States within seven years from the date of its submission to the States by the Congress.

I have consistently fought to maintain orderly constitutional government in America, and I am offering this amendment to preserve these remaining provisions of the Constitution which, as of this date, have not been changed by judicial decree.

I hope the administration will manifest the same fidelity to the Constitution by dropping title V and joining me in support of this amendment. If it would do so, I am sure that Senator Bayh and his subcommittee would consider early action on the proposed amendment.

STATEMENT OF THE HONORABLE NICHOLAS deB. KATZENBACH; ACCOMPANIED BY DAVID SLAWSON AND ALAN MARER, DEPARTMENT OF JUSTICE Resumed

Attorney General KATZENBACH. May I make a comment on that, Senator? Senator ERVIN. Yes.

Attorney General KATZENBACH. I am delighted that you feel as I do that it is necessary for the Congress to legislate in this area. You know from my statement and from my view that I believe that the 14th amendment presently gives that authority. I believe the majority of this Congress is going to adopt my view. I think the President will sign it and I think there is indication that at least six Justices of the Supreme Court would say that presently in the Constitution that the Congress presently has that authority. But I think the significance of this, the importance of this, is recognition which I welcome, that you feel that this is necessary for Congress to take action in this regard.

Senator ERVIN. Equally important is the preservation of the Constitution.

Attorney General KATZENBACH. Mr. Chairman, I will yield to no man in my desire to preserve the Constitution. It is possible for lawyers to disagree about this. I think in this instance that the Congress of the United States, the President of the United States, and the Supreme Court of the United States are all going to take my view of the Constitution. We agree with respect to that.

I think perhaps the subcommittee might be interested, Senator. I talked with Mr. Doar this morning about the shooting yesterday. He visited Mr. Meredith and talked with Mr. Meredith's surgeons and the doctors at the hospital-he is in good condition at this point and very fortunately the shotgun pellets all went into nonvital parts of his body. There will be no surgery necessary. There are about 75 pellets in him, and so I think that that is something I know you will join me in welcoming that this particular act did not have more tragic results.

Senator ERVIN. Mr. Attorney General, I wonder if you and I can't agree on something very fundamental, and that is that there is not a single word in the first section of the 14th amendment which has any reference whatever to actions of individuals, however criminal they may be.

Attorney General KATZENBACH. Yes, sir; that is perfectly correct. The section does not refer specifically to acts of individuals.

Senator ERVIN. And cannot you and I agree that every decision of the Supreme Court of the United States concerning the 14th amendment handed down since 1868 to the present moment I am not talking about dicta but I am talking about decisions has held that the first section of the 14th amendment only applies to State action and does not reach or authorize Congress to reach the private actions of individuals?

Attorney General KATZENBACH. No, sir; I am afraid we can't agree on that statement, sir. I think what we could agree on is that the legislation that has been enacted under the 14th amendment has been interpreted by the Supreme Court to apply only to State action and, indeed, that was as I read the Guest case, the Court so interprets sections 241 and 242. I do not know of a case where a statute has been enacted where the Supreme Court has upheld that statute applying only to private action. I don't believe that issue has come. But, six Justices of the Supreme Court have said that that was within the power of Congress to enact. I think we could agree on that.

Senator ERVIN. Isn't it one of the fundamental rules of judicial practice that a judge will not do anything except decide the case that is before him?

Attorney General KATZENBACH. Yes, sir.

Senator ERVIN. Yes.

Attorney General KATZENBACH. That is correct, that he decides just the case before him. But it is also correct, I think you will agree with me, that the language in that case, the implications of the holding, the approach which the Court takes to that, are things which we lawyers use in order to determine what the judicial view of the Constitution or of the statute is, and that we use these in our everyday work and in our practice of law as indications and guides.

I do not find it unusual for the Supreme Court to say, as it has said many, many times, Congress has the power to do this but they haven't done it in this case as a matter of statutory interpretation, saying there is no question about the fact that Congress could do something, but in this case they have not chosen to do so. That is not unusual at all.

