upon anyone,
and the conditions under which that right is
to be exercised are matters for the States
alone to prescribe, subject to the conditions
of the Federal Constitution, already stated.
? * * The question whether the conditions
prescribed by the State might be regarded
by others as reasonable or unreasonable is
not a Federal one. ? * *
"* * * The right of a State to legislate
upon the subject of the elective franchise as,
to it may seem good, subject to the condi-
tions already stated, being, as we believe, un-
assailable, we think it plain that the statute
in question violates no right protected by
the Federal Constitution.
"The reasons which may have impelled the
State legislature to enact the statute in ques-
tion were matters entirely for its considera-
tion, and this Court has no concern with
them" (pp. 632-634).
Like language was used by the Court in a
case so much relied upon by plaintiffs, Guinn
et al. v. United States ( (1915), 238 U.S. 347).
In striking down the grandfather clause of
the Oklahoma Constitution the Court fixed
its eyes upon certain principles as the lode-
star which should furnish the light by which
it would be guided:
"It [the United States) says State power to
provide for suffrage is not disputed, al-
though, of course, the authority of the 15th
amendment and the limit on that power
which it imposes is insisted upon. Hence,
no assertion denying the right of a State to
exert judgment and discretion in fixing the
qualification of suffrage is advanced and no
right to question the motive of the State in
establishing a standard as to such subjects
under such circumstances or to review or
supervise the same is relied upon, and no
power to destroy an otherwise valid exertion
of authority upon the mere ultimate op-
eration of the power exercised is asserted.
And applying these principles to the very
case in hand the argument of the Govern-
ment in substance says: No question is
raised by the Government concerning the val-
idity of the literacy test provided for in the
amendment under consideration as an in-
dependent standard since the conclusicin is
plain that that test rests on the exercise of
State judgment, and, therefore, cannot be
here? assailed either by disregarding the
State's power to judge on the subject or by
testing its motive in enacting the provision
(pp. 359-360).
?
? ?
"Beyond doubt the amendment does not
take away from the State governments in
a general sense the power over suffrage
which has belonged to those governments
from the beginning and without the pos-
session of which power the whole fabrio
upon which the division of State and na-
tional authority under the Constitution and
the organiration of both governments rest
would be without support and both the au-
thority of the Nation and the State would
fall to the ground. In fact, the very com-
mand of the amendment recognizes the
possession of the general power by the State,
since the amendment seeks to regulate its
exercise as to the particular subject with
which it deals" (p. 362) .5
'To the same effect see In Re Slaughter-
house cases, 1873, 16 Wall. 36; Minor v.
Happersett, 1874, 21 Wall. 162, 88 U.S. 162;
United States v. Cruikshank, 1875, 92 U.S.
542; United States v. Reece, 1875, 92 U.S. 214;
State of Virginia V. Rives, 1879, 100 U.S. 313;
Snowden v. Hughes, 1944, 321 U.S. 1. And
cf. McPherson v. Blacker, 1892, 146 U.S. 1, 35:
"The question before us is not one of policy
but of power," and Annotation 153 A.L.Ra
pp. 1066 et seq.
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17890 CONGRESSIONAL RECORD ? SENATE
(2) Plaintiffs base their argument that the Court's opinion as applied to the facts there
constitutional provisions under attack are refutes the argument the case is called upon
vOid on their face chiefly upon four Supreme to furnish here. The case will be discussed
Court decisions: Yick Wo v. Hopkins, Sheriff, further in our analysis of Schnell, infra.
1886, 118 U.S. 356; Guinn et al v. United The constitution and statutes of Mississippi
States, supra; Lane v. Wilson, 1939, 307 U.S. do not contain any license for the exercise
268; and Schnell at al v. Davis, 1949, 336 U.S. of arbitrary power. Plaintiffs are entitled.to
92.3. Analysis of those cases will reveal that relief here if they can show the discrimina-
they do not apply to the constitutional and tion which was admitted there.
statutory provisions before us. Guinn brought in question the constitu-
Yick Wo involved the constitutionality, as tionality of the "grandfather clause" inserted
administered by the board of supervisors, of by amendment into the constitution of
an ordinance of the city and county of San Oklahoma. That amendment established
Francisco making it unlawful to establish literacy tests, but exempted from such tests
or maintain a laundry without the consent every person "who was, on January 1, 1866,
of the board of supervisors unless such laun- or at any time prior thereto, entitled to
dry "be located in a building constructed vote under any form of government, or who
either of brick or stone." Two Chineses na- at that time resided in some foreign nation."
tionals were convicted of violating the ordi- The exemption was made to apply also to
nances and the two cases wherein they the lineal descendants of such persons. The
sought habeas corpus were consolidated and court held that the language of the Okla-
decided by the Supreme Court. One was homa amendment was indisputably aimed
Yick Wo's petition for habeas corpus denied directly at the 13th amendment with palpa-
by the Supreme Court of California, and the ble intent of destroying the effect Of that
other a like petition by Wo Lee?on practically amendment. Its course of reasoning ran
identical facts, denied by the circuit court thus: ?
of the United States for the San Francisco The 15th amendment provided that "the
district. The facts in both cases were with- right of citizens of the United States to
out dispute. vote shall not be denied or abridged by the
Of the 320 laundries in San Francisco, United States or by any State on account of
about 310 were constructed of wood, and race, color, or previous condition of servi-
about about 240 were owned and conducted tude." The Oklahoma constitution fixed a
by subjects of China. The board of supervi-date, January 1, 1866, as the crucial date,
sors followed the policy of issuing permits at which time the 15th amendment had
for laundry operation to all Caucasians and not been passed and no Negro possessed the
denying it to all Chinese even though in the right of suffrage. By its terms, therefore,
cases presented to the court the premises the exemption from the literary test was
of the Chinese had been inspected and ap- denied to all Negroes, and was vouchsafed
proved by the fire wardens, the health offi- to all others. This being true, the Okla-
cars, and other city officials. The Supreme home amendment?and the Supreme Court
Court of California thought that the statute so stated?could have no other purpose, un-
? was a proper exercise of the police power, der its very language, than to abridge the
and the U.S. circuit court, in the other case, right of Negroes to vote by requiring them
thought otherwise, expressing the opinion to pass a literacy test from which all non-
that the ordinances-as administered violated Negroes were exempted.
provisions of the 14th amendment and -a Lane V. Wilson dealt with an act of the
treaty between the United States and China. Oklahoma Legislature passed at a special ses-
In deference to the decision of the Supreme sion immediately following the invalidation
Court of California, however, and contrary of the constitutional amendment in Guinn,
to its own opinion, the circuit court dis- which act the Supreme Court decided was
charged the habeas corpus writ as the Su- directed solely at a circumvention of the
preme Court of California had done. Guinn decision. The scope and reach of
The Supreme Court rejected the decision Lane v. Wilson can best be evaluated by
of the California court, holding that the -quotations from the Supreme Court's opin-
ordinances "seem intended to confer, and ion set forth in the margin:3 _ -
actually do confer, not a discretion to be
exercised upon a consideration of the cir-
cumstances of each case but a naked and
arbitrary power to give or withhold consent,
not only as to places, but as to persons. * * *
The power given to them is not confided to
their discretion in the legal sense of that
term, but is granted to their mere will. It is
purely arbitrary, and acknowledges neither
guidance nor restraint (pp. 366-367). The
final conclusion of the Supreme Court is
epitomized in graphic words copied in the
margin., The quotation from the Supreme
7 (pp. 373-374) "Though the law itself be
fair on its face and impartial in appearance,
yet, if it is applied and administered by pub-
lic authority with an evil eye and an un-
equal hand, so as practically to make un-
just and illegal discriminations between
persons in similar circumstances, material to
their rights, the denial of equal justice is
still within the prohibition of the Constitu-
tion.
"The present cases, as shown by the facts
disclosed in the record, are within this class.
It appears that both petitioners have com-
plied with every requisite, deemed by the
law or by the public officers charged with its
administration. ? * * No reason whatever,
except the will of the supervisors, is assigned
why they should not be permitted to carry
on, in the accumstorned manner, their harm-
less and useful occupation, on which they
depend for a livelihood. And while this con-
sent of the supervisors is withheld from
them and from 200 others who have also
petitioned, all of whom happen to be Chinese
subjects, 80 others, not Chinese subjects, are
permitted to carry on the same business
under similar conditions. The fact of this
discrimination is admitted. No reason for it
is shown, and the conclusion cannot be re-
sisted, that no reason for it 'exists except
hostility to the race and nationality to
which the petitioners belong, and which in,
the eye of the law is not justified. The dis-
crimination is, therefore, illegal, and the
public administration which enforces it is a
denial of the equal protection of the laws
and a violation of the 14th amendment of
the Constitution." ?
s "Those who had voted in the general
election of 1914 automatically remained qual-
ified voters. The new regisatration require-
ments affected only others. * * The crux
of the present controversy is the validity of
this registration scheme, with its dividing
line between white citizens who had voted
under the 'grandfather clause' immunity
prior to Guinn v. United States, supra, and
citizens who were outside it, and the not
more than 12 days as the normal period of
registration for the theretofore proscribed
class" (p. 271).
"When in Guinn v. United States, supra,
the Oklahoma 'grandfather clause' was
found violative of the 15th amendment,
,
September 14
It is clear that the Supreme Court thought
that it was impossible to construe the Okla-
homa legislation as having any efficacy which
did not perpetuate as a favored class the
white citizens, who were the only ones per-
mitted to vote in 1914:3 and to lay a heavy
burden on Negroes aspiring to register under
discriminatory requirements which they were
forced to meet only because they had been
wrongfully excluded from voting right under
the unconstitutional provisions of the grand-
father clause.
