The amended section includes "primaries" as well as "elections" in its coverage. The Congress will perhaps deem that justified by the cases of United States v. Classic (313 U. S. 299), and Terry v. Adams (345 U. S. 461), despite the earlier Newberry case (256 U. S. 232) and despite the fact that Classic was decided by only four judges. It should be noted that even in Terry v. Adams, the second headnote (73 S. Ct. 810) is:

The 15th amendment erects no shield against merely private conduct however discriminatory or wrongful.

Section 102 amends section 2004 of the Revised Statutes (42 U. S. C. 1971) to read as rewritten in the bill. This was title 8, United States Code Annotated, section 31, derived from act of May 31, 1870. There seem to be four salient changes.

(a) The section would protect the right to qualify to vote (regiter), as well as actual voting;

(b) The section is extended to cover primaries;

(c) The section would protect against discrimination based on "religion or national origin" as well as race or color;

(d) In the new last sentence, the bill attempts to make the right to qualify and vote, as set forth therein, a right within the meaning of title 18, United States Code, section 242, and title 42, United States Code, section 1983. So, the bill attempts by legislative fiat to make a constitutional right out of something which is not.

There is no constitutional provision dealing with discriminations in voting arising out of "religion or national origin." The 15th amendment provides:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

The Supreme Court has several times held that the power of Congress over the right to vote in the several States is confined to the enforcement of the 15th amendment by preventing discrimination on account of race, color, or previous condition of servitude (Neal v. Delaware (103 U. S. 370); Pope v. Williams (193 U. S. 621); Williams v. Mississippi (170 U. S. 213); Ex Parte Yarbrough (110 U. S. 651); U. S. v. Reese (92 U. S. 214); U. S. v. Cruikshank (92 U. S. 542)).

Senator WATKINS. Pardon the interruption, but would you be willing in support of the amendment to strike out this reference to any of those other situations rather than what is contained in the 15th amendment?

Mr. BLOCH. Senator, of course, I have no right, I am a layman; I mean by that that I am not

Senator WATKINS. I would not let that influence me one way or the other; we would just want you to give your views.

Mr. BLOCH. You mean, would I be willing, perfectly content with the legislation

Senator WATKINS. No. No. I said, would you be willing to have taken out of this particular section that you have taken exception to, the references to the place of origin and religion?

Mr. BLOCH. I think that it would tend to make them more in line with the Constitution.

Senator WATKINS. You think that is in conflict with the Constitution, to say that you cannot discriminate against a man because of his religion or place of origin?

Mr. BLOCH. Yes, sir; I think that is so.

Senator WATKINS. Do you not think that is a very, very narrow view or interpretation of the Constitution?

Mr. BLOCH. No, sir; I do not think it is a narrow view at all, because the United States Government had no right at all to legislate with respect to voting in State elections, much less in primaries, until the 13th, 14th, and 15th amendments were adopted after the War Between the States, and therefore I think that the rights to legislate with respect to any State elecion is confined to the 15th amendment.

Senator WATKINS. All right.

Your objection goes to this section simply because it brings in these other things not contained in the 15th amendment?

Mr. BLOCH. No, sir; not "simply."

Senator WATKINS. Well, you are against the 15th amendment, as well?

Mr. BLOCH. Not "simply."

One of the reasons I am objecting is because it brings in things that the Congress

Senator WATKINS. Well, suppose we eliminate that; then what? Mr. BLOCH. Then we come to some other criticisms.

Senator WATKINS. All right.

In other words, you don't like it.

Mr. BLOCH. I am just against it.

Senator WATKINS. That is what I wanted to find out.

Mr. BLOCH. And that is one of the reasons.

Senator WATKINS. That is the best reason I ever heard.

Mr. BLOCH. Title 18, section 242, mentioned in the section reads: Whoever, under color of any law, statute *** willfully subjects any inhabitant of any State *** to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States or to different punishments *** on account of such inhabitant being an alien, or by reason of his color or race than are prescribed for the punishment of citizens shall be fined *** (based on title 18, U. S. C., 1940 edition, sec. 52, derived from act of May 31, 1870.)

