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Chapter 3
Government's Responsibility: Securing the Rights

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Government's Responsibility: Securing the Rights

THE NATIONAL Government of the United States must take the lead in safeguarding the civil rights of all Americans. We believe that this is one of the most important observations that can be made about the civil rights problem in our country today. We agree with words used by the President, in an address at the Lincoln Memorial in Washington in June, 1947:

We must make the Federal Government a friendly, vigilant defender of the rights and equalities of all Americans. * * * Our National Government must show the way.

It is essential that our rights be preserved against the tyrannical actions of public officers. Our forefathers saw the need for such protection when they gave us the Bill of Rights as a safeguard against arbitrary government. But this is not enough today. We need more than protection of our rights against government; we need protection of our rights against private persons or groups, seeking to undermine them. In the words of the President:

We cannot be content with a civil liberties program which emphasizes only the need of protection against the possibility of tyranny by the Government. * * * We must keep moving forward, with new concepts of civil rights to safeguard our heritage. The extension of civil rights today means not protection of the people against the Government, but protection of the people by the Government.

There are several reasons why we believe the federal government must play a leading role in our efforts as a nation to improve our civil rights record.

First, many of the most serious wrongs against individual rights are

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committed by private persons or by local public officers. In the most flagrant of all such wrongs -- lynching -- private individuals, aided upon occasion by state or local officials, are the ones who take the law into their own hands and deprive the victim of his life. The very fact that these outrages continue to occur, coupled with the fact that the states have been unable to eliminate them, points clearly to a strong need for federal safeguards.

Second, it is a sound policy to use the idealism and prestige of our whole people to check the wayward tendencies of a part of them. It is true that the conscience of a nation is colored by the moral sense of its local communities. Still, the American people have traditionally shown high national regard for civil rights, even though the record in many a community has been far from good. We should not fail to make use of this in combating civil rights violations. The local community must be encouraged to set its own house in order. But the need for leadership is pressing. That leadership is available in the national government and it should be used. We cannot afford to delay action until the most backward community has learned to prize civil liberty and has taken adequate steps to safeguard the rights of every one of its citizens.

Third, our civil rights record has growing international implications. These cannot safely be disregarded by the government at the national level which is responsible for our relations with the world, and left entirely to government at the local level for proper recognition and action. Many of man's problems, we have been learning, are capable of ultimate solution only through international cooperation and action. The subject of human rights, itself, has been made a major concern of the United Nations. It would indeed be ironical if in our own country the argument should prevail that safeguarding the rights of the individual is the exclusive, or even the primary concern of local government.

A lynching in a rural American community is not a challenge to that community's conscience alone. The repercussions of such a crime are heard not only in the locality, or indeed only in our own nation. They echo from one end of the globe to the other, and the world looks to the American national government for both an explanation of how

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such a shocking event can occur in a civilized country and remedial action to prevent its recurrence.

Similarly, interference with the right of a qualified citizen to vote locally cannot today remain a local problem. An American diplomat cannot forcefully argue for free elections in foreign lands without meeting the challenge that in many sections of America qualified voters do not have free access to the polls. Can it be doubted that this is a right which the national government must make secure?

Fourth, the steadily growing tendency of the American people to look to the national government for the protection of their civil rights is highly significant. This popular demand does not by itself prove the case for national government action. But the persistent and deep felt desire of the American citizen for federal action safeguarding his civil rights is neither a request for spoils by a selfish pressure group, nor is it a shortsighted and opportunistic attempt by a temporary majority to urge the government into a dubious or unwise course of action. It is a demand rooted in the folkways of the people, sound in instinct and reason, and impossible to ignore. The American people are loyal to the institutions of local self government, and distrust highly centralized power. But we have never hesitated to entrust power and responsibility to the national government when need for such a course of action has been demonstrated and the people themselves are convinced of that need.

Finally, the national government should assume leadership in our American civil rights program because there is much in the field of civil rights that it is squarely responsible for in its own direct dealings with millions of persons. It is the largest single employer of labor in the country. More than two million persons are on its payroll. The freedom of opinion and expression enjoyed by these people is in many ways dependent upon the attitudes and practices of the government. By not restricting this freedom beyond a point necessary to insure the efficiency and loyalty of its workers, the government, itself, can make a very large contribution to the effort to achieve true freedom of thought in America. By scrupulously following fair employment practices, it not only sets a model for other employers to follow, but also directly protects the rights of more than two million workers to fair employment.

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The same is true of the armed forces. Their policies are completely determined by the federal government. That government has the power, the opportunity and the duty to see that discrimination and prejudice are completely eliminated from the armed services, and that the American soldier or sailor enjoys as full a measure of civil liberty as is commensurate with military service.

The District of Columbia and our dependent areas are under the immediate authority of the national government. By safeguarding civil rights in these areas, it can protect several million people directly, and encourage the states and local communities throughout the country to do likewise. Finally, through its extensive public services, the national government is the largest single agency in the land endeavoring to satisfy the wants and needs of the consumer. By making certain that these services are continuously available to all persons without regard to race, color, creed or national origin, a very important step toward the elimination of discrimination in American life will have been taken.

Leadership by the federal government in safeguarding civil rights does not mean exclusive action by that government. There is much that the states and local communities can do in this field, and much that they alone can do. The Committee believes that Justice Holmes' view of the states as 48 laboratories for social and economic experimentation is still valid. The very complexity of the civil rights problem calls for much experimental, remedial action which may be better undertaken by the states than by the national government. Parallel state and local action supporting the national program is highly desirable. It is obvious that even though the federal government should take steps to stamp out the crime of lynching, the states cannot escape the responsibility to employ all of the powers and resources available to them for the same end. Or again, the enactment of a federal fair employment practice act will not render similar state legislation unnecessary.

In certain areas the states must do far more than parallel federal action. Either for constitutional or administrative reasons, they must remain the primary protectors of civil rights. This is true of governmental efforts to control or outlaw racial or religious discrimination

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practiced by privately supported public-service institutions such as schools and hospitals, and of places of public accommodation such as hotels, restaurants, theaters, and stores.

Furthermore, government action alone, whether federal, state, local, or all combined, cannot provide complete protection of civil rights. Everything that government does stems from and is conditioned by the state of public opinion. Civil rights in this country will never be adequately protected until the intelligent will of the American people approves and demands that protection. Great responsibility, therefore, will always rest upon private organizations and private individuals who are in a position to educate and shape public opinion. The argument is sometimes made that because prejudice and intolerance cannot be eliminated through legislation and government control we should abandon that action in favor of the long, slow, evolutionary effects of education and voluntary private efforts. We believe that this argument misses the point and that the choice it poses between legislation and education as to the means of improving civil rights is an unnecessary one. In our opinion, both approaches to the goal are valid, and are, moreover, essential to each other.

It may be impossible to overcome prejudice by law, but many of the evil discriminatory practices which are the visible manifestations of prejudice can be brought to an end through proper government controls. At the same time, it is highly desirable that efforts be made to understand more fully the causes of prejudice and to stamp them out. These efforts will necessarily occupy much time and can in many instances best be made by private organizations and individuals. At the close of this section on government responsibility, further attention will be given to the problem of prejudice and its elimination.