The last case relied upon by plaintiffs is
the per curiam opinion-of the Supreme Court
in Schnell et al. v. Davis at al., which reads
as follows:
"The judgment is affirmed. Lane v. Wil-
son, 307 U.S. 268; Yick Wo v. Hopkins, 118
U.S. 356. Cf. Williams v. Mississippi, 170
U.S. 213."
A three-judge district court for the south-
ern district of Alabama had written a lengthy
opinion and had based its decision upon a
number of grounds including a finding that
the Boswell amendment there under con-
sideration "has, in fact, been arbitrarily used
for the purpose of excluding Negro applicants
for the franchise, while white applicants
with comparable qualifications were being
accepted.", From the concluding words of
the district court's opinion 11 it appears that
the judgment it entered was to grant an in-
junction in favor of Schnell et al. The
Supreme Court did nothing more than to
affirm that judgment, not indicating which
of the several grounds it adopted as the basis
for the affirmance.
Viewed most favorably to the contentions
of the plaintiffs here, it would be assumed
that the Supreme Court decided that the
Boswell amendment placed final and arbi-
trary powers in the hands of the board of
registrars, which power the board had in
fact exercised arbitrarily in favor of white
Oklahoma was confronted with the serious
task of devising a new registration system
consonant with her own political ideas but
also consistent with the Federal Constitu-
tion. We are compelled to conclude, how-
ever reluctantly, that the legislation of 1916
partakes too much of the infirmity of the
`grandfather clause' to be able to survive (p.
275).
? ?
"But this registration wai held under the
statute which was condemned in the Guinn
case. Unfair discrimination was thus re-
tained by automatically granting voting
privileges for life to the white citizens whom
the constitutional 'grandfather clause' had
sheltered while subjecting colored citizens to
a new burden" (p. 276).
9 In its decision of Lane V. Wilson the Cir-
cuit Court of Appeals for the 10th Circuit,
98 F. 2d 980, 984, stated: "It may be, and we
take it as true, that inasmuch as the so-
called grandfather clause in the Constitution
of Oklahoma had not been declared void as
violative of the 15th amendment until 1915
no Negroes voted at the 1914 election."
1, Fundamental factual differences differ-
entiate Schnell from the case before us. The
Alabama amendment invested the registrars
with rigid and arbitrary powers, not requiring
that their judgment be reasonable. It con-
tained no requirement that the examination
be in writing or that a record be made of it
so that it might be subjected to review. The
' decision makes no mention of any right of
appeal from the decision of .;the registrars.
State agencies took active leadership in cam-
paigning for its adoption, stating openly in
writing that the object of the amendment
was to curtail Negro registration. As applied,
the tests were not required of whites, only
Negroes being subjected to them. Not one
of these criticisms applies to the Mississippi
amendment under the facts presented to us.
al 81 F. Supp. 881.
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1959 CONGRESSIONAL RECORD ? SENATE
applicants and against Negro applicants.
As shown above, this was the ground com-
mon to Lane and Tick Wo, the two cases
forming the predicate for the Supreme
Court's action in Schnell.
It is important to note that the Supreme
Court, after citing these two cases, directed
a comparison with Williams v. Mississippi,
1898, 170 U.S. 213. There, the literacy tests
of the Mississippi Constitution of 1890 were'
upheld and, as demonstrated infra, the
Court held categorically that the doctrine
of Tick Wo did not apply. The clear mean-
ing of the reference to the three cases by
the Supreme Court was that in contrast with
'the valid requirements of the Mississippi
Constitution, the Boswell amendment in-
volved in Schnell came under the condem-
nation of the two cases wherein the Supreme
Court had pointed out specifically that arbi-
trary power granted and discriminatorily
used could not stand the test of constitu-
tionality.
zr
(1) In considering whether amended sec-
tion 244 is unconstitutional on its face, it
is important to bear in mind that plaintiffs
concede that the voting provisions of the
Constitution of 1890 were valid. They could
not, of course, do less because the Supreme
Court of the United States specifically ap-
proved them in4VilLiains V. Mississippi, 1898,
170 U.S. 213.12
Sections 241, 242, and 244 of the consti-
tution of 1890 were attacked by motion (20
So. at 840) as being violative of the due
process and equal protection clauses of the
14th amendment. The motion was grounded
on the allegation that the constitutional
convention of Mississippi was composed of
134 members, of which only 1 was a Negro;
"that the /purpose and object of said con-
stitution was to disqualify, by reason of their
color, race, and previous condition of servi-
tude, 190,000 Negro voters." It was con-
tended before the Supreme Court, 170 U.S.
at page 215, that, "under prior laws, there
were 190,000 colored voters and 69,000 white
voters:" and "that sections 241, 242, and
244 of the constitution of this State are in
conflict with the 14th amendment to the
Constitution of the United States, because
they vest in administrative officers the power
to discriminate against citizens by reason of
their color; and that the purpose of so in-
vesting such officers with such power was
intended by the framers of the State con-
stitution to the end that it should be used
to discriminate against the Negroes of the
State." The contentions there made bear a
marked resemblance to those now made be-
fore us. Responding to them, the Supreme
Court of Mississippi said (20 So. 840-841) :
"At this point in the investigation it is
sufficient to say that we have no power to
investigate or decide upon the private, in-
dividual purposes of those who framed the
constitution, the political or social com-
plexion of the body of the convention. * * *
We can deal only with the perfected work?
the written constitution adopted and put in
operation by the convention. * *
"We find nothing in the constitutional
provisions challenged by the appellant which
discriminate against any citizen by reason
of his race, color, or previous conditions of
servitude. * * * All these provisions, if
fairly and impartially administered, apply
12 The Supreme Court there affirmed the
decision of the Supreme Court of Mississippi
in Williams v. State, 1896, 20 So. 1023, in
which case a memorandum opinion only was
written. That memorandum opinion referred
to the decision of Chief Justice Cooper in
the companion case of Dixon v. State, 20 So.
839; and consideration of the Dixon decision
is necessary to an understanding of the ef-
fect of the Supreme Court's decision in Wil-
liams.
with equal force to the individual white and
Negro citizen. It may be, and unquestion-
ably is, true that, so administered, their op-
eration will be to exclude from the exercise
of the elective- franchise a greater propor-
tionate number of colored than of white
persons. But this is not because one is
white and the other is colored, but, because
of superior advantages and circumstances
possessed by the,one race over the other, a
greater number of the more fortunate race
is found to possess the qualifications which
the framers of the constitution deemed es-
sential for the exercise of the elective fran-
chise."
Affirming the decision of the Mississippi
-supreme Court in Williams, the Supreme
Court of the United States considered at
length Yick Wo v. Hopkins, supra, more than
half of the opinion being devoted to a study
of and quotations from tha-case. The Court
quoted what it had said in Tick Wo, which
quotation?set forth supra?is the portion
of Tick Wo so vigorously urged by plaintiffs
before us. But-concerning said quoted lan-
guage the Supreme Court of the United
States, after stating "We do not think that
this case is brought within the ruling in
Fick Wo v. Hopkins" 170 U.S. at 225, said:
"This comment is not applicable to the
constitution of Mississippi and its statutes.
They do not on their face discriminate be-
tween the races, and it has not been shown
that their actual administration was evil,
only that evil was possible under them."
The Court, in that decision, quoted and
discussed all of the important provisions of
the Mississippi constitution governing the
right to vote, and also quoted the contention
there made that the constitution vested in
the registrar "the full power, * * * to ask all
sorts of vain, impertinent questions, and
* * * reject whomsoever he chooses, and
register whomsoever he chooses, for he is
vested by the constitution with that power.
Under section 244 it is left with the admin-
istrative officer to determine whether the
applicant reads, understands, or interprets
the section of the constitution designated.
The officer is the sole judge of the examina-
tion of the applicant, and even though the
applicant be qualified, it is left with the offi-
cer to so determine; and the said officer can
refuse him registration."
It is of determinant significance that the
Supreme Court in Williams rejected all of
those contentions and upheld th4 constitu-
tionality of section 244 as originally written.
(2) it is pertinent to observe at this point
that plaintiffs, having thus conceded the
validity, of the original 244, make the identi-
cal argument that amended 244 is uncon-
stitutional because (a) its language is so
vague and indefinite as to furnish no ascer-
tainable standard of action, and (b) it in-
vests the registrar with arbitrary and uncon-
trolled powers
(a) The obvious answer to the ground
first stated is that the words used in amend-
ed section 244 are the identical terms used
in the 1890 constitution?"read," "reason-
able," "interpret," "understand." Every one
of those words was used in the original sec-
tion which plaintiffs find no difficulty in
dbmprehending. The language above quoted
shows that the identical contention was
made by Williams in his appeal and was
rejected by the Supreme Court. It is fur-
ther clear that _the responsible State official
was invested with exactly the same powers
under the constitution of 1890 that he has
under the amended section.
It is plain that what plaintiffs complain
of is, not that the words used in the
amendment are vague and indefinite, but
that the literacy test imposed by the
amendment is slightly more onerous and
exacting than that of the original. They
complain that the amendment requires an
applicant for registration to read and write
a section of the constitution. Certainly
17891
the original requirement was more rigorous
at the time of its enactment than was the
amendment when it was adopted.
