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One of the greatest debates in all history was that conducted in the Virginia Convention of 1788 on the ratification of the Constitutiona debate that has been so faithfully and and so interestingly portrayed in Beveridge's 4-volume Life of John Marshall. All members of the Virginia convention were looking for a method of forming a more perfect union. The only question was whether the Constitution as framed by one of the convention's own members, James Madison, would preserve the rights of the States and the principles of local self-government, or would gradually allow all power to be concentrated in the Federal and Central Government.
Arrayed on the side for ratification of the Constitution were such great statesmen as James Madison, John Marshall, Edmund Pendleton, Edmund Randolph, George Wythe, Lighthorse Harry Lee, and Bushrod Washington. George Washington was not a member of the convention, but favored ratification and lent the weight of his influence for it through correspondence from Mount Vernon. Jefferson was in the then far-away Paris, as Minister to France, and was not involved in the debate at all.
Lined up on the side against ratification were equally great men, such as Patrick Henry, George Mason, author of the Bill of Rights, Benjamin Harrison, Richard Henry Lee, John Tyler, and James Monroe.
Never did any question of personal interest enter into the debate. Never was a debate conducted on a higher plane. Seldom, if ever, in all history have such great orators been arrayed against each other, and, although they were arrayed against each other they were motivated by one common purpose, and one purpose only, and that was what was best for the budding Nation. The only difference of opinion was that those for ratification believed that the Constitution would safeguard the interests of the people and preserve the principle of local self-government. Those against ratification believed that the Constitution would allow the governing power gradually to become concentrated in the Central Government and that this would eliminate the principle of local self-government, making the States mere satellites of the central body.
Were all those great debaters alive today, they would be on the same side fighting against the destruction of the dignity of the individual and the independence of the local community. But these high-principled men never even dreamed of a packed Supreme Court, or of the tyranny of the majority.
After the Constitution had been forged in the fire of patriotism, and had been hammered out on the anvil of statesmanship, it was felt that one of the best safeguards of the rights of the people was in the Senate, the members of which were not elected by popular vote, but by the legislatures of the respective sovereign States which formed the Union. Furthermore, the Senators were elected for 6-year terms and were supposed to form a check against the impulsiveness of the actions of the House, the Members of which were elected for only 2 years and were more subject to the varying whims of the people.
The Founding Fathers must have realized, in spite of their hope that our liberties would be enduring, that freedom must constantly be fought for in order to be maintained. They must have realized that impulse majority, in moments inspired by political expediency, rather than statesmanship, could become tyrannical and impose in
tolerable abuses on minorities not greatly inferior in number to the tyrannical majority.
It was doubtless this fear of tyrannical whims, no matter what motivated them, which caused the Senate to adopt the rule of unlimited debate, which it has followed for such a long period of time. There are some who say that unlimited debate thwarts the will of the majority. This has happened in only a few instances, and in those instances if the will of the majority had prevailed, it would have resulted in the suppression of the democratic rights of the minority. Which is more desirable, that the majority have their will, or that the minority have their liberties unsuppressed ?
No one will question the fact that one of the reasons why certain elements of both parties are now trying to change the Senate rules is to pass the so-called civil-rights bill. If this bill were passed, the effect would be that mentioned above, namely to give the majority their will and to deprive the minority of their freedom.
I do not believe that it can be truthfully said that any deserving person in this country is really denied his civil rights. George Washington felt that he was being denied his civil rights by George III. He fought to regain them and did. There are those in this country who think of their rights only, and nothing of their obligations. Reflect, if you please, what a different kind of citizen George Washington was. The same is true of all citizens with a sense of duty.
I do not believe that people are denied civil rights in this country because of race or color, but because of the way they act. If the actions of any citizen show a due regard for his obligations, his rights will be forthcoming with a will. Actions speak louder than words. There are among us a number of citizens who show such a vast disregard for their obligations as to make them unworthy of citizenship. This cannot be denied, it cannot be blinked, and no amount of sentimental or emotional oratory can make a silk purse out of a sow's ear. On the other hand, the facts should be faced, and every effort should be made to develop a sense of obligation in those citizens who do not have it, in the hope that one day they will be worthy citizens.
