no greater lingering damage to our Government as we know it could be effected than by the wholly indefensible extension of this summary power to situations where adequate administrative and legal remedies have long existed. No longrange good can come from empowering the Federal Government to disregard due process of law.

S. 506

Mr. Chairman, I regret to see in title 8 of S. 510 and in S. 506 the re-emergence of the old and discredited FEPC bill for consideration by the Congress of the United States. This discredited approach to the problem of employment of all segments of our population at levels commensurate with their ability is endorsed by those who are often heard to praise free private enterprise in an economically competitive environment.

This system of free enterprise has, of course, been the basis for our country's growth since it was founded. It does not appear that the contradiction between this bill and that system is apparent to its proponents, and such a fundamental inconsistency should be pointed out so that this paradox will be seen in the light of its effect both on American society and on our free enterprise system.

An economic system of free enterprise depends upon efficient operation. Success in this set of conditions depends upon efficient operation, and the economic motives for which all business enterprises are operating depend upon efficiency and selectivity in materials, methods, and in personnel.

While the system we believe in has, in years long past, been criticized as subordinating the individual, much has been done in the way of general regulatory legislation to meet this objection. Minimum wage laws and other laborlegislation have been enacted on the ground that the individual worker is at a disadvantage in the contracting process because of his limited financial resources as compared with those of the other contracting party and established industrial organizations. However, I do not find any legislation which purports to create a contract between a party aspiring to a specific job and an unwilling employer. This would be the effect of the pending bill. Its foundation in economic fact and realities are highly dubious, its legal justification is even more specious. The legal basis cited in the bill employs a scattergun approach of the commerce clause; constitutional rights, and privileges and immunities. These individual legal bases are all inadequate to justify this monstrous butchery of our laws of contract and agency and, taken together, provide no more justification for such an undertaking.

It is true that the overburdened commerce clause has been relied on to justify a great deal of legislation having little or no casual relation to the free flow of commerce between the Staes, and certainly no one would seriously attempt to justify this legislation on the grounds of regulation of commerce.

It is an established legal principle that that which may not be done directly cannot be done indirectly. It would, therefore, appear that this bill, undertaking as it does to establish a commission with the power to create contracts between private individuals relating to employment and other serious and close personal associations, would be empowered to effect a result which Congress itself could not legally accomplish. This principle is as abhorrent to free enterprise as it is to the constitutional law of this country. The objections to such an iniquitous procedure are apparent and obvious: First, there is no meeting of the minds, which is elementary in the contracting process.

The scrap of paper resulting, investing substantial rights in one party alone would not deserve the dignity of being called a contract. The repugnance to involuntary servitude, which is so fundamental in America, is by this bill turned around and by law a new concept of involuntary private employment and association takes its place.

A second objection is that there is no constitutional provision on which this right may be based. Perhaps Congress could create in individuals a right to a Government job, but it has never seen fit to do so. Certain rights inure to people who have Government jobs, but the right to a specific job in the executive branch of the Government involves the interplay of two branches of Government, (1) the legislative branch in creating the job, and the rules and regulations under which the employee's future rights may be determined, and (2) the executive branch through the appointive power defined in the Constitution or in the statutes or by our civil-service laws.

Under this bill, an individual fortunate enough to be identified with an active minority group would in effect have a preemptive right to a specific job by a private employer in the conduct of his business under existing laws and in a com

petitive environment who might for any reason not desire to have any association with the applicant at all, and particularly in the trusted status of an employee. Lawyers everywhere will recall the development of the law of agency and the reluctance with which jurists of the English courts adopted the principle of vicarious liability. It is no small thing to be financially responsible for the acts of another. However, the law of agency, built on this principle, developed in order to protect the rights of others adversely affected by the acts of the agent, but only within the narrow limits of the agent's authority or ostensible authority. A parent is still not even liable for the acts of his children except where State statutes have created such a liability. Yet, under this bill, an employee whose job was secured by a cease-and-desist order or injunction might incur financial liability for his employer who had never voluntarily placed the employee in any position of trust, responsibility or even close association.

To rationalize this problem by saying that such losses would in the majority of cases be covered by insurance is to admit only an adolescent understanding of the underlying legal problems attendant thereto.

Because I feel that this problem should be viewed from an economic viewpoint does not mean that I do not also consider that grave special problems will be created by this involuntary association. The right of the individual to choose his associates on the basis of any ground whatever, whether rational or not, has never been seriously challenged until the recent race case decision of the Supreme Court, but even here there is a distinction. So far at least, the Supreme Court has only attempted to legislate in the social field by overruling State laws and constitutions as well as local ordinances, and has not yet trod upon the right of the individual in his own private life or business life to choose such associates. This bill would go beyond the decisions of the Supreme Court, and even this tribunal as presently constituted might encounter difficulty in perceiving constitutionality of such a revolutionary piece of legislation.

