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of the minority changes with the matter under debate. And the opinions of the “unpopular minority” today may become the premises of "accepted majority tomorrow. The right of free debate has been established for these natural and ever changing minorities.
The balanced stability between the two Houses of Congress rests in great measure upon the right of unlimited debate which for so long has been a principle of the one.
This principle is expressed in Senate rule XXII.
Senator Javits. I thought Mrs. Snow might like to spread on the record the number of members, dues paying, however you would describe them, of the organization.
Mrs. Snow. I do not have the exact number of members. I have this statement which we have mimeographed giving the address and when it was founded. Its membership is composed of women interested in the field of politics and political education, and includes members of both large political parties and women who have never been members of any political party. Presently, its national office is in Connecticut because its office follows the president.
Senator Javits. But you do not have the number of your members.
Mrs. Snow. I do not have that. It is in the neighborhood, Senator, of 7,500, I think. I am not sure of that because that is not my responsibility.
Senator JAVITS. Thank you.
Senator TALMADGE. Thank you very much for your fine statement, Mrs. Snow. We appreciate your being with us.
Mr. Deutsch, Senator Long wanted to come down and present you, but apparently he has been detained, so we will proceed, if you are ready.
STATEMENT OF EBERHARD P. DEUTSCH, ATTORNEY,
NEW ORLEANS, LA. Mr. DEUTSCH. Mr. Chairman, I am Eberhard P. Deutsch, of New Orleans. I was born in Cincinnati, Ohio, on October 31, 1897.
I completed my studies in law at the Tulane University of Louisiana at New Orleans in 1925, since which time I have been engaged in active practice in that city.
I served for 212 years in the First World War, and for some 412 years in the second, following the end of which I served further as principal legal adviser to Gen. Mark W. Clark in the military administration of Austria, and as member and chairman of the Allied Military Legal Directorate governing that country.
I am a member of the American Bar Association and of its standing committee on peace and law through United Nations. I am also a member of the Louisiana State and New Orleans bar associations; of the Association of the Bar of the City of New York; a director of the American Judicature Society; a member of the Maritime Law Association, of the American Society of International Law, of the International Law Association, of the Selden Society, and of other organizations in the same and related fields.
I was Special Assistant to the Attorney General of the United States in the appeal of the vast Texas City disaster litigation, believed to have been the largest litigation in the history of the world.
My practice has spread over large areas of constitutional law. I was counsel for Louisiana newspapers in the case in 1936, in which the Supreme Court of the United States held unanimously that a tax on advertising constituted an infringement of the freedom of the press.
I have acted as counsel for the American Civil Liberties Union in a number of cases involving impairment of civil rights.
Articles which I have written on constitutional law have appeared in leading law journals throughout the country, and have been cited by the Supreme Court of the United States and by other courts.
I am firmly convinced that the time-honored principle of free and unlimited debate in the United States Senate is a cardinal bastion among those set up for protection of our constitutional liberties.
In accord with this conviction, I oppose any modification of Senate rule XXII which would result in either an immediate or eventual cloture provision.
Nearly 2,500 years ago, Pericles, the great Athenian statesman, said that, acts are foredoomed to failure when undertaken undiscussed.
It would seem to be no less a travesty on wisdom in the 20th century of the Christian era, to undertake to effect a self-imposed restraint on discussion in the Senate of the United States, concededly the ablest legislative body in the history of the world.
Inroads of cloture have already encroached on the Senate's original rule of unlimited debate; a principle which had steadfastly withstood the influence of the "hour rule” adopted by the House of Representatives in 1841.
First in 1917, and later in 1949, Senate rule XXII was amended by provisions from which the Senate's present cloture clause evolved. Because, however, it is so extremely difficult, as a practical matter, to bring this clause into play, Members of the Senate continue to have a right of essentially unlimited debate.
The case for unlimited debate in the Senate has its roots firmly planted in the tenets of our American philosophy of government. Complete freedom of legislative debate is actually one of the fundamental, inalienable rights secured by the Constitution.
It must be remembered that freedom of debate in the Senate is not a right appertaining to the individual Members of that body as such.
