Senator ERVIN. Judge, how does the separation of powers have anything to do with it? The Constitution itself separates the powers in this respect, and says that the question of whether a judicial nominee shall be confirmed or disapproved, is one of the powers of Government that is assigned to the Senate.

Judge THORNBERRY. Yes, sir. And I think that is absolutely correct. And I think in reading the opinions-I know you have, and you are able to do I can determine from them what my views on that question were.

Senator ERVIN. Well, the thing that has puzzled me through this hearing is this: I can understand why it would be improper to ask a nominee for a judicial office how he is going to decide cases in the future, but I cannot understand why they will not discuss cases they have decided in the past.

I see no reason for that any more than asking about any other writing they ever did, or any speech they ever made.

I have been intrigued during the previous hearings by the decision of the Supreme Court of the United States, by a divided Court, in Logan Valley Plaza case, where the Court said the right of freedom of speech for an individual not only gives him the right to speak, but the right to compel another man to furnish the use of his private property as a place for them to exercise that right of freedom of speech. This decision, which converts a trespass into a constiutional right, disables equity courts to grant any relief for that man. And with such a broad sweep of the right of freedom of speech as to private individuals, I am unable to comprehend why appointees to judicial office have no freedom of speech at all before a congressional committee investigating the question as to their constitutional philosophy. I do not think there is anything in the Constitution that gives a virtual absolute right of freedom of speech to everybody else, and denies the right of freedom of speech to a judicial appointee when he comes to a Senate committee passing on his qualifications.

Well, you held that the poll tax in Texas, which amounted to $1.75 a year, was contrary to the due process clause of the 14th amendment. And you used the following expression to indicate what you thought was the meaning of the due process clause-something which you quoted from Snyder v. Massachusetts 291 U.S. 97, page 105. "To determine whether a right is protected by the due process clause, a court must look to the traditions and collective conscience of our people to determine whether a principle is so rooted there as to be ranked as fundamental."

Now, don't you look to the past to ascertain what the traditions of the people are?

Judge THORNBERRY. Yes, sir.

Senator ERVIN. And didn't you know at the time that you applied those words in that case, that according to the past practices of the American people, it had been a custom in this country from the earliest days to impose taxes as a condition precedent to the right to vote? Judge THORNBERRY. I think the opinion speaks for itself. Senator. Senator ERVIN. Well, I wasn't asking about the opinion. I was asking about the past practices of the American people.

At any rate, since you are reluctant, or unwilling for the reason assigned by you to answer that question, I will answer it for myself.

At the time the due process clause was written in the fifth amendment by the Founding Fathers, it was embodied in the Constitution and the laws of virtually all of the States that taxes could be imposed, not only on the poll, but also on real and personal property, as a condition of the right to vote. And not only that, but that the payment of such taxes was also in many cases a prerequisite to the right to vote.

And so frankly I am at a loss to say how something can be said to be incompatible with the traditions of our people when the traditions of our people show that that thing was practiced by our people. Furthermore, I cannot see how hostility to the imposition of such a tax is a fundamental principle rooted in the tradition and conscience of our people when virtually all of the State constitutions adopted by the people provided for such a tax at the time the due process clause of the fifth amendment was inserted in the Constitution.

Now, apart from the case, don't you agree with me that the due process clause of the fifth amendment has exactly the same meaning as applied to the Federal Government as the due process clause of the 14th amendment as applied to the States?

Judge THORNBERRY. Ordinarily, I think that is true.

Senator ERVIN. So here was something in perfect harmony with the traditions of our people, and in perfect harmony apparently with their collective conscience, which suddenly, on the 9th day of February 1966, became unconstitutional in the State of Texas under the due process clause.

Then the second meaning you assigned to the due process clause of the 14th amendment is this: You said:

It inquires whether the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.

Don't you agree with me that the base of our civil and political institutions was the base established, formulated and established by the men who wrote and ratified the Constitutions of the United States and the States?

Judge THORNBERRY. Subject to the bill of rights; yes, sir.

Senator ERVIN. Well, can you explain to me how a tax which was imposed and regarded as perfectly valid at the time our Nation was established, and the bill of rights written, can be negative to the base of our civil and political institutions?

Judge THORNBERRY. I endeavored to explain that for the Court in the opinion, Senator.