The Committee rejects the argument that governmental controls are themselves necessarily threats to liberty. This statement overlooks the fact that freedom in a civilized society is always founded on law enforced by government. Freedom in the absence of law is anarchy.

Because it believes there is need for leadership by the national government, the Committee has not hesitated to recommend increased action by that government in support of our civil rights. At the same time, it has not overlooked the many possibilities for remedial action

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by the states, nor the benefits to be derived from private efforts in the never-ending struggle to make civil liberty more secure in America. Certain of the Committee's recommendations look in each of these directions.

CONSTITUTIONAL TRADITIONS AS TO GOVERNMENTAL PROTECTION OF CIVIL RIGHTS

The Committee believes that national leadership in this field is entirely consistent with our American constitutional traditions. It is true that the federal government does not possess broad, clearly defined delegated powers to protect civil rights which it may exercise at its discretion. A detailed examination of the constitutional aspects of the civil rights problem makes clear that very real difficulties lie in the way of federal action in certain areas. It also makes clear that effective federal power does exist under the Constitution.

The Constitution, as it came from the Philadelphia Convention in 1787, granted to Congress no express power to enact civil rights legislation of any kind. Moreover, the first ten Amendments, which make up our Bill of Rights, far from granting any positive powers to the federal government, serve as express limitations upon it. The Thirteenth, Fourteenth, and Fifteenth Amendments added to the Constitution immediately following the close of the Civil War do expressly authorize Congress to pass laws in certain civil rights areas. But the areas are of limited extent and are not clearly defined. Thus, there is nothing in the Constitution which in so many words authorizes the national government to protect the civil rights of the American people on a comprehensive basis.

The Committee is aware of the fate of the civil rights program developed by Congress following the close of the Civil War. Between 1866 and 1875, Congress passed seven statutes which in a collective sense were designed to give more specific meaning and reality to the three Civil War Amendments. By these acts, Congress attempted on a broad basis to provide federal protection of the civil rights of individuals against interference either by public officers or private individuals.

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This early program was largely a failure. But it is important to note that remnants of the legislation remained on the federal statute books in 1939. Furthermore, in that year they served as the basis for the creation of the Civil Rights Section in the Department of Justice. The rest of the legislation had disappeared as the result of a series of six adverse decisions by the Supreme Court between 1876 and a9o6, and the passage of repeal acts by Congress in 1894 and 1909.

The Committee does not believe that the action of the Supreme Court in declaring parts of the nineteenth century civil rights legislation unconstitutional proves that a well-conceived present-day attempt to strengthen the federal civil rights program would meet a similar fate. Certain of these early decisions of the Court have long been criticized by eminent authorities on American constitutional law. In every one of the cases there was a dissenting opinion. That by Justice Harlan in the Civil Rights Cases of 1883 is a particularly powerful statement. The majority's concept of the extent of federal power to protect civil rights struck him as being entirely too narrow and artificial. He states that he "cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism." So powerful a dissent remains a living force in constitutional law and is bound to be thoughtfully considered by any later Supreme Court when the validity of new civil rights laws comes. before it for decision.

The adverse decisions of the Court in all of these cases depend upon the use of the Thirteenth, Fourteenth, and Fifteenth Amendments as a basis for civil rights legislation. The constitutional bases upon which Congress may enact civil rights laws of varying types are far broader, however, than the clauses of these three amendments. Furthermore, offsetting these six adverse decisions of the Supreme Court are others in which various federal civil rights laws have been upheld. Sections 51 and 52 of Title 18 of the United States Code have been upheld by the Court. Both are derived from the Reconstruction period legislation, and remain on the statute books today.

The Committee believes that a positive program of action by the national government falls well within the limits of governmental power established by our Constitution. Two strong considerations

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have led to this conclusion. One depends upon the broad character and principles of the Constitution, the other upon its more specific provisions.

Our Constitution has long been recognized by the Supreme Court itself as a flexible document, subject to varying interpretations and capable of being adapted to the different needs of changing times. Chief justice Marshall in his great opinion in McCulloch v. Maryland called it “* * * a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

The American people, by and large, have accepted John Marshall's view for more than a century and a quarter. Again and again, the Constitution and its clauses have been construed to authorize positive governmental programs designed to solve the nation's changing problems. Again and again, the Supreme Court of the United States has approved these programs as falling within the limits of the Constitution. Our nation has had to cope with problems growing out of wars, economic depressions, floods, soil erosion, strife between labor and management, and threats to a system of free enterprise. A basis for governmental action at the national level has been found within the Constitution for such policies as the control of prices; regulation of agricultural production; requirement of collective bargaining; social security benefits for millions of people; prohibition of industrial monopolies; drafting of millions of men into the armed services in peace-time as well as in time of war; regulation of the sale of stocks, bonds, and other securities; establishment of vast governmental flood-control and electric power projects; and an attack upon such crimes as white slavery, kidnapping, trade in narcotics, and the theft of automobiles.

The Supreme Court has held these legislative policies valid, not as exercises of new powers, but as the application of old-established powers to new problems and situations. The adequate protection of civil rights is not a new problem, but it is a pressing one, and we believe that the Supreme Court will be as statesmanlike in interpreting the powers of Congress to deal with this problem as it has been in its interpretation of the commerce power. No one wishes Congress to exceed its constitutional powers or wishes the Supreme Court to uphold invalid statutes. But when the clauses of the Constitution contain language

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from which substantial power to protect civil rights may reasonably be implied we believe the Supreme Court will be as ready to apply John Marshall's doctrine of liberal construction as it has been in dealing with laws in other fields.

There are several specific constitutional bases upon which a federal civil rights program can be built. Some have been recognized and approved by the courts. Others have the support of leading students of the American constitutional system. Some are beyond dispute; others are frankly controversial. Collectively, however, they provide an encouraging basis for action. The President and Congress must determine the wisdom of a broader civil rights program at the policy level. They should be advised that such a program, carefully framed, will meet the test of constitutionality.

The several specific constitutional bases for federal action in the civil rights field brought to our attention follow. Those numbered from one through eight have either been specifically approved by the Supreme Court or seem to be clearly valid. Those numbered from nine through eleven are more controversial and will be discussed at greater length.

I. Power to protect the right to vote. -- The extent of federal power to protect the suffrage varies, depending on the type of election (state or national), the type of interference (whether it affects the voting procedure, or is based on race or sex) and the source of interference (state and local officers or private persons). Among the specific sources of federal power are: Article 1, Section 4, which permits federal protection of the procedure for voting in federal elections against interference from any source; the Fourteenth Amendment which supports protection against state interference with equality of opportunity to vote in any election; the Fifteenth Amendment which supports action against state interference because of race or color with the right to vote in any election; and the Nineteenth Amendment, which supports action against state interference based on sex with the right to vote in any election.

2. Power to protect the right to freedom from slavery and involuntary servitude. -- This power derives from the Thirteenth Amendment: "Neither slavery nor involuntary servitude, except as a punishment for

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crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." This permits legislation designed to protect against actions of private persons or state or local officials.