So the amendment, I repeat, seeks to make a constitutional right out of something which is not. This is further demonstrated by the other section mentioned in the amended section to wit, title 42, United States Code, section 1983, formerly title 8, United States Code Annotated, section 43, which is:

Every person who, under color of any statute * * *subjects or causes to be subjected any citizen of the United States or other person within jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

This latter section was derived from the act of April 20, 1871. In Stefanelli v. Minard, et al. ((1951) 342 U. S. 117), the Supreme Court dealt with this section in a case where an accused sought to enjoin in a Federal court the use of the fruit of an unlawful search by New Jersey police as evidence in a State court.

Justice Frankfurter wrote the opinion holding that the Federal courts should not intervene. (Justice Douglas dissented.) Justice Frankfurter said:

These considerations have informed our construction of the Civil Rights Act. This act has given rise to differences of application here. Such differences inhere in the attempt to construe the remaining fragments of a comprehensive enactment, dismembered by partial repeal and invalidity, loosely and blindly drafted in the first instance (we recently commented on the circumstances surrounding the enactment of this legislation in United States v. Williams, 341 U. S. 70 * * * and Collins v. Hardyman, 341 U. S. 651, 657) and drawing on the whole Constitution itself for scope and meaning. Regardless of differences in particular cases, however, the Court's lodestar of adjudication has been that the statute should be construed so as to respect the proper balance between the States and the Federal Government in law enforcement. Screws v. United States (325 U. S. 91, 108). * * * Only last term we reiterated our conviction that the Civil Rights Act was not to be used to centralize power so as to upset the Federal system. Collins v. Hardyman (341 U. S. 651, 658). Discretionary refusal to exercise equitable power under the act to interfere with State criminal prosecution is one of the devices we have sanctioned for preserving this balance ***. And under this very section now involved, we have withheld relief in equity even when recognizing that comparable facts would create a cause of action for damages. Compare Giles v. Harris (189 U. S. 475) with Lanc v. Wilson (307 U. S. 268).

Senator HRUSKA. At that point, Mr. Bloch, if I may interrupt, what is the meaning, what is the significance of "discretionary refusal," as used in the second to the last sentence on the page you have just read? Does that mean they would have the right to exercise that equitable power and therefore, presumably, it would be constitutional in nature, but that they feel that in the interest of policy rather than constitutional right, it would be better to refrain from using it?

Mr. BLOCH. That went a little further than that, Mr. Chairman. I take up Giles v. Harris right next, and I think perhaps that answers part of your question, and the rest of it is answered in another case I will refer to just after, so that your question may be answered logically.

Just after we deal with Giles v. Harris, I would like to call the committee's attention to another case.

Senator HRUSKA. That bears on that point?

Mr. BLOCH. That bears on that point; yes, sir.

Senator HRUSKA. Very well.

Mr. BLOCH. I might say this, sir, so that perhaps you gentlemen may better understand these cases.

Giles v. Harris was a petition for injunction, an equity case; James v. Bowman was a statutory suit for damages. The Court recognized the latter but declined to recognize the former.

Giles v. Harris, supra, referred to by Justice Frankfurter, involved a bill in equity brought by a colored man on behalf of himself—

and on behalf of more than 5,000 Negroe, citizens of the county of Montgomery, Ala., similarly situated and circumstanced as himself—

against the board of registrars of that county.

The prayer of the bill was that the defendants be required to enroll upon the voting list the names of the plaintiff and all other qualified members of his race. This was in 1902.

The opinion in the case was written by Justice Oliver Wendell Holmes, of Massachusetts, who had been a soldier of the North during the War Between the States. He said:

The Supreme Court of the United States in Alabama has not jurisdiction of an action in equity brought by a colored man resident in Alabama on behalf of himself and other Negroes to compel the board of registrars to enroll their names upon the voting list of the county in which they reside under a constitution alleged to be contrary to the Constitution of the United States.

Justices Brewer, Brown, and Harlan dissented. So, apparently from the list of the justices of the Court at that time, those concurring were Chief Justice Fuller and Associate Justices White, Peckham, McKenna, and Day.

Now, the other case to which I alluded, Mr. Chairman, a few minutes ago, and which is not mentioned in the printed statement, but which I will be glad to give, is a case in 69 Federal Reporter at page 852. That was the case which arose in South Carolina, a similar case to the Alabama case, and the Chief Justice at that time, Chief Justice Fuller, acting as circuit justice, sat en banc with the 2 South Carolina judges or 2 judges of that circuit, and held this:

A court of equity has no jurisdiction upon a bill asking relief in behalf of the plaintiff and of other citizens similarly situated to enjoin a county supervisor of registration from performing the duties prescribed by the State registration laws on the ground that such laws are unconstitutional and operate to deprive plaintiff and others of the right to vote.