The constitution of 1890 was passed when
Negroes had just emerged from complete il-
literacy?cf. the Supreme Court's language
in Brown v. Board of Education, 1954, 347
U.S. 483, 490 "Education of Negroes was
almost nonexistent and practically all of the
race were illiterate"?and when -both Negroes
and whites had passed through two decades
of the tragedy of Reconstruction when efforts
at education were close to the vanishing
point. After six decades of an increasingly
competent educational system 13 it seems
moderate indeed for the electorate to lay
upon itself the obligation of being able to
read and write the basic law of the Common-
wealth. Understanding and interpretation
formed a part of the original section 244 and
they seem all the more proper in this time
of general enlightenment.
The same can well be said of the sentence
added by the amendment requiring an appli-
cant to demonstrate "a reasonable under-
standing of the duties and obligations of
citizenship under a constitutional form of
government." In assaying the reasonable-
ness of such requirements it is well to note
that the provision of the Oklahoma consti-
tution, which the Supreme Court found un-
exceptionable in Guinn, supra (238 U.S. at
357), required the applicant to both read and
Write, and that the Court rejected the grand-
father clause only because it was not able to
discover any reason for its arbitrary exemp-
tion of those possessing certain qualifications
op a specified date except one which flew in
the face of the 15th amendment (238 'U.S. at
- pp. 364-365). Such is not the case here.
At a time when alien ideologies are making
a steady and insidious assault upon constitu-
tional government everywhere,11 it is nothing
but reasonable that the States should be
tightening their belts and seeking to assure
that those carrying the responsibility of suf-
rage understand and appreciate the form and
genius of the Government of the country and
of the States.
(b) Literacy tests for prospective voters
have been in effect in this country for a
century, and no case has been brought be-
fore us holding that the people of a State
have placed themselves under too heavy a
burden in setting the standards which will
earn the right to vote, and none condemn-
ing a literacy test as such. In Lassiter v. Tay-
lor, U.S.D.C. E.D. N. Car., 1957, 152 F. Supp.
295, 297-298, attention is called to the fact
that 19 States, only 7 of which are South-
ern States, prescribe literacy tests, and those
States and the laws prescribing the literacy
tests are listed. Plaintiffs concede that it
is proper for Mississippi to enact reasonable
literacy requirements for voting. That con-
cession is bound to include the unquestioned
concept that it is the States which have
plena-ry and exclusive -power to determine
what is reasonable.- See the language of the
Supreme Court opinions in part I supra.
Plaintiff's idea that a literacy test may
properly embrace one facet but not two (or
two facets but not three) is without sanc-
tion of either law or reason. In Trudeau v.
Barnes, 65 F. 2d 563, certiorari denied 290
U.S. 659, the fifth circuit court of appeals
approved Louisiana constitutional require-
ments embracing both reading and inter-
preting its constitution and that of the
United States.
" Last year 268,246 Negroes attended the
public schools of Mississippi and 281,684
whites. See Bulletin SD. 58, Mississippi De-
partment of Education.
" Blazoned across the front of the October
3, 1958, issue of U.S. News & World Report,
are these words in red letters: "Today's
War?How the Reds Are Operating in 72
Countries."
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17892 CONGRESSIONAL RECORD ? SENATE
(c) To attack the language of amended
section 244 as being too vague and indefinite
is to ignore a long and unbroken line of
decisions approving legislative enactments
whose phraseologies are far more nebulous
and cifficult of ascertainment than the rela-
tively simple terms before us. A few recent
examples will suffice. The Supreme 'Court
has recently 15 approved a Federal and a State
statute which made criminal the dissemi-
nation of literature which was "obscene,
lewd, lascivious, filthy, indecent," although
it was necessarily left to 12 laymen consti-
tuting the jury to determine whether such
dissemination had "a substantial tendency to
deprave or corrupt the readers by inciting
lascivious thoughts or by arousing lustful
desires." The Labor Board is given power 16
to examine protracted negotiations between
representatives of employers and employees
and to determine therefrom whether there
has been "bargaining in good faith."
In Screws v. United States, 325 U.S. 91, the
Supreme Court upheld a criminal statute
making it unlawful to deprive any inhabi-
tant of a state "of any rights, privileges, or
immunities secured or protected by the Con-
stitution and laws of the United States
* * *by reason of his color, or race." Those
rights, privileges, and immunities are legion
and are being defined and expanded every
day?, The Court justified its decision by
holding that conviction under the statute
can ensue only when the jurors find, under
proper instructions, that the rights violated
are rights belonging to Federal citizenship
as distinguished from those inhering in
State citizenship. It should be remembered
also that every juror in a criminal case is
forced to apply his common sense in deter-
mining what is or is not a "reasonable"
doubt; and jurors trying personal injury
suits are required to fashion largely out of
their own experience standards of "reason-
able" care and "reasonable" prudence upon
which to base their verdicts.
(3) To charge that the discretion vested
in the registrar is arbitrary and uncon-
trolled is to ignore the procedures provided
by Mississippi law. Administrative appeal to
a board selected by the State board of elec-
tion commissioners is given de nobo and, on
such appeal, the judgment of the registrar
is so highly tentative and lacking in finality
that It is not even prima fade correct. In
every instance his judgment must be one
based upon reason, and absolute right of
appeal to the courts is also provided. This
administrative machinery has the explicit
approval not only .of Williams, supra, but of
Peay et al v. Cox, Registrar, 5 Cir., 1951, certi-
orari denied 342 U.S. 896.
It would be hard to conceive of constitu-
tional provisions which safeguard the rights
of applicants for suffrage as well as do the
ones under attack. A permanent record is
made on forms prepared by State officers and
applying uniformly to all applicants, so that
anything smacking of discrimination can
easily be checked by examination of the pub-
lic records. This provides a more certain
insurance against discrimination than the
requirements of original section 244?pro-
viding for oral examination?which bears
the stamp of plaintiffs' approval. Right of
appeal is given not only to rejected appli-
cants but to any member of the public who
may think that any applicant has been too
generously dealt with.
(4) (a) In an attempt to prove that the
purpose, i.e., motive, of the people of Mis-
" Roth v. United States, 1957, 354 U.S. 476.
u Labor Board v. Truitt Manufacturing Co.,
1956, 351 U.S. 149.
12 In Adamson v. California, 332 U.S. 48, it
Is demonstrated by the four exhaustive opin-
ions that the Judges of the Supreme Court
differ radically as to what the quoted words
mean.
sissippi in amending section 244 of the Mis-
sissippi constitution was an evil one, plain-
tiffs sought to introduce in evidence six
photostatic copies of newspaper articles ex-
pressing the opinion that the object of the
constitutional amendment was "aimed at
stemming the tide of Nergo voters that is'
growing up in the State." is The amendment
was voted upon at an election for various
officials, State and Federal. No effort was
made to prove that the copies offered were in
fact copies of newspapers published at the
time and no proof was offered to show that
the statements attributed to various individ-
uals were made, or that the opinions were
actually expressed.
These articles were permitted to be in-
serted in the record for whatever value they
might have toward proving what the plain-
tiffs called climate. No statements were
attributed to State officers and the articles
purported to express only sentiments which
were alleged to be entertained by the private
citizens to whom they were attributed. The
articles possessed little, if- any, probative
value.
(b) Plaintiffs also obtained by subpena
copy' of an issue of the Clarion Ledger, a
newspaper published in Jackson, Miss., con-
taining an article by Charles M. Hills in
which the number of Negroes supposedly
qualified and registered in various coun-
ties of the State was discussed. The ar-
ticle showed that Jefferson Davis County
had, in 1954, 1,221 registered Negro voters.
Hills was offered by plaintiff as a- witness
and asked as to the correctness of his fig-
ures. Be replied that he had no personal
knowledge at all and no information except
what he had obtained, as the article set
forth, from the Mississippi Citizens' Coun-
cil. The figures could have been nothing
but an estimate, as the registration records
omit entirely any reference to the race of
a registrant; but the article wa&received as
a part of the record for whatever probative
value it might have.
If the article should be accepted as de-
pendable and as competent proof, some in-
teresting comparisons might be made. In
Jefferson Davis County 926 electors east
their ballots in favor of the constitutional
amendment '9 and 278 against it. Plaintiffs'
newspaper article showed that 54 Negroes
were registered voters in Itawamba County;
in voting on the amendment, 228 citizens of
that county voted for the amendment and
1,248 voted against it. The article reflected
18 Five of these were assumed copies of one
daily newspaper, including two excerpts
from editorials, two news stories about the
impending election, and one news story
about the forrnation of a citizens' council in
a Mississippi county. Each contained the
expression of the opinion that the amend-
ment was intended to limit Negro registra-
tion. This quotation from one of the edi-
torials is typical:
"The second proposed amendment would
tighten up the State's voter-registration re-
quirements to curb registration of near-
illiterates. * * * The proposed change is
wise, desirable, and very timely. * * * Adop-
tion of this amendment, and fair and uni-
form application of the new voter-registra-
tion requirements, over the years would
steadily raise the average educational quali-
fications and intelligence of our citizens. It
would also curb the registration of members
of groups most likely to engage in bloc voting
and we believe that adoption of this amend-
ment would, over a long period, help win the
fight to retain our separate school system and
social institutions."
The remaining newspaper article was a
news story in another newspaper dealing
largely with activities of citizens' councils.
1*The figures are obtained-from Missis-
sippi Official and Statistical Register, 1956-
60, p. 397.
September 1.4
that 4 Negroes were registered in Pontotoc
County; the vote in that county was 339 for
the amendment and 1,371 against. %pecu-
lation engendered by the article would lead
to the conclusion that the adoption of the
amendment by well over a 2 to 1 majority
statewide did not follow at all the pattern
of race registration which plaintiffs attempt
to ascribe to it."
