that to punish me hurt him worse than it did me. I just did not believe it.

Professor AVINS. Thank you, Senator. Before I go further, I want to introduce for the record my colleague, who has been assisting me, Mr. Sam Crutchfield of the District of Columbia bar.

I am going to start by indicating for the record that I have submitted or will submit memorandums solely on the question of constitutionality for each of the titles other than title I, which is a Federal problem and is therefore a problem of policy. I intend to direct myself this morning solely to the questions of constitutionality and not to questions of policy, which I think we could argue at length before the committee. In respect to title II, I have submitted a memorandum entitled "The 14th Amendment and Jury Discrimination: The Original Understanding." That covers questions of title II.

In respect to title III, I have submitted two memorandums, one entitled "De Facto and De Jure School Segregation: Some Reflected Light on the 14th Amendment From the Civil Rights Act of 1875," and "Racial Segregation in Public Accommodations: Some Reflected Light on the 14th Amendment From the Civil Rights Act of 1875." In respect to title IV, there is in my book, "Open Occupancy Versus Forced Housing".

Senator ERVIN. Let the record show that all the observations by Professor Avins will be printed in the body of the record immediately after his oral testimony.

Professor AVINS. Thank you, Senator.

There is in my book an article entitled "The 14th Amendment and Real Property Rights," which starts at page 68.

In addition to that and respecting certain special problems of State action, I would like to refer to my article in the most recent issue of the Columbia Law Review, volume 66, at page 873, entitled "Civil Rights Act of 1875: Some Reflected Light on the 14th Amendment in Public Accommodations," which appears in the most recent issue of the Columbia Law Review. I will, I hope, before the hearing closes, have an opportunity to submit a supplemental memorandum on this particular point also. It is a question of State action.

In respect to title V

Senator ERVIN. I would like here, for the purpose of the record, to say that the subcommittee will obtain a copy of the article in the Law Review and print that in the body of the record, immediately after your testimony, with your permission.

Professor AVINS. Yes, thank you, Senator.

In respect of title V, I am submitting two memorandums, one entitled "Federal Power To Punish Individual Crimes Under the 14th Amendment: The Original Understanding," which carries legislative history up to 1870, and the second entitled "The Ku Klux Klan Act of 1871: Some Reflected Light on State Action and the 14th Amendment." Then, finally, I have a generalized discussion entitled "Fourteenth Amendment Limitations on Banning Racial and Religious Discrimination: The Original Understanding."

Senator ERVIN. All the documents referred to will be printed at the end of your testimony.

Professor AVINS. Before going any further in summarizing some of this material and what its significance is, I would like to direct my

attention first to the question of the general significance of legislative history in interpreting constitutional law and, in particular, in interpreting the 14th amendment. I say this because I think it rather crucial to the entire question of the constitutionality of these titles, titles II, III, IV, and V of the bill, as to the manner in which the 14th amendment should be interpreted. I also say this in light of your remarks about Supreme Court decisions, and a rather fundamental question as to the weight to be given Supreme Court decisions versus the weight to be given to the original understanding of Congress in proposing a constitutional amendment. I leave off entirely the question of ratification and assume for the purposes of this discussion that no problem exists in that quarter.

Now, I received from the editor of the Virginia Law Review, a Mr. Earl Dudley, a series of questions on this point in respect to an article of mine which I considered to be rather astute questions, and which lead me naturally into answering this matter. I should like to read each of these questions and answer them, because they will, in effect, answer this question as to what the effect should be of the legislative history in interpreting the 14th amendment.

His first question is: How do we select from the debates on a given piece of legislation those statements which capture the "intent" of the legislature when supporter and opponents of the bill make conflicting statements concerning its import and when there is a variation of opinion among the supporters themselves, to whose statements do we attach the greatest weight? What happens if one of the people whom you chose as qualified to speak for the legislature itself makes contradictory statements at different times, or logically inconsistent statements within the same set of remarks?

Applying this question to the 14th amendment, the question is really one of determining the intent of a body which can only be determined, of course, from the public statements made by the members of the body primarily on the floor of Congress somewhat secondarily in a committee report. There was a fairly brief report of the Joint Committee on Reconstruction and then, of course, certain supplemental material is always helpful, such as speeches they may have made to their constituents to report in the local press. Of course, these speeches are far more generalized than the ones made on the floor, and therefore it is worthwhile to pay attention to the statements made in the Congressional Globe, which are fairly voluminous.