One gets a little tired of hearing the statement made that Negroes, by the action of white people, are forced to be second-class citizens. While there is some element of truth in this, it is certainly not the whole truth. There are many first-class Negro citizens. It is well known, however, that too large a proportion of that race must be categorized as third-, fourth-, or fifth-class citizens. If they could be raised to the level of second-class citizens, the entire country would be relieved and the politicians dismayed, because they would have lost one of their familiar vote-getting themes.
In closing, I wish to express the belief that the fairmindedness of our people will deny no man a role for which he has shown himself qualified. Those who are not qualified may become so if they have the will to apply themselves to the task.
I further believe that when the right of any man to stand up and speak his mind hinges on a majority vote of any group, then we have lost our democratic process. Then we can kiss democracy goodbye. That will be the time to look around for a good funeral orator, because when that happens, we will have had it.
Senator TALMADGE. Thank you.
Have you any questions, Senator Javits!
Senator TALMADGE. Dr. Koontz, thank you very much for coming and giving us your views.
The next witness is Mr. Thomas F. Cadwalader, attorney, Baltimore, Md.
You may proceed, Mr. Cadwalader.
STATEMENT OF THOMAS F. CADWALADER, ATTORNEY,
BALTIMORE, MD. Mr. CADWALADER. I represent no particular organization. I have been interested in governmental problems for a good many years, and have made some study of them.
Anyone who has studied the American Constitution and its origin, as set forth in the debates of its founders themselves, and in the Federalist, must be aware of the fact that the chief function and purpose of the Senate as an institution is to defend the rights and interests of the States, and more particularly of the small and weak States, against the large and populous ones. It was the then small States of New Jersey, New York, Connecticut, and Delaware that forced the compromise scheme of a Senate with equal suffrage of all the States as against a House with representation according to population. If this compromise had not carried against the vigorous protest of the big States, Virginia, Pennsylvania, and Massachusetts, the Convention would probably have broken up. Later, when the amending article was under debate, the same influences forced the adoption of the proviso which freezes the equality of States in the Senate beyond the possibility of repeal.
The Senate was therefore established expressly for the purpose of obstructing legislation hostile to minority interests, and especially to the smaller States. It was elected by the States' legislatures.
The 17th amendment changed the method of electing Senators from the legislatures to the voters of the several States. This gave to the mass vote of big cities the real choice of the Senators from the big States and some of the small States, incidentally--and the Senators from those States are chiefly answerable to the industrialized and urban centers, and tend to reflect their wishes. The small towns and rural parts of the country can hope to rely only on the Senators from the agricultural States, and these are getting fewer all the time.
The checks and balances by which the framers sought to restrain the excesses to which governments are always prone have therefore been much weakened in the National Legislature. At the same time, the legal and constitutional checks to be found normally in a judiciary sworn to support and defend the Constitution have become of little value. The reasons for this are perhaps more obscure, but the fact is quite obvious. Even if in some spheres such as the right of free speech it may appear that individuals are being amply protested by the courts, it is certainly true that individual rights to property, and the very basic right of local self-government, have suffered curtailment such as the framers never dreamed of.
The powers of government when exerted in the direction of collectivism are rarely, if ever, restrained by the Supreme Court, and
UNIVERSITY OF MICHIGAN LIBRARIES
even the right of free speech is protected chiefly when the speaker advocates collectivism in some of its numerous forms.
Anything, therefore, that gives States or communities that are in the minority some sort of chance to defend their natural rights and the personal liberties of their people against the overwhelming power of a mighty government is to be safeguarded as a means of defending what liberty remains. For if liberty goes, it matters not whether fascism or communism takes its place. In either event, the days of American greatness will have ended.
One of the principal safeguards remaining is a Senate based on the equal suffrage of the several States and the right of almost unlimited debate of its members. No instance can be recalled in our history where this right of unlimited debate-or filibustering, if you choose to call it sohas operated to the serious injury of the country, except in the opinions of a few disappointed people.
