ago that the advisory committee in North Carolina had investigated voting rights in 43 of the 100 counties of the State and had found no case in any of the 43 counties of discrimination in voting rights against any member of the minority race. I was pleased to read in the national press within the past week a statement to the effect that the Civil Rights Commission itself had only received two allegations of denials of voting rights in North Carolina.

Mr. SEAWELL. I think one of those was the Lassiter case, too.

Senator ERVIN. Yes, sir; two allegations of denial of voting rights to members of the colored race, and I presume the Lassiter case is one of those. As a matter of fact, I have found that in my county they have a habit of registering everybody who comes up and wants to register.

Mr. SEAWELL. I think that is pretty prevalent. I know it was in Robeson County. I know that.

I think Mr. Moody has a statement that he might wish to make. Senator ERVIN. I would like to welcome the assistant attorney general, Ralph Moody, to the committee and extend to him an opportunity to make a statement on the pending bills. When I see my friend, Ralph Moody, I realize again that there is ample reason why the chlorophyll has gone out of my hair. When I was superior court judge, I had the privilege of trying several cases in which his father appeared. His father was one of the great trial lawyers of North Carolina. If he were able to speak to us today, I am certain he would tell us that he is proud of the fine record his son has made in legal circles in North Carolina. Ralph Moody has had a distinguished record as assistant attorney general and as a member of the North Carolina Utilities Commission, and I am glad to have this privilege of welcoming him to this hearing and of having him make any observations he may wish to make on the matters before the committee. Ralph, I understand that you do not have a prepared statement of your own.

STATEMENT OF RALPH MOODY, ASSISTANT ATTORNEY GENERAL OF NORTH CAROLINA

Mr. MOODY. No, Senator; I haven't prepared any statement of my

own.

When you were referring to the time you were superior court judge, I was afraid you were going to tell about the time I appeared before you and proved that my dog was worth too much and you nonsuited me. [Laughter.]

Senator ERVIN. Well, that case as I remember it was this: In your area folks do a lot of fox hunting. lot of fox hunting. Fox hounds are very valuable, and your client had brought a claim and proceeding for the fox hound in controversy, and the sheriff seized the fox hound under the claim and delivery process, but he let the defendant keep the hound, and didn't require him to give a retaining bond. The issues of law and fact were in fact very complicated in the case, as only the shrewd lawyers in that area could complicate things. Incidentally, they can complicate simplicity itself. Very much to my judical relief, we discovered that the hound had journeyed to the happy hunting ground during the pendency of the case and was no longer in this world. Consequently, I ruled that the case was moot. [Laughter.]

Mr. MooDr. I would like to say to counsel, when they were discussing United States for the citation of the case on voting. It is Lassiter v. Northampton County. You will find a decision in the State supreme court. You will also find a three-judge decision in the Federal Reporter in which the three Federal judges find it is the same situation. It is one of these cases where State issues are remitted to the State courts for decision, and the case is still pending in the Federal court, but you will find the three-judge court found in the county that they had been impossibly administered as to both black and white. The three-judge court found that it is. As has been stated, I don't know of any particular or any significant violations of undue emphasis laid on colored people as to registration in our State. In fact, I think a lot of them do, all of them that want to. Mr. SLAYMAN. Mr. Moody, this point gets raised because at least one of the bills deals with Federal voting rights, and since so much attention has been placed on some other aspects of the legislation, I wanted to cover it at this time while we had an opportunity to do so. I might say that we have not had the complaints about North Carolina voting that we have had about some other areas and some other States.

I have no further questions, Mr. Chairman.

Senator ERVIN. I want to ask Mr. Moody just two or three questions about constitutional interpretation. I read from Corpus Juris Secundum, and ask if you agree that this is a correct statement of the law:

The prime effort or fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and the people who adopted it.

Mr. Moonr. Yes, sir; I agree with that. I always thought that it was the way a constitution was supposed to be construed. I did not know that it was to be a plastic thing that could be remodeled by each generation of judges. I thought it was to be construed as to what the people meant that adopted the Constitution and the amendments there. If not, there was no reason for having any machinery for amending the Constitution.

