Senate bill 810 is a homily of fallacies. In section 102(b-1), page 3, the bill repeats the most glaring constitutional fallacy known to American history to the effect that it is not the Constitution of the United States which is the supreme law of the land, as is plainly stated by article VI of the Constitution, but instead "the Constitution, as declared by the antisegregation decisions, is the supreme law of the land." It is then stated in the next paragraph that "all Federal and State officials are bound by their oaths or affirmations to support the Constitution, ***." Until quite recently no judge of any court of record in America ever hinted in an official decision that a decision of the Supreme Court of the United States is the law of the land. Before the decision of the Supreme Court in the case of Brown v. Board of Education, on May 17, 1954, printing presses were already set up to proclaim that a decision of the Supreme Court is "the law of the land." Editors, ministers, and justice court lawyers, never before distinguished as authorities on the Constitution, suddenly became experts on government or on pseudo-socio-law. "Modern authorities" began to stumble over each other in those fields, all proclaiming that a decision of the Supreme Court is "the law of the land." The very title of the decision itself proclaims the falsity of that doctrine where it says in effect that a decision of the Supreme Court is not the law of the land. The unanimous court wrote a title for that which it wrote. The title was the word "opinion." The introductory words are: "Mr. Justice Warren delivered the opinion of the court." The other Justices "concurred." One may concur in an opinion but law neither requires nor admits concurrence. Law is something that judges must hunt and try to find and obey-not make. Law is something that no Federal judge can make because the Constitution he swore to uphold in order to become a judge carefully defines the law of the land so simply that even a Swedish Socialist may understand it if he knows the English language. From Marshall to Vinson all held that a court decision is not even law within the true sense. It is never more than the court's opinion of the law. The specious doctrine that a decision of the Supreme Court is the law of the land is about as hypocritical as the assertion that all men are equal, as a basis for legislative action. It was nearly 100 years after the formation of our Constitution before it and its history received any exhaustive scholarly treatment. It was only after all were dead who helped to write the Constitution that it occurred to anyone to try to collect all of the journals and debates on the Constitution. In the 1880's George Bancroft wrote the first scholarly work on the Constitution under the title "History of the Formation of the Constitution of the United States of America." In his great work Mr. Bancroft points out the principle that Federal court decisions are not the law of the land. To him it was something extremely elementary. After referring to the dangers of erroneous, mistaken, or biased judgments, resulting from imperfect investigations or otherwise, and after recognizing the fallibility of judges, Bancroft said: "But the Constitution retains the means of protecting itself against the errors of partial or interested judgments. In the first place, the force of a judicial opinion of the Supreme Court, insofar as it is irreversible, reaches only the particular case in dispute; and to this society submits, in order to escape from anarchy in the daily routine of business. To the decision on an underlying question of constitutional law no such finality attaches. To endure, it must be right. If it is right, it will approve itself to the universal sense of the impartial. A judge who can justly lay claim to integrity will never lay claim to infallibility, but with indefatigable research will add, retract, and correct whenever more mature consideration shows the need of it. The Court is itself inferior and subordinate to the Constitution; it has only a delegated authority, and every opinion contrary to the tenor of its commission is void, except as settling the case on trial. The prior act of the superior must be preferred to the subsequent act of an inferior; otherwise it might transform the limited into an unlimited constitution. *** An act of the legislature at variance with the Constitution is pronounced void; an opinion of the Supreme Court at variance with the Constitution is equally so. "Next to the Court itself, the men who framed the Constitution relied upon the power and the readiness of Congress to punish through impeachment the substitution of the personal will of the judge for the law." Mr. Bancroft cited the "Works of James Wilson," a Federal judge who was a member of the Constitutional Convention of 1787 and who knew that specific language was written into the Constitution in 1787 in order that America should never suffer as England had suffered under the rules of judges. The framers sensed and provided aginst subversion of the Constitution by judges. Instead of the Senate of the United States sanctioning the usurpation of power by the Supreme Court which turns back the clock to the despotic rule of men existing in England more than 700 years ago, and periodically thereafter in England and America until the American Revolution, the Senate of the United States might well occupy a part of its time doing that which the framers of the Constitution anticipated and intended that the Congress would do to impeach instead of to sanction and to praise those judges who would abandon the Constitution, abandon the law, abandon reason, abandon commonsense, and usurp the powers of the people and of the Congress and