I would like to know first, Mr. Attorney General, whether you consider that provision, which according to its words authorizes actions against private citizens as well as acts of States, is constitutional.

Mr. BROWNELL. I believe the constitutionality has been upheld; yes. Senator ERVIN. If you are right in that view, then you agree with it, do you?

Mr. BROWNELL. The courts have upheld it as constitutional. I will follow that court opinion, since the Supreme Court decisions are the supreme law of the land.

Senator ERVIN. I do not concur with you on that because this statute in its original form had certain criminal penalties which were struck down flatly in U. S. v. Harris. I cited the Collins v. Hardyman case. If you read what is said there, you would have to say Justice Jackson thought it was unconstitutional as applied to civil cases. If you can tell what some members of the Court thought in Collins v. Hardyman, you are a more confused lawyer than I am.

Mr. BROWNELL. I am glad you have sympathy with some of our hard problems over there. There are very hard, difficult questions involved here.

Senator ERVIN. You are the Attorney General at the present moment, and if you wish to continue, you will certainly be the Attorney General for the next 4 years, so I want to know whether you think this act is constitutional, and whether you are going to act on it on that assumption?

Mr. BROWNELL. What I am going to do insofar as it devolves upon me in my present office to take action is to follow the decisions of the Supreme Court on the constitutionality of these acts, and if they are held constitutional, of course I will take action under them.

If they are held unconstitutional, I will be bound by that also. Senator ERVIN. I realize as a lawyer that none of us can carry all of the decisions of the courts in our heads. In putting this question to you, I do not attempt to cast any reflection on you as an attorney, because if any attorney could remember all of the decisions of all the courts he would have a most peculiar mind.

Mr. BROWNELL. Isn't that a fact?

Senator ERVIN. I am asking you now if you think, as Attorney General, this is unconstitutional?

Mr. BROWNELL. Senator, as I have tried to say, it is my recollection, and I believe it is accurate-Mr. Olney has the same opinion-that this section has already been upheld as to its constitutionality.

Senator ERVIN. You think that the Congress has the power to enact legislation in a civil field where it is denied the power to legislate in the criminal field?

Mr. BROWNELL. Would you repeat that question, please?

Senator ERVIN. If the Constitution forbids the Congress to provide criminal statutes in a certain field, the area of civil rights, for example, can it have the constitutional power to legislate civil remedies in that field?

Mr. BROWNELL. That is a pretty abstruse question.

There are many cases where it has been done. As you will remember, we discussed yesterday in the antitrust field, it has been routine for more than 60 years, so that certainly in some circumstances there would be no question about that.

Senator ERVIN. In that case Congress legislates both in the civil and the criminal fields?

Mr. BROWNELL. Yes.

Senator ERVIN. I cannot conceive how the Congress would have the power to pass legislation in the civil field in areas which it cannot constitutionally regulate by criminal statutes.

Mr. BROWNELL. I believe there are instances on the books where it has been done, and successfully done.

Senator ERVIN. It would contribute very much to my education as a lawyer if you would kindly advise me as to any instances of that kind.

Mr. BROWNELL. I will be glad to furnish that, sir.

Senator ERVIN. Now since you say you think this is constitutional or are under the impression it has been so adjudged, I ask the question : What types of cases would you, as Attorney General, bring in the event the amendments are adopted, and against what types of defendants?

Mr. BROWNELL. The way we operate over there, Senator, in the Department of Justice, is we do not start with a statute and then go out and try and find a violation of it.

We have instances of prima facie violation of the statutes reported to us, and then we have to study the facts in that particular case and see whether or not it comes within the statute, so that it would be rather misleading for me to attempt to start with a statute and conjure up a set of facts that might come within it. That would be a little backward.

Senator ERVIN. That is true, Mr. Attorney General, when you are operating as a lawyer, but when you are operating as a legislator, you are in a different situation, and you are recommending that we, as legislators, enact a statute which would empower you to enforce this section of the statute by a different process than has ever been permitted before, and I as a legislator would like to know what the condition is that you are attempting to remedy.

I think that when you urge us to pass a statute, you are urging us to exercise our powers not as lawyers but as legislators, and I would like to know what conditions you think are so serious as to require what I call this drastic alteration of the means of enforcement of this statute.

