CIVIL RIGHTS PROPOSALS

TUESDAY, JUNE 12, 1956

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D. C.

The committee met, pursuant to call, at 4 p. m., in room 424 Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland, Kefauver, McClellan, Langer, Jenner, Watkins, and Dirksen.

Also present: Robert B. Young, professional staff member, and Richard F. Wambach, assistant to counsel.

The CHAIRMAN. Let us have order.

Senator KEFAUVER. Mr. Chairman and gentlemen of the committee, General McCanless is the attorney general of the State of Tennessee, a distinguished lawyer, who has been very successful in private practice, and has been the attorney general of Tennessee for a year and a half.

Prior to that time he was the commissioner of finance and taxation of Tennessee for a number of years.

Mr. McCANLESS. I had the honor to succeed Senator Kefauver in that office.

Senator KEFAUVER. I do not know, of course, what his statement is, but I know that General McCanless has well considered his statement, and I am proud to introduce him to the committee.

Mr. McCANLESS. Thank you, Senator.

The CHAIRMAN. Proceed, General McCanless.

Senator KEFAUVER. Mr. Chairman, what bill is this testimony on? The CHAIRMAN. All of them.

Mr. McCANLESS. Shall I proceed, Mr. Chairman?

The CHAIRMAN. Proceed, yes, sir.

STATEMENT OF GEORGE F. McCANLESS, ATTORNEY GENERAL OF THE STATE OF TENNESSEE

Mr. McCANLESS. Mr. Chairman and gentlemen of the committee, my name is George F. McCanless. I am attorney general of Tennessee, and am here this afternoon in response to the chairman's invitation to express my views about the legislation now under consideration. referred to as the civil-rights bills, and designated S. 900, S. 901, S. 902, S. 903, S. 904, S. 905, S. 906, S. 907, S. 3604, and S. 3605.

I am most grateful for the opportunity to appear before you. The CHAIRMAN. Mr. McCanless, are you here in your personal capacity, or do you represent the State administration in Tennessee? Mr. MCCANLESS. I am here, Mr. Chairman, at your invitation.

The CHAIRMAN. Yes, sir.

Mr. McCANLESS. And I have no authority to speak for anybody other than myself.

The CHAIRMAN. I see. You do not speak for the administration. Mr. McCANLESS. I am a member of the judicial branch of the government, elected by the supreme court.

The CHAIRMAN. I see.

Mr. McCANLESS. The Governor has not, or had not at the time I left Nashville, seen this statement.

The CHAIRMAN. All right. Yes.

Mr. McCANLESS. These bills, I think, have to be considered together and in relation to recent and current happenings in our country in order that their purpose and effect may be fully understood.

When so considered, the conclusion cannot be escaped that if the Congress enacts them it will, by so doing, not only express its lack of confidence in State government, but also will perpetuate an unwarranted invasion of the sovereignty of all the States of the Union.

Federal power already has encroached too far upon the sovereignty of the States; further encroachments should not be allowed.

S. 900 is the antilynching bill. It is objectionable, in the first place, because it is based on the false premise that lynching is an existing or threatened evil that requires the enactment of Federal legislation for its suppression.

The simple fact is that whereas years ago lynchings did take place from time to time and in various parts of the United States, they no longer occur. Now that lynchings are no longer taking place anywhere in the country and the practice was put down by State action and the development of a public antipathy for it, without the aid of Federal legislation on the subject, why is it now necessary for lynching to be made a Federal offense?

An examination of the bill supplies the answer: Although lynching is made a crime by the bill providing the motive is the "race, creed, color, national origin, ancestry, language, or religion" of the victim, the scope of it is so broad that it encompasses any assault or damage to property by as few as two persons acting in concert and actuated by such motives.

The bill is antilynching only incidentally; primarily it undertakes to make homicide, assault, and malicious damage to property offenses against the United States.

The bill defines a "lynch mob" as two or more persons who shall act "knowingly in concert" to do one of the forbidden acts, and the basis of Federal jurisdiction is laid in the legislative determination that a "lynch mob" frustrates the republican form of government that is guaranteed the States by article 4, section 4, of the Constitution of the United States; and that a State by "permitting or condoning" a lynching, as defined, makes the act of the "lynch mob" its own act and thereby deprives the victim of life, liberty, or property under color of authority and without due process of law.

Section 10B authorizes civil suits for damages against "the State. or governmental subdivision thereof."

I suggest that the principles just mentioned are violative of present concepts of American constitutional law. If a lynching, as defined by the act, suspends the republican form of government of a State, so also does the commission of every other crime, however sporadic.

Every State of the Union, the recitals of S. 900 notwithstanding, enjoys the republican form of government that is guaranteed it by the Constitution of the United States. The need of the States is for more, not less, autonomy.

The provision that tries to make a "lynch mob" the agent of a State or political subdivision is altogether untenable. In no case can it be said that an agent gains his authority by acting against the will of the person thereby made principal-in this case the solemn law of the State. Such a concept is contrary to the basic ideas on which the law of agency rests.

The granting of permission to aggrieved persons to bring suits against the States for damages resulting from the activities of "lynch mobs" ignores the 11th amendment to the Constitution of the United States and the holding of the Supreme Court of the United States in Fitts v. McGhee (172 U. S.; 43 L. ed. 535; 19 Sup. Ct. 269). A citizen may sue neither his own nor another State, and the Congress is without power to grant him permission to do so.