Senator ERVIN. That is my understanding. I have always been puzzled by the statement of the Court in the Brown case, that the Court could not turn the clock back to 1868 when the 14th amendment was adopted or even to 1896 when Plessy v. Ferguson was decided. It seems to me that was the duty of the Court to turn the clock back to 1868 and to ascertain and give effect to the intent of those who framed and approved the 14th amendment. Do you agree with that observation?

Mr. MOODY. I agree with that most emphatically. Of course, we did get into a long discussion I think about the Brown case, and the basis for the decision, but the way I live my life, and the way I practice law, and be a lawyer, and what few constitutional cases I have had, and I have had a few, I always thought that precedence should have some binding effect. I don't say that cases can't be overruled, but for the most part, decisions should have some stability and respect. If they don't, why we don't have anything else to go by. We are lost without a rudder, legal rudder.

Senator ERVIN. Do you believe, as I do, that the doctrine of stare decisis has great value in the law?

Mr. MOODY. I most certainly do.

Senator ERVIN. If it were not for the doctrine of stare decisis, the law would not have sufficient stability to furnish rules of action. Is that not true?

Mr. MOODY. That is true.

Senator ERVIN. Law is designed to furnish rules to guide the action of Government and people, and unless the decisions of the Court are followed, the law is without sufficient stability, and cannot be ascertained with reasonable certainty to enable counsel, for example, to advise their clients what the law permits them to do.

Mr. MOODY. I think that decisions must have some stability. I think we would all agree that the law has not crystallized into a hardened thing that can't be changed at all, and it is not likely the law of the Medes and the Persians which alters not, but there must be a degree of legal stability in decisions, and if we don't have that, then I think we are lost.

Senator ERVIN. Whenever the decisions of the Court have been uniform for a substantial period of time and action has been taken for a substantial period of time on the basis of those decisions, then, as the old lawyers used to say, those decisions become ingrafted into the fabric of the Constitution. I rejoiced to see that the Supreme Court itself said that the other day.

Mr. MOODY. That is true. It is analogous to the rule of property in the term "realm," where even though a great many lawyers and a lot of judges think that maybe the rule was wrong, but it is built about such an edifice of rights, that it is allowed to remain.

Senator ERVIN. I agree with you in your observation that the doctrine of stare decisis does not preclude a Court in a proper case from overruling a previous decision. I have had to participate in overruling decisions as a member of the North Carolina Supreme Court. The law does not contemplate that decisions should be overruled simply because they do not coincide with the personal notions of the sitting judges who may have differing opinions. As a member of the Supreme Court of North Carolina, I tried to find a standard which would guide me in passing upon the question whether a former decision ought to be overruled. The standard which impressed me the most was the one attributed to Judge Thomas Swann by Judge Learned Hand on the occasion when they were celebrating Judge Thomas Swann's service on the circuit court of appeals, of which Judge Learned Hand was also a member. Judge Learned Hand said that Judge Thomas Swann took the position that a decision of the Court ought not to be overruled unless it was not tenable when it was made, and that even in that case it ought not to be overruled by the Court if a great body of law had been erected upon the foundation of the decision. Do you think that is a very good standard to be applied?

Mr. MOODY. That is the standard as a lawyer that I like. I think it is good.

Senator ERVIN. We sometimes hear the argument advanced that the Supreme Court must alter the meaning of the Constitution under the guise of interpreting it to keep the Constitution from being frozen in the pattern which one age gave it. Now as a matter of law,

do not the grants of power made by the Constitution to the Federal Government extend into the future and apply to any new conditions which fall within the scope of those powers?

Mr. MOODY. Yes, that was pointed out I believe in the conversation. The Interstate Commerce clause is written in such terms. The oxcart and the horse and buggy is entered in interstate commerce; the airplane, the fast train, those are modes and channels of constitutional expression that will hold things that take place now and in the future. What we are talking about, I think, and what we don't like, what we apparently you and I are in agreement that we don't like, is the parting entirely from those channels, from those constitutional channels. Of course, the Constitution is designed for the future. Of course, there will be constructions that will involve things in the future that you and I now don't dream about, just as our predecessors didn't dream about modes and machinery and things we have now. I think the Constitution is written purposely to take care of those reasons. I think what you and I don't like and what we are talking about, is this theory it has become a personal thing to be construed in a personal way in any particular time that suits those particular

times.

