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STATEMENT OF CHARLES J. BLOCH, MACON, GA.—Resumed Senator TALMADGE. You may proceed at will now, Mr. Bloch.
Mr. Bloch. For the benefit of Senator Javits who had to leave, just before I suspended I was saying, if I may repeat one thing, Senator, that my father was born in Alsace-Lorraine in 1862 at the time when it was French territory. When the Germans took over in 1870, he didn't believe in the tyranny of a Kaiser, Kaiser Wilhelm I, so as soon as he could, he left and came to this country in 1882 and settled in Louisiana.
He was the greatest believer in constitutional government I ever saw. He used to tell me about it. That is where I first learned about it, that the only hope of people like him who fled from tyranny was in constitutional government, and I might add this, too, to what the Senator said about me in his introduction, that while I have not the right to speak for the American Bar Association, and I am not pretending to speak, assuming to speak for the American Bar Association, I am chairman of the American Bar's committee on judicial selection, tenure, and compensation. I appear here as a representative of the Honorable Marvin Griffin, Governor of Georgia. I oppose the proposed amendments to rule XXII of the Standing Rules of the Senate pertaining to limitation of debate, and in my prepared notes there I want to interpolate what you will find attached to the prepared notes which is a statement that I just ran across recently which was made by Mr. Justice Frankfurter in a dissenting opinion in the case of West Virginia State Board of Education v. Barnett (319 U. S. at pp. 646 and 647). He said:
One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Courts' opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law.
I have examined Senate Resolutions 17, 19, 21, 28, 29, 30, and 32.
I have more closely examined Senate Resolutions 17 and 30 than I have the others. Senate Resolution 17 does not show Senator Javits as one of those who submitted the resolution. However, the staff study of the Committee on Rules and Administration, which is a comparative analysis of the various resolutions, does show Senator Javits as a sponsor. Senate Resolution 30 has 39 Senators sponsoring it.
It would serve no purpose to discuss in detail the differences or likenesses in the various resolutions. In various forms, they would
accomplish the same result. Each and every one of them, if adopted, would limit debate in the greatest deliberative body the world has ever known, the Senate of the United States. The Constitution provides in article I, section 3, paragraph 1, that the Senate of the United States shall be composed of two Senators from each State.” While the 17th amendment has changed the method by which the States select their Senators, the Senate is still composed of two Senators from each State. The Senate never dies. It is a continuing body, eternal as far as mortal man can make it so. It is fitting that it should be such for here sit the representatives of the 48 sovereign States which, grouped together, are known as the United States of America.
Within the boundaries of the State of New York in 1950 there were nearly 15 million people. Rhode Island had less than a million. California had 101,2 million inhabitants. Its neighbor, Nevada, less than 2 percent of that number, about 160,000. Pennsylvania, with its 10 million, is bordered by Delaware with about 300,000. To the northwest of Illinois with its approximately 9 million are the Dakotas with around 600,000 each.
But on the floor of the Senate, and its committee rooms, caucuses, and councils, the voice and vote of Nevada is equal to that of California; the voice and vote of Rhode Island, with its 1,248 square miles, is equal to that of Texas, with its 267,000 square miles.
It was so planned by those who drafted, proposed, and ratified the Constitution of the United States. In this Union of States no one State is more important than any other in that group of ambassadors which the States have sent to Washington, and who form the Senate of the United States. To insure that no one State might ever be outvoted by any other State in the Senate of the United States, the Constitution provides specifically in article V thereof that no State, without its consent, shall be deprived of its equal suffrage in the Senate.
While it is not yet proposed that any one of the States be deprived of its equal suffrage in the Senate, it is now proposed by these bills that certain varying numbers of Senators can deprive other Senators, ambassadors from sovereign States, of their free and untrammeled right to place before the Senate and the people of the Nation their right to debate and discuss, as fully and freely as they deem best, problems which involve their very life.
Today, you seek to limit the voice of the States.
The gentleman who preceded me, Mr. Deutsch, quoted somewhat from a book, Burdette, Filibustering in the Senate, by the Princeton University Press. I happened to have had that book with me and, at that juncture in my notes, I have made a note to call attention to the fact that, on a filibuster or a debate in 1893, Henry Cabot Lodge contended that there is another right more sacred in a legislative body than the right of debate, and that is the right to vote.
