dation, violence, threats, and so forthwith respect to integrated schooling or desegregated schooling is the fact that the segregated schools were maintained by State laws, so it does seem to me that in that regard it is pretty clear

Senator ERVIN. And, also pursuant to the 14th amendment as it was interpreted from 1898 to 1954.

Attorney General KATZENBACH. Yes.

Senator ERVIN. Yes.

Attorney General KATZENBACH. And since. A long time after that segregation has continued to be maintained. But the point is whether or not they thought they were violating the Constitution at that point, irrespective of Plessy v. Ferguson, it seems to me that it would be accurate to say that a good many of the feelings in this regard, a good deal of the resistance to this stems from the system which the State had maintained and supported and indeed required. Senator ERVIN. However; the crimes that are defined in title V are directed solely against the actions of individuals and not against State actions.

Attorney General KATZENBACH. Yes, sir.
Senator ERVIN. Yes.

Attorney General KATZENBACH. Yes, sir. I suggest that you would be much less likely to have that individual action, had it not been for the act of maintaining a segregated system in the schools. for a long time.

Senator ERVIN. I might interject at this point that what intimidation is going now as far as the schools are concerned is being practiced by the Department of Health, Education, and Welfare.

Attorney General KATZENBACH. Senator, you know I disagree with that.

Senator ERVIN. Well, go down to North Carolina and you will find out they have agents down there almost telling every school district how to run the school.

Attorney General KATZENBACH. Senator, that is something of an

overstatement.

Senator ERVIN. Very slightly.

Attorney General KATZENBACH. Well, I recognize we might differ about that, but I don't think that you are free from intimidation in the State of North Carolina with respect to the desegregation of the schools.

Senator ERVIN. If you don't accept the bribery you lose the funds. This is going on all through the South and I just wonder what is going on in that respect in the Northern States.

Attorney General KATZENBACH. The same law applies to everyone, north, south, east, and west. The same Constitution, Senator. Senator ERVIN. Yes, but it is not being used equally. It is not used except in one area.

But I want to call attention to a few other cases. One, Corrigan v. Buckley, 271 U.S. 323, which was decided in 1926. I wish to invite your attention to this portion of the opinion. This is from page 330:

And the prohibitions of the Fourteenth Amendment have reference to State action exclusively and not to any action of private individuals. It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment.

Attorney General KATZENBACH. I am not, frankly, familiar with that case, Senator. Was a statute involved in that, or is that simply a restatement which you and I agree about, about the first section of the 14th amendment?

Senator ERVIN. The statute involved was one in which an effort was made to invalidate certain restrictive racial covenants. It was held they were not reachable. This was a District of Columbia case and, of course, the equal protection of the laws doesn't apply to the District of Columbia, it not being a State. However, there are laws, in effect, which make the provisions applicable to the District of Columbia and the due process clause of the 5th amendment is held to embrace equal protection. Therefore the case has a relevancy on this point.

Attorney General KATZENBACH. It upheld the legally

Senator ERVIN. Yes.

Attorney General KATZENBACH. It upheld the legality of racial covenants, but not the enforcement, is that right?

Senator ERVIN. It upheld both as far as that original case was concerned.

Attorney General KATZENBACH. Upheld the enforcement in State courts?

Senator ERVIN. Yes. Now, the one that raises the point you mentioned is Shelley v. Kraemer.

Attorney General KATZENBACH. Yes.

Senator ERVIN. That is 334 U.S. 1, and I want to read at page 13. This was the first case where it said it was State action for State courts to enforce restrictive racial covenants. This case originated in Missouri. I invite your attention to this portion of the opinion of Chief Justice Vinson on page 13:

Since the decision of this Court in the Civil Rights Cases 109 U.S. 3 (1883), the principle has become firmly imbedded in our Constitutional law that the action prohibited by the first section of the 15th amendment is only such action as may fairly be said to be that of the States.

That amendment erects no shield against merely private conduct, however discriminatory or wrongful. We conclude therefore that restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the 14th amendment so long as the purposes of these agreements are effectuated by voluntary adherence to their terms. It would appear that there has been no action by the State, and the provisions of the amendment have not been violated.

Attorney General KATZENBACH. Of course, that is the point on which we are not in any disagreement.