In the past it saved the country from a renewal of the orgies of reconstruction when the force bill was defeated in the last decade of the 19th century. Actually, the shame and crime of reconstruction itself could not have occurred if the several States had been allowed the senatorial suffrage that the Constitution guaranteed to them.
If the aftermath of the Civil War had been as the aftermath of Great Britain's war against the Boers, the hatred and disunity that now, 100 years later, still exist and increase between the sections of the Union would long ago have been forgotten.
A free country must be governed by the consent of the governed, as the Declaration of Independence proclaimed. Otherwise, it is not free. The right of cloture in a parliamentary body is only a right to impose the will of the dominant party on the unwilling minority. It is not necessary ever to invoke it unless the minority is convinced that the action under debate is so oppressive that it never should be advocated by any person professing his loyalty to free institutions.
Take the present case of the so-called--and miscalled-civil-rights bill. If the civil rights of citizens, white or black, cannot be protected in the ordinary course of law by the governments of the States in which they live, then we should abolish the United States altogether and substitute an all-powerful dictatorship in the hope that it might prove beneficent and treat everyone alike. Has any dictatorship done so? Yes; a few, for a short time, perhaps. But you and I do not believe in taking this risk. However, if you make the protection of civil rights, however you define them, the duty of a central government through its appointed agents, attorneys, judges, marshals, and detectives, all of whom are appointed, none of them elected, you are really opening the road to the development of a purely dictatorial form of rule, from which you may find yourselves beyond the point of possible return.
This bill is aimed now at the South, but its principle is equally threatening to every part of our people.
If you overthrow the possibility of talking to death measures of this nature, then you are voting to abandon one of the few remaining lines of defense established by the sagacious strategists of the Constitution, and those who so vote may thunder against communism as much as they please—they will have presented it with a very useful key to unlock the storehouse of freedom and despoil it.
Senator TALMADGE. Any questions, Senator Javits?
Senator TALMADGE. Mr. Cadwalader, we thank you very much for appearing and giving us a very fine statement.
The next witness is Mr. Clarence Mitchell, director of the Washington bureau of the National Association for the Advancement of Colored People.
Mr. MITCHELL. Thank you, Mr. Chairman.
Senator TALMADGE. Proceed as you will, Mr. Mitchell. STATEMENT OF CLARENCE MITCHELL, DIRECTOR OF THE WASH
INGTON BUREAU OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
Mr. MITCHELL. Gentlemen of the subcommittee, thank you for this opportunity to testify on the question of amending rule XXII. This statement is brief because there is very little to be said on this subject that has not been said before.
The National Association for the Advancement of Colored People has consistently supported the proposition that a majority in the United States Senate should have the power to limit debate by cloture. At our 48th annual convention, just concluded in the city of Detroit, our delegates again went on record in favor of a Senate rule which would make it possible to stop a filibuster by a majority vote of the Senators present and voting.
Senate Resolution 21, introduced by Senator Wayne Morse, embodies the principle approved by our convention in that it would require a majority of the Senators present and voting to obtain cloture. On the other hand, Senate Resolution 17, introduced by Senator Douglas, Senator Ives, the distinguished junior Senator from New York, Mr. Javits, who is a member of this subcommittee, and others, would also be an effective change that would sound the death kneli of filibustering.
Every Member of the Senate knows that there is a vast difference between full debate and the filibuster. When discussion on the motion to take up the proposed civil-rights bill began on July 8, the Senate Chamber emptied as if by magic. Those who are wise in the ways of Washington knew that speakers would not rely on logic to achieve their goal of killing or emasculating the bill. Instead, it was their intention to force the majority of the Senate to its knees by lengthy speeches, threats of holding up necessary legislation, and liberal use of parliamentary tactics that would cause delay and confusion. Most of the speeches will repeat the wornout phrases about hordes of investigators, opening Pandora's boxes that are filled with Federal bayonets and possible bloodshed. Few, if any, will be on the merits of the bill.
If Members of the Senate were convinced that civil-right opponents were willing to engage in fair debate and vote on the merits of the bill, the record of attendance would be much better.
No one who wishes to preserve the processes of democracy would advocate that fair debate be curtailed. At the same time, no one who