Senator HART. Whatever the rate of comparison is, the participation in the ballot box in Michigan is free and easy. I am asking Mr. Bloch-who has been telling us about the tools that are available in the hands of the Department of Justice now to permit full exercise of the franchise to make a suggestion as to how we proceed to eliminate what I insist the record shows is a pervading atmosphere of "You had better not try it, boy. If a woman from Michigan goes down to help you, she had better stay home."

Mr. BLOCH. Let me say this. That I see no connection whatso

ever

Senator HART. Well, I see the most intimate connection.

Mr. BLOCH. I see no connection whatsoever with the murder of Colonel Penn and the deprivation of Negroes' voting. But assuming that there is a connection, and answering your question, if I had the power to attempt to solve the problem of disobedience to law and order-not only in these particular Southern States but in your State, in New York, in California, even here in the District of Columbia, or anywhere if I had the sole power to try to cure that, and it ought to be cured, what I would do would be to pass a constitutional amendment that notwithstanding anything in the 1st amendment or notwithstanding anything in the 14th amendment, that the Congress of the United States had the power to enact laws to stop the prevalence of crime throughout the country.

My own idea is one of the things that is responsible for the wave of crime throughout this country is the protection that is being given to criminals, to would-be criminals, under the 1st amendment, under the 5th amendment, and under the 14th amendment.

I think that any person who advocates directly or indirectly the overthrow of the Government of the United States ought to be punished, and he ought to be tried and punished regardless of anything that is in the 1st amendment or the 5th amendment or the 14th amendment.

And yet we have language in the Supreme Court of the United States opinions which indicate that it is perfectly all right for a person to advocate overthrow of the U.S. Government.

Senator HART. Mr. Bloch, under the 15th amendment, do you not feel that it is presently within the legislative power of the Federal Government to provide that anyone who uses violence or its threat to persuade some citizen not to vote, not to register, not to participate in registration and voting efforts, do we not now have the authority to impose the heaviest of sanctions on the use of that without any constitutional amendment? I am talking now about under our 15th amendment.

Mr. BLOCH. I think with the limit of power of the Federal Government in that respect is speeded in the Cruikshank case in 92d U.S. or in the Galbraith case in 110 U.S. It distinctly says just what the power of the Federal Government is with respect to the 15th amendment on intimidation of voters.

If you would read it, I think it spells it out a whole lot more clearly than I could state it.

Senator HART. In brief, do you feel that under those cases the Federal Government has the authority to impose the heaviest of sanctions

on anybody who reaches out and clobbers somebody who is trying to vote?

Mr. BLOCH. Well, the 15th amendment says that no State shall abridge or deny.

Senator HART. Your position is that we do not with respect to an individual unless he is acting under color of law?

Mr. BLOCH. That it does not affect individuals. Now, that is where you might need a constitutional amendment, because of the impact of provisions like that in the 15th and in the 4th and in the 1st amendments.

Senator HART. Then you would, in addition to the testimony you have given us with respect to other sections of this bill

Mr. BLOCH. I could not hear that.

The CHAIRMAN. Speak a little louder.

Senator HART. You would argue that section 9 of the administration bill is also unconstitutional, I take it.

Mr. BLOCH. I do not remember section 9.

Senator HART. It provides that anyone who attempts to deprive a person of a right created by this act shall be fined $5,000 and imprisoned not more than 5 years, or both.

Mr. BLOCH. What I would do in my reading

Senator HART. This does not have to do with anybody acting under color of law.

Mr. BLOCH. In my reading of it, I had not gotten to section 9, because I had to prepare this before I came up. But what I would do with section 9, if I had to give an opinion on it, and I would not try to give it offhand-what I would do would be to take section 9 and measure it by the decisions of the Supreme Court of the United States in the Cruikshank case and in the Yarbrough case and that would be my yardstick.

If the Supreme Court of the United States had held-I would apply those two cases to this section 9, and it would be either valid or invalid under those cases, because I think they are the law of the land.

Senator HART. Did I understand you to say that in preparing your testimony you had not had opportunity to analyze that section? Mr. BLOCH. No, sir, I have not. I will be glad to do it and supplement it.

Senator HART. What other sections of the bill had you not had opportunity to analyze?