(c) Plaintiffs, pursuing further the argu-
ment that the purpose of amending sec-
tion 244 was to fashion' tools the better to
discriminate against Negro applicants, list a
number of statute's passed by the Mississippi
Legislature in 1954, 1955, and 1956 dealing
with the public schools and with other as-
pects of what plaintiffs term "the State's
declared policy of preserving segregation."
If we should be tempted ,to accept guilt by
association as a proper basis for condemn-
ing State action, it would not apply here,
because the attack plaintiffs make here is
basically upon a constitutional amendment
enacted by vote of the people themselves.
It was submitted at a time when only one
other amendment was on the ballot and that
had to do with a technical point applying to
corporate procedures: The argument, like
those which precede it, is lacking in force.
(5) (a) Having failed to produce any tan-
gible proof to sustain this position, plain-
tiffs finally call upon us to supply the lack
by judicial notice. In other words, we are
importuned to rule without proof that, on
its face or by reason of its unrevealed
sinister purpose, the constitutional amend-
ment is void. The showing before us wholly
fails to warrant serious consideration of so
condemning a whole people, which is what
we would have to do if we accepted plain-
tiffs' argument. Neither proof nor judicial
knowledge tend to sustain plaintiffs' posi-.
tion.
Even if we had such knowledge by some
sort of occult power of divination, we would
not have the competence to do what plain-
tiffs advocate. No case is cited as a prece-
dent for such action, and no proof is offered
to sustain it. If we should imagine ourselves
possessed of such ominiscience and omnipo-
tence, we would find ourselves confronted
by a vast array of authority which forbids
questioning the motives even of a legis-
lature, certainly of a sovereign people.
(b) Commenting upon the immunity of
State legislators from having their motives
scrutined, Judge Learned Hand,21 exclaims:
"but of all conceivable issues this would be
the most completely 'political,' and no court
would undertake it.' " He also quotes Chief
Justice Taney's statement in the License
2? Plaintiffs seek to draw an- unfavorable
inference aginst defendants from the fact
that Governor Coleman declined to honor a
subpena issued by them. This was in keep-
ing with the general law and the traditional
policy of governors in Mississippi and in
States generally. The Court offered to have
Mr. Patterson, a member of the same Com-
mission with the Governor, submitted to
examination by plaintiffs, but plaintiffs did
not choose so to proceed. It was clear that
the testimony which plaintiffs sought to
elicit frona the Governor was hearsay and
undependable because the figures were de-
rived from a letter poll made of registrars
which turned out to be incomplete. Plain-
tiffs had ample opportunity to attempt to
make the desired proof by the registrar of
Jefferson Davis County in 1954,, or to pro-
ceed by interrogatories, request for admis-
sion, or the other avenues provided in
F.R.C.P., but they did not do so.
21 The Bill of Rights, supra, p. 46.
22 Citing McCulloch v. Maryland, 4 Wheat.
316, 423; Doyle v. Continental Ins, Co. 94 U.S.
535, 541; Weber V. Freed, 239 U.S. 325, 330;
Arizona v. California, 283 U.S. 423, 435;
Daniel v. Family Insurance Co., 336 U.S. 220,
224.
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1959 CONGRESSIONAL RECORD -SENATE
cases (5 How. 504, 583) : "Upon that ques-
tion the object and motive of the States are
of no importance, 'and cannot influence the
decision. It is a question of power." Mr.
Justice Douglas, .in Ferandez v. Wiener, 326
U.S. 340, quoted the language of Chief Justice
Stone in Sonzinsky v. United States (1937,
,300 U.S. 506, 513) : "Inquiry into the hidden
motives which may move Congress to exer-
cise a power constitutionally conferred upon
it is beyond the competency of the courts."
Upon a principle so unquestionable it is suf-
ficient to add to the cases already cited a list
4 of more recent decisions affirming its
We hold, therefore, that plaintiffs have
wholly failed to establish that the amend-
Tr-tent to section 244 of the Mississippi con-
stitution of 1890 is void on its face or be-
cause it was the product of base motives.
?We hold, on the other hand, that said
amendment and the statutes passed in con-
nection with it are valid on their face and
In fact, and are a legitimate exercise by the
State of its sovereign right to prescribe and
enforce the qualification of voters.
In
(1)- This brings us to the contention that
plaintiffs, along with other Negroes, were
actually discriminated against in the admin-
istration of the constitution and laws of
Mississippi by defendant Daniel. If such
discrimination was practiced against plain-
tiffs, the actions of defendant would cer-
tainly come under the condemnation of the
15th amendment, or the 14th amendment,
or both. Plaintiffs put on the witness stand
a number of other Negroes, but we look first
to their own testimony to determine if
,either plaintiff proved that he was qualified
to register under the constitution and laws
.of Mississippi and was denied registration
because of his race.
? Plaintiff Dillon, conceding that she was
properly given the written test provided by
the amendment, failed to produce a copy of
that test for the court's inspection. She
did not demonstrate in her oral testimony
the possession of the qualifications provided
in the Mississippi constitution and statutes,
and there is no proof at all, therefore, that
she had any status to maintain this action.
' According to the testimony of his attor-
ney, plaintiff Darby ,approached him in April
.or May 1956, about the time he wrote Presi-
dent Eisenhower. The attorney called the
*NAACP which, sometime later, agreed that
'Its legal fund would pay the attorneys and
the expense of any litigation which might
De brought by Reverend Darby.
This was before his first written application
of June 29, 1956, in which he stated that he
was a farmer. The application was signed
by him but was not filled in. It is not
claimed that, in this application or the oral
tests which came after it, Plaintiff Darby
showed himself qualified to register. Thefl
entire case is predicated on the sworn writ-
ten application of June 22, 1957, which he
took under his attorney's advice and direc-
tion This document, read in the light of the
testimony of Plaintiff Darby, reveals several
deficiencies.
He made no answer to question 14 inquir-
ing if he had ever been convicted of the
crimes enumerated in the question; con-
siderable portions of the answers written by
plaintiff are illegible. In response to ques-
tion 18 calling upon him to copy section 123
Cohen at al. V. Beneficial Industrial Loan
Corp:, 1949, 337 U.S. 541, 552; Goesaret V.
Cleary, 1948, 335 U.S. 464, 467; Oklahoma ex
rel. Phillips v. Atkinson, 1940, 313 U.S. 508,
528; United States v. Darby, 1941, 312 U.S.
100, 115; Child Labor case, 1922, 259 U.S. 20,
39; Daniel v. Family Insurance Co., 336 U.S.
221; and Doyle v. Continental Insurance Co.,
94 U.S. 535.
of the Constitution of Mississippi,s he wrote
six lines not called for by the question and
not possessing marked coherence. In giving
his reasonable interpretation of that section
he wrote, "the govvener govends all the words
of the state and he is to see that all the
voilatores be punished and ala he can par-
don out the penetenter ane pherson." In
answering question 20 which directed him to
write his understanding of the duties and
obligations of citizenship under a constitu-
tional form of government, he wrote five lines
which could hardly be called accurate or re-
sponsive to the question.s
That he could not write legibly is exempli-
fied by examination of the several documents
in the record written by him, and is further
attested by the fact that the letter he sent
the President was written entirely- by some-
one 'else, including the signature. He did
not attempt, while on the witness stand, to
demonstrate that he could read. . Every other
Negro witness he placed on the stand was
given a section of the Mississippi Constitu-
tion to read before the Court, but plaintiff
himself did not attempt to show his ability
to read. The evidence does riot, therefore,
support the burden imposed on the plaintiffs
to show that they were qualified to be regis-
tered as voters. A fortiori it does not estab-
lish that defendant, Daniel, did not act in
good. faith or exercise a sound discretion
when he made his decision that plaintiffs had
not passed the examinations given them.
? In passing judgment on this phase of the
case we cannot leave out of view that defend-
ant, Daniel, knew that he was under surveil-
lance by Federal officials and that he was
dealing with one party who was acting under
advice of counsel.
It is fundamental that plaintiffs must
stand or fall on the merits of their own case.
The Supreme Court stated the principle in
McCabe v: A.T. & S.F. By. Co., 1914, 235 U.S.
151, 162, in these words:
"But we are dealing here with the case of
the complainants, and nothing is shown to
t
en itle them to an injunction. It is an
elementary principle that, in order to justify
the granting of this extraordinary relief, the
'complainant's need of it, and the absence
of an adequate remedy at law, must clearly
appear. The complainant cannot succeed
because someone else may be hurt. Nor
does it make any difference that other per-
sons, who may be injured are persons of the
same race or occupation. It is the fact,
clearly established, of injury to te com-
plainant-not to' others-which justifies
.judicial intervention." (Citing a number of
Supreme Court cases.$)
24 "The Governor shall see that the laws are
'faithfully executed."
2, "a citizen is persn has in been in the
USA all his days. and is not been convicted
of enny crimes and has been loyal. to his
country and pase all his tax."
s The cases on the subject are collected
in an opinion by Chief Judge Hutcheson of
the Court of Appeals of the Fifth Circuit in
Brown v. Board of Trustees (1951), 187.F.
2d 20, 25, where he quoted from several Su-
preme Court cases. This language is applic-
able to the case before us: "All of these con-
siderations, however, are completely beside
the mark here, for plaintiff has wholly failed
to plead or prove any deprivatiOn of his
civil rights and' it is elementary that he has
no standing to sue for the deprivation of the
civil rights of others.
*
"It is the individual who is entitled to
the equal protection of the laws, and if he
is -.denied * * * a facility or convenience
* * ** which, under substantially the same
circumstances, is furnished to another tray-
17893
(2) Plaintiffs served subpenas on 25
Negro Witnesses, of whom 15 were placed
upon the stand. Despite the principles last
above quoted and such cases as Reddix v..
