case.

Senator STENNIS. I had not thought of it as an effort to reframe the language to what the law was before this Brown But I just said there in my remarks awhile ago that the Talmadge amendment, in large measure, restores the situation, what had always been accepted as being the law before that case.

Senator Dodd, with great sincerity, raised the question the other day when Senator Talmadge was testifying, if you will recall, that this would just take out the 14th amendment and leave groups-religious groups, colored groups, and any other groups-without any protection, and he did not want to see that happen.

To my mind, the quick answer, at least to that, is that it is so inherent and so fundamental in the minds and hearts of the people, built over the decades, their desire to have public schools, that all have adequate public schools, that that is not a danger.

But now, as a practical matter, to reassure the American people, it might be better to phrase some language that would make clear the very point that you raise there, that this is not going to leave anyone unprotected; that the rights of all will be recognized, but that it will be along patterns that have been heretofore used in what has been unquestionably the law.

So I think that deserves the utmost consideration. I had not thought of it in terms of language.

Senator KEFAUVER. I think we might have great difficulty in getting language; it is a hard problem.

Senator STENNIS. I am sure I see where it would be, but it would not be impossible, and it would be reassuring to people who have these questions come to their minds. Senator Dodd had it come to his mind. Something has got to be done to take the pressure off of this situation, Senator Kefauver. I think you realize that. I wish that all here would realize it as well as you do.

I have read a great deal of Thomas Jefferson's philosophy and his saying, and I remember quite well, I used to have this instilled into me in law school, after he left the President's office, as you will recall, he went back to Virginia, a great advocate of public education. He formulated in his fertile brain a complete system of public education, and proposed it to the Virginia Legislature.

It started with the grammer school, went on up to high school and on through the university. He made a real fight for it; he had advocated the subject matter before, but he put the plan before them.

He said later, "I asked for the system and they gave me the capstone." They gave him the university.

But that State, in the course of time, you know, came right on in to be a strong advocate of the public school system, and it is in their constitution now in a mandatory way, in spite of all the trouble. They have not tried to vote it out.

Senator KEFAUVER. That is right.

Well, thank you again, Senator Stennis.

Senator STENNIS. I want to thank you again for coming over here and being so considerate of my problems.

Senator KEFAUVER. Mr. Fensterwald, did you have any questions you wanted to ask?

Mr. FENSTERWALD. I have one brief question, if the Senator would like to comment on it. This is a point that Senator Dodd requested me to pursue.

The question of Alaska and Hawaii and 10 other States has been raised a number of times. Senator Dodd was of the opinion that the acts of admission of Alaska and Hawaii and the others were subject to the Constitution to the 14th amendment, and to the requirement of equal protection of the laws; therefore, all States were admitted on an equal basis.

Have you any comment as to whether Alaska and Hawaii, for example, have more control over their schools than the State of Mississippi has over its schools.

Senator STENNIS. According to the words in the enabling act, it certainly does have. That is clear as a bell, when you just read that language alone. I think the language, you know, had a great meaning to it back there in the days when it was written in, "the older States." It meant exactly what it said.

Frankly, I do not see how those who drafted the enabling act for the admission of Alaska and Hawaii could have left it in there with the idea that the Constitution makes it meaningless, anyway. At the same time, we passed on it there. Technically, I would say that, just as a technical proposition, if the constitutional interpretation of the Supreme Court is to be followed, if that is correct-and I do not believe that it is—but if it is to be followed, I would say it writes out those provisions of the new bill.

Senator KEFAUVER. Senator Dodd, I think, argued, and I think the Attorney General in his statement took the position that these provisions for exclusive control of the schools were in these admission acts by virtue of the fact that they were Territories before that time, and the schools actually belonged to the United States. They wanted to make certain that the State and not the Federal Government owned and controlled the schools in the future. I do not know.

Senator STENNIS. Well, I do not think-my idea is that they could not possibly have been put in there except by oversight. I think they were just following some old enabling act, and it most probably happened that way. I do not think one would have used that language had they been attempting to make it clear that they were transferring jurisdiction from territorial status to State status, you know.

But I think that those acts clearly prove the sentiments of their time in this buildup, but you can argue it academically both ways, frankly, I think, as to what the meaning of those words is now.

Mr. FENSTERWALD. I did not mean to be argumentative. I was trying to bring up the point that these acts are probably subject to the Constitution, as other acts of Congress are.

Senator STENNIS. That would be a reasonable interpretation if you want to accept the Brown decision as correct. I would say it would be a reasonable interpretation, but to that constitutional amendment.

But my point is that the Oklahoma act, and all those along there, before this matter was controversial, showed what the people were thinking about and what they wanted to do about it.

Thank you again, Mr. Chairman, and thanks to Mr. Fensterwald, too.

Senator KEFAUVER. Thank you, Senator.

