Senator HART. Mr. Chairman, do you feel that if the braille book was in a library to which only Negroes were admitted that there would be or would not be a violation of the Constitution?

Senator ERVIN. Well, I do not know whether that is a fact. I am not familiar with the conditions.

Senator HART. I do not know whether that is a fact either. But, I say, if it were a fact what would your attitude be?

Senator ERVIN. But I do know that included in these funds which would be cut off would be a considerable amount of money for aid to the blind given to all Mississippians, white, colored and Indian; and that is not disseminated in a public library.

Senator HART. Mr. Chairman, the point I am trying to make by that question or to suggest is that I think this Congress and the Executive, have an obligation to review each Federal program to see that it is applied on a nondiscriminatory basis.

As I recall it, the suggestion made by the Commission was very broad in its definition of moneys that might or might not be withheld.

I think that our obligation and the Executive's obligation is to see to the nondiscriminatory application of each particular program. I think we will agree that the rights under the 14th amendment, limiting State action, correlated to the fifth amendment, as it relates to the obligation of a Federal official under the 14th, makes it illegal to support discrimination. I think it is the right there are those who would say it is the duty-for the President to withhold the moneys in Washington to support that effort. He takes an oath to support and protect the Constitution and to enforce the law.

Now, analyze each Federal program, program by program, to see whether the braille book is in a building to which admission is seg.. regated. If so, I think we have the answer as to what we should do. Parenthetically, the people of Michigan have had in very recent date some experience in this area. Several years ago we extended the aid to dependent children program to the children of the unemployed worker.

The State of Michigan in this session of the legislature adopted conforming legislation so as to be eligible for participation in that program. They defined, however, "unemployed" as a former wage earner who had been covered by the unemployment insurance program. The Secretary of Health, Education, and Welfare ruled that this was discriminatory and has withheld the funds. Discriminatory because children of a parent who had not worked under covered employment would not be eligible. This having the effect of denying moneys to some 10,000 families.

As you point out, what advancements do you make? I have the impression that the Secretary of Health, Education, and Welfare was right in this, in that it had the effect of encouraging Michigan to enact a program which is nondiscriminatory in all of its aspects. I think that we are wrong when he sends to Mississippi moneys for programs which are segregated or discriminatory, not because of economic classification, but because of racial classification. I think the power there and I think the obligation is clear.

I do not quarrel with my colleague who has a reluctance to support what we have come to know as the Powell amendment. I can see the complications, we all can.

But, look, it is intolerable that we continue to vacillate in the middle ground. Use Executive action, program by program if you do not want to see the Powell amendment applied because the day is not yet at hand, I suspect, when we will be able to get an across-the-board statute making applicable this restriction to all programs.

But I have never found the answer to the Negro who says, "You collect taxes from me and then you permit them to be distributed in a fashion and into programs where I find the door slammed in my face." Now, in my book, that is just intolerable and indefensible.

Senator ERVIN. I doubt whether that condition exists to a large degree in Mississippi, because the bulk of all the relief funds go to Negroes.

But suppose Congress should enact a law, to allow the President to cut off funds to a State he selects. Do you think that the State ought to be given notice, an opportunity to be heard, and have a day in court on the question whether it is violating the Constitution, or do you think it should be condemned, as the Civil Rights Commission recom-mended, without any notice, without any trial, without any opportunity to be heard and without any opportunity to refute the charges against it? Certainly that would be contrary to the basic concept of due process of law.

Senator HART. I think that the action would not be precipitate, and ought not be precipitate, but the notice should be very clear that the whistle has been blown.

Senator ERVIN. The fundamental difference in your view and mine is, I think, that in my view, the Federal courts in Mississippi are open. There are Federal laws which make it both a civil wrong and a crime to deny any person any right he has under the Constitution or laws of the United States.

My opinion is that the Federal Government should use the Federal courts in Mississippi if it has any evidence of violation of laws on the part of anyone, officials or private citizens, and prosecute them in a case, where due process is had, where they are given an opportunity to defend themselves.

I think that would be far better than taking aid away from the blind, taking aid away from people who are suffering from venereal disease and cancer, and allowing the rivers of Mississippi to be polluted.