Senator ERVIN. Frankly, I could not understand the explanation, although I have read the opinion backward and forward.

Now, as a matter of fact, the people who elected the Members of Congress, and the people who elected the Presidential and Vice Presidential electors in our early days, and the people who elected the Governors of our States in such cases as those where the Governor was elected by popular vote, and the people who elected the State legislatures to legislate for them in our early days, when the bases of our civil and political institutions were all elected by voters-virtually all of these voters were required to possess certain amounts of property, and to pay taxes on that property as a condition precedent to their right to vote. That was generally recognized as a practice. To my mind, it is

incompatible with the words that you cited from Powell v. Alabama to say that those practices were not a part of the base of our civil and political institutions. To say anything is negative to the traditions and collective conscience of our people, when it was practiced by our people, and to say the things which were practiced when the base of all our civil and political institutions were laid are contrary to the due process of the law clause is nothing in the world but assuming the right to substitute for an acknowledge law of an earlier day the opinion of the judge. Is that not true?

Judge THORNBERRY. I hope not.

Senator ERVIN. Well, I will read something on this subject from Associate Justice Black which I think is directly relevant. This is another illustration of the fact that some Supreme Court Justices now on the bench are willing to take the due process law clause and use it as a vehicle in which to write their personal opinions into the Constitution. I read from United States v. Wade, a decision which was handed down on the 12th of January 1966. I will read from Justice Black's opinion:

In the first place, even if this Court has power to establish such a rule of evidence, the rule fashioned by the Court is unsound. This "tainted fruit" determination required by the Court involves more than considerable difficulty. I think it is practically impossible. How is a witness capable of probing the recesses of his mind, to draw a sharp line between a courtroom identification today exclusive to an earlier line-up, and a courtroom identification due to memory, not based on the line-up. What kind of clear and convincing evidence can the prosecution offer to prove upon what particular events memories resulting in an in-court identification rest. How long will trials be delayed while judges turn psychologists to probe the subconscious minds of witnesses. All of these questions are posed but not answered by the Court's opinion. In my view, the Fifth and Sixth Amendments are satisfied if the prosecution is precluded from using line-up identification as either an alternative to or corroboration of courtroom identification.

Then after omitting some other discussion on the rule of evidence which was manufactured for the first time in that case, Justice Black continues:

But more important, there is no Constitutional provision upon which I can rely that directly or by implication gives this Court power to establish what amounts to a Constitutional rule of evidence to govern, not only the federal government, but the states in their trial of state crimes under state laws in state courts. The Constitution deliberately reposed in states very broad power to create and try crimes according to their own rules and policies. Before being deprived of this power, the least that they can ask is that we should be able to point to a federal Constitutional provision that either by express language or by necessary implication grants us the power to fashion this novel rule of evidence to govern their criminal trials.

I read this to illustrate the basis on which Justice Black referred to the due process clause.

But I have never been able to subscribe to the thought that the due process clause empowers this Court to declare any law, including a rule of evidence, unconstitutional which it believes is contrary to tradition, decency, fundamental justice, or any of the other wide-meaning words used by Justices to claim power under the due process clause. I have a biding idea that if the framers had wanted to let judges write the Constitution on any such a day to day beliefs of theirs, they would have said so instead of so carefully defining their grants and prohibitions in a written Constitution. With no more authority than the due process clause, I am wholly unwilling to tell that the state or federal courts, that the United States Constitution forbids them to allow courtroom identification without the prosecution first proving that the identification does not rest in whole or

in part on an illegal line-up. Should I do so, I would feel that we were deciding what the Constitution is, not from what it says, but from what we think it would have been wise for the framers to put in it. That to me would be judicial activism at its worse. I would leave the state and federal government free to decide their own rules of evidence. That I believe is their Constitutional prerogative.

Now, as a matter of fact, the only general provisions that you used to invalidate the Texas poll tax as a qualification for voting in Texas was that it was contrary to the traditions of the people and that the right to vote without paying a poll tax had to be ranked as a "fundamental right." Now, isn't that true?

Judge THORNBERRY. Senator, with all due respect, the opinion speaks for itself. You have quoted from it.

Senator ERVIN. I am just trying to see if you put a different interpretation on that.