Mr. BROWNELL. That will require reviewing some of the testimony that I gave yesterday. You will remember that in my prepared statement, I gave a number of examples, and the chief one which we discussed yesterday, and which is certainly a very important part of the administration program, is the authority to bring injunction actions in this civil-rights area to prevent, before they happen, a violation of the civil rights of our citizens.

It would be the preventive type of action.

Senator ERVIN. Your amendment is directed to other matters which would cover the situation illustrated by 3 out of 7,500 election officials in my home State, and by the 1 parish in Louisiana.

This does not have reference to that. So I would like as a legislator to know why it is that we are proposing to adopt what I consider to be a very drastic remedy.

Mr. BROWNELL. We can generalize this way I suppose.

If we find that one of these civil rights that is protected now by criminal law were violated, this would give us the option rather than

going the criminal route, to go into the civil court, and protect those rights.

Now it does not increase the number of substantive civil-rights laws. Those remain as is on the books, but it does give us the option of taking the civil court route rather than the criminal court route, for the reasons that we set forth yesterday.

Senator ERVIN. You still have not answered my question though. What conditions now exist which would justify me as a legislator to make such a drastic-what I consider, you do not agree with me on this what I consider to be such a drastic alteration in the remedies under this section that I have read?

Mr. BROWNELL. I think one of the most important ones is this mass disenfranchisement of the Negro voter.

Senator ERVIN. You have got a section on that?

Mr. BROWNELL. Outside of the area voting is what you are talking about now?

Senator ERVIN. You have got another section on the voting, “All persons conspiring," and so on.

And you have also got a provision in part 4. This does not have any reference to voting except indirectly, of course. It could cover voting but you have got specific statutes on voting apart from this portion in section 3.

I would like to know as a legislator what kind of actions you think conditions require to be brought under that, and who are to be the parties in such actions.

Mr. BROWNELL. I cannot give you the parties because that would depend on developments, but you would run down the list of civil rights that are protected by law at the present time.

As you know, there are many, and we-whenever the state of facts arose where we thought any one of those civil rights had been violated and it would seem more appropriate to go by the injunction route than the criminal route-that is where we would act.

Senator ERVIN. But you can't specify any particular civil-rights violations that would demand the authority to apply this remedy to this particular subsection.

Mr. BROWNELL. Any of those that are covered by that section.

Senator ERVIN. Can you tell me what is covered by it? That is what I am trying to get at.

Mr. BROWNELL. We will file with you a list of the civil rights of our citizens that are protected by the Federal Constitution, and whenever an occasion arises where we think that any of those rights, which are protected by the Constitution, have been violated, that is the type of case in which we would act.

Senator ERVIN. Mr. Attorney General, I have to work about 14 hours a day, and I am not going to have the opportunity to read that. I would like to know right now if you could tell me, whether there is any real purpose you have in view in asking Congress to give you the drastic remedy, which I consider drastic though you do not, to enforce this particular subsection, subsection (3) of this statute.

Mr. BROWNELL. I can't be any more explicit than the statutory words that you have read, Senator.

The standard is set up there in the statute, the particular civil right that is protected. We believe that is a constitutional statute, and if we

see any violation of it is about to occur where we could stop it, we would endeavor to do so.

Senator ERVIN. Your thesis that you are changing the remedy from a criminal remedy to a civil remedy or simply adding a civil remedy to a criminal remedy is not valid in this instance because the Supreme Court struck down this identical provision in the Harris case as unconstitutional when it provided for criminal penalties. So that argument does not apply.

Mr. BROWNELL. Are you reading the statute that the Court has held to be unconstitutional?

Senator ERVIN. The Supreme Court held in plain words in the Harris case, when these very acts were made subject to criminal punishment, that this portion of the statute was unconstitutional in its effort to apply criminal remedies to these acts.

Mr. BROWNELL. I have already stated, Senator, that if the Court has held the statute to be unconstitutional, we are bound by that. If any of these civil-rights statutes are constitutional, then we proceed under them. We do not proceed under the unconstitutional ones that are no longer of any force or effect.

Senator ERVIN. It struck down the whole act in that case saying that it was not the function of the courts to separate the situations in which it might have been upheld as applied, for example, to action by State officers, from situations in which it could not possibly apply.