Senator ERVIN. It said in that case, private action couldn't be reached, that private action didn't violate the amendment.

Attorney General KATZENBACH. No, sir. I have attempted all along, Senator, to agree that the amendment without legislation does no more than prevent State action, so that we are accumulating precedent for both of us on that. The issue here is whether or not, under the legislation section, Congress can reach further than that.

As far as what the courts do, I agree that the courts on this are confined to what can properly be called State action. That isn't an issue between us.

My recollection in Shelley v. Kraemer, is that they expressly distinguished the Corrigan case on the grounds that I suggested, that their enforcement was not involved.

Senator ERVIN. I am inclined, I have an indistinct recollection that the Corrigan case went off on the question of the right of appeal. Attorney General KATZENBACH. Yes.

Senator ERVIN. Now, the case of Barrows v. Jackson, 346 U.S. 249, which was handed down in 1953, held the same thing about restrictive racial covenants, that they did not violate the 14th amendment as long as they were carried out by voluntary action of individuals.

Over a very vigorous dissent from Chief Justice Vinson, the Court held that you could not recover damages for a breach of these restrictive covenants because to allow damages would be State action.

I might state there is a right interesting question on standing to sue, but it is not germane to what you and I are concerned with.

I would like to put this in the record, from Barrows v. Jackson, 346 U.S. 249 at page 253. This first part is from the quotation in the Shelley case:

We would conclude therefore that restrictive agreements standing alone cannot be regarded as violative of any right guaranteed to petitioners by the 14th amendment as long as the purposes of these agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the amendment have not been violated.

Then after that quotation the Court continued:

That is to say, the law applicable in this case did not make the covenant itself invalid. No one would be punished for making it and no one's constitutional rights were violated by the covenanter's voluntary adherence thereto. Such voluntary adherence would constitute individual action only.

Attorney General KATZENBACH. Again, there is no disagreement between us on that, Senator.

Senator ERVIN. Of course, our fundamental disagreement on that is this

Attorney General KATZENBACH. Our fundamental disagreement is what the Congress can do under the legislative sections of that, not what the sections themselves do.

Senator ERVIN. We both agree that these decisions hold that the 14th amendment does not apply to anything except State action, and not to private action. We agree that far, I think, and these decisions certainly hold that.

Where we disagree, you say that although the amendment has nothing whatever to do with private action, it authorizes Congress to regulate private action, and to punish it, and that is our fundamental disagreement.

Attorney General KATZENBACH. I don't think you are quoting me on that, Senator. I don't think that is the way I expressed it.

Senator ERVIN. That is the impression your statement makes on my mind, and frankly, I am at a loss to understand how a constitutional provision, which doesn't even touch a subject, can be authority for Congress to legislate in respect to that subject. The 14th amendment doesn't touch private individual action, and it can't possibly authorize Congress to legislate in respect to private individual action. Attorney General KATZENBACH. Senator, I think I can't do much. better than restate what I have been restating, but it does seem to me, and I will repeat it, that the difficulty with your view is that it gives no operative scope to Congress in this, because you say it forbids, and I agree on its face, the State from doing anything.

I agree with that. And you are saying all Congress can do is keep legislating, forbidding the State from doing it. I say that the legislative provisions of these amendments were intended to make them effective, and I say that if they were not made effective, is those rights were not made effective by the States, that your capacity to enjoy a right that should be guaranteed you by a State is interfered with by private persons, that Congress can deal with that under section 5 of the 14th amendment and under section 2 of the 15th amendment.

Senator ERVIN. Which is exactly contrary, as I interpret the decisions, to what was held in the Harris case, the Civil Rights Cases, and the Cruikshank case.

Attorney General KATZENBACH. Which, as I said, I think are distinguishable, and I think if they are not distinguishable, which I believe them to be, that it is pretty clear that they are not the law today.

Senator ERVIN. I wish to call attention now to Burton v. Wilmington Parking Authorities, 365 U.S. 715, which was written by Justice Clark, and I read the statement from page 721:

Civil Rights Cases 109 U.S. 3 (1883) imbedded in our Constitutional law the principle that the action inhibited by the first section, equal protection clause of the 14th amendment, is only such action as may be fairly said to be that of the State. That amendment erects no shield against merely private conduct however discriminatory or wrongful.