3. Power to protect rights to fair legal process, to free speech and assembly, and to equal protection of the laws: -- This power, derived from the "due process," "equal protection" and "privileges or immunities" clauses of the Fourteenth Amendment, cannot be readily summarized, except for the fact that, under Supreme Court rulings, it protects only against interferences by agencies of state or local government. In a wide variety of specific situations -- such as cases involving the validity of ordinances licensing the distribution of handbills, the adequacy of representation by counsel, or the validity of state laws or administrative action claimed to discriminate against minorities -- the Supreme Court has delineated areas of activity protected by these constitutional provisions. Congress is expressly authorized to enact legislation to implement this power, and has passed some statutes for this purpose.

4. The war power. -- Under Section 8 of Article I of the Constitution Congress has extensive power to regulate the armed forces and to legislate concerning the national defense and security. Congress may thus legislate with respect to treatment of minority groups in the services, with respect to interference with members of the services, and with respect to construction or operation of military and naval installations. Related is the congressional power to assure distribution of veterans' benefits on an equal basis.

5. Power to regulate activities which relate to interstate commerce -- Congress has exercised its broad power to regulate interstate commerce, derived from Article I, Section 8 of the Constitution, to institute reforms in many fields. Outstanding examples are the Fair Labor Standards Act, which fixes maximum hours and minimum wages in work relating to interstate commerce, the National Labor Relations Act, which regulates labor-management relations affecting interstate commerce, and the Federal Safety Appliance Act, which specifies safety standards for interstate transportation. The commerce power could be the basis for fair employment legislation relating to activities affecting interstate

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commerce, and for laws prohibiting discriminatory practices by interstate carriers.

6. The taxing and spending powers. -- Also derived from Article I, Section 8, these are among the most extensive congressional powers, and have been repeatedly used to effectuate federal programs. An outstanding example is the Social Security program. Federal grants-in-aid have almost always been conditioned on compliance with congressionally declared standards, as have exemptions from taxation. Congress has power to impose similarly appropriate conditions in spending or taxing programs which affect civil rights problems. Another facet of these powers permits Congress to require persons who enter into contracts with the federal government, or supply the government with goods .or services to conform with national policy. For example, in the Walsh-Healey Act, Congress has made compliance with minimum wage and maximum hour standards a condition of performance of federal supply contracts.

7. The postal power. -- Under its plenary power over the postal system (stemming from Article I, Section 8) Congress has acted to protect use of the mails against certain undesirable purposes. This power is, of course, subject to the constitutional limits on congressional power to impair free speech. Within those limits, however, there may be room for certain types of legislation such as the exclusion of anonymous hate group literature from the mails.

8. Power over the District of Columbia and the Territories. -- Under Article I, Section 8 and Article IV, Section 3, Congress has full power of government over the District of Columbia and the various territories. It may thus pass any legislation proper for complete protection of the civil rights of all persons residing in those areas.

9. Power derived from the Constitution as a whole to protect the rights essential to national citizens in a democratic nation.

No such power is expressly granted to Congress in the Constitution. It has long been asserted that the basic rights falling into this category, such as freedom of speech and press or the right of assembly, exist at the state level and depend upon state action for their protection against interference by private persons. However, the Supreme Court long ago suggested that such rights have a national significance as

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exercised in connection with the national political process, and that they may be protected by national legislation. In 1876, in the case of United States v. Cruikshank, the issue of federal power to protect the right of assembly against interference by private persons was raised. In a dictum the court said:

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.

As recently as 1940, the Fifth Circuit Court of Appeals in the case of Powe v. United States, likewise in a dictum said:

Because the federal government is a republican one in which the will of the people ought to prevail, and because that will ought to be expressive of an informed public opinion, the freedom of speaking and printing on subjects relating to that government, its elections, its laws, its operations and its officers is vital to it.

And the court said that Congress has power under the Constitution to protect freedom of discussion, so defined, against all threats.

Unfortunately; these dicta have not been directly tested in practice. It is impossible to say how far the courts may be willing to go in recognizing the existence of specific rights at the national level, or in approving the power of Congress to protect these rights as necessary to a democratic nation. But the basis seems to be a valid one and it might support national civil rights legislation of considerable significance.

10. Power derived from the treaty clause in Article 11, Section 2 of the Constitution, to protect civil rights which acquire a treaty status.

In its decision in Missouri v. Holland in 1920, the Supreme Court ruled that Congress may enact statutes to carry out treaty obligations, even where, in the absence of a treaty, it has no other power to pass such a statute. This doctrine has an obvious importance as a possible basis for civil rights legislation.

The United Nations Charter, approved by the United States Senate

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as a treaty, makes several references to human rights. Articles 55 and 56 are of particular importance. They are:

ARTICLE 55

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

a. Higher standards of living, full employment, and conditions of economic and social progress and development;
b. Solutions of international economic, social, health and related problems; and international cultural and educational cooperation; and
c. Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

ARTICLE 56

All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.

A strong argument can be made under the precedent of Missouri v. Holland that Congress can take "separate action" to achieve the purposes set forth in Article 55 by passing legislation designed to secure "respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."

Some persons believe that Article 2 (7) of the United Nations Charter limits the argument of the last paragraph. This provision is:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter. * * *

The Human Rights Commission of the United Nations is at present working on a detailed international bill of rights designed to give more specific meaning to the general principle announced in Article 55 of the Charter. If this document is accepted by the United States as a member state, an even stronger basis for congressional action under the treaty power may be established.

II. Power derived from the "republican form of government" clause in Article IV, Section 4 of the Constitution, to protect rights essential to state and local citizens in a democracy.

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This clause reads "The United States shall guarantee to every State in this Union. a republican form of government * * *" This phraseology is admittedly vague, and has had relatively little interpretation by the Supreme Court. But other vague clauses of the Constitution, such as the commerce clause or the due process of law clauses, have lent themselves to broad interpretation. It is possible that guaranteeing "a republican form of government" includes the power to protect essential civil rights against interference by public officers or private persons.

In view of this analysis of the Constitution, both as to its broad character and its more specific clauses, the Committee believes that federal legislation in support of civil liberty is legitimate and well within the scope of the Constitution.

We wish to emphasize that a program of action by the federal government where there is deprivation of civil rights will not be a new departure. In particular, two agencies of the federal government have had important responsibilities for protecting the liberties of the people. These are the Supreme Court and the Department of Justice.

THE ROLE OF THE SUPREME COURT AS A GUARDIAN OF CIVIL RIGHTS

Throughout its entire history, one of the great responsibilities of the Supreme Court has been to protect the civil rights of the American people against encroachment. However, during the first half of our history, its chief responsibility in this respect was to enforce the Bill of Rights against the federal government. Few violations of the Bill of Rights were brought to the attention of the Court and accordingly it rendered few decisions in civil rights cases before 1870. Thereafter, the three Civil War Amendments provided a further basis for judicial protection of civil rights, but the Court interpreted these Amendments narrowly and thereby greatly restricted its jurisdiction over civil rights matters. Nonetheless, the protection provided by the Court has gradually increased through the years. Since 1925, this protection has become extremely important as a result of new developments in the law of civil liberty.