Senator ERVIN. I think you and I would agree with an observation of Justice Benjamin N. Cardozo in his very excellent treatise entitled, "The Nature of the Judicial Process." He said that, "if judges should base their decisions on their personal sense of justice rather than on precedents, we would have a benevolent Government if the judges happened to be benevolent men." But he added, "the adoption of such a practice would mark the end of the reign of law." I think that is about as good a way of expressing that concept as any I have ever discovered.

Mr. MOODY. Certainly a departure from the Anglo-Saxon English concepts is brought here, and a personal rule of law that fits the particular predilections and prejudices of the individual judge, to my mind smacks more of the continental system than any system that we have tried to develop.

Senator ERVIN. The argument that there is danger of the Constitution being frozen in the pattern which one age gave it is not very substantial in the light of the fact that the grants of power made by the Constitution extend into the future. Then there is another consideration which shows the invalidity of that argument. The first article of the Constitution vests in the Congress all of the legislative power of the Federal Government. Under that article, Congress has the power to change the Federal law every day on every subject committed by the Constitution to the control of the Federal Government,

does it not?

Mr. MOODY. It does.

Senator ERVIN. And that is a rather broad power?

Mr. MOODY. Very wide.

Senator ERVIN. So, it seems to me that the argument that the Supreme Court must change the meaning of the Constitution while professing to interpret it, does not have very much substance to it when you analyze it. Do you agree with that?

Mr. MOODY. I do agree with that observation.
Senator ERVIN. Do you have any questions?

Mr. SLAYMAN. No, I don't, sir.

Senator ERVIN. I commend you for coming before the committee and making your presentation. I want to ask you if you would agree with Attorney General Seawell and myself that there is one basic objection to the most drastic of these bills, and that that is the objection that they attempt to pick out selected groups of people and make them the special favorites of the laws and to create for their special benefit rights superior to those ever sought or obtained by any other Americans throughout the history of this Nation?

Mr. MOODY. Yes, I agree that is the cardinal basic defect. Of course, leaving aside the question of drafting, I wouldn't be critical of people that attempted to draft these laws. I would hate to undertake to try to carry out that job myself, but what you have mentioned, of course, is a cardinal defect, I think. And, of course, I can't get away from the fact in reading over the laws in spite of the draftsmanship, and in spite of the effort that was made to be as concrete as possible, I can't get over the fact that when you read these laws as some of the books say, there is no way that men of common intelligence can-they would have to guess at the meaning of the law as to whether it was invalid or not. There is no standard for people to see what they are doing, which is particularly dangerous in the field of publications and sending exchange upon concepts and thoughts through the mail. We must be able to exchange disagreeable thoughts, thoughts that I don't like and you don't like, as well as those concepts and perhaps philosophies and ideologies that we agree with.

Senator ERVIN. I think that is one of the most serious objections to some of these bills. This is particularly true in respect to the one which undertakes to deal with what is to be excluded from the mails, and the one which undertakes to make mere threats Federal crimes. It seems to me that these bills come awfully close to trespassing upon the basic right of all Americans to freedom of speech. But even if they don't go quite that far, and I fear they do, I think they are most unwise. I am a person who believes that the English have the right system. They say that anybody can say anything he wants to about the government, or anything else. America will be free only so long as her people are accorded full freedom of speech.

Mr. MOODY. I would like to point this out. I don't want to spin this out, Senator. We have been here quite some time, but in the Douglas bill there is an approach there that I don't like to see in this field and that we are getting into, the administrative handling and adjudication of these rights. That is an administrative approach, it seems to me, that is a little bit new. I am aware that administrative bodies are all over the land, but it seems to me that injunctions of an administrative body with some quasi-body in this field, I would rather the people who think they have been deprived of their rights would walk into the State court or Federal court and say so.

Senator ERVIN. I agree with you. It would be particularly tragic to have a Federal administrative agency administering the affairs of State and local government, and that is exactly what this bill contemplates the Department of Health, Education, and Welfare would do. Thank you.

I regret that Congressman Jamie L. Whitten had to leave in order to attend another meeting.