Senator ERVIN. Mr. Attorney General, are you convinced that it is usual for a judge to say, "If Congress shall hereafter pass a law of a certain type, and if somebody happens to have a case involving that law, and if hereafter that case comes before this judge for decision, this judge will decide that case in this way"? Now, that is what these six Judges said, didn't they?

Attorney General KATZENBACH. No, sir; I don't think you have quoted them accurately on that.

Senator ERVIN. Isn't that the substance of it?

Attorney General KATZENBACH. The substance of what I understood them to say was that in terms of our contention that this did cover private action, section 241 did, without the involvement necessarily of State officials, that Mr. Justice Brennan and other Justices on the Court said they did not think that Congress had intended in this, section 241, to reach private action, and if they intended to reach private action, that was up to Congress to do and they had the power to do so.

Senator ERVIN. Yes, and that was a matter not before the Court, because the Court said that the bill of indictment contained sufficient allegations of State participation, didn't it?

Attorney General KATZENBACH. Yes.

Senator ERVIN. And those statements of the Court were what we lawyers call obiter dicta.

Attorney General KATZENBACH. Oh yes, surely, it is not unusual to have obiter dicta

Senator ERVIN. Don't you think it is very bad practice judicially speaking for a judge to express opinions on issues that are not before him?

Attorney General KATZENBACH. If they were to do it in the way in which you suggested, which was a paraphrase of the way you interpreted the Court, I can't imagine the Court saying it in that way, but I do think you should recall, Senator, in the Guest case, that Mr. Justice Brennan joined by the Chief Justice and Justice Douglas did find it necessary to reach that conclusion, since they thought that section 241 as drafted did reach private action. So three Justices did find it necessary to cover that point, and the statement that you are critical of here was something that they needed to reach in order to reach their decision, because they did hold that 241 had

Senator ERVIN. Let's see if our interpretations of these concurring opinions are so different. Don't you interpret them to say if Congress passes title V, we will hold it constitutional when the question comes before us?

Attorney General KATZENBACH. Well, of course, they didn't say that. They didn't discuss title V. As a matter of actual fact, Senator, title V was drafted after the opinion, so that they couldn't have said anything about title V.

Senator ERVIN. But title V was drafted

Attorney General KATZENBACH. Title V was drafted after the opinion and we based it to some extent on the views which had been expressed by the majority of the Court.

Senator ERVIN. Title V was drafted after the six members of the Supreme Court gave you an advisory opinion, wasn't it?

Attorney General KATZENBACH. I think it is inaccurate, Senator, to call that an advisory opinion. I think it is important, we contended in that case that section 241, as drafted, did require the Court to reach the conclusion that private action was incorporated in 241, an action pursuant to the 14th amendment.

On that point, prior to that, prior to getting the decision of the Court on that, it was less important to draft title V. The majority of the Court did not agree with us. Three Justices did agree with that contention, and, therefore, it was necessary for those three Justices, Justice Brennan, the Chief Justice, and Justice Douglas, to reach the question of whether or not, as a constitutional matter, the 14th amendment did permit Congress to legislation with respect to congressional action, and, indeed, Mr. Justice Brennan says, "My view as to the scope of section 241 requires that I reach the question of constitutional power."

The other three Justices expressed no disagreement on the constitutional issue, but said that section 241, it was not intended by Congress to reach purely private actions without some official involvement, and all the Justices agree that if there is some official involvement, title V does reach the acts of private individuals.

Now as I understand your statement of title V, you would even disagree with that.

Senator ERVIN. No, I do not disagree with that.

Attorney General KATZENBACH. If there is nothing said about private action and it is to refer only to State action, then how do you square that with the fact that you can indict private individuals under that section as drafted?

Senator ERVIN. Because as a lawyer, I recognize that where State action is involved, a private individual can be convicted of the crime as the aider and abettor of the crime that is committed by the State official.

Attorney General KATZENBACH. He is charged as a principal.

Senator ERVIN. That is the uniform holding of the cases from the time the amendment was adopted down to the present moment and I certainly agree that if private citizens join State officials in a violation of the 14th amendment that the Congress has the power to reach those private individuals, not as what we would call common law principals in the first degree but as principals, as aiders and abettors. Attorney General KATZENBACH. Of course, they are not charged as aiders and abettors, and as far as the count that you referred to in the Guest case is concerned, I think it well to recall that no official had been charged with any crime. But they said if there was any official involvement at all, whether or not the official had committed a crime, it could reach private individuals. Now do you agree with that part of the decision or not?