Mr. BLOCH. What I did was to go down through, as I said in the memorandum-what I did was to go through section 3(c) very carefully-as carefully as I could-and then somebody told me about section 8, and I went over section 8 and dealt with that in the memorandum, and my memorandum is confined to the bill through section 3 (c) and section 8.

I will be very glad to have the opportunity to honestly try to answer your question and read section-which section was it, sir, section 9?

Senator HART. It is a 13-section bill, and you have analyzed 4 of the sections you say.

Mr. BLOCH. I will be delighted to supplement it with a statement. Senator HART. Very well.

SUPPLEMENTAL MEMORANDUM PREPARED BY CHARLES J. BLOCH WITH RESPECT TO SECTION 9 of S. 1564

Section 9 of S. 1564, especially section 9(a), applies to all persons regardless of whether or not they are acting under color of State law. Section 9(a) specifically provides that "Whoever shall deprive or attempt to deprive any person of any right secured by section 2 or 3 or who shall violate section 7, shall be fined not more than $5,000, or imprisoned not more than five years, or both."

Section 7 provides: "No person, whether acting under color of law or otherwise, shall fail or refuse to permit a person whose name appears on a list transmitted in accordance with section 5(b) to vote, or fail or refuse to count such person's vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten or coerce any person for voting or attempting to vote under the authority of this Act."

For its efficacy, section 5(b) depends upon section 4 which in turn depends upon the validity of section 3(a). So, basically, if 3(a) falls, 4, 5(b), 7, and 9 fall.

Furthermore, section 5(b) falls as being in palpable violation of article I, section 2 of the Constitution, especially when construed in connection with section 6(b).

All of these sections, by one method or another, seek to avoid what has been an established principle of constitutional law, to wit: The States and only the States may prescribe qualifications for voters.

Aside from this fundamental vice, the breadth of sections 9 and 7 causes them to exceed the powers granted to the Federal Government by the 15th amendment. The 15th amendment relates solely to action "by the United States or by any State" and does not contemplate wrongful individual acts. Sections 7 and 9 seek to punish persons "whoever" they may be for certain conduct in connection with any election.

The language "intimidate, threaten, or coerce" in section 7 is strangely similar to the language, "injure, oppress, threaten, or intimidate" which appeared in section 5508 of the Revised Statutes considered by the Supreme Court of the United States in Ex Parte Yarbrough, 110 U.S. 652. I referred to this Yarbrough case in my appearance before the committee on March 29, 1965, as the Ku Klux case. I so referred to it, because Charles Warren, Esq., in his "The Supreme Court in U.S. History" (vol. II, p. 615) has this footnote to a discussion of the Yarbrough case (which was decided March 3, 1884): ""The Ku Klux Klan gets no encouragement from the Supreme Court. It was decided yesterday, in the well-known Ku Klux cases that the Federal Government has power to prevent fraud and intimidation at elections. The most remarkable thing about these cases is that the question should ever have been raised.' New York Tribune, March 4, 1884."

What the writer in the New York Tribune of 80 years ago overlooked, and what, perhaps, the authors of this bill hope that the Congress will now overlook, is that in the Yarbrough case, the Court was dealing with a particular electionone at which Members of Congress were elected.

At page 657 of the opinion, the Court said:

"Stripped of its technical verbiage, the offense charged in this indictment is that the defendants conspired to intimidate Berry Saunders, a citizen of African descent, in the exercise of his right to vote for a Member of the Congress of the United State, and in the execution of that conspiracy they beat, bruised, wounded and otherwise maltreated him; and in the second count that they did this on account of his race, color, and previous condition of servitude, by going in disguise and assaulting him on the public highway and on his own premises."

Further, on page 657, the Court spoke of "this election," and at page 661, "those elections."

The present bill seeks to control the actions of individuals, not acting under color of State law, not only with respect to congressional elections, as to which the Congress has a peculiar power, but with respect to all Federal, State, and local elections (sec. 3(a)).

In the very footnote from which quotation was made hereinbefore, following what has been hereinbefore quoted, is this sentence:

"But for a limitation of the power of Congress in respect to punishment of election offenses, see James v. Bowman, 190 U.S. 127, in 1903."

The limitation is not only as to the nature of the election, but is much broader. For, in James v. Bowman, 190 U.S. at page 136, the court categorically held that

the 15th amendment "relates solely to action 'by the United States or by any State' and does not contemplate wrongful individual acts."