It is the right of "we, the people," to be assured that our representatives shall be free to discuss for us, the merits and demerits of measvres pending or proposed, without regard to advocacy or opposition by majority or minority, without restriction, and without accountability except to the Chamber as a whole.
The exercise of this right serves to keep an intelligent electorate informed as to its own public affairs, and is thus allied to, and protects, our own unrestricted kindred rights of freedom of political thought and expression.
That this guardian of our other freedoms has long held its preeminent position among our fundamental liberties is manifest from the pages of our history. And, in the words of Mr. Justice Holmes, "a
page of history is worth a volume of logic."
Even prior to adoption of our National Constitution, the bill of rights (art. XII) of the constitution of Massachusetts provided :
The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation to any accusation of prosecution, action or compaint, in any other court or place whatsoever.
The Articles of Confederation provided, in article V, clause 5, thatfreedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress-and this concept was carried over into clause 1 of section 6 of the first article of the Constitution of the United States.
It is true that freedom from accountability for what is said in parlimentary debate does not in terms entail a right to unlimited debate; but freedom of debate involves an absence of restriction on debate, a concept which has withstood assault throughout the history of the Senate of the United States.
In 1841, 4 days after the "hour rule" of cloture had been introduced in the House, Henry Clay sought to introduce it in the Senate. In support of his measure, he said:
Let our contests be contests of intellectuality, and not of physical force in seeing who could sit out the other or consume the most time in useless debate.
The Senate, however, refused to accede to Clay's appeal. The consensus of opinion in this body at that time, was expressed by Senator Rufus King, of Alabama, as follows, as summarized by Thomas Benton in Thirty Years' View, Appelton, New York, 1854–56, vol. two, p. 253:
Mr. King was truly sorry to see the honorable Senator so far forgetting what is due to the Senate, as to talk of coercing it by any possible abridgment of its free action. The freedom of debate has never yet been abridged in that body since the foundation of this Government. Was it fit or becoming, after 50 years of unrestrained liberty, to threaten it with a gag law? He could tell the Senator that, peaceable man as he, Mr. King, was, whenever it was attempted to violate that sanctuary, he, for one, could resist that attempt even unto death.
Why have Americans, through the course of our history, come to feel so strongly about preserving free and unfettered debate in the upper Chamber of Congress? What primary concept has motivated their adherence to this principle which so plainly reveals the essential vitality to our Government which this freedom furnishes ?
Succinctly stated, the rationale of the principle lies in the oft-repeated maxim that our American tenet of majority rule is qualified by the equally basic tenet that minorities have inviolable rights.
In a parliamentary system whose government is represented by its cabinet, the will of the majority is the supreme law of the land, unfettered by express constitutional restraints.
But the glory of such a constitutional system as our own lies in its enforceable guaranties of protection of minority rights
and liberties. It will be recalled that the Declaration of American Independence was grounded on the concept that governments are instituted among men to secure their inalienable rights and liberties, and that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.
When government threatens to destroy the rights of a minority, freedom of unlimited debate in the nation's highest legislative assembly is the surest and safest method by which to avoid all too frequently futile appeals to the judiciary, or even the ever-present danger of appeals to force in revolution against tyranny.
On the occasion of his initial inaugural, Abraham Lincoln proclaimed:
If, by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution-certainly would if such a right were a vital one.
A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of free people.
In his first inaugural address, Thomas Jefferson said:
All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable ; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.
The facet of this principle now under discussion was expressed with great clarity and force by Franklin L. Burdette in Filibustering in the Senate, Princeton, 1940:
The existence of filibustering in America today is evidence of a compromise between the authority of the many and the rights of the few. The principle of leadership is tinctured with restraints. To the politician interested in practical use of the doctrine of inalienable rights, obstruction is a recourse of more than passing value. It is an effective if incalculable defense against oppression and overbearing authority. It may lie unused for years and then, in a moment of emergency, serve to good purpose in the cause of freedom. It may defeat the hand of greed or the ambition of irresponsible officials without resort to more violent means. It is not an unfamiliar cry that government is constituted to protect minorities against majorities. Indeed, most Americans would uphold the argument that there are rights of individuals which a majority must respect. Natural rights, inalienable and inherent, are still significant in American thought. The Constitution contains great guaranties of minority freedom from oppression. Many defenders of the filibuster argue that when a great constitutional guaranty is being trampled by an unheeding majority, the minority should obstruct with all the vigor at its command. It is contended that if a minority cannot be protected by parliamentary means, the forces restrained through majority pressure may well overturn the majority at the next election, or may burst out even in violence or revolution. Filibusters are almost always supported by minority opinion bearing at least some strength in the Nation, and if the issue is great enough that minority may never yield short of physical conflict. Filibustering is part of the democratic system to force compromise, the conserving possibility in great controversy.
