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Dr. Albert B. Saye.

I would like to state for the record that Dr. Saye and I were students at the University of Georgia together. He appears here today at my request. He is one of the finest and most outstanding students of history and constitutional government in our section of the country and the Nation.

We are very happy to have you with us, Dr. Saye.
Senator Javits. May I say I join my colleague in welcoming you.



I understand I am not to speak more than 30 minutes, and I think that I can confine my remarks to a shorter period.

There will be a good bit of similarity in what I have to say with some of the comments of the previous speaker. There will be a great contrast between what I have to say and what was said by the former political scientist speaking this morning.

I think on the matter of the Senate being a continuous body, Mr. Chairman, it might be well to mention the name of the case

Senator TALMADGE. I wish you would put it in the record.

(The pertinent portion of the Supreme Court decision in McGrain v. Dougherty may be found on p. 147.)

Mr. SAYE. McGrain v. Dougherty, in 1927, in which the Supreme Court specifically ruled that the Senate was a continuous body.

Senator Javits. Would you yield ? My recollection of that case is that there was dicta in it, which related to certain aspects of it.

Mr. SAYE. You are quite right.

Senator JAVITS. The case didn't rule that the Senate was a con- . tinuing body.

Mr. SAYE. You may be right. This was part of the opinion of the Court in this particular case in 1927. My views of the United States Senate are not—well, from the historical point of view, I think that the Senate has been held in much higher esteem than would be inferred from some of the previous statements. But I have a prepared statement. I will go a little faster, I think, if I begin with it.

Senator TALMADGE. Proceed. We don't want to hurry you unduly, but, at the same time, we do have many witnesses to hear, Doctor. We want you to take your time in your own way.

Mr. SAYE. Gladstone described the United States Senate as "the most remarkable of all the inventions of modern politics.” It occupies a unique place among legislative bodies. It was designed by the Federal Convention as a check upon hasty actions by the House of Representatives, as a participant in executive functions, as a guardian of State rights, and as a stabilizing influence in the whole constitutional system. Joseph Story called it the "balance wheel” in our Government. It has served its purpose well.

Since its organization on April 6, 1789, there has never been a time when the Senate, as an organized body, has not been available at the President's call, or in accord with the terms of its own adjournment, for the transaction of public business. Its rules, adopted 10 days after its organization, have remained in force from 1789 to 1957 without reaffirmation. Amendments to these rules have been adopted in the

regular course of business, but it is a late date, indeed, to suggest that the Senate is not a continuous body. Every person with an appreciation of American history knows that it is. And serious students of American Government know that any change in the Senate rules will have repercussions on our whole constitutional structure.

Mr. Chairman, there are two principal points I have to make in this discussion. The first deals with the effect of rules on the relation of the Executive to the legislative, particularly the relation of the Executive to the Senate.

No European state entrusts to its legislature the direct participation in executive functions which the Senate enjoys. Ours is a presidential government, with a check and balance accompanying a separation of powers. A contest for power between the Executive and legislature is inherent in the separation principle. In the shift in power through the years, the President has tended to expand in power at the expense of the legislature. Freedom of debate in the Senate has served as the most effective check on Presidential absolutism.

The prestige of the President's office and the opportunity for a constant stream of self-advertising gives the President an advantage in dealing with Congress. He does not have to face the House in open debate as does an English prime minister.

When his party is the majority party in Congress, the President's party leaders have little difficulty in passing anything in the House. With its majority cloture and gag rules, the House is largely a rubber stamp. It is no accident that the collective judgment of the Senate produces superior legislation to that passed by the House which frequently represents no more than the hasty judgment of a few party leaders.

The Senate is the only forum in the Nation that can check on executive and party propaganda. It is the only forum where a majority President can be forced to explain the meaning of proposed legislation.

It is the forum where minority criticisms can be effectively voiced and minority aspirations expressed. Alteration in rule XXII as proposed by Senate Resolution 17, Senate Resolution 21, or Senate Resolution 28 would drastically alter the relation between the President and Congress.

It would be a long step toward supplanting parliamentary government as America has known it, where legislators count as individuals and vote on legislation on its merits, by party government as it exists in European states, where legislators count but little as individuals and vote by blocs as the party leaders dictate, without incorporating the responsibility of the executive to the legislature, which is viewed as the chief advantage of the cabinet form of government.

