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amendment, will specifically pass a law requiring desegregated schools."
That is what it should have done. That was the policy. There was the issue that should have come back to the Congress which is the proper policymaking body, but oh, no; they jumped in and they write the law and in doing it they tore the Constitution to shreds, in my opinion.
Senator DIRKSEN. Well, let's assume that the Congress had enacted a statute interpreting in its own way the 14th amendment, allowing for segregation. It would have to go to the Court.
Senator ROBERTSON. That is right.
Senator DIRKSEN. The Court would interpret it all over again, and would the result have been different from what it was when they invoked
Senator ROBERTSON. The result I don't think I don't think that with this Court the result would have been the same but the Court would have at least kept itself within due bounds and acted as a judicial body and not as a legislative body.
Senator DIRKSEN. That was wholly a question of interpretation of the "equal protection of the laws" doctrine in the Constitution. This was not a statute with which they were dealing. This was the Constitution. And they become the final arbiters and, having done so, they
Senator ROBERTSON. There wasn't one word anywhere in the Constitution about public schools, not one word. They have to write that in there and so they go back and first they pick up the 14th amendment-and I say I hope you are going to read the article next week about the skulduggery then they said in the 14th amendment we have a provision about equal rights. All right; that is in the 14th amend
Now, in equal rights we are going to say that that applies to public education. Now, we are going to proceed to write a statute on the subject, see? That is the way they get it in the Constitution. It never was in there. It never was intended to be in there. No court before ever thought it or dreamed it was in there. They all held all along that it wasn't in there. But they are going to put it in. That is the way they got education in the Constitution.
That is what I object to. I object to Mr. Sobeloff. He thinks they did right and he is going to do the same and then he will-if he gets to the highest seat-Judge Barker has already resigned. He will become the senior member of that court.
Senator DIRKSEN. Of course, I disagree either expressly or by implication that the Supreme Court or any of their forebears or any of the Constitution makers deliberately put education in the Constitution that way. It wasn't done by a back-door method. What the Constitution was dealing with was people, not with education, dealing with people. That is where your "equal protection of the laws" doctrine comes in.
Senator ROBERTSON. The framers of the Constitution were very wise in limiting it to certain fundamental activities. They were very wise in not attempting to regulate all the mores of all the States that may eventually be a part of the Union.
But in the convention in Richmond, in Virginia-and I had three ancestors in it and it was a touch-and-go business-Patrick Henry led the fight against it because it said, to begin with, "We, the people.”
They said this isn't any "We, the people" proposition, it is 13 sovereign States that are joined together to make a Union and there is no protection in this instrument for their sovereign rights. They can be overridden.
So, James Madison said, "Oh, we never intended to take the rights of the States that were not specifically granted in the Constitution, and I will see that amendments are proposed in the First Congress to take care of that."
That became what we call the Bill of Rights. The first 10 amendments. The last one that tried to hammer it down, lock it on the underside, was that all powers, not specifically granted to the Federal Government nor denied to the States, should be reserved to the States or the people thereof, and schools were certainly one of those powers, and the Supreme Court in 1954 decision took that power away from the States and, therefore, we said it was in our opinion an unconstitutional act.
Senator DIRKSEN. I point out to you, however, that if you examine all the amendments of the Constitution up to the 18th amendment, with few exceptions you find that in every case what they were doing was to say that Congress shall not abridge this right, that right, the other right. Always it addressed itself to the question of preserving the rights of people, and the Constitution deals with people.
The one time when the Congress went over the deep end on that was the 18th amendment. That was the first time instead of putting an inhibition upon the Congress they said the people shall not manufacture, the people shall not distribute, the people shall not sell intoxicating liquors. And that amendment is not in the Constitution today. You see, its whole concept was at variance with what they had done from the first 10 amendments of the Bill of Rights. But also that Constitution
Senator ROBERTSON. I shall never contend that this is the only court that hasn't engaged in policymaking powers. I will quote Woodrow Wilson, as I did before, that the real protection of the States is the self-restraint of the courts not to deliberately invade their rights. I shall point out how very wrong the decision was in the Dred Scott decision, a political decision when the Missouri Compromise failed.
They were going to write it into law. It is illegal to do slavery in one, but legal to do it in another, and it blew up in their face, and President Lincoln when Wisconsin interposed and said you won't enforce it out here, Lincoln made the statement that I quoted just now in his inaugural address.
The minute the Supreme Court hands down a decision that is the final word, we have lost our liberties.
Then I am going to show you how they tried to nullify the meaning of the 14th amendment in the Slaughter House cases. I am going to try to be fair. I am going to criticize all of them right down to the point when they get in and have rendered a decision which may be popular in the majority of States but is certainly not popular in the South, but I am going to point out that the next one might be unpopular in Illinois just as the decision is unpopular in the South. Senator DIRKSEN. Don't forget that Lincoln said, while I disagree with the decision in the Dred Scott case, I respect the judicial authority of the Supreme Court.
Senator ROBERTSON. But he says he was going to do everything he could to get it reversed.
Senator DIRKSEN. We have done the same thing, too.
Chairman EASTLAND. We will adjourn until 1:30 p. m.
Senator ROBERTSON. You certainly have been very nice in the very fine acceptance you have given me.
'Whereupon, at 12:20 p. m., a recess was taken until 1:30 p. m. of the same day.)
(NOTE. The session scheduled for 1:30 p. m. did not take place due to the failure to receive permission for the committe to meet while the Senate was in session.)