Senator HART. Senator, that is the reason some of us would like to see what has been known as title III enacted to permit exactly that course of conduct by the Attorney General.

Senator ERVIN. And the reason some of us object to title III is that it changes the whole legal system of the United States by converting this from a government of laws into a government of men.

I thank the Senator. I have a high respect for the Senator and his opinions. But I think in this particular case the Senator is in a position where, unfortunately, he does not entertain the same sound views I do. [Laughter.]

Senator KEATING. Mr. Chairman, I do not want to prolong this. I know other commitments that Senator Hart has are calling him away, but I do want to make this comment at this point.

I have the feeling, as apparently Senator Hart does, that the statement in the report of the Civil Rights Commission has been widely

misunderstood and misinterpreted, and that goes for a number of editorial writers also.

The statement was:

That the President explore the legal authority he possesses as Chief Executive to withhold Federal funds from the State of Mississippi until the State of Mississippi demonstrates its compliance with the Constitution and the laws of the United States.

Now, I interpreted that when I read that as meaning that that would take place with regard to each program separately, that it was not intended to say that the President should shut off funds to the State of Mississippi just because of segregation in a library or just because of segregation in a hospital; that it was understood that the President should survey his authority to shut off funds in any particular program where discrimination was practiced, and certainly I think that is sound. I think it is a proper procedure for making certain that the Constitution is enforced.

There is a responsibility here on the Executive to determine whether such a power does exist, and if that power exists to exercise it.

In turn, we should allow, of course, any State or community which feels that that is an improper exercise of power to review the matter in the court. There is no reason why the Federal court, the Federal Government, should go into court and say, "We propose to act in accordance with what we believe is right and legal, and we want the permission of the court to do so."

The action should be taken, and then allow any party who claims to be aggrieved thereby to bring its appropriate action in court.

Now, there is a correlative obligation on the part of the legislative branch to plug those loopholes where the Executive concludes that he does not have the power to shut off funds to a State which, in a particular area, is engaging in discriminatory practices.

I am constrained to say that I agree entirely with the Senator from Michigan in his comments, and I share his view that there has been a wide misinterpretation of this statement of the Commission.

Senator ERVIN. May I pay the Senator a compliment?

Senator KEATING. I am a little hesitant, but you go ahead. [Laughter.]

Senator ERVIN. I would suggest that if the Civil Rights Commission should have its life extended, they call on the Senator from New York to phrase their next pronouncement of this kind, because the Senator has made it appear quite different from what the language, as I interpret it was. We have apparently read the same document and drawn quite different conclusions from it, and I think it would have been a far more intelligent statement if the Senator from New York had phrased it, than it is as it was phrased by the Civil Rights Commission.

Senator KEATING. Well, after all, the Senator from New York has never been the dean of Harvard Law School or the dean of Howard University Law School, and he has never been president of Notre Dame.

We had some rather distinguished lawyers and legal scholars, serving on the Commission-and I do not eliminate the other three by referring to those three, who drew up this report.

While I appreciate the compliment, and it is a very high one, I feel that these gentlemen are extremely able lawyers.

Senator HART. Mr. Chairman, if I could just add a very brief note, so far as this Congress is concerned, and the Senate, particularly, let us not get lost over an analysis of the clarity of expression of the Commission.

The basic point they expressed concern about is one which we have to resolve, and let us not get off on a merry-go-round about how much more clearly it could have been put.

Senator ERVIN. Thank you, Senator.

Counsel will call the next witness.

Mr. CREECH. The next witness is Senator Jacob K. Javits, Republican, of New York.

STATEMENT OF HON. JACOB K. JAVITS, U.S. SENATOR FROM THE STATE OF NEW YORK

Senator JAVITS. Mr. Chairman, I want to thank the Chair and my colleagues of the subcommittee for the opportunity to appear before them. I shall make a brief statement and try to answer any questions. Mr. Chairman, I greatly favor S. 1219, to make the U.S. Civil Rights Commission a permanent body.