The committee stands adjourned, subject to the call of the Chair. (Whereupon, at 3:02 p.m., the subcommittee adjourned subject to the call of the Chair.)

(On Monday, May 18, 1959, the subcommittee received the following supplemental statement by Senator Herman Talmadge:)

(Text of supplemental statement by U.S. Senator Herman E. Talmadge, of Georgia, to be filed today with the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary in conjunction with hearings held last week on Senator Talmadge's proposed constitutional amendment (S.J. Res. 32) to restore State and local control over public education.)

In view of the line of questioning which has been followed in the interrogation of witnesses appearing before the Subcommittee on Constitutional Amendments in support of the Talmadge school amendment (S.J. Res. 32) and in order that the record of the hearings on the Talmadge school amendment might be made unmistakably clear as to the intent and purpose of its sponsors, I am submitting this supplemental statement to set forth and emphasize the following points:

1. The Talmadge school amendment will not invalidate, weaken or modify any existing provision of the Constitution of the United States, including the 14th amendment, within the context of its language or the intent of its framers. 2. The Talmadge school amendment will not nullify or infringe in any way upon any of the inalienable rights and freedoms of the citizens of the United States, including free exercise of religious belief, as set forth in the Constitution of the United States and as carried forward in the constitutions of the respective States.

The contention of the opponents of the Talmadge school amendment that it would invalidate or "hack out" a part of the 14th amendment is a further distortion of the distortion of the true scope and intent of that article as initiated and perpetuated by judicial decree.

There is preponderant historical evidence that the framers of the 14th amendment did not intend that it should apply to the field of education. Such applicatition was a judicial afterthought.

The same 39th Congress which promulgated the 14th amendment demonstrated that that was its understanding of the intent of its framers by establishing separate schools for the races in the District of Columbia. Furthermore, of the 37 States in existence at that time, only 5 abolished separate schools contemporaneously with the ratification of that amendment and 3 of those later restored them.

Therefore, the answer to the question as to where the Nation would be educationwise should the Talmadge school amendment be submitted by Congress and ratified by the States is: back to the original intent of the framers of the 14th amendment as carried forward from the intent of the framers of the Constitution and the Bill of Rights, particularly the 10th amendment, that the conduct of education would be an exclusive function of State and local governments. On that point, it should be reiterated and reemphasized that Madison's Journal of the Constitutional Convention relates that during a discussion of what would be placed in the hands of the Federal Government and what would be left to the States and the people, some member asked whether the provisions as proposed would leave education to the States. The only discussion of the -point, according to Madison whose accuracy has never been challenged, was an answer in the affirmative by the Chairman, George Washington.

In that light it is impossible to support the thesis that any part of the body of or amendments to the Constitution would be invalidated, weakened or modified as the result of the addition of the Talmadge school amendment. Any invalidation or modification would be worked not upon the Constitution or its amendments but rather upon those decisions of the Federal judiciary which have no basis in the Constitution or its amendments.

Nothing in the Talmadge school amendment would relieve any State of its obligation within the context and intent of the 14th amendment to guarantee to all of its citizens equal protection of the laws. It would merely assure that, insofar as public education is concerned, no State could be deprived by judicial usurpation of its constitutional right to operate its public schools in accordance with the wishes of its citizens.

The Talmadge school amendment is neither a segregation nor an integration measure but rather a proposal to reassert affirmatively the time-honored right of local people to administer their schools on the State and local levels in ac cordance with local wishes, conditions and prevailing attitudes. Under it school patrons would be free to determine for themselves through their elected repre

sentatives whether segregation, integration or median procedure would best serve the interests of their children and locality.

No one who truly believes in the American concept of local self-determination and government by the consent of the governed can logically disagree with the proposition that, as an ultimate matter, the determination of educational policy should rest with the parents of the children who attend each school.

It is more than coincidence that those who argue to the contrary are the same individuals who would force others to comply with their personal notions of sociology regardless of the consequences.

The fear has been expressed that the Talmadge school amendment would nullify present safeguards of religious freedom and separation of church and state. Inasmuch as the provisions of the various State constitutions in this regard would immediately come into play upon the incorporation of the Talmadge school amendment into the Constitution of the United States, that concern is groundless.

However, if it is felt by the members of the subcommittee that out of an abundance of caution the proposed amendment should be broadened to assure beyond any degree of doubt that there would be no infringement upon religious liberty and no relaxation of the doctrine of separation of church and state under its terms, the addition of such clarifying language would be welcomed by its

sponsors.

The companion argument that adoption of the Talmadge school amendment would open the door to lowered standards, capricious regulations, restricted educational opportunities and all manner of fancied racial, religious, and economic discrimination is a base and self-serving canard which is a gross insult to the intelligence, vision, aspirations, and humanity of all Americans regardless of the region in which they live.

