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We quite agree discrimination on the basis of religion should be prohibited. Yet, the means selected may be the basis on which discrimination could occurby the forced disclosing on a government form of the private religious beliefs of all individuals.

2. The literacy qualification for jury service should be eliminated.The bill continues the present qualification for jury service of requiring an ability to read and write the English language. We urge the deletion of this requirement. For those few cases in which literacy is a valid qualification, we suggest the following language. “If the District Judge determines that the ability to read or write English is reasonably required in order for jurors to perform their duties in any particular case or cases, he shall be empowered to exclude those who cannot read or write English, except that no persons shall be excluded on this ground who has completed the sixth grade in an English language school.”

The basis for this change is the fact that Negroes throughout the South have been subjected to second-class education. Even with the passage of this bill, it is clear that broad scale discrimination against Negroes can be utilized on the basis of a literacy requirement which has no real relevance to most jury

For example, in Mississippi, more than 50% of adult Negroes have not had a sixth grade education. It is for this reason that the literacy requirement was suspended under certain provisions of the Voting Rights Act of 1965. We urge similarly that it be deleted for jury service.

3. The disqualification of those convicted of crimes should be limited to those who have actually been imprisoned for one yearThe bill continues the disqualification of individuals who have been convicted in any state or federal court of record of a crime punishable by imprisonment for more than one year and who has not had his civil rights restored by pardon or amnesty. We see no justification for continuing the anachronistic view that individuals who have been convicted of crimes have defects in character. Certainly, with enlightened views of rehabilitation, it would be far better if they could partici. pate in the processes of society as full-fledged citizens. We, therefore, urge the deletion of any such disqualification. However, in the event that this recommendation is not accepted, at the very least, this language should be changed to bar only those who have been convicted in a state or federal court of a crime and as a penalty have actually been imprisoned for more than one year and has not had his civil rights restored by pardon or amnesty. There are a great many crimes which have a broad range of sentences which can be imposed, yet, if a person has been convicted and has been given probation or suspended sentence, he would still be barred from jury service no matter how appealing his case had been.

SEX DISCRIMINATION IN STATE JURIES We urge the subcommittee to amend the bill in order to eliminate completely sex discrimination in state jury systems.

The American Civil Liberties Union suggests replacing the language of Section 201 in Title II with the following language :

"It shall be unlawful to make any distinction on account of race, color, sex, religion, national origin, or economic status in the qualification for service, and in the selection, of any person to serve on grand or petit juries in any state."

Our suggested amendment is prompted by the interpretation of Title II, given by the Attorney General in his testimony before Subcommittee No. 5, of the House Judiciary Committee on May 4, 1966. He stated :

"Under Title II two types of state laws regulating jury service by women would be nullified. First, those in Alabama, Mississippi and South Carolina which totally exclude women from jury service. Second, those in Florida, Louisiana, and New Hampshire which exclude women unless they affirmatively volunteer for jury service by taking steps—not required of men-to sign up for jury service. The laws in the second category place a heavier burden on women who want to serve, than on men, and undoubtedly exclude many women who do not know that they must volunteer."

We feel that this nullification of only those six states laws is not sufficient.

In addition, the change made by the House Judiciary Committee in the Administration Bill may have limited the bill even further. As reported out by that Committee, Section 201 now reads as follows:

"No citizen shall be excluded from service as grand or petit juror in any State court on account of race, color, religion, sex, national origin or economic status."

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This changed the previous language which read: "Xo person shall be denied the right to serve on grand or petit juries in any State court on account of race, color, religion, sex, national origin or economic status."

The change, it would appear, cuts the provision affecting sex discrimination to the three states which actually exclude women-Alabama, Mississippi and South Carolina. However, no legislation is necessary to invalidate those state provisions, because this has been done in the decision of the three judge court on February 7, 1966 in White v. Crook holding the Alabama law unconstitutional.

Only 22 States have laws that put men and women on an equal footing with regard to jury service. The other 28 States and the District of Columbia make various distinctions on the basis of sex alone which result in distorted and unrepresentative juries. Twenty-five States and the District of Columbia provide different treatment for men and women with regard to jury service, as follows:

1. Three States--Florida, Louisiana and New Hampshire-permit women tu serve on juries only if they first register with the clerk of the court. These States have no similar law with respect to men. (In addition, a jury in a condemnation case in Florida must be composed only of men).

2. Fourteen jurisdictions excuse women from jury service solely because of their sex, namely, Arkansas, District of Columbia, Georgia, Kansas, Maryland (in 4 of 23 counties), Minnesota, Missouri, Nevada, New York, North Dakota, Rhode Island, Tennessee, Virginia, and Washington.

3. Eight States exempt women (but not men) if they have family and child care responsibilities. These are ('onnecticut, Massachusetts, Nebraska, North Carolina, Oklahoma, Texas, Utah, and Wyoming.