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One development is the rule now followed by the Court that the Fourteenth Amendment extends the basic guarantees of the Bill of Rights into the areas of state and local government. As has been seen, the original Bill of Rights has always afforded protection against wrongful actions by the federal government. There is evidence that the Fourteenth Amendment was intended by its framers to extend this protection against wrongful actions by the state and local governments. For 6o years following ratification of the Amendment, the Supreme Court refused to sanction this point of view. But in Gitlow v. New York in 1925, and in Near v. Minnesota in 1931, the Supreme Court reversed itself. In a long series of cases since 1931, it has safeguarded the rights of the individual by invalidating state laws and setting aside certain state judicial rulings.

A second development has stemmed from the challenging of certain statutes as to constitutionality on the ground that they interfere with civil rights. Through the years, the Supreme Court has followed the rule that any statute, federal or state, which is challenged as to constitutionality, shall be presumed to be valid unless its violation of the Constitution is proved beyond all reasonable doubt. In the last decade, however, the Court has announced a new doctrine that when a law appears to encroach upon a civil right -- in particular, freedom of speech, press, religion, and assembly -- the presumption is that the law is invalid, unless its advocates can show that the interference is justified because of the existence of a "clear and present danger" to the public security.

These new developments have resulted in a striking increase in the number of civil rights cases heard by the Supreme Court. They have greatly increased the opportunity of the individual whose rights are encroached upon by a state or local government to seek the protection of the Court. For example, in more than 20cases since 1938 the Court has dealt with charges that states or cities have violated the religious liberty of the Jehovah's Witnesses. In the great majority of these cases the Court held that the action complained of was invalid.

It is not too much to say that during the last 10 years, the disposition of cases of this kind has been as important as any work performed

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by the Court. As an agency of the federal government, it is now actively engaged in the broad effort to safeguard civil rights.

THE CIVIL RIGHTS SECTION EXPERIMENT

From the days of the civil rights legislation of the 1860's and 1870's, there remained on the federal statute books scattered provisions of civil rights law. Responsibility for the enforcement of these laws rested with the Department of Justice. From time to time, it took prosecutive action under them but no coordinated program was developed. However, in 1939, to encourage more vigorous use of these laws and to centralize responsibility for their enforcement, Attorney General Frank Murphy established a Civil Rights Section in the Criminal Division of the Department.

This agency has now had eight years of experience. The President's Committee on Civil Rights has regarded an examination of the Section's organization and achievements as one of its most important assignments. We wish to point out at once that we believe that the Section's record is a remarkable one. In many instances during these eight years, the Section, the FBI and the United States Attorneys in the field have done invaluable work. They deserve the highest praise for the imagination and courage they have often shown. Indeed, we have found that the total achievement of the Department of justice in the civil rights field during the period of the Section's existence goes well beyond anything that had previously been accomplished. Yet the record is by no means a perfect one, and it seems clear that the time has come to evaluate the experiment, to note criticisms of the program, and to suggest ways of improving it.

As our recommendations will show, one of the most important objectives of this Committee is to strengthen the federal civil rights enforcement machinery. We believe that the achievements of these agencies offer great promise for the future. But only by remedying some of the imperfections in the machinery can this progress be assured. Some of these imperfections will now be discussed.

I. Weak statutory tools: -- No new civil rights laws were passed by Congress at the time of the agency's creation. It was compelled to

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utilize the remnants of the post Civil War legislation. The three laws which have been of major importance are Sections 51, 52 and 444 of Title 18 ("Criminal Code and Criminal Procedure") of the United States Code. All three statutes define federal crimes. Sections 51 and 52 are short, generally worded statutes which seek to protect undefined civil rights. Section 444 is also brief, but it protects one right only the right to be free from peonage.

Section 51 is in form a conspiracy statute, making it a crime for two or more persons to conspire to "injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." Persons convicted under the act can be fined up to $5,000, imprisoned up to 10 years, and are to be "thereafter ineligible to any office or place of honor, profit or trust created by the Constitution or laws of the United States."

Section 52, likewise, penalizes deprivation of "rights, privileges, or immunities" secured by the Constitution and laws of the United States, but it is directed only against those deprivations of rights which are "willful" and which occur "under color of any law." Section 52 is thus limited to the protection of rights against interferences by public officers, whereas Section 511 may be used to prosecute private persons as well as public officers. Section 52 is not a conspiracy statute and may be used to prosecute one person. It differs further from Section 51 in carrying much lighter penalties -- a maximum fine of $1,000, and a maximum prison term of one year.

Section 444, often called the Antipeonage Act, provides that anyone who "holds, arrests, returns, or causes to be held, arrested or returned, or in any manner aids in the arrest or return of a person to a condition of peonage, shall be fined not more than $5,000, or imprisoned not more than five years or both."

Section 51 and Section 444 had had considerable use when the Civil Rights Section was created in 1939, and had been held constitutional by the Supreme Court. Moreover, Section 51 had been successfully used to protect several specific federal rights against invasion by private individuals. With one exception, however, these rights were all relatively minor ones, such as the right to inform federal officers of the

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commission of a federal crime; the right of a witness before a federal tribunal to enjoy protection; and the right to make entries and hold land under the homestead laws. The one really important right which had been protected by Section 51 before 1939 was the right of a qualified voter to participate in a federal election, and to have his ballot honestly counted.

Section 52, on the other hand, had had almost no use and had not been tested as to constitutionality. Since 1939, these laws have all been employed by the Civil Rights Section in the development of a more comprehensive civil rights program.

Sections 51 and 52, however, have presented serious difficulties as a basis for any extensive federal civil rights program. One difficulty is that both carry criminal sanctions only. The awkward results of this limitation are discussed at a later point. It is sufficient to say here that it has made the Civil Rights Section primarily a policeman prosecuting criminals.

The most serious difficulty which the Civil Rights Section has encountered in using these sections has been to determine the specific civil rights they protect. Presumably, the two laws protect any and all rights established by the Constitution or by federal statute. But the Constitution nowhere lists personal rights which may be protected by the government, nor does any federal statute enumerate them. In using Section 51 and Section 52 to protect specific rights, the Civil Rights Section has been compelled to employ an experimental technique and to endeavor to extend the list of these rights, case by case. Considerable success has been achieved in this undertaking, and action in the future may expand further the list of rights under Section 51 protected against interference by private individuals. The list of federal rights running against interference by state officers and protected by Section 52 is a somewhat more definite one. Decisions of the Supreme Court in recent years have read many of the rights established by the first 10 Amendments into the Fourteenth Amendment. This has made them federal rights against state interference.

A further handicap under which the Section has worked has been the insistence of the courts that the use of these statutes should be governed by the traditional and wholly sound legal doctrine that criminal

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laws must adequately define the conduct which is forbidden. Because these statutes are vaguely worded, the courts have sometimes been reluctant to see them applied in specific situations. They have taken the position that the accused had not received sufficient warning from the vague terms of the statute that his conduct was forbidden.