I might say that in preparation of this memorandum, I read, I suppose, about 15,000 pages of speeches made during this period, plus statements and various other material.

Now, of course, prime attention should be given to, first, the draftsmen of the measure. In the case of the first section, it was Representative John A. Bingham, a Republican Representative from Ohio, a good lawyer though somewhat given to a bit of rhetoric and in respect to the floor leader in the House, Representative Thaddeus Stevens of Pennsylvania, a radical Republican: in the Senate to the opening remarks of Senator Jacob M. Howard of Michigan; secondarily, to lawyers speaking in support of the amendment, most particular these general views of those lawyers

Senator ERVIN. I am going to have to ask you to excuse me just one

moment.

Professor AVINS. By all means. May I continue my remarks? Senator ERVIN. Yes, that will be fine.

Professor AVINS. Especially to lawyers who are what I may call the marginal proponents of the measure. By marginal proponents, I mean those lawyers in the rather narrowly divided Senate, who chose to vote for the measure and yet just wanted to go a little distance, not as far as the radicals.

There were some very well-defined views on different matters during this particular period. Some Senators and Representatives were what was known as radicals. Others were known as moderates in the Republican ranks, and then there were conservatives who voted against the 14th amendment, and of course, the Democrats were all against the 14th amendment.

I have not found in the remarks any really contradictory statements. In fact, they are really quite consistent, the whole body of them. There are a few contradictions in some political speeches by incumbent Democrats, obviously made for political effect, and these I discredited. As a matter of fact, Representative James A. Garfield in 1871 and Representative John Farnsworth of Illinois, in reviewing speeches themselves, discredited these political remarks by Democrats.

But the 14th amendment was basically, especially the first section, intended to be a very modest and moderate measure. And the statements are quite consistent from all the Representatives. Some wanted to go further than the amendment did, but accepted it simply because it was the best thing they could get.

Going on now to the second question that he poses, once we have identified what the legislature intended to be the interpretation of this bill on any given question, is there any point at which we should deviate from the letter of this interpretation to serve the larger purposes of the legislation in the context of changed circumstances? If so, what are the criteria for selecting those points which we will discard? Should we approach this problem differently depending on the nature of the legislation? That is, should a constitutional provision, because of its simple and fundamental character, be read more flexibly than a piece of very particularized legislation designed to deal with a specific problem?

My answer to that question is that every constitutional provision, like every legislative provision, must, as a matter of constitutional law, be interpreted in accordance with the intent of people framing it and passing it, and that there is absolutely no authority whatsoever for deviating from what the original intent was. That is the point at which I part company from the U.S. Supreme Court in a number of its recent cases.

Senator ERVIN. If that were not so, the men who drafted and ratified the original Constitution would never have provided article V, would they?

Professor AVINS. No, there would be absolutely no point. You could let the Supreme Court do all the amending. You could write a generalized section that would say, let the Supreme Court fill in the blanks where they find blanks to fill in.

Senator ERVIN. If they had intended for the Supreme Court to amend the Constitution, they would have put in article V something

like this: "The Constitution of the United States shall automatically change its meaning from time to time without any change being made in its phraseology, and a majority of the Supreme Court shall have the absolute power to determine when such automatic amendment occurs and the nature and scope of such automatic amendment."

Professor AVINS. Yes, and the result would be, of course, that the U.S. Supreme Court would be a permanent floating constitutional convention. I am not sure that is not true today.

Senator ERVIN. And we would lose all the benefit inherent in the written Constitution, would we not?

Professor AVINS. Right. There is no point to having a written Constitution.

Senator ERVIN. To put it in plain English instead of being ruled by a written Constitution, we would be ruled by a judicial oligarchy, would we not?

