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 cloture-cloture 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 Sumner

we know of him, we have heard of him in the South, Senator

and 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;

(b) The armed ship bill in 1917;

(c) Antilynch bills, 1922, 1935, 1937;

(d) Antipoll tax bills, 1942, 1944, 1946, 1948 ;

(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.

The Senator from Nebraska would stand in the way of war hysteria.. He would seek to hear the arguments, and if it came to filibustering, he proclaimed, to try to find out about something, to do the best you can when it all comes at once, and you cannot do much, then I am guilty of filibustering.

To substantiate his point that discussion should be thorough, he read from the doctoral dissertations of Woodrow Wilson's argument, the President himself:

It is the proper duty of a representative body

Wilson had written

to look diligently into every affair of government and to talk much about what it sees.

And in 1922, in the debate on the antilynch bills, Senator Overman, of North Carolina, summed up the unyielding position of the Democratic minority when he said:

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 stone of this Republic, I think they are fully justified in filibustering to prevent, if possible, a militant majority from roughshodding over a strong minority.

And at page 180 of that work, when the 1935 antilynch bills, so called, were being debated, this book points out at page 180 that when the Senate convened on a certain Monday, Hugo L. Black, of Alabama, and James F. Byrnes, of South Carolina, consumed the time. Southerners were adamant that the bill should never pass.

It seems a little strange to me at this time that they should have thought alike at that time.

And then with respect to the 1937 bill, Senator McNary, as the Republican leader, announced that he would vote against cloture:

All Republicans in the Senate save two [he stated] sincerely favored the bill. They are willing to remain here from sunrise to evening star and from evening star to sunrise in order to have the bill passed, but, Mr. President, I am not willing to give up the right of free speech and full, untrammeled opportunity for argument. That right is the last palladium. It is the last impregnable trench for those who may be oppressed or those who are about to be oppressed. It may be the last barrier to tyranny.

That was the Republican leader of the Senate in 1937. I believe Senator McNary was afterward a candidate for the Vice Presidency on the Republican ticket. That quotation is from page 196 of Mr. Burdette's book.

And strange it is, too, that almost every lawyer in the United States Senate, as a lawyer, or as a judge, would have not the slightest hesitancy in deciding that these bills exceeded the powers delegated to Congress by the sovereign States. Yet they are cited as examples for the need of restriction of debate. They really serve as outstanding examples of the need for unlimited debate and the survival of constitutional gov

ernment.

We hear so much these days of "minority groups." Formerly this phrase had a distinct meaning. When we heard it uttered, we visualized certain racial groups or certain religious groups.

Now the phrase is somewhat more difficult to define. Personally, I think that the outstanding minority group in the country is that group which is striving for the perpetuation of constitutional govern

ment. Today, the minority group in this country whose members need protection is composed of those who believe in a government under the Constitution of the United States as it was written, legally amended, and construed by judges trained in law and construed according to legal precedent, the established law of the land.

If by "minority group" is meant those who are of African descent rather than English or continental European, why do they desire to destroy law and the Constitution?

If by "minority group" is meant those who worship their God in a manner different from most of those who settled the Thirteen Original States, why do they desire to destroy established constitutional precedents?

When and if the phrase, "The end justifies the means," becomes the law of the land, they will be the first to feel its blunt force.

Government under a constitution, construed according to law and established, long-continued, legal principles is their only hope of survival. I may say our only hope of survival.

What "end" could possibly justify the abolition of jury trials? What "end" could possibly justify the abandonment of principles of equity practice established as the law of the land more than 400 years ago in England, and continued in this America for more than 300 years?

What "end" could possibly justify jeopardizing rights which now seem established by adjudication and construction of the Constitution?

I mean simply this: The first amendment to the Constitution provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press. There is no provision in the original Constitution or in the Bill of Rights which prevents a State from making laws respecting an establishment of religion. There is no provision in the original Constitution or in the Bill of Rights which forbids a State to prohibit the free exercise of religion. There is nothing in the original Constitution which prevents a State from abridging the freedom of speech or of the press.

