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1 which excludes any student from any public school on the

2 basis of race, color, or national origin.

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“(2) In the case of court orders entered prior to the date 4 of this Act that require, directly or indirectly, the assignment 5 or transportation of students to a public elementary or sec6 ondary school on the basis of race, color, or national origin or 7 which excludes any student from any school on the basis of 8 race, color, or national origin, any individual or school board 9 or other school authority subject to such an order shall be 10 entitled to seek relief from such order in any court and unless 11 that court can make conclusive findings based on clear and 12 convincing evidence that

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"(1) the acts that gave rise to the existing court. order intentionally and specifically caused, and in the absence of the order would continue intentionally and specifically to cause, students to be assigned to or excluded from public schools on the basis of race, color, or national origin; for purposes of this finding, these 'acts that gave rise to the existing court order and intentionally and specifically caused, and in the absence of the order would continue intentionally and specifically to cause, students to be assigned to or excluded from public schools on the basis of race, color, or national origin' (including but not limited to school dis

trict reorganization, school boundary line changes,

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1 school construction, and school closings) shall not in

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clude legitimate efforts to employ public education re

sources to meet public education needs without regard to race, creed, or national origin,

"(2) the totality of circumstances have not changed since issuance of the order to warrant recon

sideration of the order,

"(3) no other remedy, including those mentioned herein, would preclude the intentional and specific segregation,

"(4) the economic, social, and educational benefits of the order have outweighed the economic, social, and educational costs of the order,

14 then such plaintiffs shall be entitled to relief which is consist15 ent with the provisions of this subsection and the Public 16 School Civil Rights Act of 1981 from such order.".

PART 2.-ADDITIONAL CORRESPONDENCE AND ARTICLES

Hon. ORRIN G. HATCH,

United States Senate, Washington, D.C.

SAM J. ERVIN, JR., Morganton, N.C., March 17, 1981.

DEAR SENATOR HATCH: It seems to me that the time has come for Congress to put an end to one of the most aggravated forms of tyranny now being practiced upon the people of the United States by the federal courts and the federal bureaucrats— the forced busing of school children for integration purposes.

While I was serving in the Senate, I prepared a bill with great care which was designed to end such busing in any school district which adopted a freedom of choice plan as described in my bill. This bill is referred to in the enclosed article and is also set forth on pages 19-25 of the hearings held by the Senate Subcommittee on Constitutional Rights on February 19-21, 1974.

The article enclosed is a lengthy but complete one which demonstrates that under proper decisions of the Supreme Court and the exact wording of the Equal Protection Clause, the busing for integration purposes is unconstitutional as well as foolish, wasteful, and tyrannical.

I notice that efforts are afoot to renew the Voting Rights Act of 1965, which is perhaps the most devious piece of legislation ever enacted by the Congress. I discuss this act in the enclosed article. The act holds in effect that states condemned by it and their state officials and their people in their corporate capacities are denied the benefit of the prohibition on bills of attainder, notwithstanding that the Supreme Court has adjudged that federal officials and even members of the communist party are entitled to this protection. Under this act, a number of states cannot even exercise powers reserved and granted to them by the Constitution of the United States and change their election laws in any respect without going to Washington hat in hand and securing the prior permission of the Attorney General of the United States or the District Court of the District of Columbia.

With all good wishes, I am

Sincerely yours,

Enclosure.

SAM J. ERVIN, Jr., Former U.S. Senator.

STATEMENT OF SAM J. ERVIN, JR. OF MORGANTON, N.C., A FORMER U.S. SENATOR FROM NORTH CAROLINA

EXCLUSION FROM NEIGHBORHOOD SCHOOLS OF CHILDREN AND THEIR FORCED BUSING FOR INTEGRATION: UNCONSTITUTIONAL FEDERAL TYRANNIES

The exclusion from their neighborhood schools and the forced busing of school children for integration purposes is a foolish, wasteful, and useless tyranny, which is outlawed by the very provision of the Constitution invoked by the Supreme Court to justify it, namely, the equal protection clause of the Fourteenth Amendment.1

MY ABIDING CONVICTIONS RESPECTING THE CONSTITUTION

Before explaining why this is so, I deem it not amiss to make certain observations. I have lived about four score and five years; I have spent a substantial part of my energy and time during these years in studying the Constitution, its history, and its objectives; I have acquired by my study abiding convictions respecting these matters; and I note that many Americans far wiser than I have entertained like convictions.