Lucky (5 Cir., 1958); 252 F. 2d 930,.938, hold-
.ing that "obviously the right of each voter
depends upon the action taken with respect
to his own case," we permitted this testi-
.mony? to be introduced over objection to
give plaintiffs a chance to show that there
was a class whose rights they might carry
if they 'established their own case, and
also that the testimony might be considered
as furnishing circumstantial evidence of
discrimination in favor of the case of plain-
tiffs. Although some of the written applica-
lions exhibited in connection with the tes-
timony of these witnesses were sufficient to
raise an issue of fact as to their qualifica-
tions, it is not our province to 'set ourselves
up as registrar of voters.
Some of the testimony certainly demon-
strated the absence of qualifications of the
applicants. For example, when called upon
by question 18 to copy section 198 of the
Mississippi constitution, Johnnie B. Darby,
Plaintiff Darby's wife, wrote: "I have so ?
agreed to be as good a citizen as I possible
can I have not yet read the constitution of
Mississippi I do try to abide by truth and
right as the Almighty God provide the un-
derstanding and wisdom."
Another witness called upon to copy sec-
tion 16 of the constitution s wrote: "Ex
post facto laws or laws impaitring obliga-
tions contrace St. Shall Be passed." Inter-- '
preting that section this same witness wrote:
"a man must pay pold tax befor he eagable
to voat.'; This witness gave his occupation
as that of teacher.
None of these witnesses took appeals from
Daniel's ruling declining to permit them to ?
register. Four of the 15 passed ,the
written examination, and of those who failed
the wives of 2 passed. He gave the test to
.some of the witnesses as many as four times
and he invited plaintiff Dillon to come back
? and try again. The testimony of these wit-
nesses adds little to the solution of the prob-
lem before us.
(3) Plaintiffs introduced one bound
volume containing 78 original applica-
tions. The documents do not show
whether the applicants were white Or colored.
It seems probable that the purpose of intro-
ducing this volume was to show that, dur-,
ing this period, all applicants were required
to take the written examination, whereas
-under the constitutional amendment those
who were registered voters on 'January 1,
1954, were required to take only the oral test
habitually given under the original consti-
tution. This does not prove anything which
was not readily admitted by Defendant
Daniel. From the time Daniel came into
-office January 1, 1956, until the attorney
general of Mississippi advised him of his error
:he had been using the forms furnished him
by the State election commissioners and test-
ing all applicants- by written examination.
As far as the testimony goes none had ob-
jected. The point of this testimony, how-
ever, is that undisputedly white and colored
were treated exactly alike. Since, according
to the undisputed proof, there were only
40 to 50 Negro voters registered in the
-eler, he may properly complain that his con-
stitutional privilege has been invaded. ,
"Cf. Sweatt v. Painter, 339 -U.S. 629, 635,
70 S. Ct. 848, 851, where the Court said: 'It
is fundamental that these cases concern
rights which are personal and present. * * *
petitioner's right was a personal one. It was
as an individual that he was entitled to the
equal protection of the laws.'"
s "Ex post facto laws, or laws impairing
the obligation of contracts, shall not be
passed."
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17894 CONGRESSIONAL RECORD ? SENATE
county, the 78 applicants, all of whom passed
necessarily included some white people.
The wrongful interpretation or the misap-
plication of Mississippi law alone would not
give this Court jursidiction or amount to
deprivation of any constitutional rights. Un-
der this phase of the case discrimination
alone resulting from the fact that plaintiffs
are Negroes can justify maintaining the ac-
tion or granting the relief sought. The Su-
preme Court announced the principle in ex-
plicit terms in Snowden v. Hughes, et al.
1944, 321 U.S. 1, 8 (a case in which Williams
V. Mississippi, supra, was cited with ap-
proval) where the dismissal of an action for
want of jurisdiction was approved where a
candidate for office sought equitable relief
against party, officials who refused to certify
him as a candidate. The language quoted in.
the margin controls here."
The essence of the action before us, there-
fore, is discrimination on the part of the
defendant Daniel?discrimination against
plaintiffs, Negroes, and in favor of. white
persons. After listening to the oral testi-
mony and examining the documents care-
fully we are unable to find any tangible or
credible proof of discrimination. There is
no proof that any white person was ever
treated in any manner more favorably than
plaintiffs or any other Negroes. The mere
showing that of 3,000 qualified voters in
Jefferson Davis County, only 40 to 50 are
Negro, is not sufficient. Plaintiffs carry
the burden of showing that plaintiffs have
been denied the right to register because
they are Negroes, and that white people
similarly situated have been permitted to
register. This record contains no such proof.
The disparity between numbers of regis-
trants, as has been so often pointed out,
results doubtless from the fact that one
race had a start of several centuries over the
others in the slow and laborious struggle
toward literacy. -This records does not, in
our opinion, show that defendant has prac-
ticed discrimination. From our observation
of his demeanor during the trial and while
on the witness stand and of the evidence
generally we are convinced that he has
shown himself to be a conscientious, patient,
and fair, public official, exerting every effort
to do a hard job in an honorable way.
rv
Plaintiffs aver in their complaint that -
they have a right to maintain this action
without exhaustion of the administrative
remedies provided under Mississippi law.
They base this contention upon the provi-
sions of 42 United States Code Annotated,
paragraph 1971(d) , upon their charge that
"where the plaintiff challenges the constitu-
tionality of a State statute or policy, a Fed-
eral court will not require the exhaustion of
administrative remedies;" and upon their as-
28 "But not every denial of a right ,con-
ferred by State law involves a denial of the
equal protection of the laws, even though
the denial of the right to one person may
Operate to confer it on another. ? * * And
where the official action purports to be in
conformity to the statutory classification, an
erroneous or mistaken performance of the
statutory duty, although a violation of the
statute, is not without more a denial of the
equal protection of the laws.
"The unlawful administration by State of-
ficers?of a State statute fair on its faCe, re-
sulting in its unequal application to those
who are entitled to be treated alike, is not
a denial of equal protection unless there is
shown to be present in it an element of
_intentional or purposeful discrimination.
? * * But a discriminatory purpose is not
presumed, Tarrance v. Florida, 188 U.S. 519,
520; there must be a showing of 'clear and
intentional discrimination,' Gnnelling v.
Chicago, 177 U.S. 183, 186."
sertion that "plaintiff here seasonably at-
tempted to exhaust his administrative reme-
dies and was unable to obtain a decision by
the board of election commissioner." These
contentions will be discussed in reverse
order.
(1) Mississippi's election machinery is un-
der the supervision of the State board of elec-
tion commissioners, consisting of the Gover-
nor, the secretary of state, and the attorney
general." This board is required," 2 months
before every general election of Representa-
tives in Congress, and of electors of President
and Vice' President of the United States
* * * [to] appoint the commissioners of
election for each county." The absolute right
of appeal to the county board is given in
words reproduced in the margin." Hearings
on appeal are provided for by section 3227
of the Mississippi Code (appearing first in
the Mississippi Code of 1892) entitled "Ap-
peal Heard De Novo.:"
"All cases on appeals shall be heard by the
boards of election commissioners de novo,
and oral evidence may be heard by them;
and they are authorized to administer oaths
to witnesses before them; and they have
power to subpena witnesses, and to compel
their attendance; to send for persons and
papers; to require the sheriff, and constables
to attend them and to execute their process.
The decisions of the commissioners in All
cases shall be final as to questions of fact,
but as to matters of law they may he re-
vised by the circuit and supreme courts.
The registrar shall obey the orders of the
commissioners in directing a person to be
registered, or a name to be stricken from
the registration books."
. Sections 3228, 3229, 3230, and 3231 provide
for hearing of the appeal by the circuit court
of the county. The right of appeal to the
supreme court is given.
The evidence does not show that plaintiff
Darby "was unable to obtain a decision by
the board of election commissioners." It
does show that he seasonably appealed to
the county board of election commission-
ers, thus electing to proceed by statutory
appellate procedures, but that he failed to
follow them through. On the other hand,
he began this civil action 4 days before the
first meeting of the board held after his ap-
peal. The appeal is still pending and un-
disposed of:" Plaintiffs' first avigned reason
is, therefore, without merit.
MiiSissippi Code of 1942, sec. 3204.
"Ibid., sec. 3205.
31Ibid., sec. 3224 provides that: "Any per-
son denied the right to register as a voter
may appeal from the decision of the registrar
to the board of election commissioners by
filing with the registrar, on the same day of
such denial or within 5 days thereafter, a
written application for appeal."
Sec. 3225 provides: "Any elector of the
county may likewise appeal from the decision
of the registrar allowing any other person to
be registered as a voter; but before the same
can be heard the party appealing shall give
notice to the person whose registration is ap-
pealed from, in writing, stating the grounds
of the appeal; which notice shall be served by
the sheriff"
'2 Meetings of the board are fixed by three
Mississippi statutes: Section 3239 of the
Mississippi Code of 1942, first passed in 1880,
provides for a meeting "On the first Monday
of October preceding a general election, and
5 days before any other." There was no gen-
eral or other election in Mississippi during
1957. Section 3226 first passed in 1892, pro-
vides for meetings on the first Monday in
October after -appointment. The reason for
this statute is that the time of appointment
of the board is indefinite under section 3205,
supra. The board had been appointed in
1956 and had held a meeting in October of
?
September 14,
? (2) The cases cited by plaintiffs 33 do not
sustain their contention that it is not neces-
sary to exhaust administrative remedies
where the claim is asserted that constitu-
tional rights have been violated.