A change in rule XXII is far more serious than many people realize. For an excellent coverage of the significance of freedom of debate in the Senate to executive-legislation relations, I invite your attention to the Lindsay Rogers, The American Senate, 1931, a thoughtful study not written in a period of agitation.

The second part of my paper has to do with protection of minority rights.

The concept of majority rule is simple, but the concept of unrestrained majority rule is foreign to our written Constitution and to the spirit of American political institutions. A Federal union is not designed to enable one section to triumph over another, or the numerical

majority in the Nation to force any section to the breaking point. There are areas in which self-restraint, tolerance for the opinion of others, and compromise are to be preferred to force. Calhoun's doctrine of the concurrent majority is constantly at play in American politics. Its stronghold is the "consensus” within our political parties. It finds expression in the selection of "available” candidates for office, and in the enactment of legislation. The unanimous-consent agreement made in the Senate on January 3 of this year for handling the motion by Senator Anderson to take up for immediate consideration rules for the Senate is a clear example of the doctrine in operation.

As John Fischer has pointed out in Unwritten Rules of American Politics, Harper's magazine, November 1948:

Government by concurrent majority can exist only when no one power is strong enough to dominate completely, and then only when all of the contending interest groups recognize and abide by certain rules of the game.

These rules are the fundamental bond of unity in American political life. They can be summed up as a habit of extraordinary toleration, plus "equality" in the peculiar American meaning of that term. * * * Under these rules every group tacitly binds itself to tolerate the interests and opinions of every other group. It must not try to impose its views on others, nor can it press its own special interests to the point where they seriously endanger the interests of other groups or of the Nation as a whole.

Furthermore, each group must exercise its implied veto with responsibility and discretion; and in times of great emergency it must forsake its veto right altogether. It dare not be intransigent or doctrinaire. It must make every conceivable effort to compromise, relying on its veto only as a last resort. For if any player wields this weapon recklessly, the game will break up—or all the other players will turn on him in anger, suspend the rules for the time being, and maul those very interests he is trying so desperately to protect. That was what happened in 1860, when the followers of Calhoun carried his doctrine to an unbearable extreme. * * *

Now it is an unwritten but firm rule of Congress that no important bloc shall ever be voted down—under normal circumstances—on any matter which touches its own vital interests. Each of them, in other words, has a tacit right of veto on legislation in which it is primarily concerned. The ultimate expression of this right is the institution-uniquely American—of the filibuster in the Senate. Recently it has acquired a bad name among liberals because the southern conservatives have used it ruthlessly to fight off civil-rights legislation and protect white supremacy. Not so long ago, however, the filibuster was the stoutest weapon of such men as Norris and the La Follettes in defending many a progressive cause * * *

A rule is “ a prescribed guide for conduct." Rules serve their purpose best when adopted in a calm atmosphere and adhered to in moments of agitation. In a time of agitation over enactment of highly controversial legislation an appropriate time to change the rule which has enabled the Senate to serve as the balanced wheel in our whole constitutional structure?

Any change or proposed change at this time is likely to be influenced unduly by agitation on a single issue.

And I understand from Mr. Javits' remarks that that is intimately connected with this proposa) in the change in the rules.

The change made in 1949 has not been well reported in the press; and few people outside the Senate realize that section 3 added to rule XXII only an express statement of a provision already implicit in the existing rule, as repeatedly affirmed by action of the Senate.

Let the Senate abide in this period of agitation by the rule of freedom of debate that has served well since the Senate was organized in 1789. States wanting FEPC and kindred legislation are free to enact

it. Any of the so-called civil rights legislation that any State wants to enact, it can enact today.

The Federal constitutional system was designed to permit the people within each State to mind their own business within a broad range.

Extremists on both sides agitating racial problems may already have had their heydey. There is a wealth of good feeling among the American people. Education, not force, is the answer to many of our sectional problems. The road may be longer, but it is much safer.

That concludes my remarks, Mr. Chairman.
Senator TALMADGE. Any questions?

Senator Javits. I just wanted to thank you, Professor, for being here. I had only one question.

As you say, so many of these arguments answer each other, we don't have to introduce more questions than already exist.