To my mind I can't reconcile that statement of Justice Clark with the statement in the Guest case.

Attorney General KATZENBACH. I think perhaps the reconciliation is there was no legislation involved in that case. There was legislation involved in the Guest case. That would be the distinction that would come to my mind, Mr. Chairman.

Senator ERVIN. Which, of course, comes right back to the same old proposition that a constitutional provision which gives Congress power to prohibit certain action on the part of the State is interpreted by you to give Congress power to regulate and punish the action of individuals not connected with States.

Attorney General KATZENBACH. Especially so, Mr. Chairman, in those instances where the evil sought to be cured is at least in part attributable to past State action, and at least in those cases where the State has not taken, over a long period of time, sufficient action to insure that those rights guaranteed to it, guaranteed to individuals, have been effectively guaranteed to it, and that is, of course, one of the ways in which I read the earlier cases, that there had been no opportunity for the States to take the necessary action, and indeed, in many of them, they have.

I think in the Civil Rights Cases themselves one of the things that the Court gave some emphasis to was the fact that there were many statutes on the books doing exactly this under State law, and I think that is one of the reasons why at that time and period in our history they felt that with respect to what they considered to be a private right, there was no power under section 5 of the 14th amendment. (Whereupon, Senator Kennedy entered the hearing room.) Senator ERVIN. I wish to invite attention to Garner v. Louisiana, 368 U.S. 157, and to read the following portions from the concurring opinion of Justice Douglas as it appears on pages 177 and 178:

It is of course State action that is prohibited by the Fourteenth Amendment, not the action of the individuals. So far as the Fourteenth Amendment is concerned, individuals can be as prejudiced and intolerant as they like. They may, as a consequence subject themselves to suit for assault, battery or trespass, but those actions have no footing in the Federal Constitution. The line of forbidden conduct marked by the equal protection clause of the Fourteenth Amendment is crossed only when a State makes prejudice and intolerance its policy and enforces it as was held in Civil Rights Cases 109 U.S. 3.

Mr. Justice Bradley, speaking for the Court, said "Civil rights such as guaranteed by the Constitution against State agression cannot be impaired by the wrongful act of individuals unsupported by State authority in the shape of laws, customs of judicial and executive proceedings.

That was a sit-in case, incidentally, in which the Court in the majority opinion nullified the conviction on the ground that there was no evidence to sustain the conviction, and therefore there was denial of due process in the trial.

Attorney General KATZENBACH. Essentially the same point again, I am making. I thought it was interesting that Mr. Justice Black, in the Harper case involving poll tax, made this distinction, because he made it clear in that decision where he dissented by saying the poll tax itself is not abolished by the equal protection clause, but he then went on to say he had no doubt in his mind whatsoever that Congress could have done it under section 5 of the 14th amendment, as you will recollect.

Senator ERVIN. There were several strange things said in that case. One of them gives me great discomfiture, and that is the statement which Justice Douglas gave to vindicate the majority opinion when he said, and I think I can quote him verbatim:

Notions of what constitutes equal treatment under the equal protection clause do change.

And he underlined the word "do." That statement is really the only reason he gives for the decision outside of a lot of legal mumbojumbo, which has no application to the case or to the opinion.

I picked up my dictionary and I looked up the definition of this word "notion," and it gave me much concern, because my dictionary says notions are "imperfect, general, vague conceptions or ideas of something."

It is a terrible thing to have two opinions by the Supreme Court of the United States and interpretations placed on the Constitution from 1868 down to date overruled on the idea that "notions of judges do change" and therefore the Constitution changes with them.

Attorney General KATZENBACH. Mr. Chairman, I can recollect a very distinguished former Justice of the Supreme Court of North Carolina, who said that he didn't think any case, any issue, was finally decided until it was decided rightly.

Senator ERVIN. Yes, that former judge of the Supreme Court of North Carolina said that and he sticks to it, but he says that nothing is ever decided right until it is decided in the right way by the one having the right to decide it. And I say that the Supreme Court of the United States doesn't have the power to amend the Const ́ution. All I am trying to do is save some few remaining remnant of the Constitution for the benefit of future generations of American, and, I might add of all races.

I want to invite attention to the case of Peterson v. City of Greenville (373 U.S. 244), which was decided in 1963, and in which the