Professor AvINS. Any group of judges who could be collected who would feel at any particular time that any particular thing is good for the country. My original feeling is that no such original intent was admitted. I believe the Senator from Indiana, who is a member of the subcommittee, spent a lot of time recently working on a constitutional amendment. It seems to me he wasted a great deal of time. The Supreme Court could have done the job by a mere judicial opinion. He certainly could have said, well, let them do it, and he could have saved himself a great deal of time and trouble and spent the time on vacation.

My position is that there is no point to having a constitution or constitutional amendments if the Supreme Court-or the Congress, and I now refer particularly to section 5 of the Voting Rights Act in the Morgan case either the Congress by ordinary bill or the Supreme Court by ordinary opinion or by extraordinary opinion-could simply change the Constitution any time it felt this would be good for the country.

Senator ERVIN. Now, is it not your interpretation of the Constitution that the only power the Supreme Court of the United States has concerning the Constitution is the power to interpret it?

Professor AVINS. Yes.

Senator ERVIN. And that this power consists solely in ascertaining and giving effect to the Constitution in accordance with the intent of those who drafted and ratified it?

Professor AVINS. Precisely. And therefore, a case in the U.S. Supreme Court ought to be a mere historical inquiry.

Now, occasionally, the U.S. Supreme Court does use history to dress up its opinions. They did in the Price case, or, rather, the conclusion I came to in one of my memorandums was that I did not think they really understood what the significance of some of these debates was. But on other cases, in the Poll Tax case I now think of particularly, they simply rejected it as being not applicable to the present day, or we-need-a-new-model-automobile-this-year type of opinion.

Senator ERVIN. I was much intrigued as well as much distressed by the decision in the Poll Tax case. I read it and I saw only one thing in the majority opinion that was relevant to the decision. That was a statement of Mr. Justice Douglas, and I can quote it exactly,

"Notions of what constitutes equal treatment under the equal protection clause do change," and he underlined the word "do."

Professor AVINS. Yes.

Senator ERVIN. That gave me enough trouble, but I was more concerned when I looked up in the dictionary what a notion was and it said that notions are general, vague, and imperfect conceptions or ideas of something.

Professor AVINS. Yes.

Senator ERVIN. So I drew the conclusion that the majority opinion held in that case that when notions of judges change, the Constitution changes accordingly.

Professor AVINS. Yes; and I might say that in arguing my case, I found that Mr. Justice Douglas was very interested in Indian law. He raised the fact, as he said in his opinion, that the Indian electoral system worked very well, having Indian speeches translated into the local native languages. Since I published a book on Indian labor law, I had a very deep interest in this matter and offered to give him citations of Indian cases which said that an Indian native could not be transferred from his area to another Indian area unless he spoke English, because he could not understand the native language, certainly basic in a situation like that.

I felt that if one were writing briefs for the Supreme Court, one should intersperse those briefs with Indian cases, and I hope you will hire one or two Indian lawyers to get some decisions from the Sudder Dewanny Adawlut and the Sudder Foudjaree Adawlut and some others which I suppose will now replace debates by James Madison and such other sorts of irrelevant material.

Going back to the third question, what do we do when the discovered intent of the legislature is simply not consonant with the wording of the legislation itself, when Congress has done a bad job of drafting legislation? Should the courts step in to say what it understands to be the congressional purpose, or should it limit itself to such an interpretation as the words of the statute will bear?

I might say this in answer to that, that the 14th amendment, in my estimation, is quite adequately drafted to make the point it is intended to make. Some of the later reconstruction legislation I have concluded was rather badly drafted, but it was drafted under very great time pressure. But the 14th amendment is quite clearly drafted in terms that it was intended to convey. There were three clauses that I am referring to, other than the declaration of citizenship. Of course, I am talking about the first section; first, the privileges and immunities clause which simply enforces the declaration of the article IV, section 2, which says citizens of all the States shall be entitled to privileges of citizenship-it was simply an enforcement mechanism for that.

Secondly, the due process clause, which is nothing but an application of the Federal due process clause to the States, in effect overruling Barron against Baltimore, and carrying all the old judicial decisions, and Bingham himself said it was simply designed to carry the old decisions over with it.

As for the equal protection clauses, the Supreme Court has read the word "protection" right out of the equal protection clause and interpreted it to mean rights, benefits, et cetera, whereas, in fact, it was intended to give all persons, even aliens, the right to equal protection of