Commander-in-Chief of the Army and Navy and he takes this action through his military power. Some might say it is an inherent power of the Head of the State.

Whether that is proper or not, it is certainly questionable in my mind, which I have already stated previously in this volume.

I am sure some of my colleagues here would like to comment on this. Senator MATHIAS. Let me pursue the China Straits thing because it seems to illustrate the perverse nature of what we are encountering here.

That resolution was adopted by the Congress to help prop up the Nationalist Chinese regime on Taiwan. It was felt that if the Peking government should ever launch an expeditionary force across the China Straits we ought to shoot at them and send them home.

Now, you might imagine that the reverse of the situation would be true that in the last attempt to regain the mainland there might be some raid that we would repulse on behalf of the Peking government, under the present status of affairs.

This illustrates the totally ridiculous nature of what happens when we neglect to put a terminal date on these powers; and when we lose the ability to oversee the execution of the powers.

Dr. RANKIN. Well, as you mentioned, the reasons of the 1950 Executive Order have completely disappeared-insofar as the Far East is concerned. In fact, they nearly have been reversed. Yet we continue living under the Executive Order as far as emergency powers are concerned with respect to the Far East.

Senator MATHIAS. Thus the President has the power to start shooting, today, if he sees fit to do so.

Dr. RANKIN. Well, today or tomorrow.

Senator MATHIAS. One question that relates to the statement you made in your testimony in relation to the Mississippi situation and the withholding of funds. Do you think that the enactment of Title VI of the 1964 Civil Rights Act has, at least, put to rest the emergency powers question?

Dr. RANKIN. I do, I think so.

Being on the Civil Rights Commission, I think it has not always been used like it might be used. Nevertheless, I think it has put to rest this issue here; and, that is one reason why, I think, the Commission has never gone into the matter of emergency matters due to Title VI. The President can act under statutory authority now.

Senator CHURCH. Professor Rankin, why do you think so little scholarly attention has been given to the constitutional and historical question of emergency powers?

Here we have assembled the three major academic authorities in this field which does not represent a very large group, considering the importance of the subject and the size of the country.

NOBODY PAYS ATTENTION TO MARTIAL LAW

Dr. RANKIN. Well, Senator Church, I did my graduate work under Professor Edward S. Corwin. Professor Corwin, in choosing a thesis subject for me, said, "Bob, I wish you would write on martial law." He said, "Nobody pays a bit of attention to it." But, also, "Somebody ought to do that."

So I went to work on it and that is the reason I became interested. The same reason that existed in the 1920s-this goes back to the 1920s, that is when I was in graduate school-this same reason that people then did not pay attention, for some reason they still don't today. They are more concerned with-I just don't know what, I just don't understand it myself, sir. Why they are not more vitally concerned! It is so easy to lose liberty, it is so easy to lose the rights guaranteed you by the Constitution! We sacrifice these for operational efficiency, and there are other things than operational efficiency.

Senator CHURCH. Yes, indeed.

The other things are what free society is all about, is it not?
Dr. RANKIN. That is what I always thought.

Senator CHURCH. I have wondered about this. I can recall, when I was attending college, the political scientists of that period were all on the President's side. They seemed to be enamored with activist presidents and strong presidents and they tended to fault the Con

gress.

We spent a great deal of classtime considering how the Senate let the country down when it failed to ratify the Versailles Treaty. The thesis was that President Wilson had been betrayed by shortsightedness in the Congress and everybody, or nearly all, believed this.

A whole generation grew up educated this way; in fact, it was part of the liberal tradition in our politics.

Dr. RANKIN. Yes, sir.

Senator CHURCH. The belief in presidential activism, in the enlightened Executive leadership as opposed to the bungling and incompetent Legislative branch became gospel. Perhaps that is one of the reasons why even Congress has been intimidated and has been willing to delegate such large emergency powers to the President-with little or no restriction upon them.