There is no responsible individual who would advocate or condone any such backward step in the quality or quantity of American education. All thinking citizens recognize that the great need of our Nation in this era of scientific and technological revolution is for more and better education and the extraordinary efforts which the citizens of the South presently are making to provide such education for all children of both races bespeaks eloquently and emphatically their sincerity and good faith in this regard.

Rather than any curtailment or infringement of educational opportunity for children of either race in the South as the result of the incorporation of the Talmadge school amendment into the Constitution, it can be stated without contradiction or equivocation that the actual effect would be an acceleration of the present effort to improve the educational opportunity of both races to justify the confidence of the remainder of the Nation in giving specific constitutional recognition to the right of the people of the South to work out solutions to their problems in accordance with prevailing wishes and conditions.

The American people will have degenerated to a sad state indeed when, as the opponents of the Talmadge school amendment maintain, the Supreme Court and its strained interpretations of the 14th amendment are the only remaining safeguards against inferior education in this country.

Fortunately for the Nation, the American people do not have so low an opinion of their conscience, sense of justice and fair play and ability to manage their own affairs as do some of their detractors on the national scene.

The contention that educational standards would be jeopardized by the adoption of the Talmadge school amendment is of itself an admission of its opponents that they desire absolute Federal control over all facets of education. Under their philosophy, the meaning of the 14th amendment could be distorted not only to give the Supreme Court authority to decree who shall attend what school but also to determine the number of teachers for each school, the amount of salaries they shall receive, and the scope of the curriculums and the content of the textbooks taught.

There has been a concerted effort throughout the hearings to discount the significance of the grants of “exclusive control" over public education made by Congress to the last 12 States to be admitted to the Union.

While it is granted that the Supreme Court which has substituted books on sociology and psychology for law books as the basis for its rulings has not passed on those provisions, it cannot be denied that there is no more convincing proof than that of the intent of Congress that the Federal Government should never interfere with the operation of public schools by the individual States.

Neither can it be denied that, inasmuch as these admission acts cannot be repealed by Congress, their grants of exclusive State power over schools occupy a status superior to that of the regular laws of the land which are repealable. If, as is contended by the opponents of the Talmadge school amendment, the Supreme Court can invalidate these solemn pledges made to sovereign States by the Congress of the United States then no provision of any admission act is safe from legal attack.

To carry such an absurd theory to its ultimate conclusion would mean that any person dissatisfied with the disposition of public lands granted to a State could, by filing a suit in a Federal court, challenge the title to all property which once was a part of the public domain.

Therefore, the only reasonable conclusion as to the status of these admission acts is that they are at least the equivalent of treaties which, under the Constitution, are defined as the "supreme law of the land" and which, according to an impressive body of responsible legal opinion, under the present wording of the Constitution can be superior even to the provisions of that document.

To hold that the Supreme Court of the United States can rule that the language of a statehood admission act means anything other than word-for-word what it says would be to deny that the Constitution of the United States grants to Congress exclusively the authority to provide for the terms of admission of new States to the Union.

The Talmadge school amendment would do no more than to grant to all 50 States the same authority over the administration of public schools that Congress already has granted to 12 individual States.

No fair-minded person with a sense of justice could possibly object to that.

(On Thursday, May 21, 1959, the subcommittee received the following statement for the record from Senator Lister Hill of Alabama :)

STATEMENT OF SENATOR LISTER HILL

For the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee in support of Senate Joint Resoluton 32, to vest exclusive administrative control over public schools in the States and their political subdivisions

Mr. Chairman and members of the subcommittee, I deeply appreciate the decision of this subcommittee to hold hearings on Senate Joint Resolution 32, the proposed Talmadge constitutional amendment which I am privileged to cosponsor along with the distinguished Senator from Georgia and seven other of my colleagues.

Senate Joint Resolution 32 would add the following language as a new article to the Constitution of the United States:

"Administrative control of any public school, public educational institution, or public educational system operated by any State or by any political or other subdivision thereof, shall be vested exclusively in such State and subdivision and nothing contained in this Constitution shall be construed to deny to the residents thereof the right to determine for themselves the manner in which any such school, institution, or system is administered by such State and subdivision."

The Talmadge amendment would do nothing more or less than to make explicit in the basic instrument of our Government a conviction and philosophy which generations of our forebears have sought to preserve as a necessary element of a free and democratic America.

The amendment would give meaning and vitality in the field of public education to the provision which the Founding Fathers were careful to include in the Bill of Rights that the "powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States, or to the people." Since neither the Constitution nor any of the amendments thereto specifically delegate to the United States Government or prohibit to the States the administration and primary control of education in the public schools, it has been universally held that the people possess the right and obligation to exercise control over their public school systems through the instrumentalities of their State and local governments.

As my colleagues who have preceded me before this subcommittee have so forcefully demonstrated, this principle has been enunciated anew on no less than 12 occasions since 1889 in the admission of new States to the Union. The ad