Another handicap has been the further tendency of the courts to interpret these laws narrowly and to limit the list of rights which they are intended to protect. This follows from judicial doubts about legislative intent with respect to the Acts. The legislative history of civil rights laws in Congress since 1866 has been confusing. The repeal by Congress in 1894 and 1909 of much civil rights legislation has led the courts to question some of the uses to which Sections 511 and 52 have been put. On its face, each of these statutes has a potential usefulness of great breadth. In practice, each has proved to be an instrument of limited value. This is clearly illustrated by some of the cases in which the Sections have been invoked.

Screws v. United States, decided by the Supreme Court in 1945, illustrates an unsuccessful attempt to make Section 52 play the role of a federal anti-lynching act. In this case, a Georgia sheriff, aided by a deputy sheriff and a local police officer arrested a Negro on a warrant charging him with the theft of a tire. The three men then proceeded to beat the Negro to death. Ultimately, the Department of Justice prosecuted the three men. It charged them with having, under color of law, deprived their victim of his federal right under the Fourteenth Amendment to be tried by due process of law when charged with an offense against the state. They were convicted in the federal trial court. The Supreme Court set this conviction aside on the ground that the trial judge had failed to charge the jury properly. One of the components of the crime defined by Section 52 is willful action on the part of a lawbreaker to deprive his victim of a federal right. In the judgment of the Supreme Court, this requirement of the statute saved the law from the charge that its failure to enumerate the rights protected by it rendered it unconstitutional on grounds of vagueness. In other words, the Supreme Court held that a person cannot be prosecuted under Section 52 unless there is evidence that he knew of the existence of a specific federal right and willfully intended to deprive his victim

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of that right. The failure of the judge to analyze the law in this fashion in his charge to the jury entitled the defendant to a new trial. This clearly illustrates the technical difficulties under which the Civil Rights Section labors when it endeavors to use the ancient Section 52 as a basis for federal prosecution in lynching or police brutality cases. When the federal government brought Screws and his associates to trial a second time, they were acquitted.

That Section 52 has not, however, lost all of its usefulness in cases of this type is shown by the decision of the Fifth Circuit Court of Appeals in Crews v. United States, in 1947. Crews, a Florida county constable, arrested a Negro farm hand and alleged that he was drunk. He then proceeded to beat his prisoner with a bullwhip, and forced him to jump into the Suwannee River where the Negro was drowned. The Civil Rights Section prosecuted Crews on the charge that he had violated Section 52 by depriving his victim of the right to a fair trial by due process of law. The trial jury found Crews guilty. He appealed to the Circuit Court of Appeals, arguing that his "act was solely one of personal vengeance and entirely devoid of official character and authority * * *." He claimed that he thus could not, under color of law, have willfully deprived his victim of a federal right. The Circuit Court rejected this argument and upheld the conviction. Distinguishing the case from the Screws case, it held that the jury had been properly instructed that the defendant had to act willfully in order to violate Section 52, and that there was sufficient evidence that Crews had so acted. The Circuit Court said further that evidence indicating that a police officer mistreated a prisoner out of personal malice or spite is not inconsistent with the conclusion that the officer also willfully intended to deprive this victim of his constitutional rights.

This review of the language of the three key statutes, and the way the courts have handled them, makes it clear that the Civil Rights Section has been working under definite and serious legal handicaps.

2. Insufficient personnel: -- At the present time the Civil Rights Section has a complement of seven lawyers, all stationed in Washington. It depends on the FBI for all investigative work, and on the regional United States Attorneys for prosecution of specific cases. Enforcement of the civil rights statutes is not its only task. It also administers the

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criminal provisions of the Fair Labor Standards Act, the Safety Appliance Act, the Hatch Act, and certain other statutes. It is responsible for processing most of the mail received by the federal government which in any way bears on civil rights. Although other resources of the Department of Justice are available to supplement the Civil Rights Section staff, the Section is the only agency in the Department with specialized experience in civil rights work. This small staff is inadequate either for maximum enforcement of existing civil rights statutes, or for enforcement of additional legislation such as that recommended by this Committee.

The Committee has found that relatively few cases have been prosecuted by the Section, and that in part this is the result of its insufficient personnel. The Section simply does not have an adequate staff for the careful, continuing study of civil rights violations, often highly elusive and technically difficult, which occur in many areas of human relations.

On the other hand, there is much misunderstanding about the discrepancy between the very large volume of mail received by the Section and the small number of cases it takes to court. An analysis has shown that approximately 22 percent of the agency's incoming mail contains complaints of civil rights violations and that these complaints number from 1,500 to 2,500 each year. The Civil Rights Section has prosecuted about 178 cases in eight years.

There are a number of possible explanations of the small number of cases prosecuted. In the beginning of its existence, the Civil Rights Section was required to move slowly in order to find cases which would be most useful in delineating the scope of the civil rights statutes. Although the period of legal experimentation is substantially over, the case law developed in this period in certain respects hampers forceful prosecution. In addition, it must be realized that investigation of many "complaints" shows that they do not present a basis for prosecution. With due regard to these points, however, it is our judgment that the number of cases prosecuted merits some criticism.

3. Adequacy of cooperation by United States Attorneys. -- Whenever a complaint of a civil rights violation appears to merit prosecutive action it must, under the organization of the Department of Justice, be

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processed through the office of the United States Attorney in the district where the prosecution is to be brought.

The Civil Rights Section frequently seeks the advice of those Attorneys before deciding whether a complaint should be investigated. The opinion of these men will often determine whether the case will be prosecuted. Intelligent and sympathetic cooperation of the United States Attorneys is, therefore, crucial to effective federal enforcement of the civil rights laws. Many United States Attorneys extend such cooperation. However, a staff survey of a random selection of the Section's case files disclosed serious shortcomings in the work of some United States Attorneys.

It should be remembered that these men are local lawyers appointed by the President, subject to confirmation by the Senate, for a term of four years. To them is entrusted the task of initiating proceedings where there has been a civil rights violation, and of prosecuting the actual cases. This often places the United States Attorney in the unenviable position of having to take a public stand in court against the ingrained prejudices and mores of his own community. There have been outstanding examples of United States Attorneys, whatever their personal beliefs, courageously and vigorously assuming this position; there are indications that others have been less willing to set themselves up against local public opinion.

In one case involving interference with the rights of Negroes to vote, the United States Attorney insisted that the evidence developed by the investigation did not make out a case under federal law and recommended that the file be closed. Noting the "clear admissions" of the public officers against whom the charge of interference had been filed, the Civil Rights Section promptly overruled the United States Attorney, who then wrote the Section:

Assuming that you will direct prosecution, I wish to suggest that inasmuch as you have a unit set up within the Department for the prosecution of these cases that you assign an attorney for the trial of this case and for drawing the bill of indictment; in other words, take charge of the case with all the assistance our office can give * * *. The reason I am requesting this is because I have a deep conviction that I cannot win it. We have had several of these cases and have not yet had a true bill.

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Similarly, in a case in which a local constable had brutally killed a Negro, the local United States Attorney was asked for his views, after an FBI investigation had been made. He expressed grave doubts as to the advisability of proceeding under Section 52. In the same letter, he expressed his personal belief that Section 52 was unconstitutional, quoting liberally from the arguments of the dissenting justices in the Screws case. The Civil Rights Section prosecuted anyway, and obtained a conviction.