Senator Lodge happened to have changed his mind later, as Mr. Deutsch pointed out, but on the next day Henry M. Teller, of Colorado, retorted :
I have not learned in anything I have read in the teachings of the fathers that the right to vote exceeds in sacredness the right to speak, and I want to say, with all deference to the Senator from Massachusetts, that the rule he has indicated is a rule that Napoleon the Third laid down for the French Assembly, that the right to vote was of more importance than the right to speak.
Teller went even further:
It is useless she said] for anyone to say that the majority are capable of conducting things properly and will always conduct things properly. There is nothing in the world more wicked and cruel than the majority in government instituted and preserved to protect.minorities against the majority. Majorities protect themselves.
We hear it said that, in this Government of ours, the strength of the majority shall prevail. Those who formed the United States did not so provide. One man in Nevada expressing himself through his Senators has the voice and vote of 200 men in New York.
North Dakota, South Dakota, Montana, Idaho, Wyoming, Vermont, Arizona, Delaware, Nevada, Maine, New Hampshire, New Mexico, Rhode Island, 13 States, each had a population of less than a million, according to the 1950 census. Will it next be attempted by Senators from New York, Illinois, Pennsylvania, and California to deprive those less populous States of their right to vote in the Senate on an equality with the more populous States?
Is the force and power of numbers to rule henceforth in this Nation? Is might to make right? Can you blame us for asking these questions when we hear men in high places say, in support of unconstitutional legislation, that the end justifies the means? That was the governmental foundation upon which the gas chambers of Dachau were built.
In a comparatively recent case, I interpolate, Senators, Justice Douglas referred to that phase in the case of Ray v. Blair, the Alabama case that arose in 1952 where the State of Alabama imposed upon candidates for presidential electors the pledge to support the nominees of the party, and it was attacked as being unconstitutional. The Supreme Court of the United States held it constitutional Justice Douglas, in his dissent, page 235, said:
It is not for me, as a Judge, to pass upon the wisdom or righteousness of the political revolt this measure was designed to suppress. For me it is enough, be it ever so benevolent and virtuous, the end cannot justify these means.
One Senator from New York sponsored Senate Resolution 17; another seems to sponsor Senate Resolution 30. One Senator from Illinois sponsors Senate Resolution 17; another sponsors Senate Resolution 30. One Senator from Pennsylvania sponsors Senate Resolution 30; another, Senate Resolution 17; one Senator from California sponsors Senate Resolution 30. Is it mere coincidence that 7 of the 8 Senators from New York, Illinois, Pennsylvania, and California seek to hush the voices of their fellow Senators?
With this hue and cry of majority rule, what will come next?
Will you seek to change the Constitution so as to permit convictions in impeachment proceedings without the concurrence of two-thirds of the members present?
Will you seek to change the Constitution so as to provide that the Presidential veto of legislation may be overridden by less than twothirds of each House of Congress? You know that the votes of Senators from just 17 States can prevent the passage of a bill over Presidential veto. Will you seek to change that in the shouting for majority rule ?
Will you seek to change article V of the Constitution so that amendments may be proposed by less than two-thirds of both Houses of
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Congress? Will you seek to change that same article so that amendments may be ratified by less than three-fourths of the States?
And, having done that, will you seek to change article IV, section 3, of the Constitution so as to permit new States to be formed or erected within the jurisdiction of another State without the consent of the legislature of that State?
The theory of rule by majority, by careful planning, can convert our form of constitutional government into one of which Washington and Jefferson and Adams and Lincoln and Wilson never dreamed.
Will you, pursuing that theory, change the Constitution so as to provide that less than two-thirds of the Senators present may suffice to ratify a treaty with a foreign nation?
I plead for “Freedom of debate.” I plead that no death sentence be imposed upon that freedom, and upon the rights of the States of the Union to have their ambassadors debate and speak as freely and as lengthily as they desire.
Will the privileges of free speech be reserved only for those who seek to undermine our form of government? That freedom should be preserved for those who love America as well as for those who hate it.