Long after the 14th amendment was adopted, the Supreme Court construed the provision in it that no State should deprive any person of life, liberty, or property without due process of law to mean that no State should deprive any person of the liberty of worship, speech, and of the press. By judicial construction, the word "liberty" was held to extend the prohibitions of the first amendment so as to restrict the States. In so holding, the Supreme Court evidently failed to consider that if the word "liberty" had that breadth of meaning, the first amendment was totally unnecessary. The fifth would have sufficed. If the doctrine of "the end justifies the means" is to be the new rule of constitutional construction; if precedents established in the decisions of jurists trained in the law are lightly to be swept aside upon the testimony of psychologists and articles in the New Yorker magazine (cf. case 107, October 1956, decided June 24, 1957, slipsheet page 6), then all "freedoms" rest upon a perilous base.

The case referred to is that of Kinglsley Books, Inc., Louis Finkelstein, Doing Business as Times Bookshop, et al. v. Peter Campbell Brown, Corporation Counsel of the City of New York. There, a proceeding under section 22-a of the New York Code of Criminal Procedure, as amended in 1954, providing for a "limited injunctive rem

edy" was upheld in a 5-to-4 decision. The opinions show quite clearly that, if appellants had requested a jury trial, or had attacked the statute in the lower court for failure to require a jury, it would have been invalid.

Will you deprive southerners-Americans of the South-a right which the court impliedly held to be that even of a purveyor of obscene books?

Are the rules of the Senate to be changed in order to pass a statute of that nature?

The document to which I have referred-Limitation on Debate in the United States Senate on pages 23 and following gives 36 instances of outstanding Senate filibusters from 1841 to 1955.

A glance at the list shows that the filibuster is not merely an old southern custom. Perhaps the reason why the southern Senators have more often than others engaged in prolonged debate is that the South is the only section of the Nation against which legislation has been frequently specifically directed. But Senators from other sections, too, debate at length when they have what they think are reasons to debate.

I notice that, in 1914, Senator Burton, of Ohio (now Justice Burton)-I do not think that is the same Senator Burton. Let us strike out "(now Justice Burton)" there. I am not sure he is. I wouldn't want to make that statement definitely. It seems a little too long ago.

I notice that, in 1914, Senator Burton, of Ohio, "filibustered against a river and harbor bill for 12 hours." The armed-ship debate of 1917, and the World Court protocol debate of 1926 were not southern inspired. Neither was the lengthy talk of Senator Copeland, of New York, against the Isle of Pines Treaty in 1925.

I notice, too, that in 1950, Senator Malone filibustered against a conference report on the slot-machine bill. In 1953, during the prolonged debate on the so-called tidelands offshore bill, Senator Morse established a new record for the longest single speech. On April 24-25, he spoke for 22 hours and 26 minutes. Now, the Senator has introduced Senate Resolution 21, which is one of those pending before this committee.

It all depends upon whose ox is gored. We all know that, if unwarranted legislation were introduced adversely affecting any group of States, the Senators representing the States in that group would want to debate without limitation what they deemed injustices to their States sought by bills violative of the Constitution.

I would like to interpolate three instances of that which I found in this Burdette book yesterday evening coming up here, on page 108

of it.

Senator Jones of Washington was assisting in conducting a so-called Republican filibuster. He took the floor for a lengthy speech in which he admitted freely his purpose to filibuster. That practice, moreover, he boldly defended.

No important legislation [he asserted] no legislation of great benefit to the people of this country has ever been defeated by filibustering. Rather, only legis lation which a great section of the country and perhaps a great number of Senators have believed most injurious and most dangerous has been defeated by filibustering.

And on page 110, discussing that same bill in 1915, Senator Burton of Ohio expressed his conviction that "there are three cases in which