In another case involving the killing of a Negro by a deputy sheriff, the Civil Rights Section sought the advice of the United States Attorney on July 30, and referred him to the FBI report of its investigation in the case. On September 13, the Section again asked for the advice of the United States Attorney. On October 10, it repeated its request for the third time. On October 14, the United States Attorney wrote that he had not received the FBI report, but would express his views to the Section as soon as he obtained it. On October 17, he advised that he had received the report and he thought the matter should be closed. He gave no reason for his opinion. The Civil Rights Section closed the case, apparently because the Civil Rights Section attorney in charge reported, according to a note in the file, that "X -- will not go on anything."

These delays are very serious, for they may have a fatal effect upon the prosecution of cases. Public interest in the case dies and it becomes increasingly difficult to persuade a grand jury to indict. Witnesses scatter, evidence grows cold, and a conviction, always difficult to obtain in a civil rights case, may become impossible.

All too frequently, United States Attorneys are allowed to become the final arbiters in the disposition of civil rights cases. The Department of Justice should make more vigorous use of its authority to stimulate, educate, prod, and even overrule United States Attorneys in the handling of cases in this area.

4. The Civil Rights Section's dependence upon the FBI for its investigative work.

The FBI handles virtually all of the investigative work in federal civil rights cases. It is unnecessary to comment on the remarkably successful record of the FBI in the general field of law enforcement. In the

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civil rights field there are many cases where high caliber investigative work has been done by the Bureau. However, there are also indications that upon occasion investigations in this very difficult and highly specialized area have not measured up to the Bureau's high standard in the handling of other types of cases.

There is evidence in the civil rights case files in the Department of Justice that the Bureau has sometimes felt that it was burdensome and difficult to undertake as many specific civil rights investigations as are requested. Moreover, investigations have not always been as full as the needs of the situation would warrant. Such shortcomings should be remedied by streamlining the somewhat cumbersome administrative relationships among the Civil Rights Section, the Criminal Division of the Department of Justice, the Office of the Attorney General and the Federal Bureau of Investigation.

The tendency of FBI agents to work in close cooperation with local police officer's has sometimes been detrimental to the handling of civil rights investigations. At times, these local officers are themselves under suspicion. Even where this is not so, the victims or witnesses in civil rights cases are apt to be weak and frightened people who are not encouraged to tell their stories freely to federal agents where the latter are working closely with local police officers. In ordinary crime detection work, it is highly desirable for the FBI to cooperate closely with the local police. Having in general established such a wholly sound relationship, it is sometimes difficult for the FBI agent to break this relationship and to work without, or even against, the local police when a civil rights case comes along.

A second difficulty which explains investigative shortcomings in some civil rights cases is the fact that the FBI agent must be trained broadly in law enforcement work and must be active on a wide front in enforcing the great variety of federal criminal statutes which now exist. Accordingly, the agent is not always prepared to cope with the elusive and difficult aspects of a civil rights case. More highly specialized training of agents in this field would overcome some of the occasional shortcomings which are now present in the Bureau's work in cases of this type.

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5. Hostility of local officers and local communities. -- The prejudices of communities where civil rights violations occur often defeat federal law enforcement. Evidence of this is found in the behavior of juries. A recent example was the 1946, Minden, Louisiana, lynching when two Negroes were released from the local jail into the hands of a mob and so unmercifully beaten that one, a veteran, died. Mr. Hoover called it "the best case we have ever made out; we had clear-cut, uncontroverted evidence of the conspiracy." Five of the mob members were indicted by the federal government and promptly acquitted by the jury.

The Minden case was at least partially successful. It survived the grand jury stage and went to trial. In other cases federal grand juries simply refuse to return indictments.

Similar local prejudice thwarts the efforts of the FBI to obtain information from local citizens -- even including local law-enforcement officers. Speaking of the problems encountered by the FBI in civil rights cases, Mr. Hoover stated: "We are faced, usually, in these investigations, with what I would call an iron curtain, in practically every one of these cases in the communities in which the investigations have to be conducted. Now we are absolutely powerless, as investigators, unless the citizens of a community come forward with information. In other words, our function is to go out and get the evidence. We have to have sources of information, we have got to be able to go to citizens and have them talk freely and frankly to us, so that we may prepare the case for the prosecuting attorney."

A case in point is the 1946, Monroe, Georgia, lynching. Four Negroes had been killed. Twenty agents were assigned to the case; 2,790 individuals interviewed; and 106 witnesses presented to the grand jury which failed to return an indictment.

Mr. Hoover also stated to the Committee:

We have had cases involving civil rights where we have had no cooperation from local authorities. In one instance, the sheriff boasted that he intended to take no action. Another law enforcement agency made a perfunctory inquiry. We worked on the case by ourselves.

Local prejudice also interferes with the efforts of federal law enforcement

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officers because of the fear it instills and the silence it inspires in government witnesses. In 1945, an alleged police brutality case was reported to the Civil Rights Section. The affidavit of the complainant; a Negro minister, suggested a clear-cut case. The minister, who was an eye-witness to the incident, had fled from his southern home to Chicago because of threats by both the local police and citizenry. When interviewed by the FBI, he confirmed his allegations, but positively stated that he would not be willing to testify in the community where the offense occurred. The FBI, in the same investigation, met similar evidences of intimidation of Negro witnesses. Some of them flatly refused to sign statements, or, if called as witnesses, to testify in court.

6. The position of the Civil Rights Section in the Department of Justice. -- The Civil Rights Section's name suggests to many citizens that it is a powerful arm of the government devoting its time and energy to the protection of all our valued civil liberties. This is, of course, incorrect. The Section is only one unit in the Criminal Division of the Department of Justice. As such, it lacks the prestige and authority which may be necessary to deal effectively with other parts of the Department and to secure the kind of cooperation necessary to a thorough-going enforcement of civil rights law. There have been instances where the Section has not asserted itself when United States Attorneys are uncooperative or investigative reports are inadequate. As the organization of the Department now stands, the Section is in a poor position to take a strong stand in such contingencies.

It may easily be a direct result of the Civil Rights Section's subordinate position that the total picture of work derived from the staff survey is that of a sincere, hardworking, but perhaps overcautious agency. Its relative lack of prestige in the Department of justice, the legal and constitutional difficulties which confront it, the problems caused by its administrative relation to the FBI, the. hostility of some United States Attorneys, the force of local prejudice, and the size of its staff all combine to make the Section less effective and less self-assured than the challenge of its assignment demands.

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THE PROBLEM OF SANCTIONS

The difficulty of devising and employing adequate means to lead people to obey civil rights legislation cannot be evaded. The chief sanction that has been used to secure the enforcement of federal civil rights laws has been the criminal one. Admittedly this sanction has not been an adequate one. It has proved difficult to enforce in many situations. Whenever the criminal sanction is resorted to, the Constitution guarantees the right to a grand jury hearing, and the right to trial by jury to any person accused of crime under federal law. These jury proceedings must be held in the state and district where the offense was committed. Accordingly, a federal criminal prosecution is not an undertaking in which an outside, impartial power weighs in the scales of justice a wrongful act done in a local community. Instead, federal prosecutors must persuade local citizens both to indict and to convict their fellows, often their neighbors and friends, if federal criminal laws are to be enforced and violations punished.