There are decisions" holding that, where
an appeal presents only matters of law, the
court may intervene without awaiting ac-
tion by the intermediate administrative
board which had no power to pass upon
legal questions. But such cases do not con-
trol here. The written appeal of Plaintiff
Darby on June 24, 1957 was a general appeal, t.
and the writing which accompanied it, states
that he had on June 22, 1957 presented him-
self to the regictrar, making application to
register as a voter "whereupon such instance
?notwithstanding that I did then and do now
possess the necessary qualifications to regis-
ter, I was denied registration." A letter from
his attorney dated September 21, 1957 states
that "He has been denied the right to regis-
ter to vote, notwithstanding that he was
then and is now possessed wih the necessary
qualifications for same." The formal "con-
tentions" filed by said plaintiff October 7,
1957 raised constitutional questions, bilt also
reiterated the questions of fact theretofore
'relied upon, to wit: that Defendant Daniel
was administering the constitutional and
statutory provisions of Mississippi in such a
manner as to discriminate against him, and
that he was a duly qualified and registered
voter in Mississippi prior to January 1, 1954,
and was entitled to registration without
complying with the additional qualifications
contained in the amendment to the Con-
stitution. In this state of the record and
under the complaint, it is clear that plain-
tiffs' challenge did not relate to questions of
law only. We repeat what the court of ap-
peals for the fifth circuit said -in Peay V.
Cox, supra: 8" "The commissioners are sworn
officers and presumably will give them a
fair hearing. They may easily think the pe-
titioners are right in their construction of
the Mississippi constitution. a ? * If they
hold otherwise on that point but that a
discrimination is practiced, they may correct
that. The registrar is bound to obey them."
The second ground asserted by plaintiffs is,
therefore, untenable.
(3) Finally, plaintiffs, claim to be ex-
empted from Mississippi procedural laws re-
lating to registration and appeal therefrom,
basing their contention upon the act of Con-
gress approved September 9, 1957 (Public Law
that year. This statute does not apply to
any year except the year of their appoint-
ment.
The Mississippi Legislature of 1938 passed
a new statute, now section 3240 of the code,
requiring that the board meet every year
on the Tuesday after the third Monday in
March, and this is the general meeting.
The statutes provide an understable and
reasonable time for the meeting of the board
so that an elector desiring to register may
not miss any election, and plaintiff and his
attorney were advised by the statutes and by.
the word of the Registrar of the date the
board would meet. Instead of attending the
meeting of the board and prosecuting the
appeal they had begun, they filed this civil
action.
Plaintiff Rutha Dillon testified ,that she
did not appeal at all. -
33 E.g., Gibson v, Board of Public Instruc-
tion of Dade County, 5 dr., 1957, 246 F. 2d
913, which holds premature the contention
that schoolchildren did not pursue ad-
ministrative remedies where the Florida con-
stitution made nonsegregated schools illegal.
" E.g., Bruce et al. v. Stilwell et al., 5 cir.,
1953, 206 F. 2d 554.
" 1951, 190 F. 2d 123, 126, certiorari denied
342 U.S. 896.
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17896 CONGRESSIONAL RECORD ? SENATE
said threats, plaintiffs and their attorneys
are suffering irreparable injury. Plaintiffs'
evidence wholly failed to sustain these
charges of the complaint. In fact, that evi-
dence showed without dispute that no such
threats had been made and that no action
was taken or within contemplation which
could in any way affect the welfare or the
rights of plaintiffs or their attorneys. The
statutes have not been passed upon by the
courts of Mississippi. Since the evidence
fails to establish that any controversy exists
between plaintiffs and either defendant with
respect to said statutes, and in view of the
long line of Supreme Court decisions com-
mitting such matters at least primarily to
State court action, Amalgamated Clothing
Workers of America v. Richmond Bros., 348
U.S. 511; Stefanelli v. Minard, 342 U.S. 117;
Douglas v. City of Jeanette, 319 U.S. 157;
and Watson v. Buck, 313 'U.S. 387, and cf.
28 IT.S.C.A. No. 2283, plaintiffs cannot main-
tain this phase of their complaint.
It results from the foregoing views that
plaintiffs are not entitled to any of the re-
lief sought. We are, therefore, entering a
order dismissing the complaint.
Dismissed.
(This opinion issued Nov. 6, 1958.)
following enrolled bills and joint reso-
lution, and they were signed by the
President pro tempore:
S. 1436. An act to amend the act of June
14, 1926, as amended by the act of June 4,
1954(68 Stat. 1'73; 43 U.S.C., sec. 869) ;
S. 2230. An act to amend the National Cul-
tural Center Act;
S 2445. Authorizing the conferring of the
degree of master of arts in education on
certain students who enrolled in the Dis-
trict of Columbia Teachers College prior to
July 1, 1958, and who, prior_
to July 1, 1961,
are certified by the president and faculty
of such college as having met all require-
ments for the granting of such degree;
S. 2517. An act to amend section 7 of the
Federal Home Loan Bank Act, as amended;
and
S.J. lies: 103. Joint resolution authorizing
the National Geographic Society to erect a
memorial on public grounds in the State
of Virginia to honor Rear Adm. Richard
E. Byrd.
MESSAGE FROM THE HOUSE
A message from the House of Repre-
sentatives, by Mr. Maurer, one of its
reading clerks, announced that the
House had passed, without amendment,
the bill (S. 2319) for the relief of
Sergiusz ?Rudczenko.
The message also announced that the
House had agreed to the ardendments
of the Senate to the amendment of the
House to the bill (S. 2162) to provide a
health benefits program for Govern-
ment employees.
The message further announced that
the House had agreed to the report of
the committee of conference on the dis-
agreeing votes of the two Houses on the
amendments of the Senate to the bill
(H.R. 74'76) to extend for 2 additional
years the authority of the Surgeon Gen-
eral of the Public Health Service with
respect to air pollution control.
The message also announced that the
House had agreed to the amendments of
the Senate to each of the following bills
of the House:
H.R. 47. An act to amend the Internal
Revenue Code of 1954 to provide a personal
exemption for children placed for adoption;
and
HR. 6059. An act to provide additional
civilian positions for the Department of De-
fense for purposes of scientific research and
development relating to the national defense,
to improve the management of the activities
of such Department, and for other purposes.
The message further announced that
the House had agreed to the amendment
of the Senate to the bill (HR. 6067) to
amend section 4544 of the Revised Stat-
utes of the United States to provide that,
if the money and effects of a deceased
seaman paid or delivered to a district
court do not exceed in value the sum of
$1,500, such court may pay and deliver
such money and effects to certain per-
sons other than the legal personal rep-
resentative of the deceased seaman.
ENROLLED BILLS AND JOINT
RESOLUTION SIGNED
The message also announced that the
Speaker had affixed his signature to the
MUTUAL SECURITY APPROPRI
ATIONS, 1960
The Senate resumed the consideration
of the bill (H.R. 8385) making appro-
priations for mutual security and related
agencies for the fiscal year ending June
30, 1960, and for other purposes.
Mr. McNAMARA. Mr. President,
many of us in the Senate?I like to think
it is a majority?had hoped that we
would come to grips during this session
with definitive legislation in the civil
rights field.
It was our desire to build upon the
foundation we laid in the Civil Rights
Act of 1957 to erect new safeguards for
the basic civil and human rights of all
Americans. .
Unfortunately, on the eve of adjourn-
ment, it is obvious that our desire is not
going to be fulfilled this year.
I would not like the Nation to feel,
however, that this failure to act in the
civil rights field resulted from any lack
of interest or purpose on our part.
Rather, it resulted primarily from the
same parliamentary obstacles that, until
1957, had prevented legislation to insure
civil rights for nearly 90 years.
There is first 'the great obstacle of
getting, committee action on civil rights
bills. And even should that achieve-
ment be obtained, there is still the threat
of the filibuster, despite the token
change this year in the filibuster rule.
Thus we are permitted this year to act
only on the relatively simple task of ex-
tending the Commission on Civil Rights
for another 2 years.
And even that rather innocuous pro-
posal is being greeted with sharp and ex-
tended debate.
To my mind, however, the debate on
extension of the Civil Rights Commis-
sion is achieving two meritorious goals.
First, it has drawn assurances from
the Senate leadership that the full Sen-
ate definitely will have the opportunity
next year to express its will on the sub-
ject of civil rights legislation.
So, while we regret that ,we did not
have the opportunity for action this year,
we at least have the satisfaction of
knowing that next year we will be able
to present our case to the Congress and
to the country.
We hope, of course, that this opportu-
nity will come at a very early date, after
SepteTiaber 14
Congress ret,onvenes on January 6, 1960.
The other achievement of this debate,
as I see it, is that it has called much-
deserved attention to the Civil Rights
Commission, its work in recent months,
and its report.
I have the feeling that had not the is-
sue of extending the life of the Commis-
sion come up, the report would have
been noted briefly, and then forgotten.
'In reading portions of this report,
have been pleased with the manner in
which it grasps the interlocking nature
of civil rights problems.
It notes, for example, that solving one
problem does not automatically clear up
others. The report states, in part:
If the right to vote is secured, but there is
not equal opportunity in education and hous-
ing, the value of that right will be discount-
ed by apathy and ignorance. If compulsory
discrimination is ended in public education,
but children continue to be brought up in
slums and restricted areas of racial concen-
tration, the conditions for good education
and good citizenship will still not obtain.
If decent housing is made available to
nonwhites on equal terms but their educa-
tion and habits of citizenship are not raised,
new neighborhoods will degenerate into
slums.
Particularly impressive, too, is the call
upon the leadership of America in the
report's statement that:
To eliminate discrimination and demorali-
zation, some dramatic and creative interven-
tion by .the leaderS of our national life is
necessary. In the America ia system much of
the action needed should come from private
enterprise and voluntary citizens' groups and
from local and State governments. If they
fail in their responsibilities the burden falls
unduly on the Federal Government.