I would hope that we have overcome that particular attitude. Certainly, if the last 10 years of warfare in Indo-China demonstrate anything at all, they demonstrate that Presidents can make very big mistakes too. That there is no degree of infallibility vested in the Chief Executive of this country, or his advisers. The Founding Fathers were right when they undertook to divide the powers of government between the three branches, guarding against excessive mistakes in any one place.

DESTROYING BALANCE OF POWER

Dr. RANKIN. That is the point I was going to bring out-just as soon as you finished making your remarks-that we are destroying our balance of power. Whether we know it or not, that stands as a bulwark and a guarantee of liberties. I am sure that in the majority of instances it has worked out pretty well.

Senator CHURCH. Thank you.

Are there any further questions?

Senator MATHIAS. I don't want to hold Professor Rankin too long. We are anxious to hear the other witnesses and, perhaps, we can have some general colloquy when the others have concluded. I do have several questions. Do you think that the Republic, overall, has either

gained or lost strength over this period of time-in the fabric of the constitutional system?

You have used the phrase, "the task imposed upon Government meeting Cold War emergencies." You have used that as sort of a test as to whether or not freedom has really been preserved.

In your response, just now, to Senator Church you indicated that we have endangered some of our freedoms. Do you think this has happened to the extent that we have really weakened the Republic?

Dr. RANKIN. I think our quest for operational efficiency-which we haven't achieved to any great degree-has made us give up some of the liberties that we hold most dear. We have done this in sort of an unconscious state, not realizing what we have done.

I heard one of my students say the other day, "As long as a native of my State has some money in the bank, can take a vacation; has a television set and a car, he is perfectly willing for somebody else to run the Government today."

I don't believe that. But, there is a tendency on the part of people to put powers into the hands of Government; and, without putting restrictions, without having a balance of power, without dividing power within the Government, this can cause an arbitrary exercise of governmental power in a short time.

I don't know whether that answers your question or not, but it worries me.

Senator MATHIAS. Yes, I think it bears upon it.

Of course, as long as the use of governmental power is directed to the unfortunate inhabitants of Cambodia, Laos, Taiwan, or some faroff place, this isn't very direct or personal for most Americans, and maybe the condition of the automobile is of overriding importance.

But in your 1964 work on this subject, you said, and I quote, "By studying Executive emergency powers in the areas of nonmilitary preparedness, industrial unrest and racial disturbance, it has been found that the use of these powers in recent years and the procedures established for such use were sometimes but not always attuned to the goal of maintaining constitutional safeguards in emergency situations."

I think what you have pointed out is this is not always something that happens somewhere else, it can happen here.

Dr. RANKIN. With respect to martial law, for instance, the use of it can be worked out in advance so it will not be used necessarily in an arbitrary fashion. I think in times of unrest, civil authorities should act first, then the military might come in and act-for instance, as deputy sheriffs helping the civil authority-and only in cases of last resort should martial law be used.

I think we have learned that lesson, insofar as domestic action is concerned in the use of emergency powers; also, I think we have developed, to some extent, procedures to be followed in cases of domestic violence. We are doing a little bit better today than we did two or three decades ago.

Senator CHURCH. Yet, isn't it true, Professor Rankin, that there is no statutory procedure for invoking martial law? The practice that you have described has just grown up out of experience-mainly in dealing with the civil rights problem in this country?

Dr. RANKIN. That is correct.

It arose, of course, in the Little Rock instance where force was used too early in respect to that Little Rock incident.

We have learned from that instance, and we have not used the military in that way again and have done very well.

HOW OFTEN HAS MARTIAL LAW BEEN DECLARED?

Senator CHUCRII. How many times has martial law been declared in the U.S.?

Dr. RANKIN. You mean at the State level, the national level or both? Senator CHURCH. Start with the national level.

Dr. RANKIN. I will ask some of those students of mine.

Dr. SMITII. We had martial law declared in Hawaii.

Dr. RANKIN. In the last World War we had it. We had it during the Civil War, those two instances. It was declared in Rhode Island in 1842, as I mentioned.

As far as the States are concerned, we know the classic instances in Texas out of which Sterling v. Constantin grew.