I notice what you said about each State being able, if it wishes, to adopt its own law on so-called civil rights. Of course, we have in New York a great many of such laws.

But I did want to ask you, don't you think it was a different situation for the right to vote for Federal office, which is the very keystone of this civil rights bill now on the Senate Calendar-don't you feel that when it comes to the right to vote for Federal office, the whole American people have an interest?

Mr. SAYE. Senator Javits, as I understand the proposed bill, it is an amendment to the old Ku Klux Klan Act, adding sections 4 and 5 to three sections of a bill which the United States Court, in United States v. Harris, declared to be unconstitutional.

If it were merely a matter of voting involved, I don't think there would be nearly so much opposition to the proposed so-called civil rights bill. I think the President asked for a moderate bill in this field. I think he has been duped. I think he has been misled by the so-called moderate measure that is now proposed.

He spoke yesterday in favor of reviving State rights; yet the bill which his leaders are bringing every pressure to get through the Congress would vastly supplant State administration of justice by a free play of the Federal judges in fields never before dreamed of by the Federal courts; and under the vaguest type of legislation, only having a suspicion of a violation of equal protection.

There is practically no definition. It is not confined to voting. If that were the situation, it would be quite a different thing.

I think perhaps Mr. Eisenhower intended a bill relating principally to voting. I don't think that would arouse a great deal of opposition.

But this other involves many things other than voting.

As a matter of fact, we don't know what it involves. It gives the judges free play and destroys the right of trial by jury.

Senator JAVITs. In other words, you think the main objection to this bill is rather the drafting.

Mr. SAYE. The generalities of the bill.

Senator Javits. The terms of the bill, rather than the objective of trying to get voting.

But, do you agree with me, therefore, Professor-understand, we are not trying to trap you into any answers at all. I am advising you about that, because I don't want to in any way embarrass you.

Do you agree with me, however, that the whole American people have an interest in the integrity of the voting right of the individual,

regardless of his color, in any State where he was voting for Federal office ?

Mr. SAYE. Voting for Federal offices, I would agree with you. Senator Javits. Thank you very much.

Senator TALMADGE. Dr. Saye, I hate to inject an extraneous issue, but since my colleague brought it up, I don't think the record ought to be left incomplete.

Is it not true that any citizen in America now has the right to vote and can enforce that right in the Federal courts, either civilly or criminally?

Mr. SAYE. I am not sure about the “civilly.” I think they can sue for damages, Mr. Chairman. They are certainly exercising their right, if it is relating to the colored people in the South. It is rather amazing the rapidity with which they are registering to vote in large numbers.

I made some study recently of the registration of colored voters in the Southern States. It is a little difficult to get accurate figures in all of the States, but the increase is striking. And certainly they have the right to bring suit, if they are denied.

As a matter of fact, I don't think-I am certain in my own State of Georgia that there is no attempt to deny the right to vote to anyone for Federal or State offices on the basis of race or color.

Senator TALMADGE. Thank you very much, Dr. Saye, for your very valuable statement.

We appreciate your coming.
Mr. SAYE. Thank you, sir.

Senator TALMADGE. The next witness is Dr. Franklin Burdette,
director, Bureau of Governmental Research, University of Maryland,
College Park, Md.


Senator Javits. Mr. Chairman, if I may, I would like to welcome Dr. Burdette who appears on our invitation.

Senator TALMADGE. Fine. We are delighted to have him here. Mr. BURDETTE. Thank you, Senators. During 20 years of study of the Senate I have been convinced that freedom of debate can easily be preserved through a formula which will at the same time permit majority cloture. I think that the influence and prestige of the Senate, which are of enormous importance to the Nation and even to the world, can be enhanced by its adoption.

I cannot overemphasize the importance of full debate in the Senate. There is no other forum in which all sides of public issues can so easily be heard, no other agency which can so adequately bring both governmental action and public sentiment into revealing political sunlight, no other institution which can so effectively check executive power. These facts flow in part from the constitutional position of the Senate and from the terms and size of its membership; but they flow also in part from the political independence which free debate has given to the Senate. The absence of a rule of relevance in debate is an important part of that independence, and I should be the last to substitute a rule of relevance for broad and immediate freedom of discussion.


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