The right of an accused person to be tried by a jury of his peers in his own locality has long been regarded as a cornerstone of our system of criminal justice, but it has not made easy the use of federal criminal sanctions in civil rights cases. Two factors arc responsible. One is that the victim in a typical civil rights case, the person who has been lynched or otherwise mistreated, often enjoys little or no standing in his own community. People whose civil rights are most in danger are very often members of weak and unpopular minorities. Sometimes they are as individuals weak, unattractive, and troublesome. All too frequently, members of juries in civil rights cases are prejudiced against the victim, and sympathetic toward the accused. Where this atmosphere exists, it is not easy to persuade juries to apply criminal sanctions.

The second factor hampering federal officials is the cry of outside interference which is almost certain to be raised by the accused's counsel in civil rights cases. The record of federal prosecutions clearly shows that members of grand and trial juries again and again have shown a sensitivity to this cry.

The result is that many a federal civil rights case, seemingly

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airtight, is lost for want of an indictment or conviction where an attempt is made to invoke a criminal sanction. The case files in the Department of justice indicate the frequency with which this result occurs. For example, a memorandum submitted to the Department of justice by a government attorney, after a jury had failed to convict in an election case, says

The case ended in a verdict of not guilty for the defendants, which under the circumstances [local prejudice against the Negro victims] and considering the locale, is not surprising. The case is a perfect example of a situation where the Government succeeds in proving all the allegations of the indictment, but in spite of this a jury returns a verdict of not guilty.

The criminal sanction is useful nevertheless in civil rights cases. Convictions have been obtained by the federal government in a number of cases and these convictions have had a wholesome result. The Civil Rights Section points to a drastic decline in recent years in the number of peonage complaints received by it. Two or three successful prosecutions in peonage cases in the early years of this decade certainly contributed to this result. While other factors, such as the rise in employment opportunities during the war and postwar years have helped bring about the decline of peonage, the convictions unquestionably had a wholesome effect.

Even where the federal government has failed to win convictions, the mere attempt to invoke criminal penalties in civil rights cases where flagrant wrongs have been committed has often had a sobering influence upon local attitudes and practices. For example, after the acquittal of the accused in a police brutality case, the United States Attorney wrote the Attorney General as follows:

The defendants are at liberty; but it is my humble opinion that the prosecution will do good for years to come. None of these state officers likes to be hauled into the Federal Court. Of course, I do not think any man should be indicted unless he is guilty; but such prosecutions as this do a lot of good in the case of a guilty defendant even though he is not convicted. It will also have its effect on other State officers.

Again, in a letter to the Attorney General written by an attorney who served as Special Assistant to the Attorney General and helped

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argue a federal lynching case which ended in the acquittal of the defendants, it is stated:

I think the prosecution in Mississippi was beneficial. For a period of five years, no prisoner has been taken from an officer in Mississippi and lynched. The trial of the case impressed officers from the Governor down to the Constables with the importance of an officer according to a prisoner the highest degree of protection. .

The failure of the government to win convictions in airtight criminal cases does not mean that this is a hopeless approach. If juries are unwilling to convict in civil rights cases, it is clear that in part, the answer lies elsewhere. It lies in educational efforts to remind the American people of the importance of preserving their civil rights traditions, and of the necessity and the validity of invoking criminal sanctions against civil rights violations.

Since the criminal sanction as a means of enforcing public policy with respect to civil rights has such obvious limitations, the Committee concludes that we should resort to a wide variety of sanctions -- old and new. Some of these will be discussed at a later point in connection with the Committee's recommendations for action. Others may properly be discussed here.

The use of civil sanctions to supplement criminal penalties in securing the enforcement of civil rights legislation is desirable. The writ of injunction and the suit for damages have often been used in civil rights cases. But their use has depended upon the initiative of the individual victim, since he has the burden of invoking them.

Two federal statutes, derived from the civil rights legislation of the post-Civil War period, provide civil sanctions paralleling the criminal sanctions of Sections 51 and 52. These are Sections 43 and 47 of Title 8 of the United States Code. The former allows an injured party to bring an action against any person who, under color of law, has deprived him of a federal right. The latter allows an individual to bring a similar action against two or more persons who have conspired to interfere with his federal rights. These two statutes have been used in a few notable instances in recent years by imaginative attorneys to seek civil redress for persons whose civil rights have been encroached upon.

A legal remedy of fairly recent origin, the declaratory judgment,

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could be effectively used in cases in which civil rights are threatened. Like the injunction, it is a preventive remedy. It permits persons whose rights are threatened, but not yet invaded, to appeal to the courts to declare in advance what one's rights are. The declaratory judgment might be used to bring into court the issue of the validity of certain legal devices for disfranchising the Negro. Its virtue is that it would bring a settlement of that issue before any citizen had lost his right to vote. It stands thereby in contrast to the more traditional remedies which merely permit the voter who has not been allowed to vote to sue for damages those responsible for depriving him of the right.

The potential use of civil sanctions in civil rights cases is very great. In general, they are of little value in combating intermittent civil rights violations. They obviously could not prevent a lynching. But many violations of rights are of a persistent type; they take the form of long-standing denials of the right to vote, or refusal to give certain persons access to government services or to places of public accommodation. In these cases civil penalties can frequently be effectively invoked. In many instances a civil action will accomplish results when criminal prosecution will not, because a jury which might be reluctant to convict a defendant in a criminal prosecution for a violation of civil rights might not hesitate to afford relief in the form of a civil penalty. However, there is a need to give the government itself greater power to use civil sanctions.

Two or three government sanctions quite different in character, and of recent origin, seem to the Committee to have usefulness in the civil rights field. One of these takes the form of an order of an administrative commission which has power to receive complaints, hold hearings and settle issues that have been brought to its attention. This method has recently been employed by New York and other states to deal with a civil rights problem -- namely the outlawing of employment practices involving discrimination against workers because of their race, color, creed, or national origin. The New York State Commission Against Discrimination (SCAD) has authority .to receive and consider complaints and to issue cease-and-desist orders against those who are found to be violating the antidiscrimination statute. These orders are enforce able in the courts. This procedure might be followed in other fields,

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such as education, health, housing, and access to places of public accommodation to secure the elimination of any kind of discrimination. The procedure has many advantages. Members of such a commission are ordinarily chosen for their technical ability. They are able to acquire professional competence during their term of office. Through the complaint and hearing device they can often settle many cases, and put an end to civil rights violations without resort to cease-and-desist orders or more extreme penalties. After all, the goal of a sanction is to deter people from civil rights violations, rather than to punish for the sake of punishment.

Another useful sanction is the grant-in-aid. Today, public services provided by state and local government agencies and by private organizations are increasingly financed by federal grants-in-aid in part or wholly. The federal government is spending hundreds of millions of dollars annually for this kind of support. These grants-in-aid could be made contingent upon the elimination of various forms of discrimination or other violations of civil rights. The increasing use of such a sanction is desirable.