The term “filibustering," as involving employment of, or capitalization on, this concept of protecting minority rights by freedom of debate in the Senate, has, at times, actually been drawn into some disrepute.
No doubt there have been abuses of this right in the history of the Senate; but abuses of a substantive right have never fairly been felt to detract from the virtue of the right itself.
When John Marshall was a member of the famed XYZ mission to France, he penned a brilliant letter to Talleyrand, in which the great constitutionalist said that the fact that liberty is sometimes carried to excess in America, is perhapsan evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn.
A filibuster is entirely defensible on the ground that the Member of the Senate who is speaking believes that the action which the majority threatens to take will result in erosion of minority rights.
Thus, in 1922, Senator Lee S. Overman of North Carolina summed up the unyielding position of the Democratic minority in a Senate filibuster, as follows:
When any considerable number of Senators are satisfied and conscientiously believe that any proposed legislation is unconstitutional, that it involves the integrity of the States and the liberties of the people, and if passed would undermine the very foundation stones of this Republic, I think they are fully justified in filibustering to prevent, if possible, a militant majority from rough-shodding over a strong minority.
Such justification has not infrequently been vindicated. In his able work, The American Senate (Knopf, New York, 1926), Lindsay Rogers points out that, for instance the Force bill was passed by a partisan majority in the House of Representatives. It was defeated by a Senate filibuster. That it was the better course for the measure to fail will not now, I think, be questioned; the will of a majority of the Senate may have been thwarted, but the minority was right.
Democratic government is often called government by discussion; and, as Ewbank and Auer point out in Discussion and Debate: Tools of Democracy (Appleton, New York, 1951):
Those who do not like this concept, who demand “action, not talk," forget that purposeful talk necessarily precedes intelligent action. Part of America's national heritage has been the principle of majority rule by persuasion rather than by force.
Curtailment of debate may perhaps be a physical necessity, as a practical matter, in the House of Representatives, because of the unwieldy size of the body. It is therefore all the more imperative that there be unrestricted freedom of debate in the Senate, which has become the only forum in our National Government in which unhurried consideration and, if necessary, long discussion, can be employed to perfect good laws, or prevent the passage of bad ones.
Burdette submits that the role of the Senate in revising bills passed in the House is one of particularly great importance; and that Senators are entrusted, in that regard, with responsibility for thorough analysis of legislation, and value the privilege and utility of unlimited speech to enable the presentation of every possible view.
The Senate is, of course, equal to this great task, and when it assumes that responsibility, achieves the senatorial stature which John Adams envisaged when he described it asa select council of statesmen, true to their duties, not ambitious of logomachy, and not making their honorable station subsidiary to other objects.
Opposition to unlimited debate in the Senate of the United States is apparently engendered, in some measure, by advocacy of expansion of executive, at the expense of legislative, authority in government.
Rogers strenuously contends that, in our constitutional form of government, with its ingenious system of checks and balances, the Executive needs an antagonist in the forum of public debate, and that without the Senate he would have none. He states:
As the much-vaunted separation of powers now exists, unrestricted debate in the Senate is the only check upon Presidential and party autocracy. The devices that the framers of the Constitution so meticulously set up would be ineffective without the safeguard of senatorial minority action. It is perfectly correct to say that in all foreign legislative systems debate can be restricted, but it is not proper to argue, by analogy, that there should, therefore, be restrictions in the Senate, for that body is sui generis. Foreign practice reads no lesson to the United States, for ours is practically the only system which