Mr. MITCHELL. All right. Well, the answer to that question is, "Yes."

Senator KEFAUVER. Well, do you want to amplify on that, Mr. Pohlhaus, at this point?

Mr. POHLHAUS. I will say this. I think that is the intention of the sponsors of the resolution, that it would give exclusive control and that if this intention is carried out in the realm of public education they could set up any test at all or exclude anyone or admit anyone without any restraint.

Senator KEFAUVER. Do you think of any area where the Negro voters were predominant that it would be enabled to have in a school district Negro schools to the exclusion of white schools?

Mr. POHLHAUS. I do not know of any district, frankly, where Negro voters are predominant, Senator. I know of districts where the Negro population is predominant. But in those districts they generally are not allowed to vote.

Mr. MITCHELL. I may say, in fairness to Mr. Pohlhaus, that I cannot imagine any Negro dumb enough to do that. But I would think that if there were people of that low intelligence level they would be free to do it under this proposal.

Thus, the rights not only of colored children, but of millions of other students could be affected by this amendment.

We believe that the reason the proponents of this legislation did not specifically spell out a partial or total repeal of the 14th amendment is because such a proposition would have been so shocking to the conscience of the Nation that it would have been summarily rejected. Instead, they seek to accomplish their objective by innocuous sounding phraseology.

We oppose this legislation for yet another reason. Ever since the Supreme Court's decision in the Brown case, in some quarters the decision has been evaded and defied and the Court abused and vilified. This present proposal is the culmination of that evasion, defiance, abuse and vilification. It seeks to legitimize all the attacks that have been directed against the Court and its decisions.

At this point, I would like to remind this subcommittee that the Florida Legislature is considering a bill to jail parents who send their children to integrated schools. I also urge

Senator KEFAUVER. Well, that was turned down, was it not?

Mr. MITCHELL. I do not know what the status of it is at this point. The last report I had was that it was before the legislature for consideration.

But I am certain that there is a law now in the State of Georgia which empowers the State authorities to go into any city for the purpose of arresting any official who undertakes desegregation of the public schools. This has been inserted in the Congressional Record by Senator Douglas, and it is, as I said, a part of the Georgia law. There are other statutes like that. I would be glad to make them available for the record, if you would care to have them.

I also urge that the Governors and other witnesses coming before this subcommittee be asked to state how much money they are spending to promote hate campaigns through the mails. The country reeks with libelous and disgusting appeals to racial and religious prejudice. There is a well-organized program, apparently supported by public

funds in some States, to send Nazi-type propaganda into Northern States. A few days ago, I received a piece of this literature that had been sent up to Oregon and distributed on a mass basis. It is my opinion that the witnesses who will appear before this subcommittee in support of Senate Joint Resolution 32 can furnish a gold mine of information on who is putting up the money for the scurrilous printed attacks that are being made on President Eisenhower, the U.S. Supreme Court, the church, and just about everyone who is identified with decency and fairplay.

Those who refuse to abide by the Supreme Court's decision on school segregation have passed resolutions of nullification and interposition. They have passed literally hundreds of laws to evade and delay the effect of the Court's decision. They have incited mob violence by their political demagogy and then stood idly by while the mobs supplanted constituted law and order. They have subjected those who support the Constitution to economic pressures, threats, and physical violence. They have squandered tax moneys on programs of propaganda designed to export their type of racial hatred to other areas of the country and to sow the seeds of racial discord. They have damaged the international reputation of the United States at a time when the President and the Secretary of State should be able to speak without embarrassment at a summit or foreign ministers meeting. Now they ask the Congress of the United States to join their antidemocratic program of repeal of constitutional rights of schoolchildren.

We respectfully urge this subcommittee to reject this resolution. Senator KEFAUVER. Do you want to add anything to this, Mr. Pohlhaus?

Mr. POHLHAUS. The only thing I would like to add is that with the previous witnesses the question has come up as to the conflict of this amendment and the 14th amendment or any other provision of the Constitution. It seems to me that is disposed of in the language of the resolution itself, stating that: The powers shall be vested exclusively in the State and subdivision and nothing contained in this Constitution shall be construed to deny the residents thereof the right to determine for themselves the manner in which such schools shall be conducted.

It would seem to me that the clear language of the resolution contemplates that no other provision of the Constitution shall be taken into effect in a question involving the conduct of the public school system.

Senator KEFAUVER. In other words, you think that this is a complete exception from the 14th amendment insofar as schools are concerned?

Mr. POHLHAUS. Public schools. I think that is the way it is intended; yes, sir.

Senator KEFAUVER. What is your opinion about religious tests? Mr. POHLHAUS. I think that would apply as far as religious tests or any other rule of exclusion.

Senator KEFAUVER. What effect do you think this would have, if any, on the 10th amendment?

Mr. POHLHAUS. I cannot see how it would have any direct effect. You mean in the sense that it might weaken the 10th amendment?

Senator KEFAUVER. That has been argued. Mr. POHLHAUS. My offhand opinion is that I do not see where it would have any effect in that area.