Senator ERVIN. I agree with the decision that the indictment alleged State action. That was the specific holding of the case.

Attorney General KATZENBACH. You just put it on aiding and abetting, Senator, and you can't reach aiding and abetting to the charge of these people as principals without the charge of State officials. Senator ERVIN. An aider and abettor is equally guilty.

Attorney General KATZENBACH. That is my point exactly, Senator, that there was nobody charged as a principal. How you can have aiding and abetting without a principal

Senator ERVIN. Mr. Attorney General, are you saying that the majority of the Court in the Guest case did not hold that the indictment alleged State participation?

Attorney General KATZENBACH. No.

(At this point Senator Scott entered the hearing room.)

Attorney General KATZENBACH. I am saying that nobody was charged, no State official was charged with any offense under that indictment. I am saying that to my knowledge it is very hard to charge somebody with aiding and abetting a crime that you don't have a principal to.

Senator ERVIN. I don't know that you and I disagree. I have never taken the position that you can't convict an individual where State action is involved, but I have taken the position that all the decisions have held you cannot convict an individual under these civil rights statutes or under the 14th amendment where there is an absence of State involvement.

Attorney General KATZENBACH. Certainly, that is true under these statutes, and the Court themselves in this case, at least the majority of them, believed it was necessary. Three believed that the statute already applied to purely private interests.

Senator ERVIN. The opinion of Mr. Justice Stewart, which is the opinion of the Court, says:

It is commonplace that rights under the equal protection clause itself arise only where there has been an involvement of the State or of one acting under the color of its authority. The equal protection clause does not add anything to the rights which one citizen has under the Constitution against another. As Mr. Justice Douglas more recently put it, the 14th amendment protects the individual against State action, not against wrongs done by individuals. This has been the view of the Court from the beginning. It remains the Court's view today.

Is that not a correct reading of what Mr. Justice Stewart said on that point with the citations of cases omitted?

Attorney General KATZENBACH. Yes, it is, Senator; and I would simply italicize in that statement the word "itself", "the equal protection clause itself."

Senator ERVIN. Yes.

Attorney General KATZENBACH. Because he is not talking about what may be enacted by Congress under section 5 of the 14th amendment.

Senator ERVIN. Well, don't you know that the case he cites, United States v. Cruikshank (92 U.S. 542), expressly held that Congress could not go beyond the scope of the amendment in legislating under section 5?

Attorney General KATZENBACH. That is a possible

Senator ERVIN. A very good case.

Attorney General KATZENBACH. Reading of some obiter dicta in the Cruikshank case.

Senator ERVIN. It was squarely on the point involved.

Attorney General KATZENBACH. They didn't have to reach that question in the Cruikshank case.

Senator ERVIN. Oh, yes they did. That was the very point. Attorney General KATZENBACH. Senator, I wonder whether we could just clear up that point about the hospital?

Senator ERVIN. Yes.

Attorney General KATZENBACH. If I could just give you the facts of what happened there. Compliance with title VI of the Civil Rights Act of 1964 by the North Carolina hospital to which you referred yesterday, was questioned as a result of the analysis of its compliance report. It is located in a community with slightly more than 23 percent nonwhite population; its patient census was approximately 7 percent nonwhite. A field visit was scheduled to determine whether or not the low percentage of Negroes was attributable to discrimination.

It was found that there are three major hospitals in the area. The hospital in question is on the outer edge of the service area, and in the center of the area there is a predominantly Negro hospital which is larger than the hospital in question. The existence of the larger hospital tends to reduce the Negro patient load at other hospitals. It was also learned that almost a year before the hospital in question opened, much publicity was given to its intention to operate on a nondiscriminatory basis. Subsequent articles have appeared in the newspaper encouraging Negro doctors to use the facilities of the hospital and students to apply for training. As a result, their practical nurse training program is integrated and it hopes to have Negro students in its fall 1966 registered nurse class. In addition, it was