to embrace a doctrine unknown to any government of law in the history of civilization. If there is anything clear from our history and our Constitution it is the proposition that nothing can be law in America unless consented to by the people in the manner provided by their Constitution. In 1682 William Penn recorded truth eternal, in the frame of government of Pennsylvania, when he said: "Any government is free to the people under it (whatever be the frame) where the laws rule, and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion *** a loose and depraved people (which is the question) love laws and an administration like themselves. That, therefore, which makes a good constitution, must keep it, viz: men of wisdom and virtue, qualities, that because they descend not with worldly inheritances, must be carefully propagated by a virtuous education of youth ***" [emphasis by William Penn] (Thorpe, "American Charters and Constitutions," 3052, 3053, 3054). If Federal judges can make laws and change constitutions, it is the will of judges and not laws that rule the people. If Federal judges may make laws, the people are not party to those laws and "tyranny, oligarchy, or confusion" becomes the law of "a loose and depraved people" whose representatives in Congress create "an administration like themselves." The whole tenor of the bill is to authorize despotic interference with the inherent rights of the people to live their own lives and go their own way so long as they do not impinge upon the rights of others. It has been the custom and usage of all the more civilized nations of people to maintain purity of their race and of their skin and kind. Under title 6 of the bill, as set forth on page 19, any white girl who by reason of custom or usage deprives a Negro boy of the "right" to equal protection of the (marriage) laws by reason of race, color, or religion runs afoul of the Attorney General with all of his enhanced powers to institute in the name of the United States a civil action or other proceedings to aid a Negro boy to consummate the wedding which he desires. The Attorney General may proceed against the white parents who may be "acting in concert" with their daughter. Throughout this proposed bill the 14th amendment "equal protection of the laws" phrase is repeated over and over again. Thoughtful judges recognize that "equal protection of the laws" set forth in the 14th amendment means what it says and the word "equal" does not mean "same." A constitution which commands equality of treatment excludes the idea of identical treatment. Things equal cannot be identical. Things that are the same are not comparable. Equal justice under law presupposes the existence of separate and unequal things. Justice cannot be equal that is not separate. THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, Hon. THOMAS C. HENNINGS, Jr., Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: In response to the invitation in your letter of June 9, I herewith submit material on S. 958 and S. 959 for inclusion in the record of your committee's hearings on civil rights. I enclose the draft bills, the accompanying transmittal letter, summaries of the bills, my testimony before the House Judiciary Committee, and my press conference statement at the time the bills were introduced. Sincerely yours, 40361-59-pt. 2———48 ARTHUR S. FLEMMING, Secretary. STATEMENT BY ARTHUR S. FLEMMING, SECRETARY OF HEALTH, EDUCATION, AND WELFARE Mr. Chairman and members of the committee, I appreciate the opportunity to testify this morning on the role of the Department of Health, Education, and Welfare in the legislative program recommended by the President of the United States in his civil rights message of February 5. The President's seven-point program is embodied in H.R. 4457, of which titles VI and VII contain the proposals which concern this Department. The enactment of titles VI and VII would achieve two specific objectives in the field of public education which would accomplish sound and reasonable progress toward the great national goal of full equality under law for all citizens. As outlined by the President, these objectives are entirely consistent with this Department's fundamental responsibility for promoting better educational opportunities for all children. They are: 1. To enable the Federal Government to provide positive help to States and local agencies, upon request, in making adjustments in their public school systems which may be required by the school desegregation decisions of the Federal courts. 2. To enable the Federal Government to provide education for all children of military personnel, whether or not they live on Federal property, when public education is otherwise denied them due to school closings resulting from State and local attempts to avoid compliance with Federal court decisions or decrees requiring desegregation. Title VII would provide Federal financial and technical assistance to accomplish the first objective. Title VI would amend Public Laws 815 and 874, 81st Congress to accomplish the second. Both titles are realistically designed to permit the Federal Government to meet its obligations in these areas, and to do so in a constructive manner, without coercive intent or punitive action. I would like to discuss each of them briefly. A. GRANTS AND TECHNICAL ASSISTANCE The decisions of the Supreme Court holding racial segregation in the public schools to be unconstitutional established the task of public school desegregation as the responsibility of those States which previously required or permitted racial segregration in their school systems. The States and localities had been operating their schools in reliance upon earlier Supreme Court rulings that public segregation was