To me, this means that all America,
from the White House on down, must
take a much more active and construc-
tive part in meeting these problems than
has been the case in the past.
I should like to take this opportunity
to congratulate Dr. John A. Hannah,
president of Michigan State University,
for the fine job he has done as Chairman
of the Civil Rights Commision.
A NATION OF ECONO
TT J,ITERATES
Mr. BUTLER. Mr. President, as a
member of the Joint Economic Commit-
tee, I have become increasingly con-
cerned with the lack of a basic under-
standing of the American free enterprise
system on the part of our younger peo-
ple. Recently an article on this subject
by the well-known columnist, Sylvia
Porter, appeared in the Washington Eve-
ning Star. It is so clearly directed to
the problem which confronts all of us
that I ask unanimous consent that it
may be printed in the RECORD at this
point.
There being no objection, the article
was ordered to be printed in the RECORD,
as follows:
NATION OF ECONOMIC ILLITERATES
(By Sylvia Porter)
In Congress today policies vitally affecting
the survival of our economic system are being
made by economic illiterates.
In business board rooms and union meet-
ing halls across the Nation decisions directly
involving fobs are being made by men who
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1959 CONGRESSIONAL RECORD ? SENATE
85-315, pt. IV, sec. 131(d) ) 38 Plaintiffs
would construe the words "shall have ex-
hausted any administrative or other remedies
that may be provided by law" as permitting
interception of the State remedy of appeal
already begun and carried through by Darby
to a point just short of hearing before the
county commissioners; and as relieving Plain-
tiff Dillon of having taken the first step to-
ward appeal, or having made any move at
all until more than 2 years after her appli-
cation had been rejected by the registrar.
The mechanics set up by Mississippi to de-
termine which applicants are qualified to
register embrace three steps: written appli-
cation, which is passed upon by the registrar;
appeal from his ruling by the applicant or
any other citizen and full hearing before the
county board; and appeal to the circuit
court of the county. The Court of Appeals
for the Fifth Circuit, in Pell v. Cox, Regis-
trar (190 F. 2d at p. 126; certiorari denied,
342 U.S. 896), classified even the step carry-
ing the controversy before the courts as ad-
ministrative under the authority of Federal
Railroad Commission v. General Electric Co.
(281 U.S. 464). To short-circuit the admit-
tedly administrative proceedings short of a
hearing and decision by the county board
would be not only to deny exhaustion of ad-
ministrative remedies, but to stop them be-
fore they had begun. Such a conclusion is
compelled if two key words of the new Fed-
eral statute, "remedy" and "exhaust," are
given their normal meaning.
"Exhaust" means to "use up, to expend
completely." 33 "Remedy" is defined as "some-
thing that corrects, counteracts or removes
an evil or wrong; relief; redress." 36 To sus-
tain plaintif3' position would be to shut off
all State action aimed at providing a remedy,
at redress. But the words of the statute con-
template that the State be given a chance
to "correct" the asserted "wrong." It is dif-
ficult to perceive how these words of the
statute can be given any efficacy at all or
how the constitutional scheme can be ful-
filled if Federal competence is to, be con-
strued as displacing State power in this vital
field before the State is permitted to take
the first step toward furnishing an adminis-
trative "remedy."
The meaning of the quoted words must
be determined in the light of State and
Federal competence as established by the
Constitution as construed by the Supreme
Court. In balancing the rights of a plaintiff
to the protection of the Constitution and
the power of a State over suffrage, it is well
to keep in mind what the Supreme Court
? said in Guinn, supra, to the effect that
"without the possession of which power the
whole fabric upon which the division of
State and national authority under the Con-
stitution and the organization of both gov-
ernments rests would lie without support and
both the authority of the Nation and State
would fall to the ground." The State of
Mississippi had plenary and exclusive power
to fix the qualifications of voters. More
than that, it had and must have the power
to provide machinery for its enforcement.
The machinery provided by it contemplates
the relatively ministerial act of registration
by the registrar. The heart of Mississippi's
machinery lies in the right of any person to
appeal to the county election commission.
" The section now codified as 42 U.S.C.A.,
par. 1971(d), reads as follows: "The district
courts of the United States shall have juris-
diction of proceedings instituted pursuant
to this section and shall exercise the same
without regard to whether the party ag-
grieved shall have exhausted any adminis-
trative or other remedies that may be pro-
vided by law." [Emphasis added.]
" Webster's New World Dictionary, p. 509.
38 Ib., p. 1230.
No. 163-8
That body alone has the' power to have a
hearing, to consider evidence, to give the
time and study incident to a considered con-
clusion. Its findings and orders are abso-
lutely binding upon the registrax. To take
from this administrative scheme the duties
conferred on this Board would be to render
sterile the undoubted exclusive power of a
State over suffrage.
The Supreme Court of the United States
has throughout its history recognized the
rule that administrative proceedings must
be exhausted, and it has been particularly
punctilious in requiring the exhaustion of
administrative remedies provided by the
States.
We are confronted here with the necessity
of deciding the point at which a Federal
court would be warranted in interrupting
administrative procedures?that is, what the
statute under consideration means by ex-
haustion of administrative remedies. The
Supreme Court, in handling an action for
declaratory judgment in a district court un-
der the Renegotiation Acts, used this lan-
guage concerning administrative remedies,
affirming the act of the district court in de-
dining jurisdiction." "Ordinarily of course
issues relating to exhaustion of administra-
tive remedies, as a condition precedent to
securing judicial relief, and to the existence
of jurisdiction in equity are either separate
or separable matters, to be treated as en-
tirely or substantially distinct. The one
generally speaking is simply a condition to
be performed? prior to invoking an exercise
of jurisdiction by the courts. The other goes
to the existence of judicial power in the basic
jurisdictional sense. * * *
* * The doctrine, wherever applicable,
does not require merely the initiation of pre-
scribed administrative procedures. It is one
of exhausting them; that is, of pursuing
them to their appropriate conclusion and,
correlatively, of awaiting their final outcome
before seeking judicial intervention."
The solicitude habitually manifested by
the Supreme Court in its traditional dealing
with State matters before administrative
agencies is well illustrated by the language
used in Alabama Public Service Commission
et al. v. Southern Railway Company, 1951,
341 U.S. 341, 349-350: "As adequate State
court review of an administrative order
based upon predominantly local factors is
available to appellee, intervention of a Fed-
eral court is not necessary for the protection
of Federal rights. Equitable relief may be
granted only when the District Court, in its
sound discretion exercised with the 'scrupu-
lous regard for the rightful independence
of State governments which should at all
times actuate the Federal courts,' is con-
vinced that the asserted Federal right can-
not .be preserved except by granting the
:extraordinary relief of an injunction in the
Federal courts.' Considering that .(f) ew
public interests have a higher claim upon
the discretion of a Federal chancellor than
the avoidance of needless friction with State
policies,' the usual rule of comity must
govern the exercise of equitable jurisdiction
by the District Court in this case. What-
ever rights appellee may have are to be
pursued through the State courts."
And in Hecht Co. v. Bowles, 1944, 321 U.S.
321, 329-330, the Court upheld the refusal
of a District Court to grant an injunction
using this language: "We cannot but think
that if Congress had intended to make such
a drastic departure from the traditions of
equity practice, an unequivocal statement of
its purpose would have been made.
39 Aircraft cfr Diesel Corp. v. Hirsch, 1947,- 331
U.S. 752, 764, and 767; and cf. United States v.
Abilene es So. By. Co., 265 U.S. 274; United
States v. Sing Tuck, 194 U.S. 161; and
Gonzales v. French, 164 U.S. 338.
17895
"* * * We do not believe that such a
major departure from that long tradition as
is here proposed should be lightly implied.
* * Neither body [that is, administra-
tive and court] should repeat in this day
the mistake made by the courts of law when
equity was struggling for recognition as an
ameliorating system of justice; neither can
rightly be regarded by the other as an alien
Intruder."
It seems reasonable that; as applied to the
Mississippi statutes under the facts of this
case, the exhaustion of administrative reme-
dies provided in the quoted Federal statute
should, in any event, be held to exist only
after the appellate proceedings before the
county election commisioners have been
completed. Such a course would give full
protection to the rights of ikaintiffs, afford-
ing them remedy in the Federal courts at the
point where the administrative process is by-
Mississippi statutes committed to the courts.
That is consistent with the holding of the
Supreme Court in Lane v. Wilson, supra.0
"To vindicate his present grievance the plain-
tiff did not have to pursue whatever remedy
may have been open to him in the State
courts. Normally, the State legislative proc-
ess, sometimes exercised through adminis-
trative powers conferred on State courts,
must be completed before resort to the Fed-
eral courts can be had. * * * But the State
procedure open for one in the plaintiff's
situation * * * has all the indicia of a con-
ventional judicial proceeding and does not
confer upon the Oklahoma courts any of
the discretionary or initiatory functions that
are characteristic of administrative agencies.
* * * Barring. only exceptional circum-
stances, * ? ? resort to a Federal court may
be had without first exhausting the judicial
remedies of State courts." . The exercise of
such a discretion comports with the holdings
of a long line of decisions of the Supreme
Court." And compare the language and ac-
tion in Lane, supra, with that in Alabama
Public Service Commission, supra.
We think the foregoing reasoning is sound,
but we do not have to rest this phase of the
decision upon it because it is 'quite clear
that this case is not governed by the quoted
provisions of the act of September 9, 1957.