4. Two States allow women to serve on juries only where courthouse facilities permit: Rhode Island and Nebraska.

5. Two States specifically exempt women from jury service in cases involving certain crimes: Massachusetts and Nebraska.

Arthur J. Vanderbuilt, former Chief Judge of the New Jersey Supreme Court wrote an article entitled “Statutory Provisions Relating to the Mode of Jury Selection and Jury Service in Several States" in which he stated :

“In many states, moreover, persons classified as exempt from jury service but otherwise qualified are in reality disqualified since they are eliminated from the final jury list, although in nine states, the names of those qualified but known to be exempt are placed on the final jury list.”

For those who are concerned about whether women who have small children (an be released from jury duty, the bill, as it is presently written, and many state laws provide for exemption from jury service for those who would suffer great hardship.

Our proposal is designed to bring about broad jury reforms not only in the South but throughout the country by strengthening and making more representative the jury systems in all Federal and state courts. It also seeks to right an ancient injustice in which a large body of citizenswomen-have suffered the humiliation of an inferior, then ambigous, constitutional status. It seeks to raise the standard of jury service from an onerous duty or a device to maintain white male control into a right and obligation freely enjoyed and conscientiously fulfilled by all citizens, otherwise qualified, without discrimination. By so doing, it is our conviction that the administration of justice throughout the country will be vastly improved and the many injustices now present will be eliminated through the wide participation of all citizens in the processes of government.

CONCLUSION This committee has a major responsibility for the passage of this Civil Rights Bill. In the spirit of trying to improve this bill and yet not hobble it with politically unrealistic proposals, we urge the adoption of the amendment we are suggested.

Senator ERVIN. The subcommittee will stand in recess until 10:30 Tuesday morning.

Thank you very much.

(Whereupon, at 1:15 p.m. the committee recessed to reconvene at 10:30 a.m., Tuesday, July 19, 1966.)


TUESDAY, JULY 19, 1966

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Washington, D.C. The subcommittee met, pursuant to recess, at 10:45 a.m., in the room 22:28, New Senate Office Building, Senator Sam J. Ervin, Jr., presiding.

Present: Senators Ervin (presiding), Kennedy of Massachusetts, Dirksen, Fong, and Javits.

Also present: George B. Autry, chief counsel and staff director; H. Houston Groome, Lawrence M. Baskir, and Lewis W. Evans, counsel; Rufus Edmisten, research assistant.

Senator ERVIN. The subcommittee will come to order. Today's hearings have been scheduled by the subcommittee to receive further testimony from the Attorney General on titles III and IV of S. 3296, the administration's proposed Civil Rights Act of 1966. I regret that circumstances beyond the control of the subcommittee forced us to postpone this hearing until today.

Earlier, I told the Attorney General that I would discuss the matter of alleged jury discrimination in Union County, N.C., with him further after I had an opportunity to read the cases he cited. I have now done so and I believe we can find an area of agreement. However, so as not to detain other Senators, I will return to this matter after we have concluded with titles III and IV. At that time, I shall also in form him of the subcommittee's submission of title I to all the chief judges of the Federal district courts of the country. For now, suffice it to say that what we thought was the least controversial part of the bill is almost uniformly objected to by judges across the Nation.

I will emphasize that today we are considering titles III and IV of S. 3296 and not the companion bill as reported by the House committee. Indeed, I hope the subcommittee will not waste needless time on that abomination of legislative drafting which is the new title III of the House bill.

Nevertheless, I am sure that the House version of title IV and the amendment added by the House committee concerning racial imbalance to which the Justice Department is opposed, according to the press, will be referred to today.

As the Attorney General knows, the subcommittee invited several law professors to testify on S. 3296, especially the provision concerning housing. Professors Petro and Sparks from New York University, and Professor Avins from Memphis State University testified in person. In addition, Professor Arthur Sutherland of Harvard, Professor Bryan Bolich of Duke, and Professor George Dixon of George Washington University have provided us with statements which will be printed at this point in the record. (The statements referred to follow :)


Cambridge, Mass., June 3, 1966. Senator SAM J. ERVIN, Jr. Chairman, Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C.

DEAR SENATOR ERVIN : The Hearings on the Civil Rights Act began yesterday, and I am ashamed to have waited so long in answering your courteous letter asking my opinion about the legislation,

From the Constitutional point of view the most interesting questions, it seems to me, arise under Title IV of S3296, intended to prevent discrimination in housing. I do not here discuss the political feasibility of this legislation. Certainly an opportunity for decent housing for every American family is a concern we all share. The problem I here discuss is finding a source of Constitutional power in the Congress to enact this legislation.