lawful, provided that separate but equal facilities were maintained. Now, in making the transition to a desegregated public school system in accordance with constitutional requirements, these States and their communities may, in varying degrees, experience temporary but real financial and educational burdens. Significant problems of organization, transportation, curriculum planning, and school community relationships may arise. Intensive efforts may be required at the State and local levels to assure that the transition is made in a sound and orderly manner. This Department, as the Federal agency charged with national responsibilities in the field of education, has a special concern with such problems. We believe that citizens and leaders dealing with them should be able to obtain assistance from the Federal Government in developing programs of transition and in meeting the problems arising from the transition. The legislation recommended by the President in title VII would authorize this kind of affirmative help when it is requested. Under the bill, the Federal Government would be authorized to make grantsin-aid to share half of the cost of additional and special educational services which desegregation programs may require. For example, State departments of education will undoubtedly be called upon by their school districts to provide leadership help in the form of statewide, studies, professional consultative and advisory services, local and regional conferences and workshops, and the development of curriculum materials. Again, a local school system initiating a program of desegregation may in many cases find it desirable to employ staff members, with special responsibility for developing the program, creating community understanding of its aims and approaches, and working with the parents and children affected. These staff members might include an assistant to the superintendent of schools, perhaps visiting teachers, and specialists in various fields-specialists who would deal with such matters as statistics and their interpretation, counseling and guidance, human relations, in-service training of teachers, and school social work. The actual pattern of organization and services in an individual school district would, of course, depend on its particular need. Under title VII, half of the cost of such additional services assumed by the States and local agencies would be met by Federal grants, provided the services are directly occasioned by the putting into effect of desegregation programs. Thus, by sharing the cost of their efforts to make the necessary adjustments in their school systems, the Federal Government would be helping States and local educational agencies to meet their constitutional obligations. Further Federal aid would be provided, at the request of the States or lo cal agencies, in the form of technical assistance, consultation and advice in the development of desegregation programs. In addition responsibility would be placed on the Commissioner of Education to initiate or participate in conferences called to help resolve educational problems arising as a result of efforts to desegregate. The Commissioner would also be authorized to collect and disseminate information on the progress of public school desegregation. To receive funds under the bill, a State would submit to the Commissioner a plan setting forth its methods and criteria for approving applications of local educational agencies, and describing the State-level activities for which the State would use grants. I would like to underline the fact that the bill merely requires that this information be set forth in the State plan and does not authorize the Commissioner of Education, in reviewing the State plan, to pass judgment on the desegregation plans of the communities. If the State plan is a plan for providing financial assistance to communities that are moving in the direction of desegregation, it will be approved. In this manner there will be no interference with the role of U.S. district courts in passing on desegregation plans. If in any year an approvable State plan is not filed, the Commissioner could, if the State provides for local option or otherwise indicates its consent, make grants directly to local educational agencies in the State upon their request. Federal assistance provided by title VII would, of course, be of a temporary nature. The title would authorize appropriations for only the next 2 fiscal years, and in January 1961, at the midpoint of the second year, the Secretary would be required to report to the Congress his recommendations as to the extension or modification of the legislation. Last week the Civil Rights Commission held a series of hearings in Nashville, Tenn., on desegregation in the field of education. I asked the Honorable Elliot L. Richardson, Assistant Secretary of the Department of Health, Education, and Welfare, to represent me at these hearings. In a report to me Secretary Richardson has set forth conclusions that I feel underline in a very emphatic manner the wisdom of the approach reflected in title VII of H.R. 4457. Secre tary Richardson's conclusions follow: 1. Although the decisions of the Supreme Court have been the decisive precipitating factor in bringing about desegregation, the rate of progress in accomplishing it and the degree of its acceptance depend not upon Court orders but upon community attitudes. For future progress-real progress—-we must look to increasing recognition that equal educational opportunity for all is not alone a constitutional requirement, but a reflection of the finest traditions of our free society. 