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The transcripts of the above hearings have been printed separately as supplements to this report and may be obtained on application to the Commission on Civil Rights, Washington 25, D.C.
On June 9 and 10, 1959, the Commission held a conference in Washington, D.C., with a group that included the chairman and one other representative of each State Advisory Committee.
COOPERATION OF FEDERAL AGENCIES
Pursuant to the provision of Section 105 (e) of the Act that "all Federal agencies shall cooperate fully with the Commission," the Staff Director-with full White House backing-submitted to a number of Federal departments and agencies questionnaires dealing with matters of voting rights and equal protection within the scope of the respective departments and agencies. Staff members also consulted frequently with Federal officials. Much of the resulting information has been incorporated in this report.
MEETINGS AND MEMBERSHIP
Following its first meeting on January 3, 1958, the Commissioners met on an average of once a month. On January 19, 1959, J. Ernest Wilkins died, a great loss to the Commission and to the country. On April 21, 1959, the President nominated Dean George M. Johnson, Director of the staff Office of Laws, Plans, and Research, to replace Mr. Wilkins as a member of the Commission. The Senate confirmed Dean Johnson's nomination on June 4, 1959. Rufus Kuykendall, Indianapolis attorney, member of the Commission's Indiana Advisory Committee, and former member of the U.S. National Commission for UNESCO, replaced Dean Johnson as Director of the Office of Laws, Plans, and Research.
AGREEMENTS AND DISSENTS
In asking men of different backgrounds and of different regions of the country to serve on the Commission, the President could not have expected unanimity on some of the nation's difficult problems of civil rights. Very substantial agreement has been reached on most of the fundamental facts and problems. The disagreement is about how best to remedy the denials of the right to vote and of the equal protection of the laws under the Constitution, which the Commission has found to exist.
The differences are not surprising. Problems of racial injustice have existed in varying forms since the birth of the nation, and for nearly a century the Constitution has explicitly guaranteed the equal protection of the laws to all persons, and provided that the right to vote shall not be denied because of race or color. But no way has yet
been found, although many measures have been tried, to protect and secure these rights for all Americans. The Civil War and Reconstruction did not accomplish the task, nor was it achieved in the atmosphere of indifference that followed. Litigation has not sufficed, nor has the Civil Rights Act of 1957.
So it is still necessary for men to reason together about these questions and to continue the search for answers. This the Commission has tried to do. Because reasonable men differ on the best remedial measures, it was agreed that the Commissioners should express these disagreements wherever deemed important, either in footnotes or in supplementary statements.
The "Recommendations" which conclude the sections on Voting, Education, and Housing in this report were made by unanimous or majority Commission action. These are followed by "Proposals," which are recommendations made by fewer than a majority of the Commission, and these in turn are followed by "Separate Statements" or "Supplementary Statements" of disagreement, of explanation, or of additional views, signed by one or more Commissioners. It was further agreed that each Commissioner would be free to express dissent or additional proposals by means of footnotes throughout the report, and that individual "General Statements" would appear at the end of the report.
PART ONE. CONSTITUTIONAL BACKGROUND OF
CHAPTER I. THE SPIRIT OF OUR LAWS
I confess that in America I saw more than America; I sought there the image of democracy itself * * '.-ALEXIS DE TOCQUEVILLE.1
The first question before the United States Commission on Civil Rights is: What are civil rights in the United States?
They are, by definition, the rights of citizens, though under the Constitution many of them extend to all persons. A study of civil rights should center around the question: What does it mean to be a citizen of the United States?
In the assignment of this Commission, Congress indicated that its first concern is with the right of citizens to vote and the right of all persons to equal protection of the laws. These rights are the very foundation of this Republic. They did not arise suddenly in current civil rights controversies or in the so-called Civil Rights Amendments added to the Constitution after the Civil War or even in the Bill of Rights of 1791. They are implied in the original Constitution itself, in its very first words and in its provisions for representative government and the rule of law.* Therefore, the Commission, in order to
*EXCEPTION TO THE STATEMENT OF THE CONSTITUTIONAL BACKGROUND OF CIVIL RIGHTS
BY VICE CHAIRMAN STOREY AND COMMISSIONERS BATTLE AND CARLTON We take exception to this and all succeeding passages to the effect that a provision on the equal protection of the laws properly may be implied in the original Constitution itself. Such assertions ignore historical fact and disregard the development of constitutional law pertinent to recognition of the human dignity of the individual in our democratic society.
1. The Declaration of Independence explicitly stated the principle "that all men are created equal" in justification for the revolutionary overthrow of the existing general government of the American Colonies.
2. The first document of the new general government as independence was achieved was the Articles of Confederation of March 1, 1781. In the sole reference to legal recognition of individual rights in this document, the fact of inequality of man was acknowledged: "... the free inhabitants of each of these States, paupers, vagabonds, and fugitives from Justice excepted, shall be
'Alexis de Tocqueville, Democracy in America, 1835 (Knopf 1945), Introduction, p. 14. 'Many constitutional rights, such as those in the Fifth and Fourteenth Amendments, may be claimed by aliens and others as well as by citizens.
understand the fundamental principles involved in securing these rights, had to review more than the opinions of the Supreme Court. The best commentary on the Constitution is the whole history of the Republic.
Continuation of EXCEPTION BY VICE CHAIRMAN AND COMMISSIONERS BATTLE AND CARLTON
entitled to all privileges and immunities of free citizenship in the several States. ..." [Emphasis supplied.]
3. At the time the Constitution was drafted, the discussion of development of the suffrage which appears elsewhere in this report, and the compromise on slavery demonstrated that the principle of equality was not made part of our fundamental law.
4. There is no provision requiring "equal protection of the laws” anywhere in the original Constitution, nor in the first 10 amendments, which safeguard certain rights of the individual against encroachment by the Federal Government alone.
5. A proposed amendment which used the word "equal" was refused by the Senate and never submitted for ratification by the States. It read: "The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State" (The Constitution of the United States of America, S. Doc. No. 170, 82d Cong., 2d sess., p. 750).
6. "Equal protection of the law" became part of our fundamental law in 1868 upon ratification of the Fourteenth Amendment. It is a limitation upon State action and, also unlike the rights guaranteed by the first 10 amendments, "the Congress shall have power to enforce, by appropriate legislation, the provisions of this article." We are prompted to make this exception out of concern that the object lesson to be gained from study of an accurate account not go unnoticed in a text which, in our opinion, so overemphasizes the statement of the principle of equality that actual practice is submerged.
Parallel patterns teaching the same object lesson are noted: The development of the suffrage in America, discussed elsewhere in this report; the fact that 82 years elapsed between enactment of the last civil rights legislation and the act of 1957 by which this Commission was created. The object lesson is this: Declaration of the principle of the equality of all men under law was revolutionary, but its realization in practice and experience has been evolutionary.
7. Finally, an explanation of the terms "civil liberties" and "civil rights" may be helpful. While we recognize these expressions—“civil rights" and "civil liberties"—are used interchangeably, there are historical and legal differences. "Civil liberties" are those rights derived from the U.S. Constitution which may be asserted by citizens against both the State and Federal Governments. These include freedom of religion, press, speech, and assembly which are set out in the First Amendment and a part of the Bill of Rights. They are wholly free of Government action.
After the adoption of the Fourteenth Amendment in 1868, the other individual rights, protected against State action with supplementary enforcement powers granted to the Federal Government, are "civil rights." The right of the ballot is the best illustration.