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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 bodyWilson had writtento 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 paladium. It is the læst 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 government.
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 remedy” 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 legislation 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
a filibuster is not only justifiable but salutary.” The first would arise, he thought, “when a vital question of constitutional right is involved”; the second “when the measure is evidently the result of crude or inconsiderate action"; and the third “when the Senate is convinced that because of some compulsion a 'vote will not express the honest conviction of the Members."
I suggest, sirs, that the legislation to which these resolutions are really directed, the Brownell bill, has all three of those vices.
The 22 Senators from the 11 real Southern States are a “minority group.” The other 74 Senators can outvote them. If they do, our Southern Senators may well say, “You are sounding the death knell of constitutional government. Do not think that the people of our States will suffer from that destruction alone. The bell toīls for you and yours, too."
Senator TALMADGE. Any questions, Senator ?
Senator JAVITS. I don't want to ask any particular questions. I wondered whether that book was by Dr. Franklin L. Burdette.
Mr. Bloch. I think so, sir. By Franklin L. Burdette.
Senator JAVITS. Now, would it interest you to know that Dr. Franklin L. Burdette appeared before this committee on June 25, 1957, and recommended the adoption of Senate Resolution 17, the very resolution you are testifying against ?
Mr. Bloch. Yes, but I might make it plain that I was not citing the opinions of Mr. Burdette. I know nothing about Mr. Burdette. My reason for using this book was that he quoted from the Congressional Record in quoting certain Senators of days gone by. I don't know Mr. Burdette and I don't mean to cite him, his views, as authority. I do cite as authority his quotations from the Congressional Record.
Senator Javits. Thank you. I didn't mean to in any way infer that you did otherwise.
Senator TALMADGE. Mr. Bloch, we appreciate very much your presentation here and your very fine statement, sir.
Senator JAVITS. Mr. Chairman, before we proceed to the next witness, I would like to advise the Chair that I would like at the Chair's convenience to have time for consideration of the question of closing these hearings and inviting witnesses after a certain date to submit written statements.
Senator TALMADGE. Do you want to do that now?
Senator TALMADGE. Suppose we finish hearing the witnesses and then we can go into that at some length if you desire.
Mr. John U. Barr, please. Mr. John U. Barr of the Federation for Constitutional Government, New Orleans, La.
You may proceed at will, Mr. Barr. We are happy to have you with us.
STATEMENT OF JOHN U. BARR, FEDERATION FOR CONSTITUTIONAL
GOVERNMENT, NEW ORLEANS, LA.
Mr. Barr. Thank you, Mr. Chairman, and Senator Javits and members of the committee. I appreciate very much the opportunity of appearing. I feel somewhat inconsequential following those brilliant statements made ahead of me, some of which, of course, are duplicated here and may be treated in a different way.
I appear before you today as chairman of the executive committee of the Federation for Constitutional Government.
We are a voluntary group, dedicated to do whatever we can to keep ourselves and our countrymen informed and alert to any damage, departure, or erosion of our God-given Constitution, which, in our opinion, was truly a divine revelation given to our Founding Fathers for the formation of the most perfect republic on the face of the earth.
Millions of words have been spoken and written pro and con on the subject of rule XXII of the United States Senate.
So few of our fellow citizens realize that during the few years after the birth of this Republic, and the adoption of unlimited debate in 1806, it had quickly become apparent that the safety of our infant Nation would, in the last resort, depend upon a calm, deliberate, and unshackled legislative body.
It should not be necessary for us to remind ourselves that, as a nation, we made our greatest strides during the 110 years of unlimited Senate debate.
There are still some living Senators, both in and out of office, who would hate to have to face (in the light of what later took place) the implications of the dire, but now ridiculous predictions they made unless rule XXII be amended or abolished.
Members of Congress, both Republican and Democratic, from Senate and House, from North and South are today worried about the decisions of our Supreme Court. I think that the time may be very rear when the Congress, and particularly the Senate, will in some concrete manner show the Court that the legislative branch of our Government has not abdicated.
Still, less than 10 years ago, a living ex-Senator made the ridiculous plea for abolition of rule XXII on the theory that the Supreme Court would, and could, be trusted to take care of all “worthy minorities."
He was right in his own way, except for the fact that the people of his State repudiated him not very long afterward, because they felt that the ex-Senator had no mandate from them to consider the Commy Party of the United States as a worthy minority.
To balance this on the other hand, the late Senator McNary opposed any limitation of senatorial debate on the grounds, "I may want to talk some day, myself.”
The most amazing fact stands out as one traces the words of those who, like McNary, have over the years defended the right to have the Senate remain a really great deliberative body.
Of the thousands of words spoken by the proponents of rule XXII on the floor of the Senate, it is impossible to find a single argument that was in conflict with the intent of either the Founders or Constitution of this Republic.
Many of the great statesmen of Europe, both in the 19th and 20th centuries, have spoken in praise and envy of the Senate of the United States. I think it was Gladstone who first said that, in our creation of an unshackled Senate, we had for the first time in history perfected a legislative body where even a political tyrant would find a barrier.
I always get a laugh at that picture of a mother, showing her young daughter the armless statue of Venus de Milo and the mother's warning to the child about biting her fingernails. I do not think it funny,