2. Just as communities differ in their geographic and population characteristics and in their historical background, so also do their responses to the problems of desegregation differ. The desegregation programs described by the school officials who testified were striking in their variety. This fact, to my mind, underlines the wisdom of the Supreme Court's provision for administration of its decree by district judges familiar with the communities to which their orders apply, and able to gage the rates of "deliberate speed" appropriate to those communities. 3. The problems arising out of the process of desegregation are problems created by the requirements of the Federal Constitution. They affect the States concerned by virtue of their belonging to the Federal union governed by that Constitution. There was for this reason-I think justly-considerable feeling that the Federal Government should play an affirmative part in giving leadership to the solution of these problems. 4. The officials charged with responsibility for public education are above all concerned with doing everything in their power to see that sound educational programs ares maintained for all children, both white and colored, without interruption or harassment from external sources. The officials who partici pated in the conference have devoted themselves with energy, wisdom, and dedication to these ends. The conference was the first full opportunity they have had to share experiences and exchange views on the problems of desegregation. They felt, I am convinced, that this had been a worthwhile experience and that they would profit from further opportunities for this kind of sharing and exchange. B. AMENDMENTS TO PUBLIC LAW 815 AND 874 Title VI of H.R. 4457 recognizes that the Federal Government has a unique responsibility with respect to the education of children of military personnel. Members of the Armed Forces serve in communities under orders, and public education is normally available to their children only as it is provided in the communities in which they live. During the recent closure of certain secondary schools in Norfolk, Va., about 10,000 children were deprived of free public education for a full semester. Of the 10,000 children affected, about 2,500 were school-age children with a parent on active duty in the Armed Forces, assigned to military installations in the Norfolk area. Of the 2,500 such children, only about 350 lived on Federal military posts. And these 350 children, under existing Federal law, would have been the only ones for which the Federal Government have provide schooling if the public schools had remained closed. The proposed legislation, if it had been in effect, would have permitted the Government to provide education for the other 2,150 children of military personnel who live off Federal property. I am informed there are at the present time six States in which the laws either require or permit the closing of public schools that are under orders of a Federal court to accept one or more Negro children for enrollment in previously all-white schools. These States are Alabama, Florida, Georgia, Louisiana, Mississippi, and South Carolina. If all the public schools in these States were closed by State or local authorities, which is, of course, unlikely, it is estimated, on the basis of data supplied by the Department of Defense, that about 70,000 school-age children of active-duty military personnel might be affected. Potentially, then, the proposed legislation may be regarded as insurance for some 70,000 children of military personnel against the denial of education opportunity in such circumstances. In addition, the legislation would authorize the Commissioner to acquire possession of any school building constructed with the aid of Federal funds after enactment of the proposed amendments, when the local educational agency which owns the building is no longer using it for free public education and the Commissioner needs the building to provide education to children of military personnel or to other children who reside on Federal property. While the school remains in Federal possession, the Commissioner would pay the local district a rental fee proportionate to its share in the cost of constructing the building. Title VI of the administration bill provides a practical and promptly usable method, on a standby basis, for meeting a serious problem if it arises. It gives assurance that military personnel ordered to duty in certain States will not be placed in the impossible situation of having to undertake emergency and makeshift arrangements for the education of their children, with the Federal Government powerless to assist. In summary, titles VI and VII of H.R. 4457 would enable this Department to meet responsibilities which we believe to be appropriate for Federal action: to offer assistance to States and localities which are desegregating their school systems, and to provide education for the children of military personnel when public schools are closed to avoid compliance with court desegregation orders. These proposals would in no way infringe upon the primary responsibility of the States to desegregate their school systems in accordance with constitutional requirements, nor would they infringe upon the jurisdiction of the Federal courts over any determination as to the manner in which the States or local school systems are to carry out this constitutional responsibility. Moreover, the proposals would in no way serve to weaken State and local responsibility for the administration of public education. As the President has pointed out, progress toward the goal of full equality under law for all people depends "not on laws alone but on building a better understanding." With this in view, our proposals have been so designed as to encourage leadership on the part of those who recognize that equality of educa |