Freedom of debate is a liberty guaranteed by the Constitution equal in importance to any other liberty Tyranny thrives in a climate of suppressed debate. The adoption of the Declaration of Independence was openly debated. The Articles of Confederation were adopted in the Continental Congress after open and unrestricted debate. With these articles as a guide, the Constitution of the United States was prepared and proposed, without any limitation of debate. That debate lasted over a period of many, many months. After it was adopted by the Continental Congress it was proposed to the several States for ratification. In their legislatures and their conventions, the States openly and freely debated it for 9 months before 9 States ratified it. New York debated it so long that she was the third to the last State to ratify it.
And, so adopted and ratified, after full and unrestricted debate, it, with 2 amendments besides the Bill of Rights, stood the test of time for almost 80 years. The 14th amendment, constructions of which threaten our whole structure of constitutional government, was adopted under the most extreme character of cloturecloture enforced by the bayonet.
The so-called liberal organizations who advocate restrictions of debate in the Senate of the United States evidently believe in a peculiar kind of freedom of speech—freedom of speech for themselves alone. If the theories of government they espouse are under attack in the Senate of the United States, they desire open, thorough, unlimited, and unrestricted debate. But, if haste is essential to the passage of measures they espouse, then there must be a restriction of debate.
I heard one of the most liberal lawyers of the South recently say in an address (May 19, 1957): "Society cannot survive without full discussion and debate.” That statement was unique because it was the only theory of government I had ever head him express with which I could wholeheartedly agree.
You seek to avoid filibusters. A filibuster is good or bad according to who is doing the talking and according to what its purpose is.
At page 34 of this Burdette book, Senator Sumner, of Massachusetts, seems to have been participating in a filibuster in 1865 as the 38th Congress neared its close.
Charles Sumnerwe know of him, we have heard of him in the South, Senatorand a few others contrived dilatory tactics to defeat a resolution recognizing a reconstructed State government in Louisiana Military officers under the direction of President Lincoln had held an election and arranged the adoption of a constitution, but Sumner was determined that only Congress would authorize the erection of a State government. And he was also insistent upon more liberal terms of Negro franchise.
When the resolution : of approval became the business of the Senate, the Massachusetts Senate began a program of concerted opposition. He was not a solitary minority, however, and opponents of the proposition, both Democrats and Republicans joined in obstruction by long speeches and dilatory motion.
Lyman Trumbull, of Illinois, denounced the procedure as a determination to browbeat the Senate, but Sumner countered that he thought the measure dangerous and therefore that he was justified in all the instruments of parliamentary warfare.
Senator Elihu Root, of New York, made a similar statement which is shown at page 109 of this fine work in debating the ship purchase bill in 1915. The Republican position upon the bill was summed up by the eminent Elihu Root, who said:
A senator said to me a few days ago, you cannot afford to engage in a filibuster. Senator Root replied : Mr. President, I cannot afford to flinch from the duty which upon my oath and my conscience seems to lie before me.
Doubtless every Senator has seen the brochure on Limitation of Debate in the United States Senate prepared in December 1956 by the Library of Congress Reference Service. Therefore, it would be useless for me to enter into a detailed discussion of it. I do hope, though, that every Senator will study page 29 of it, headed “Later Action on 35 Filibustered Bills," and see if unrestricted debate is such a bad thing for our Nation. (See appendix, p. 307.)
Of these bills, over a period from 1865 to 1946, the only ones not passed were these:
(a) The force bill in 1890–91;
(e) FEPC bill, 1946. Strange it is that every one of these bills, save one, had as its object and purpose the embarrassment of the Southern States, their relegation to their 1865–70 status as conquered provinces.
And Mr. Burdette had something to say about those bills, too. I refer particularly to what he said with reference to the late Senator Norris, a great liberal Senator. Senator Norris spoke upon the necessity for full debate in connection with the armed ship bill in 1917. He said, and I quote from page 120 :
Many bills were mulled upon by Congress during the last few days of the session and when anybody objected, when anybody thought it was his duty to find out what was being done with the taxpayers' money or what kind of statutes we were placing upon the books, the cry always came, you are filibustering.