The bill is artfully drawn to avoid any semblance of an orderly judicial approach to a problem where the factual issue is of the highest magnitude. It would be impossible for one accused of unlawful practices of this act to get to a trial by jury. It would, in effect, be tried by a governmental commission which must justify its existence on the number of cases processed, and nowhere in Government has there been any evidence that any such commission or board, once created, sought by conciliation or otherwise, to eliminate the cause or justification for its continuance. Manifestly, in this case there would be no incentive to reduce the workload of such an agency.

In conclusion, Mr. Chairman, I should like to say that I think this bill is dangerous and unworthy of endorsement by this or any other administration, that it tampers with the very foundation of our society, as well as the laws of contract and agency, and when considered with other bills now before your subcommittee, indicates the magnitude of the revolutionary change in our whole way of life and government if this country should ever suffer the misfortune of seeing it enacted into law.

S. 507

My primary objection to the Federal anti-poll-tax bill is that it is unconstitutional. In this field, Congress is without power to regulate the qualifications of voters because of the express terms of the Constitution, which provide that: "ARTICLE I, § 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature."

And, as relates to the election of Senators:

"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, * * *. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."

This language means exactly what it says. Even the most ardent proponent of this legislation would not contend that Congress has the power to regulate the qualifications of voters for the most numerous branch of the State legislature. Certainly this could not be done where one of the qualifications is payment of an admittedly lawful State tax.

While payment of a poll tax as a requisite for voting has been a requirement in fewer and fewer States in recent years, the action has come about by action of the State legislatures under this specific grant of constitutional power.

But the reverse process, the modification of the requirement for voting for so-called national officers by an act of Congress, is manifestly unconstitutional since presumably the same requirements would apply to the election of State officials even after this bill was passed. Thus the express language of the Constitution would have been flaunted since different qualifications would be applicable.

If this undesirable interference with the State's constitutional power to qualify electors is to be accomplished, it must be done by a constitutional amendment.

But if all this change, sought only for political reasons, were to be brought about, not one single person would thereby be enfranchised. Unlike the other two constitutional amendments, the 13th and 19th amendments, which enfranchised freed slaves and women, this amendment would not confer the right to vote on any class. The only people who could possibly benefit are tax delinquents. Such a group hardly deserve the consideration of a constitutional amendment.

Senator ERVIN. The subcommittee now will take a recess subject to the call of the chairman.

(Whereupon, at 11: 50 a. m., the subcommittee was recessed, subject to call of the Chair.)

APPENDIX

FRIDAY, MARCH 15, 1957

UNITED STATES SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C.

The subcommittee met, pursuant to recess, at 10:30 a. m., in room 104-B, Senate Office Building, Senator Thomas C. Hennings, Jr. (chairman of the subcommittee) presiding.

Present: Senators Hennings, Watkins, and Hruska.

Also present: Charles H. Slayman, Jr., chief counsel, Constitutional Rights Subcommittee.

Senator HENNINGS. At the close of our hearings on March 5, 1957, it was announced that the record would be kept open until noon, eastern standard time, Friday, March 8, 1957, for the receipt of statements filed for printing in the record of these hearings.

The subcommittee received, prior to that deadline, the following statements and documents for insertion in the record, and without objection they will be so inserted:

1. Statement of Hon. Sam Engelhardt, Jr., State senator, 26th senatorial district of Alabama (submitted by United States Senator Sam J. Ervin).

2. Letter from Senator Olin D. Johnston to Senator Thomas C. Hennings, Jr., in regard to the appearance of the South Carolina delegation.

3. Letter from Hon. T. C. Callison, attorney general, South Carolina (submitted by Senator Olin D. Johnston).

4. Telegram to the Honorable Adam Clayton Powell, Jr., Representative, 16th District, New York, from Daniel L. Beasley, Macon County, Ala.

5. Statement from Daniel L. Beasley, Macon County, Ala., concerning board of registrars (submitted by Congressman Powell).

6. Letter from Governor Folsom to Daniel L. Beasley (submitted by Congressman Powell).

7. Extract from Birmingham Post-Herald, February 8, 1957 (submitted by Congressman Powell).

8. Statement by Walter P. Reuther, president of the United Automobile Workers, Aircraft and Agricultural Implement Workers of America International Union.

9. Statement, United Steel Workers, committee on civil rights, Frances C. Shane, executive secretary.

10. Statement, Textile Workers Union of America, AFL-CIO, John Edelman, Washington representative; Benjamin Wyle, Max Zimny, associate counsel.