Although the Solicitor General in his argument (p. 129) cited the Yarbrough case, the Court did not cite it in distinctly holding:

1. "These authorities show that a statute which purports to punish purely individual action cannot be sustained as an appropriate exercise of the power conferred by the 15th amendment upon Congress to prevent action by the State through some one or more of its official representatives, and ***" (p. 139).

2. "Congress has no power to punish bribery at all elections. The limits of its power are in respect to elections in which the Nation is directly interested, or in which some mandate of the National Constitution is disobeyed, and courts are not at liberty to take a criminal statute, broad and comprehensive in its terms and in these terms beyond the power of Congress, and change it to fix [sic] some particular transaction which Congress might have legislated for if it had seen fit" (p. 142).

The statute there under consideration was:

"Every person who prevents, hinders, controls, or intimidates another from exercising, or in exercising the right of suffrage to whom the right is guaranteed by the 15th amendment to the Constitution of the United States, by means of bribery or threats of depriving such person of employment or occupation, or of ejecting such person from a rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, shall be punished as provided in the preceding section."

While the present bill does not speak so directly or succinctly, its essence is the same. It seeks to punish any person who intimidates, threatens or coerces any person (regardless of race or color) from attempting to vote or voting at any election, Federal, State, or local.

If really ours is a government of laws, and not of men, James v. Bowman forbids the enactment of any such law.

If ours remains a "government of laws," the supreme law of the land is the Constitution of the United States. Under that Constitution, the Senate of the United States is not only charged with the responsibility jointly with the House of Representatives of enacting legislation. It exclusively has the power of advising and consenting to the appointment of "Judges of the Supreme Court" and all other Federal judges. (Art. II, sec. 2, par. 2 of the Constitution.)

I respectfully suggest, therefore, that the Senate of the United States, and most particularly the Judiciary Committee of the Senate, ought to be particularly careful not to pass on to those who have been appointed or may be appointed with its advice and consent legislation which directly contravenes a decision of the highest court of the land. That decision was rendered 60 years ago, but in no ap plicable respect has the Constitution been changed. If that decision was wrong, or if the 15th amendment is not deemed sufficiently broad, the Constitution provides for its own amendment. Under the rule of that case, the sections as to which inquiry was made are clearly unconstitutional.

I respectfully call attention to language which the Supreme Court of the United States uttered a hundred years ago:

"Where questions arise which affect titles to land it is of great importance to the public that when they are once decided they should no longer be considered open. Such decisions become rules of property and many titles may be injuriously affected by their change. Legislatures may alter or change their law, without injury, as they affect the future only; but where courts vacillate and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change. Parties should not be encouraged to speculate on a change of the law when the administrators of it is [sic] changed. Courts ought not to be compelled to bear the infliction of repeated arguments by obstinate litigants, challenging the justice of their well considered and solemn judgments. The decision of the Supreme Court of Michigan, in conformity with the opinion of this court twice pronounced on the same title, is hereupon affirmed with costs." (Minnesota Company v. National Company 70 U.S. 332, 334.)

Far more strongly is that rule true when the questions which have arisen affect not merely titles to land, but affect the supreme law of the land. Far more

property but rules of life, rules, in reliance upon which, a whole people have depended for their guidance, conduct, safety and well-being. Far more strongly is that rule true, when, if the prior decision is wrong, it may be corrected by an amendment to the Constitution. Far more strongly is that rule true, when the "obstinate litigant" is the Government of the United States.

Senator ERVIN. The 15th amendment only applies to action by a State which denies or abridges the right of a citizen to vote on account of race, color, or previous condition of servitude. It does not relate to the actions of individuals, even no matter how unlawful they may be. Mr. BLOCH. That is right, and in one of those two cases that I mentioned, either the Cruikshank case or the Yarborough case, the point that Senator Hart raises was explicitly passed on one way or the other, and I will write the chairman as a supplemental memorandum, and do it tomorrow.

The CHAIRMAN. That will be fine. You have made a very able statement, Mr. Bloch. You have made a very great contribution, and you have been helpful to the committee.

Mr. BLOCH. Thank you.

The CHAIRMAN. We will stand in recess until 10:30 tomorrow morning.

(Whereupon, at 4:45 p.m., the committee recessed, to reconvene at 10:30 a.m., Tuesday, March 30, 1965.)