Senator KEFAUVER. Mr. Fensterwald, do you have any questions? Mr. FENSTERWALD. I would like to ask either Mr. Mitchell, Mr. Pohlhaus, or both if they would comment on the fact that section 5 of the 14th amendment reads: "The Congress shall have the power to enforce by appropriate legislation the provision of this article."

To the best of my knowledge, from its adoption in 1868 until the Brown case in 1954, no such legislation has ever been enacted.

Do you have any comment on the fact that no legislation had been enacted in almost a hundred years?

Mr. MITCHELL. I think that it was quite obvious that so far as the school desegregation question was concerned it was not necessary to have any legislation. I think that the Supreme Court by its decision has certainly vindicated that conclusion.

I would say this, however, that I think we need only to look at the composition of a Congress and to know something about the political realities to understand why civil rights legislation of any kind has an extremely difficult path to follow when it is proposed.

So I would say that, first, I do not think that it was necessary for Congress to pass any additional legislation on this point.

Second, I would say that, with reference to the general subject of such legislation, it obviously is squelched by an overwhelming combination of people who, for widely different reasons, want to maintain a system of second-class citizenship in this country based on race.

Mr. FENSTERWALD. Well, that may be your opinion of the complexion of Congress today, but this goes all the way back to the year 1868, and certainly it would be hard to maintain that that was the complexion of Congress as of that date.

And it has been argued that section 5 was put in because it was intended to have the amendment implemented by legislation. This particular aspects of the 14th amendment has not been implemented, and that has been one argument made against the validity of the Brown decision. I just wanted your comments.

Mr. MITCHELL. I do not think it necessary to make any after the Supreme Court reached a decision. It covered that question, and I think that the members of the Court are better lawyers than the people who would be advancing that particular point of view.

Mr. POHLHAUS. I would like to make this comment, too, on the Brown decision. It is the law of the land, and I think too many witnesses who come here try to reargue the Brown decision. I frankly do not want to get in any reargument of that case because I accept it. Mr. FENSTERWALD. I do not mean to be argumentative.

Mr. POHLHAUS. No, I realize that.

Mr. FENSTERWALD. I just meant to comment on this point.

Senator KEFAUVER. Of course some witnesses say they do not think it is the law of the land but think it is the law of that case.

Mr. POHLHAUS. I assume you could say that about any case.

Mr. MITCHELL. I think, too, that most of those witnesses were not speaking as lawyers, they were speaking as dissenters on a decision with which they did not agree. If the Supreme Court had decided their way, I think they would be most loud in their support of it. They

are certainly very vigorous in the support of the Plessy case, which was not even a school case. I think it is pretty clear that this is a case of people who lost their argument in a regular court and are now seeking a forum in which they cannot reach a reversal of the decision but in which they can stir up a lot of controversy which will accomplish no good result.

Senator KEFAUVER. Is there anything else?

Mr. FENSTERWALD. No, sir.

Does Mr. Chumbris have any questions?

Senator KEFAUVER. Mr. Chumbris?

Mr. CHUMBRIS. I have no questions, Mr. Chairman.

Mr. FENSTERWALD. Mr. Chairman, that is the last witness. We will meet at 10 a.m. tomorrow, if it is agreeable to you, in room 2228, which is the Judiciary hearing room in the New Senate Office Building.

Senator KEFAUVER. We stand in recess until 10 o'clock tomorrow morning.

(Whereupon, at 4 p.m., the subcommittee recessed, to reconvene at 10 a.m., Thursday, May 14, 1959.)

CONSTITUTIONAL AMENDMENT RESERVING STATE

CONTROL OVER PUBLIC SCHOOLS

THURSDAY, MAY 14, 1959

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to call, at 10:05 a.m., in room 2228, New Senate Office Building, Hon. Estes Kefauver (chairman of the subcommittee) presiding.

Present: Senator Kefauver.

Also present: Bernard Fensterwald, counsel; Miss Kathryn Coulter, clerk, and Peter N. Chumbris, representing Senator Langer. Senator KEFAUVER. The committee will come to order.

The committee is honored to have the distinguished Senator from Virginia, Senator Willis Robertson, with us today. Senator Robertson is one of the sponsors of Senate Joint Resolution 32 and is an able and distinguished Senator, and we are always pleased to have his

views.

STATEMENT OF HON. A. WILLIS ROBERTSON, U.S. SENATOR FROM THE STATE OF VIRGINIA

Senator ROBERTSON. Mr. Chairman, I very much appreciate your kind and generous comment, and I always appreciate the privilege of appearing before this great committee, because it deals with some of the problems that go to the very essence of our Republic.

I have frequently in recent years stated that we have a unique form of government, different from that of any other nation; and, incidentally, it has lasted longer than the present government of any other

nation.

One of the unique phases of our Government is that it is a Federal Union. And the dictionary defines "Federal Union" as meaning a union of sovereign States.

I have felt that the inherent strength of our form of government, our best bulwark from the type of emotionalism which has carried some nations to dictatorship, or some nations down the road, first to socialism and then to communism, is the fact that, under our Constititution, the powers that were not delegated specifically or by necessary implication to the Federal Union, which we call the Federal Government or the Central Government, were reserved to the States of the Union. And if the time ever comes when we wipe out those rights, I frankly feel that the perpetuity of what we call American constitutional liberty would be in serious jeopardy.