The racial strife in Birmingham, Ala., which is so much in the news at the moment, is itself the most eloquent testimony which this subcommittee could possibly take on the bills presently before it. The Commission stands as almost the only outlet for the pent-up grievances of the Negro community which are bursting out more and more frequently.

The Birmingham case illustrates all too vividly how unwilling, and justifiably unwilling, is the Negro community of our Nation to endure any longer the denial of their constitutional rights and therefore second-class citizenship. And Birmingham also shows how inadequate are the laws of the United States to assure the legal and orderly expression of this deep and growing feeling of the Negro community. When voting rights are involved, the Attorney General has limited power to resort to the U.S. district courts for injunctive relief, under the provision of the 1960 Civil Rights Act. But, as Albany, Ga., and Birmingham typify, the civil rights movement is changing toward a massive revolt of the Negro community against the entire segregated social fabric of the South. So far this has taken the form largely of peaceful protest, exercising the right of peaceful assembly and petition under the first amendment to the U.S. Constitution. But will it remain generally peaceful?

At this point, the Federal authorities have taken the position that no authority exists to take action in such situations short of a complete breakdown of law and order which the States themselves cannot handle; in that case the Federal presence-as through U.S. marshals, as at Oxford, Miss.—and, if need be, Federal troops can be used. Clearly there is an enormous gap between informal mediation, which the Department of Justice has attempted in Birmingham, through Assistant Attorney General Burke Marshall and others, and the use of troops.

At the present time, only the U.S. Civil Rights Commission exists in this gap. Its most vital function, in my view, is its availability as an official agency of the U.S. Government to receive and collate complaints of deprivations of civil rights, to make findings of fact

and to make recommendations to the entire Federal Establishment as to what should be done to rectify them. It is impossible to overemphasize the importance of this function of providing official recognition of the racial injustice which still exists in our land. It is of far more than symbolic value to the Negro community; it is also a vital expression to the rest of the world, especially the emerging nations of Africa, Asia, and the Middle East, of the moral commitment of the United States to the values expressed in our Constitution; and it is also an important guide against which the activities of all levels of government can be checked.

The Commission's expert recommendations to the President and to the Congress for executive and legislative action, respectively, are landmarks in U.S. governmental history. The 27 legislative recommendations of the Commission in its comprehensive 1961 reports on voting, education, employment, housing, and the administration of justice have been embodied in bills which I have sponsored and cosponsored with a number of my colleagues. Some of those bills are pending before this subcommittee and I strongly urge the subcommittee to hold hearings and act on them at the earliest opportunity.

In view of the inadequacy of civil rights law today, the U.S. Civil Rights Commission fills the vacuum which otherwise could be filled by even more incidents of violence stemming from despair. It does so precisely because it affords an opportunity for the airing of grievances and their objective appraisal. Faced as we are with the mounting crisis in civil rights, it is unwise to place a term limitation upon the extension of the life of the Commission if this can be avoided. For, where so much needs to be done in a particular field and where the public interest so urgently requires that it be done peaceably, it would be far better to create an atmosphere of permanence until the grievances may be fully dealt with. Otherwise, with periodic extension, the Commission is living on borrowed time, always with the prospect of extinction facing it and uncertainty facing its personnel.

Control by the Congress over the agency would, as always, be provided by the possibility of legislation terminating the Commission's life and, short of this, by the annual review of the agency's work and finances by the Appropriations Committees of both Houses.

The increase in the authority of the Commission, which is sought in both bills before the committee, is also fully justified, especially since there is so much agreement on the part of proponents and opponents of civil rights legislation that the processes of mediation and conciliation and technical assistance are peculiarly applicable in this field.

It is certainly desirable that the Commission have the opportunity to function as a national clearinghouse and to provide advice and technical assistance regarding the matters with which it is charged in the fields of equal opportunity. Indeed, it seems to me that opponents and proponents could both agree at least upon this forum and escape valve for the tremendous pressures which are facing our Nation with such dangerous and challenging implications. Mr. Chairman, I conclude as follows:

One of the most disastrous effects of the events which culminated in Birmingham is in the impact which they have made upon the largely uncommitted nations in Africa, Asia, and the Middle East,

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