So, I will have to interpret it for myself.

Judge THORNBERRY. Yes, sir.

Senator ERVIN. I think we would have a very vague and indefinite Constitution if the due processes clause is to be used by a judge to invalidate a State action on the ground that it is contrary to traditions of our people when it is in harmony with the traditions of our people. And that the right to vote is a fundamental right as derived from the Constitution of the United States, when the Constitution of the United States does not give anybody the right to vote.

To my mind, if that is to be the interpretation of the due process clause, I think we are ruled by the personal notions of a judicial oligarchy, instead of by the words of the Constitution of the United States.

Now, you place great reliance in your opinion upon the case of Griswold v. Connecticut, reported in 381 United States, at page 479. You can comment on this if you care to, or, of course, you can refrain if you do not care to. The only similarity I find between the Grisırold v. Connecticut and the Texas poll tax case is something said by Justice Harlan in his concurring opinion, at page 581.

"Specific" provisions of the Constitution no less than "due process" lend themselves as readily to "personal" interpretations by judges whose Constitutional outlook is simply to keep the Constitution in supposed "tune with the times."

Then he comments on certain cases and says that the interpretation in those cases was made in the face of irrefutable "and still unanswered history to the contrary." Now, that is the only part of this Griswold case that you cite so much that I see would have any application to the Texas poll tax case. I think your decision in the Texas poll tax case was an interpretation of the due process clause that was made in the face of irrefutable and still unanswered history to the contrary.

I always thought that a decision was only authority in a case if the facts in the first decision were substantially the same as the facts in the second case being considered.

So I am totally at a loss to understand how a decision which holds that a husband and wife have the liberty to use a contraceptive while engaging in intercourse with each other, has any application to the validity of people being required to pay a poll tax in the State of

Senator SCOTT. If the Senator will yield.

Senator ERVIN. Yes.

Senator SCOTT. Probably on the broad theory of insulation from the consequences.

Senator ERVIN. One is insulating from the consequences, and the other is taking and encouraging the consequences. For the life of me I cannot see, despite the very witty suggestion of the Senator from Pennsylvania, how the liberty of a husband and wife to use contraceptives in having intercourse in the State of Connecticut has anything to do with whether or not it is an unconstitutional burden to require the people of Texas to pay $1.75 poll tax as qualifications for voting.

Senator SCOTT. If the Senator would yield further, I would appreciate if the Senator would distinguish in his argument, based on the harmony with the traditions of the people, and the validity of a law which is founded upon the traditions of the people-How, then would he have argued against the action of the Indians in Boston Harbor in taking the ending of the stamp tax into their own hands? Would the Senator have stood there and said "Don't dump that tea"? Senator ERVIN. But there was nothing in the Constitution of the United States that forbade them to do that. The Constitution has not been written. Yes, I think they were violators of the law

Senator SCOTT. Thank God for it.

Senator ERVIN. But they were violating the law in order that we might rule ourselves, and be protected from governmental tyranny. The Constitution logically flowed from their actions and the Constitution is what I'm trying to protect this morning. So I am trying to save something which the Indians in Boston risked their lives for. Senator SCOTT. I am sure you understand my concern in taking up for the Indians.

Senator ERVIN. Yes-so do I. In fact, I think I am the only man in the history of the U.S. Congress that took any pains to see whether they had some constitutional rights.

Senator SCOTT. You are the only Senator who wrote civil rights for the Indians into the recent Civil Rights Act.

Senator ERVIN. Yes. A lot of the Senate voted against it-said it was nongermane to give rights to red men in a bill which was designed to give rights to black men. But not me.

Senator HART. The Senator thinks the 1968 civil rights bill was good in part, then?

Senator ERVIN. Yes, that part and only that part.

Senator HART. That was part of it.

Senator ERVIN. Yes.

To continue, Judge Thornberry, you say in your opinion, in substance, the right to vote is one of the fundamental personal rights included within the concept of liberty as protected by the due process clause.

Now, you also said in your opinion that the case of Breedlove v. Sutles was not on the same subject, or at least had no application. So you might deny the words of Breedlove v. Sutles reported in 302 United States, at page 277.

But before I go into the Breedlove case, your statement said that the right to vote is one of the fundamental personal rights included within