The Title in question could be supported on two theories which are cumulative and not mutually exclusive. The first of these is the Commerce Clause. In the precise form that Title IV now has, it has no exact precedent in Supreme Court adjudications. We know, however, that whatever local transactions may affect interstate commerce, fall within congressional competence. This has been repeatedly adjudicated in agricultural and labor-relations cases, upholding federal legislation. See also Katzenbach v. McClung 379 U.S. 294 (1964). Under the doctrine of Edwards v. California 314 U.S. 160 (1941) the right of any person lawfully within our borders to move and live within any State of the United States is well established. I have read that one fifth of our population moves every year. I do not know what percentage of those who move cross State borders, but they must be very numerous. Since the earliest days of this Republic people have moved to other States in the hope of bettering themselves. Undoubtedly this is the case with many persons of the Negro race or other races who feel that they would be more prosperous or otherwise happier in some other State. If the Congress feels that the right of inter-state migration is promoted by the availability of suitable housing, the Congress under Article I Section VIII, final clause, might enact this legislation as “necessary and proper" to carry out the policy of the Commerce Clause. See Wickard v. Filburn 317 U.S. 111 (1942) for an application of that Clause to uphold federal restrictions on acres a farmer can plant.

Section 404 which has to do with the financing of housing receives additional support from the familiar power of the federal government to control those matters affecting banking and currency.

Another possible source of power to enact Title IV, which the Supreme Court has never yet utilized for such a purpose so far as I know, is the 13th Amendment and the powers of legislation granted by Section 2 thereof. In 1866 before the 14th Amendment was passed, the Congress passed, over the veto of President Johnson, a Civil Rights Act, 14 Statutes at Large 27. The first section of that Statute is here particularly relevant

“An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication."

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of erery race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security

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of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." [Emphasis supplied]

Section II. * * * This Statute was much debated. Congressman Wilson, of Iowa, spoke in faror of the Bill on March 1, 1866 in the House of Representatives. He rested much of his argument on the 13th Amendment. (See the Congressional Globe 39th Congress, First Session, 1866 at page 1118.] Mr. Justice Harlan dissenting in 1883 in the Civil Rights Cases 109 V.S. 3 (1883) and in Plessy v. Ferguson 163 C.S. 537 (1896), stressed the value of the 13th Amendment as a source of Congressional power. Thus far, the Supreme Court has never followed Mr. Justice Harlan's lead in this respect. Nevertheless, I believe that there are reserves of federal power unused so far, located in the 13th Amendment and that the provisions of the Civil Rights Act of 1866 predicated on that Amendment are a good precedent for S. 3296 of 1966.

If the Congress should enact S. 3296, it would be the Supreme Court's duty to attempt to find a Constitutional justification for it in any and every part of the Constitution, I do not mean by here discussing the Commerce Clause and the 13th Amendment to exclude the possibility of finding support elsewhere in the Constitution. I do however, mention those two provisions as worthy of particularly serious thought at the outset. Sincerely yours,



Durham, V.C., June 14, 1966. Hon. SAM ERVIN, U.S. Senate, Washington, D.C.

DEAR SAM: Thank you very much for your kind letter of May 20 inviting me to give testimony at the forthcoming hearing on the 1966 Civil Rights Act. I do wish it were possible for me to appear and participate in the discussion of Title IV thereof, but all I can do now is to offer a terse summary of the reaction of one who has taught real property law for 39 years.

It is indeed a radical proposal with a vast and unpredictable potential for harm to existing property interests and values. While its literal language is not without amibiguity in some parts, its purpose seems designed to force every person who would sell or lease a "dwelling” or dwelling site to give a right of pre-emption to all mankind. The proposed Act delivers a mortal blow to an accepted property right, the jus disponendi, by virtually extinguishing this basic liberty of property. Certainly, it would seem to be violative of due process; and, therefore, unconstitutional legislation. I should think the overall effect of enactment would be both pandemonium in the real estate market and severe pecuniary loss to property owners wherever enforced. It will indeed be a hardy owner of high-class, well located residential property who has the temerity to offer it for sale or lease. One can readily envisage the effect of advertising one's home or vacant residential land for sale or lease through a want ad or a realtor. If enacted, the loss of advertising revenue by newspapers and magazines should be staggering, and it will probably put many a realtor out of business.

On the procedural side, the proposed remedies and sanctions are indeed drastic, one-sided, and overly severe. Since its violation constitutes a tort against the would-be vendee or lessee, sanctioning both recuperatory and punitive damages, it really opens up a Pandora's Box of litigation, real or feigned or arranged, and will make selling or leasing land a hazardous business.

I do want to thank you for your courtesy in inviting me to go before your Subcommittee on Constitutional Rights, and also for your kind words about the Duke Law Day ceremonies as related to my retirement. With warm personal regards and best wishes, I am, Sincerely yours,


Professor of Law.

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