The Constitution is our most precious heritage as Americans. When it is interpreted and applied aright, the Constitution protects all human beings within our borders from anarchy on the one hand and tryanny on the other.

The wise British statesman, William Ewart Gladstone, rightly described the American Constitution as the most wonderful work ever struck off at a given time by the brain and purpose of man.2

1 The Constitution, Fourteenth Amendment, Section 1.

2 William Ewart Gladstone: Kin Beyond the Sea, North American Review, September-October, 1878.

WHY THE CONSTITUTION WAS WRITTEN AND ADOPTED

For ease of expression, I use the term Founding Fathers to designate those who framed and ratified the Constitution submitted by the Convention of 1787, and those who framed and ratified the amendments which have been added to it.

The Founding Fathers knew the history of the frustrating struggle of the people against arbitrary governmental power during countless generations for the right to self rule and to be free from tyranny, and understood the tragic lessons taught by that history.

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As a consequence they comprehended these eternal truths: First, that "whatever government is not a government of laws is a despotism, let it be called what it may"; second, that the "occupants of public office love power and are prone to abuse it"; and, third, that what autocratic rulers of the people had done in the past was likely to be attempted by their new rulers in the future unless they were restrained by laws which they alone could neither alter nor nullify.5

The Founding Fathers desired above all things to secure to the people in a written Constitution every right they had wrested from autocratic rulers while they were struggling for the right to self rule and freedom from tyranny.

Their knowledge of history gave them the wisdom to know that this objective could be accomplished only in a government of laws, i.e., a government which rules by certain, constant, and uniform laws rather than by the arbitrary, uncertain, and inconstant wills of impatient men who happen to occupy for a fleeting moment of time legislative, executive, or judicial offices.

For these reasons, the Founding Fathers framed and ratified the Constitution, which they intended to last for the ages, to constitute a law for both rulers and people in peace and in war, and to cover with the shield of its protection all classes of men with impartiality at all times and under all circumstances."

While they intended it to endure for the ages as the nation's basic instrument of government, the Founding Fathers realized that useful alterations would be suggested by experience.7

Consequently, they made provision for its amendment in one way and one way only, i.e., by combined action of Congress and the states as set forth in Article V. By so doing, they ordained that "nothing new can be put into the Constitution except through the amendatory process" and "nothing old can be taken out without the same process;" 8 and thereby forbade Supreme Court Justices to attempt to revise the Constitution while professing to interpret it.9

THE CONSTITUTIONAL SEPARATION OF POWERS

In framing and ratifying the Constitution, the Founding Fathers_recognized and applied an everlasting truth embodied by the British philosopher, Thomas Hobbes in this phrase: "Freedom is political power divided into small fragments."

They divided governmental powers between the federal government and the states by delegating to the former the governmental powers necessary to enable it to operate as a national government for all the states, and by reserving to the states all other governmental powers.

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They divided among the Congress, the President, and the federal judiciary the powers given to the federal government by giving to Congress the power to make federal laws, imposing on the President the duty to enforce federal laws, and assigning to the federal judiciary the power to interpret federal laws for all purposes and state laws for the limited purpose of determining their constitutional validity.11

3 The Writings and Speeches of Danial Webster, National Edition, vol. 2, p. 165.

4 George Washington: Farewell Address.

5 Ex Parte Milligan, (1866) 4 Wall. (U.S.) 2, 120–121.

6 Ibid.

7 James Madison: The Federalist No. 43.

8 Frankfurter, J.: Ullman v. United States, (1956) 350 U.S. 422, 428. Cardozo, C. J.: Sun Printing and Publishing Association v. Remington Paper and Power Company, 235 U.S. 338, 139 N.E. 470. See, also, West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379, where Justice Sutherland stated in a dissent: "The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation. To miss the point of difference between the two is to miss all that the phrase 'Supreme law of the land' stands for and to convert what was intended as inescapable and enduring mandates into mere moral reflections. If the Constitution, intelligently and reasonably construed in the light of these principles, stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it according to its terms. The remedy in that situation-the only true remedy-is to amend the Constitution."