By its terms it applies only to "proceedings
instituted pursuant to this section." Sub-
section (d) appears as a part of the Civil
Rights Act of 1957 bearing the heading:
"Section 131." That section creates pro-
cedures theretofore unknown and vests the
Attorney General of the United States with
power to institute legal proceedings for pri-
vate individuals. It is manifest that sub-
section (d) applies only to actions so insti-
tuted. It follows that plaintiffs cannot
maintain this action for the additional rea-
son that they failed to pursue the reasonable
and adequate administrative remedies pro-
vided by Mississippi law.
Plaintiffs attack the constitutionality of
the Mississippi statutes covering champerty
and maintenance, section 2049-01 through
section 2049-08 of the Mississippi Code of
1942, this portion of the action being di-
rected chiefly against defendant Patterson,
attorney general of Mississippi. The com-
plaint alleges that the defendant attorney
general threatens to enforce as against the
plaintiffs and their attorneys the provisions
of these statutes and that, as the result of
" 307 U.S. at 274.
(1 Burford at al. v. Sun Oil Co. et al., 1943,
319 U.S. 315; Railroad Commission of Texas
v. Pullman Co., 1941, 312 U.S. 496; Meyers v.
Bethlehem Shipbuilding Corp., 303 U.S. 41;
Prentis at al. v. Atlantic Coast Line Co., etc..
1908, 211 U.S. 210, and cases cited. And see
also Peay V. Cox, supra; Cook v. Davis, 5 Cir.,
178 F. 2d 595; and Bates v. Batte, 5 Cir., 187
F. 2d 142.
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17896 CONGRESSIONAL RECORD ? SENATE September 14
said threats, plaintiffs and their attorneys
are suffering irreparable injury. Plaintiffs'
evidence wholly failed to sustain these
charges of the complaint. In fact, that evi-
dence showed without dispute that no such
threats had been made and that no action
was taken or within contemplation which
could in any way affect the welfare or the
rights of plaintiffs or, their attorneys. The
statutes have not been passed upon by the
courts of Mississippi. Since the evidence
fails to establish that any controversy exists
between plaintiffs and either defendant with
respect to said statutes, and in view of the
long line of Supreme Court decisions com-
mitting such matters at least primarily to
State court action, Amalgamated Clothing
Workers of America v. Richmond Bros., 548
U.S. 511; Stefanelli v. Minard, 342 U.S. 117;
Douglas v. City of Jeanette, 319 U.S. 157;
and Watson v. Buck, 313 U.S. 387, and cf.
28 7J.S.C.A. No. 2283, plaintiffs cannot main-
tain this phase of their complaint.
It results from the foregoing views that
plaintiffs are not entitled to any of the re-
lief sought. We are, therefore, entering a
order dismissing the complaint.
Dismissed.
(This opinion issued Nov. 6, 1958.)
following enrolled bills and joint reso-
lution, and they were signed by the
President pro tempore:
S. 1436. An act to amend the act of June
14, 1926, as amended by the act of June 4,
1954(68 Stat. 173; 43 U.S.C., sec. 869);
S. 2230. An act to amend the National Cul-
tural Center Act;
S 2445. Authorizing the conferring of the
degree of master of arts in education on
certain students who enrolled in the Dis-
trict of Columbia Teachers College prior to
July 1, 1958, and who, prior to July 1, 1961,
are certified by the president ?and faculty
of such college as having met all require-
ments for the granting of such degree;
S.2517. An act to amend section 7 of the
Federal Home Loan Bank Act, as amended;
and
S.J. Res. 103. Joint resolution authorizing
the National Geographic Society to erect a
memorial on public grounds in the State
of Virginia to honor Rear Adm. Richard
E. Byrd.
MESSAGE FROM THE HOUSE
A message from the House of Repre-
sentatives, by Mr. Maurer, one of its
reading clerks, announced that the
House had passed, without amendment,
the bill (S. 2319) for the relief of
Sergiusz Rudczenko.
The message also announced that the
House had agreed to the amendments
of the Senate to the amendment of the
House to the bill (S. 2162) to provide a
health benefits program for Govern-
ment employees.
The message further announced that
the House had agreed to the report of
the committee of conference on the dis-
agreeing votes of the two Houses on the
amendments of the Senate to the bill
(HR. 7476) to extend for 2 additional
years the authority of the Surgeon Gen-
eral of the Public Health Service with
respect to air pollution control.
The message also announced that the
House had agreed to the amendments of
the Senate to each of the following bills
of the House:
H.R. 47. An act to amend the Internal
Revenue Code of 1954 to provide a personal
exemption for children placed for adoption;
and
H.R. 6059. An act to provide additional
civilian positions for the Department of De-
fense for purposes of scientific research and
development relating to the national defense,
to improve the management of the activities
of such Department, and for other purposes.
The message further announced that
the House had agreed to the amendment
of the Senate to the bill (H.R. 6067) to
amend section 4544 of the Revised Stat-
utes of the United States to provide that,
if the money and effects of a deceased
seaman paid or delivered to a district
court do not exceed in value the sum of
$1,500, such court may pay and deliver
such money and effects to certain per-
sons other than the legal personal rep-
resentative of the deceased seaman.
ENROLLED BILLS AND JOINT
RESOLUTION SIGNED
The message also announced that the
Speaker had affixed his signature to the
MUTUAL SECURITY APPROPRI
ATIONS, 1960
The Senate resumed the consideration
of the bill (H.R. 8385) making appro-
priations for mutual security and related
agencies for the fiscal year ending June
30, 1960, and for other purposes.
Mr. McNAMARA. Mr. President,
many of us in the Senate?I like to think
it is a majority?had hoped that we
would come to grips during this session
with definitive legislation in the civil
rights field.
It was our desire to build upon the
foundation we laid in the Civil Rights
Act of 1957 to erect new safeguards for
the basic civil and human rights of all
Americans. .
Unfortunately, on the eve of adjourn-
ment, it is obvious that our desire is not
going to be fulfilled this year.
I would not like the Nation to feel,
however, that this failure to act in the
civil rights field resulted from any lack
of interest or purpose on our part.
Rather, it resulted primarily from the
same parliamentary obstacles that, until
1957, had prevented legislation to insure
civil rights for nearly 90 years.
There is first he great obstacle of
getting, committee action on civil rights
bills. And even should that achieve-
ment be obtained, there is still the threat
of the filibuster, despite the token
change this year in the filibuster rule. e
Thus we are permitted this year to act
only on the relatively simple task of ex-
tending the Commission on Civil Rights
for another 2 years.
And even that rather innocuous pro-
posal is being greeted with sharp and ex-
tended debate.
To my mind, however, the debate on
extension of the Civil Rights Commis-
sion is achieving two meritorious goals.
First, it has drawn assurances from
the Senate leadership that the full Sen-
ate definitely will have the opportunity
next year to express its will on the sub-
ject of civil rights legislation.
So, while we regret that ,we did not
have the opportunity for action this year,
we at least have the satisfaction of
knowing that next year we will be able
to present our case to the Congress and
to the country.
We hope, of course, that this opportu-
nity will come at a very early date, after
Congress rebonvenes on January 6, 1960.
The other' achievement of this debate,
as I see it, is that it has called much-
deserved attention to the Civil Rights
Commission, its work in recent months,
and its report.
I have the feeling that had not the is-
sue of extending the life of the Commis-
sion come up, the report would have
been noted briefly, and then forgotten.
In reading portions of this report, I
have been pleased with the manner in
which it grasps the interlocking nature
of civil rights problems.
It notes, for example, that solving one
problem does not automatically clear up
others. The report states, in part:
If the right to vote is secured, but there is
not equal opportunity in education and hous-
ing, the value of that right will be discount-
ed by apathy and ignorance. If compulsory
discrimination is ended in public education,
but children continue to be brought up in
slums and restricted areas of racial concen-
tration, the conditions for good education
and good citizenship will still not obtain.
If decent housing is made available to
nonwhites on equal terms but their educa-
tion and habits of citizenship are not raised,
new neighborhoods will degenerate into
slums.
Particularly impressive, too, is the call
upon the leadership of America in the
report's statement that:
To eliminate discrimination and demorali-
zation, some dramatic and creative interven-
tion by the leaders of our national life is
necessary. In the AmerIcai system much of
the action needed should come from private
enterprise and voluntary citizens' groups and
from local and State governments. If they
fail in their responsibilities the burden falls
unduly on the Federal Government.
To me, this means that all America,
from ' the White House on down, must
take a much more active and construc-
tive part in meeting these problems than
has been the case in the past.
I should like to take this opportunity
to congratulate Dr. John A. Hannah,
president of Michigan State University,
for the fine job he has done as Chairman
of the Civil Rights Commision,
A NATION OF ECONO
ILLITERATES
Mr. BUTLER. Mr. President, as a
member of the Joint Economic Commit-
tee, I have become increasingly con-
cerned with the lack of a basic under-
standing of the American free enterprise
system on the part of our younger peo-
ple. Recently an article on this subject
by the well-known columnist, Sylvia
Porter, appeared in the Washington Eve-
ning Star. It is so clearly directed to
the problem which confronts all of us
that I ask unanimous consent that it
may be printed in the RECORD at this
point.
There being no objection, the article
was ordered to be printed in the RECORD,
as follows:
NATION OP ECONOMIC ILLITERATES
(By Sylvia Porter)
In Congress today policies vitally affecting
the survival of our economic system are being
made by economic illiterates.
In business board rooms and union meet-
ing halls across the Nation decisions directly
involving jobs are being made by men who
Declassified and Approved For Release @ 50-Yr 2014/03/12 : CIA-RDP61-00357R000500120004-0