Senator WATKINS. Is that case cited in your mimeograph here? Mr. BLOCH. No, sir; it is not. The name of the case is Green v. Mills (69 Fed. 852).

Mr. SLAYMAN. Was that about 1902?

Mr. BLOCH. Well, about 1902, yes; Chief Justice Fuller was Chief Justice about that time.

And I say, while it is a Federal reported decision, circuit court decision, a 3-judge court, Chief Justice Fuller, Chief Justice of the United States, was sitting with these circuit judges as circuit justice.

Now, you will note there, Mr. Chairman, he uses the expression in that opinion "has no jurisdiction," that a "court of equity has no jurisdiction" and so does Mr. Justice Holmes in Giles v. Harris say that the court had no jurisdiction.

Now frankly I say to you that I think the reason that the court said, both courts said they had no jurisdiction was, as pointed out in both of these cases, that courts of equity ought not to interfere in matters which were purely political and would not interfere with matters which are purely political but, of course, I would be obliged to say if I were asked the question, that if the Congress saw fit to confer that jurisdiction on the courts of equity, the Congress would have a right to do it.

Senator WATKINS. You think we have the right to do it now? Mr. BLOCH. You have a perfect legal right to do it. The question is, whether you want to exercise it.

Senator WATKINS. I see. It is a matter of policy; is it not?

Mr. BLOCH. I think it is a matter of judgment of the Senate, what they feel they ought to do. I think that the Congress has a perfect right to confer that jurisdiction on the courts of equity, but again I

Mr. BLOCH. You ought not do it. As developed a little later, I do not content myself with the ex cathedra statement, but I give you

some reasons.

Senator WATKINS. I assume you have some reasons which in your view are sound.

Mr. BLOCH. Yes; to me they are, and I hope they will be to you. Senator WATKINS. Well, we will listen to you.

Mr. BLOCH. All right; thank you.

Senator HRUSKA. Well, Mr. Bloch, that was the purpose of my attempting to interrupt a little while ago.

If it is a matter of policy, the citation of these cases and quotations from them would not apply, especially in view of the language that is proposed for legislation here, conferring that equitable jurisdiction on the Federal courts in that particular instance of what avail are those citations and quotations then?

Mr. BLOCH. They are of this avail, Senator. I was trying to be of such help as I might be to the committee and I was trying to give you the history of the subject as developed in Supreme Court decisions.

Senator HRUSKA. În sum and substance isn't the effect simply this, that there is not any statutory basis for equitable jurisdiction?

Mr. BLOCH. That is my view but somebody else that deals with it, Senator, perhaps might have the idea that the Congress has not the right to confer that equity.

Senator WATKINS. You have helped those of us who are in favor of this legislation then

Mr. BLOCH. Well, I am sorry that you gentlemen were not here this morning, because we started off by saying what I was trying to do was to develop the facts from every angle.

Senator WATKINS. That is indeed fine and you have established the case on that point.

Mr. BLOCH. And you gentlemen are the judges to apply the law to facts.

Senator WATKINS. Well, it is a little different than that; we have to work on policies. We do not come in her completely without opinions, we are not exactly like a court. We try to be 100 percent objective when we start, and we start from that, but of course, we are somewhat partisan as there are other considerations and they are factors when heretofore we have made determinations with respect to matters of policy and I assume also with respect to matters of law, but the thing we are attempting to do is to stay within the bounds of the constitutional powers given, in these bills for instance, the administration bill, and I or the cosponsors with

Senator ERVIN. Pardon me, there are a whole lot of bills other than the administration bills and these decisions have a direct bearing on them.

Senator WATKINS. Well, that is wonderful, because I am in favor of the administration measures so—

Senator ERVIN. Subject to amendment.

Senator HRUSKA. Let the record show at this point that Senator Ervin has completed a speech on the floor which was a very excellent presentation; also that Senator Ervin having reentered the committee room, the duties and responsibilities of the Chair of this meeting are transferred from me to him forthwith.

Senator ERVIN. No, I will let you go ahead.