A similar possibility is the use of the taxing power to discipline individuals and organizations which are guilty of discriminatory practices. The right of nonprofit educational or welfare organizations to be exempt from property or income taxes and the right of individuals to deduct from their income tax contributions made to such organizations might be deliberately withheld. This device is controversial in principle and with respect to administrative feasibility. The Committee believes that further study is necessary before specific use of this kind of sanction can be recommended.

The question is often raised why Congress has never invoked the penalty clause of the Fourteenth Amendment. This clause permits Congress to reduce a state's basis of representation in the lower house of Congress in proportion to its denial of the right to vote to male citizens, 21 years of age and over. Aside from the political considerations which are bound to influence congressional action, the fact stands out that no one knows just how to go about enforcing this clause. How does one compute the number of Negroes who are denied the right to vote in a southern state? Are all the Negroes disfranchised

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who do not vote, or only those who go to the polls and are turned away? These are illustrative of the difficult questions involved. The Committee merely desires to call attention to this sanction and suggest that further study be made of its possible effectiveness in protecting the right of suffrage.

The Committee does believe that we must show both courage and imagination in devising and using new tools for the enforcement of civil rights policy. It believes that the national government has at its command varied powers and administrative machinery which are capable of being used with great profit in safeguarding civil rights. Experimentation in the use of these powers and this machinery for such a worthwhile purpose is eminently desirable and should be undertaken immediately.

In concluding this survey of what government is doing and can do to protect the civil rights of its citizens the Committee wishes to emphasize that the task must not be viewed as a narrow and technical assignment. It is a task which demands the intelligent and loyal cooperative action of all three of the major departments of our government.

It is the responsibility of Congress to plot our policy for the protection of civil rights. This should be done generously, courageously, and without evasion of responsibility made in deference to any group or geographical section. Our laws in this vitally important field can be clarified, strengthened, and broadened in scope.

Our civil rights will not be adequately protected, however, by good laws badly enforced. Executive and administrative officers must be fully familiar with the policies established by the legislature and must loyally and efficiently implement them by every device at their command. What is gained by passing a law that there shall be no racial or religious discrimination in the federal civil service if department heads and personnel officers are willing to countenance such discrimination in practice,?

Finally, while we cannot ask our appellate courts to hold valid laws which they believe to be invalid, we may reasonably expect them to be sympathetic toward efforts to protect civil rights, and to interpret fairly and generously statutes designed for that purpose. We are entitled in addition to expect our lower courts, even in the areas in which prejudice

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and intolerance run strong, to apply courageously the established doctrines of law announced by the Supreme Court. Since the Missouri law school case, for example, there ought to be no indecision in the mind of any state or federal judge in insisting that states provide fully equal professional educational facilities for Negroes on demand.

The nation's program for the protection of civil rights, in short, should move forward on three fronts, legislative, executive, and judicial. Anything short of this full cooperative effort will jeopardize the success of the entire program.

THE CLIMATE OF OPINION

The adoption of specific legislation, the implementation of laws or the development of new administrative policies and procedures cannot alone bring us all the way to full civil rights. The strong arm of government can cope with individual acts of discrimination, injustice and violence. But in one sense, the actual infringements of civil rights by public or private persons are only symptoms. They reflect the imperfections of our social order, and the ignorance and moral weaknesses of some of our people.

There are social and psychological conditions which foster civil rights; there are others which imperil them. In a world forever tottering on the brink of war, civil rights will be precarious at best. In a nation wracked by depression and widespread economic insecurity, the inclination to consider civil rights a luxury will be more easily accepted. We need peace and prosperity for their own sake; we need them to secure our civil rights as well. We must make constructive efforts to create an appropriate national outlook -- a climate of public opinion which will outlaw individual abridgements of personal freedom, a climate of opinion as free from prejudice as we can make it.

We do not have sufficient information to know all about the many variations of prejudice. We do know that most prejudice is learned. We know that it may result from actual experience, or propaganda, or both. It may derive from foolish generalizations about groups, from personal frustration, from economic or social competition, or from local environments that are built on discrimination. It ranges

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from the mild, secret feeling of the social snob to the violent, murderous impulses of the insanely prejudiced. It seems probable that no one can become a bigoted fanatic unless he has need for prejudice towards others to begin with. This may be a need for a feeling of superiority, for a feeling of being strong enough to exclude others from equality. The fear or insecurity which makes someone need prejudice is probably not enough to make a fanatic. There must also be ignorance to sustain the prejudice. Most prejudice can not survive real understanding of the great variations among people in any one group; or of the scientific findings which establish the equality of groups, and disprove racist nonsense; or of the fact that in a democratic commonwealth, prejudice is an immoral outlaw attitude.

The achievement of full civil rights in law may do as much to end prejudice as the end of prejudice may do to achieve full civil rights. The fewer the opportunities there are to use inequality in the law as a reinforcement of prejudice, the sooner prejudice will vanish. In addition, people must be taught about the evil effects of prejudice. They must be helped to understand why they have developed prejudices. It means trying to show them that it is unfair and stupid to condemn whole groups, that in every group they will find about the same proportion of people whom they will like or dislike; that each man must be judged by himself, on his own merits and faults.

We know from research studies that this can be done. We also know that we are not yet sufficiently skilled to have complete confidence in our educational methods. Since many bigots need their prejudices for reasons of their own, they do not like to give them up. Accordingly, they are very successful at avoiding written or spoken presentations which may disturb their prejudices.

One thing, however, which we can do, is to make certain that all Americans are familiar with the fundamental rights to which they are entitled and which they owe to one another. This is not the case at present. In October, 1946, the National Opinion Research Center at the University of Denver, asked a cross-section of our adult population a series of questions about the Bill of Rights. Only one out of five Americans had a reasonably accurate knowledge of what is in the first 10 Amendments to the Constitution. Completely confused and

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inaccurate descriptions were offered by 12 per cent. More than a third had heard of the Bill of Rights but could not identify it in any way. Another third had not even heard of it. The NORC also reported that "Even among the best informed people, however -- the more privileged, educationally, economically, and occupationally -- less than a majority can satisfactorily identify the Bill of Rights." There is no excuse for this kind of ignorance. It represents a dismal failure of our schools, our homes and our media of communication. Where efforts to overcome prejudice directly may boomerang, informing the people of the legally guaranteed rights to which all are entitled, almost certainly cannot. It is at least possible that this kind of information will ease the task of overcoming deep-rooted prejudice.

We are thus extremely sensitive to the general existence of lingering prejudices which must be overcome. It will take time. How much time will depend in a large measure on how quickly and aggressively we inaugurate a program of action under the leadership of the federal government. All of our government, federal, state, and local, must be uncompromising enemies of discrimination, which is prejudice come to life. In turn, they must be reinforced by education -- education through carefully planned experience, to break down the fears of groups; education through information to dispel ignorance about our heritage and our civil rights. There is no need to choose between these approaches. Neither one is adequate for the complete securing of our rights; both are indispensable to it.

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