We know in West Virginia coal mines it's been used quite frequently in past years-but not as often today. I am greatly pleased this is true today, for we have set up and recognized certain procedures even though they have not been put into statutes-they have been followed by executives.

Senator CHURCH. I have no further questions. Let us move on to Professor Cotter.

As before, I will cite some of his qualifications:

Cornelius P. Cotter, Professor of Political Science, University of Wisconsin-Milwaukee, Milwaukee, Wis.

Born New York City, March 18, 1924. A.B., Stanford University 1949; M.P.A. and Ph.D., Harvard University, 1951 and 1953.

Taught at Columbia University, Stanford University, Wichita State University, and University of Wisconsin-Milwaukee.

Assistant to the Chairman, Republican National Committee, 19591960; Assistant Staff Director, United States Commission on Civil Rights, 1960-1963.

Author or coauthor of a number of books, including "Powers of the President During Crises" [with J. Malcolm Smith]. Washington, D.C., Public Affairs Press, 1960; "Government and Private Enterprise," New York, Holt, Rinehard and Winston, 1960: "Politics Without Power," "The National Party Committees" [with Bernard C. Hennessy], New York, Atherton Press, 1964; "Jet Tanker Crash: Urban Response to Military Disaster," Lawrence, Kansas, University Press of Kansas, 1968; and "Practical Politics in the United States" [editor and coauthor], Boston, Allyn & Bacon, 1969.

Contributed the chapter on Legislative Oversight, to Alfred de Grazia, editor, "Congress: The First Branch of Government," Garden City, Doubleday & Company, Anchor Books, 1967. He has written for numerous law journals and scholarly journals. Also, editor and coauthor of numerous government documents, including U.S. Commission on Civil Rights, "Freedom to the Free: 1863-1963, Century of Emancipation," Washington, D.C., U.S. Government Printing Office,

1963.

STATEMENT OF DR. CORNELIUS P. COTTER, DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF WISCONSIN, MILWAUKEE, WISC.

Dr. COTTER. Thank you, Mr. Chairman. I have submitted a formal and lengthy statement to your staff, and I should like to read a rather brief statement this morning.

I have been asked to deal with "the historical and constitutional background of emergency power legislation." emphasizing "the questions that would be created by the termination of the state of national emergency."

My qualifications to advise you stem from a study of emergency powers legislation in Great Britain which I completed two decades ago my doctoral dissertation, as a matter of fact and a study which Malcolm Smith and I developed in the American context, for the period 1933-1955.

Apparently having in mind a similar analysis to that which this committee is conducting, Professor Smith and I cataloged and analyzed all congressional legislation and presidential proclamations of an emergency nature during the period 1933 to 1955-attempting to discover how Congress and the President seemed to define emergency, where responsibility was seen to lie for determining the existence of and the ending of emergencies, what kinds of power were deemed appropriate to coping with emergencies, and, finally, what role Congress attempted to reserve for itself for participating in and checking the administration of emergency powers. This last, incidentally, is my principal scholarly concern in this field.

We also examined theories of democratic response to emergency which have been developed by political philosophers, and which seem to emerge from Supreme Court decisions.

Our study was conducted before computers became readily available for such research and I am hopeful that this committee's computerized study in the same area will be more comprehensive and have more profound results than did our inquiry.

Senator CHURCH. We still have not perfected a computer that will give us the answers, however.

Dr. COTTER. I am all the more sanguine that a study such as this is being conducted by a Special Committee of the United States Senate since it is to you, the Congress, to whom we must look for action here.

EXPRESSING A FEW BLASES

I assume that ours is a system in which we have consciously contrived a state of tension between the Executive and the Congress. Many American political scientists seem to regret it, but I take it to be normal, and perhaps even desirable, for the President and Congress to entertain a certain jealousy of the powers exercised by the other.

Now, I do not attribute to any President in American history an avarice for power isolated from some sense of national need. I think it very rarely, indeed, that any President has taken action which is even subject to the charge of usurpation of power.

1 See Congress as Source and Overseer of Emergency Power, Appendix, p. 275.