10 The Constitution, in its entirety, and Amendment X.

11 The Constitution, Articles I, II, and III.

In making this division of powers, the Founding Fathers vested in the Supreme Court as the head of the Federal judiciary the awesome authority to determine with finality whether governmental action, federal or state, harmonizes with the Constitution as the supreme law of the land, and mandated that all federal and state officers, including Supreme Court Justices, should be bound by oath or affirmation to support the Constitution. 12

THE DUTY OF SUPREME COURT JUSTICES

No question is more crucial to America than this: What obligation does the Constitution impose on Supreme Court Justices?

America's greatest jurist of all time, Chief Justice John Marshall answered this question with candor, clarity, and finality by his opinion in Marbury v. Madison and Gibbons v. Ogden. In these indisputably sound decisions, Chief Justice Marshall declared:

1. That the principles of the Constitution are fundamental, and are designed to be permanent.

2. That the words of the Constitution must be understood to mean what they say. 3. That the Constitution constitutes an absolute rule for the government of Supreme Court Justices in their official action.

4. That the oath or affirmation of a Supreme Court Justice to support the Constitution "is worse than solemn mockery" if he does not "discharge his duties agreeably to the Constitution of the United States." 13

In elaborating his second declaration, Chief Justice Marshall said:

"As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightended patriots who framed our Constitution, and the people who adopted it, must be understood to have used words in the natural sense, and have intended what they have said."14

This being true, Supreme Court Justices are forbidden to commit verbicide on the words of the Constitution while they are pretending to interpret them. I am indebted to Dr. Oliver Wendell Holmes for the expressive term verbicide. He declared in his Autocrat of the Breakfast Table:

“Life and language are alike sacred. Homicide and verbicide—that is, violent treatment of a word with fatal results to its legitimate meaning, which is its lifeare alike forbidden."15

The Founding Fathers undertook to immunize Supreme Court Justices against temptation to violate their oaths or affirmations to support the Constitution by making them independent of everything except the Constitution itself. To this end, they stipulated in Article III that Supreme Court Justices "shall hold their offices during good behaviour *** and receive for their services a compensation, which shall not be diminished during their continuance in office."

In commenting upon the awesome power vested by the Constitution in Supreme Court Justices, Justice (afterwards Chief Justice) Stone made this cogent comment: "While unconstitutional exercise of power by the executive and legislative branches of government is subject to judicial restraint, the only check on our own exercise of power is our own sense of self-restraint."

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Many years after the adoption of the Constitution, Daniel Webster, one of the wisest of statesmen, made a caustic and correct comment upon public officials who undertake to substitute their personal notions for rules of law. He said:

"Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters."17

12 The Constitution, Articles III and VI.

13 Marbury v. Madison, (1803) 1 Cr. (5 U.S.) 137, 176-180.

14 Gibbons v. Ogden, (1924) 9 Wheat (22 U.S.) 1, 188.

15 Dr. Oliver Wendell Holmes: Autocrat of the Breakfast Table, (The Limited Editions Club 1955) Chapter I, page 9.

16 United States v. Butler, (1936) 297 U.S. 1, 78.

17 I cannot provide a citation for Daniel Webster's comment. I found it many years ago among his papers. I copied it, but did not note at the time where I discovered it. After seeking in vain to discover the occasion of its making, I requested the Library of Congress to research the question. The Library advised me that it was unable to solve the problem because Webster's papers are so inadequately indexed.

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