That was a legislative function. You are asking me as a legislator, and you are asking the other members of the national legislative body to pass an act to give you authority to enforce by injunctive process a portion of an act which is phrased in virtually the identical language that the Supreme Court said in the Harris case was unconstitutional as applied to criminal prosecution.

Mr. BROWNELL. I cannot agree with you on that, Senator, because our guiding principle will be that only those statutes, parts of statutes that are constitutional, would be enforced by us, and we would not act in any way contrary to a Supreme Court opinion which holds that a statute or any part thereof that is unconstitutional. I can't be any more explicit than that, I don't believe.

Senator ERVIN. You could give me a little light if you would tell me why you come and ask me as a legislator to give you power to enforce a statute which the Supreme Court declared in the Harris case was unconstitutional as applied to criminal prosecutions?

Mr. BROWNELL. We don't ask for any such thing. I can only repeat the answer, because as I understand it you are repeating the question.

Senator ERVIN. I am repeating the question because I don't believe I have gotten an answer which has given me the light as a legislator as to why I should adopt the suggestion of the Attorney General that I give him the power to enforce by injunctive process a statute which the Supreme Court of the United States held in the Harris case was unconstitutional, when it was enforced by criminal processes.

Mr. BROWNELL. Wouldn't it be a little more accurate for the record, Senator, to say that you have not got the answer you wanted? You got the answer.

Senator ERVIN. Frankly, Mr. Attorney General, I have not got any answer at all, because my question has been this: What classes of cases specific classes of cases, do you want the Congress to give you th

power to enforce by injunctive process under the first portion of subsection (3) of the section 1985 of title 42 of the United States Code?

Now you have told me, in effect, you would use that to promote righteousness in the future, but I want to know what specific types of cases exist which call for Congress to legislate or give you the power to enforce the statute by

Mr. BROWNELL. That is a time-honored method of course of inquiry. It came up over in the House hearings there, and I think I would have to give you the same answer that I gave the House subcommittee. I would not last very long as Attorney General if I started conjuring up hypothetical questions and then interpreting

Senator ERVIN. I do not want you to conjure up anything.

Mr. BROWNELL. The constitutionality of them. I have given you as concisely as I can the guiding principles which would govern our action if we are given this badly needed authority to have civil in addition to the criminal remedies.

Those guiding principles, just to repeat once more, are that first we will follow the decisions of the United States Supreme Court as to whether or not a statute or any part thereof is constitutional; those parts which are constitutional, already we have the authority to proceed criminally under them.

We are now asking as to those parts that are constitutional that we have the right to go into the civil courts for preventive relief, first with the objective of upholding the civil rights guaranteed to our citizens by the Federal Constitution, and, secondly, to do it in a way which will not force us into conflict in the criminal courts with State and local officials, wherever possible.

Senator ERVIN. I want to make it very emphatic, Mr. Attorney General, that I am not asking you to conjure up anything. I think there is too much conjured up about these civil rights.

Mr. BROWNELL. So do I.

Senator ERVIN. I am talking about supposed facts.

Now, yesterday you cited in your statement 3 misdeeds, misconstructions, of election laws by 3 election officials in North Carolina out of the total of 7,500 election officials, as a justification for giving the Attorney General authority to enforce the right to vote by injunction.

I am asking you to give me some specific instance of existing conditions which would justify us in giving you the right to enforce by injunctive relief the first clause of subsection (3) of this statute. I am asking for facts; not conjuring.

Mr. BROWNELL. I think what I should do on that then, Senator, is to file for the record copies of Federal court opinions where these civil rights have been defined, and I would be glad to do that if it is agreeable with the chairman, to file a list of court cases.

Senator HENNINGS. It is agreeable, indeed, with the chairman if it is agreeable with Senator Ervin, if he will consider it sufficient. Senator ERVIN. I am not asking about law. I am asking where the law is to be used to remedy a situation——

Senator HENNINGS. If you will excuse me, Senator, I think the Attorney General might so file as he has suggested.

Senator ERVIN. I do not object to that. I would be glad to have it. But what I am asking for is not law, not court decisions. I am asking for facts about existing conditions which would justify Congress in granting, for the first time in our history, the injunctive process to the