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 oppres sion. 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 perhaps—

an 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 as

a 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

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separates the powers of government, divides and confuses responsibility, and makes things move by the calendar rather than by popular will. Had we executive leadership of, or control by, the Legislature, the problem would be quite different. As things are, the justification of unrestricted debate in the Senate is the nature of our governmental system.

That persuasive argument by minorities may lead to the attainment of justice through conversion of majority views is a common phenomenon of our daily lives. It can find no more forceful illustration than in persuasion against cloture itself.

Thus, Senator Hoar, of Massachusetts, conceded frankly over half a century ago:

There was a time in my legislative career when I believed that the absence of a cloture rule in the Senate was criminal neglect, and that we should adopt a system of rules by which business could be conducted; but the logic of my long service has now convinced me that I was wrong in that contention. There is a virtue in unlimited debate, the philosophy of which cannot be detected upon a surface consideration.

I, accordingly, respectfully urge this subcommittee to report unfavorably on all proposed amendments to Senate rule XXII which seek to infringe on free and unlimited debate—a basic freedom which serves as one of the important tenets of our constitutional democracy. Thank you.

Senator TALMADGE. Any questions, Senator?

Senator JAVITS. Mr. Deutsch, obviously, this is very throughly researched and I, therefore, wondered if there was any reason why, at page 3 of your statement, you said, "Inroads of cloture have already encroached on the Senate's original rule of unlimited debate," in view of the fact that apparently the consistent research in this committee shows that the original rule of the Senate up to 1806 allowed that the previous question was fully invoked to limit debate by a vote of the majority.

Mr. DEUTSCH. I confess I did not know that that was true up to that time.

Senator JAVITS. This is obviously so well researched.

Mr. DEUTSCH. It was intended to be. I am sorry. I did not know about that early procedure.

Senator TALMADGE. I might state for the record that the previousquestion rule was in existence from 1789 to 1806. During that time it was invoked, I believe, four times.

Senator JAVITS. Very infrequently.

Senator TALMADGE. Thereafter, it was abandoned completely until the year 1917.

Mr. DEUTSCH. I did not realize that.

Senator TALMADGE. Any further questions?

Senator JAVITS. No.

Senator TALMADGE. Mr. Deutsch, we appreciate very much your coming and giving this valuable statement.

Senator Case is on the way and we want to hear him as soon as he arrives, and Mr. Bloch is the next witness following Senator Case. Would you proceed, and let us interrupt you when he gets here, please?

I would like to say for the record that Mr. Bloch is here at my request and my personal invitation. He also officially represents the State of Georgia by direction of the Governor, Hon. Marvin Griffin.

He has been a longtime friend of mine. He has held a great many positions of honor, trust, and distinction bestowed at the hands of the people of the State of Georgia. He is immediate past chairman of the Judicial Council of Georgia. He is presently chairman of the educational committee of the board of regents of the university system of Georgia. He is a former president of the Georgia Bar Association. He is a former member of the General Assembly of Georgia. He is a veteran of World War I. He is one of the most able constitutional lawyers in our section and of the Nation, as well as a scholar of note. I am proud to present him for this statement at this time. You may proceed at will.

STATEMENT OF CHARLES J. BLOCH, MACON, GA.

Mr. BLOCH. Thank you, Senator. Thank you very much. I have a written statement; rather, an outline of a written statement which I desire to preface, particularly in the light of the fact that I follow the distinguished gentleman from Louisiana, Mr. Deutsch, and I understand that I am to be followed by another distinguished gentleman from New Orleans, Mr. Barr.

I was born in Louisiana. I was born in Baton Rouge, La., in 1893. My family moved to Macon, Ga., in 1901. I practiced law there since 1914. I have keen ties to Louisiana because my maternal grandfather was an officer in a Louisiana regiment, the 4th Louisiana Regiment, during the War Between the States. He was a native of Alsace. My father was a native of Alsace.

Senator TALMADGE. Will you suspend now, please, and let us hear Senator Case. The Senate convenes in 22 minutes, and I know the Senators with committee meetings and sessions at this date are very, very busy. (Mr. Bloch's testimony resumed on p. 207.)

Senator, Case, you may proceed at will. Mr. Bloch was testifying, and he very kindly consented to defer the remainder of his testimony in order that you might make your statement. We are happy to have you with us at this time.

STATEMENT OF HON. CLIFFORD P. CASE, A UNITED STATES

SENATOR FROM THE STATE OF NEW JERSEY

Senator CASE. Thank you, Mr. Chairman, and it is very gracious of you. I shouldn't have asked that this be done if I realized you were doing it.

Mr. Chairman, I have a prepared statement, but it is quite short, and perhaps the best thing to do is go through it verbatim.

I appreciate the opportunity to appear before you in connection with these proposals pending for the amendment of rule XXII. My comments will be brief, because I know that the members of the subcommittee already are fully aware of the importance of the subject and its far-reaching implications.

My concern is with the correction of the situation which has so long obtained in which a handful of Senators can utterly frustrate the Senate's will, can prevent it from performing its fundamental constitutional duty to legislate.

The junior Senator from California, Mr. Kuchel, in the discussion of his subject at the opening of the current session of the 85th Con

gress inserted in the Congressional Record for January 4, 1957, at page 122, a statement by Vice President Dawes on this subject. It may already have been inserted in the record of these proceedings, but if it hasn't, I should ask permission to insert it.

Senator TALMADGE. Without objection, it will be so ordered.

(The statement of former Vice President Dawes, already included in the record, may be found as part of Senator Kuchel's statement, on p. 103.)

Senator CASE. I appreciate the importance of full deliberation which the Senate rules provide for. And the importance of insuring that action on matters of great consequence should not be taken in haste. As Senator Flanders pointed out in the Senate debate last January, it is right that voting on such matters should be delayed. in order to permit the development of full public understanding. He suggested with pertinence that the proposal by President Roosevelt for increasing the membership of the Supreme Court was a good example of such a matter.

And so, like Senator Flanders, I am not in favor of making cloture easy. But, like him also, I am not in favor of making it practically impossible.

It is said that whenever a substantial majority of the Senate wishes to act on anything it has the power to do so under our present rules. It is said that there are no instances of a successful filibuster permanently preventing a majority in the Senate from working its will except upon the so-called civil-rights issues. Even if this were true, the frustration of action on those issues alone would more than justify, indeed I suggest it makes imperative, the amendment of the Senate's rules.

But I know the committee has available the detailed historical studies which have been made on this question and there would be no point in my attempting to cover the same ground. I do suggest, however, that all of us know that the existence of the power of a small minority to tie the Senate into knots by the mere hint of the possibility of a filibuster has time and time again affected adversely the ability of the Senate to proceed in the ways in which a great majority of its Members desired.

Beyond that, I suggest that it is degrading beyond measure that in the mid-20th century, in a supposedly civilized era, one branch of the Nation's highest legislative body should be forced to beat down through physical exhaustion a filibuster by a small group of its Members before it can proceed to act.

The Senate of the United States is the only place I know of where the medieval practice of trial by ordeal still survives.

There are a number of different proposals for amendment of rule XXII pending before the subcommittee. I myself am a cosponsor of one of them. Senate Resolution 17, introduced on January 7 of this year.

I believe this resolution is the soundest of the various proposals. As you know, this resolution provides that, as in the present rule, 16 Senators may present a motion to bring debate to a close. The motion would lie over 1 full day and on the day thereafter, that is, 2 days after presentation, the motion would be put to a vote. The motion would carry only if two-thirds of the Senators present and voting voted in the affirmative. Thereafter, each Senator would be entitled to speak