Senator MCCLELLAN. Would you prefer we wait until you finish your statement before we ask questions?

Mr. McCANLESS. No, sir. I would be happy to be interrupted at any time.

Senator MCCLELLAN. It just occurs to me that every argument made in favor of an antilynching bill could be sustained against the Federal Government for permitting gangsterism. Certainly if a citizen of a State, under Federal law be given a right to sue the State for something that occurred and damages resulting from one violating the law of that State, why should not the Federal Government be liable for anyone who is killed by a gang of racketeers?

There is not a bit of difference in the principle, as I see it. Why should not the Federal Government be liable just as this undertakes to make the State liable?

Mr. McCANLESS. Senator McClellan, I believe the violation of any criminal law of any State could be made a Federal offense under the theory of this bill.

Senator MCCLELLAN. Why would not the Federal Government be liable just as well as the State government, because it is taking over jurisdiction?

Mr. McCANLESS. I would see no difference after such a bill is passed. Senator MCCLELLAN. Do you not think the bill should be amended to make the Federal Government liable? It has taken over

Mr. McCANLESS. I would rather see the bill defeated.

Senator MCCLELLAN. Of course. But if we are going to pass it, let's go all the way; since the Federal Government wants to invade the province of the State in this area, why not go all the way and make the Federal Government liable for failing to enforce?

Mr. McCANLESS. That follows logically.

Senator MCCLELLAN. I think it does.

The CHAIRMAN. What about a kidnaping under the Lindbergh Act?

Senator MCCLELLAN. Sure.

The CHAIRMAN. Or a man who has got some counterfeit money palmed off on him.

Mr. McCANLESS. Shall I proceed?

The CHAIRMAN. Yes.

Mr. McCANLESS. I am impressed by the unfairness of the provision of S. 900 which allows monetary judgments in certain cases against counties and municipalities where lynchings, as defined in the bill, take place.

This would result in the payment of damages by innocent people utterly without power to prevent the act on which the judgment would. be predicated. A poor widow would have to contribute from her meager funds for no reason at all except that her little home lay within the county or the municipality. She, though innocent, would be guilty in contemplation of law-guilty by association-at least guilty by location.

The CHAIRMAN. That brings another one in: That is, guilty by location, that is right; you are right there.

Mr. McCANLESS. Tennessee has laws, law enforcement, courts, and public opinion that are competent and adequate to deal promptly and firmly with any criminal activity that may take place within her borders.

All persons, black and white alike, enjoy the equal protection of her laws. As recently as 10 days ago in Benton County, in west Tennessee,. a white man was found guilty of the homicide of a Negro and sentenced to a term in prison. It is my opinion, from my knowledge of the facts, that the sentence was as great as it would have been had the deceased been a white man.

S. 903-S. 907, title V-undertakes to provide protection to the citizen of his right to vote in national elections. Tennessee has good registration and election laws and conducts fair registrations and elections.

Candidates for nomination and election to the United States Senateand House of Representatives are nominated and elected in the same primaries and general elections at which State officials are elected. The acts made criminal by this bill are also criminal under Tennessee law.

I am of the opinion that Tennessee can, does, and will continue to protect the right of her citizens to vote in national and in State and local elections.

S. 901, the poll tax bill, is not of direct concern to Tennessee because the poll tax was abolished by constitutional amendment in 1952, but I am opposed to this bill because it is unconstitutional and attempts to regulate a subject that is peculiarly a State's own business.

S. 902, S. 3604, and S. 907, title II, all provide for the establishment of a Civil Rights Division in the Department of Justice. It is not within my competence to advise with respect to the organization of the Department, but it is unfortunate that this bill should have been made a part of the controversial civil rights legislative program.

There is to be considered the possibility that at some time in the future, if not immediately, such a Division would be employed to harass political opponents.

S. 905 S. 907, title IV-is a dangerous, unnecessary, and unwarranted bill. If it should be passed, the practice of seeking in the Federal courts reviews of convictions in State courts, now quite prevalent, would become almost routine.

The bill is an undeserved reflection upon the skill and the fairness of the judges of the State courts, and should not be allowed to pass.

Tennessee justice and Tennessee law deal firmly with everything dealt with by S. 905. Sections 39-2801 to 39-2805 of the Tennessee Code specifically prohibit persons to go about in disguise for the purpose of terrifying and injuring other persons and destroying property.

It is interesting to notice that if a disguised person assaults another with a deadly weapon, he commits a felony punishable by death. These code sections first were enacted as chapter 54 of the acts of 1869-70 by the first general assembly elected after the Confederate soldiers had had the franchise restored to them.

S. 904-S. 907, title VI-is a proposed amendment to the peonage statute. It makes an attempt a criminal act and adds a kidnaping section. I know of no conditions that require this legislation; certainly there are none in Tennessee.

S. 906 and S. 3605 both provide for a Commission on Civil Rights. I should suppose that the Congress would prefer to retain its investigative function so as to obtain information for its guidance in the consideration of future proposed legislation.

I urge that this distinguished committee make an unfavorable report on all this civil rights legislation. It is not needed; much of it is unconstitutional; it reflects discredit upon the governments of our States; it seriously invades the sovereignty of the States; and it will impair and will not improve the conditions it professes to correct.

The people of Tennessee are faced with the most difficult problems in the relations between the white people and the colored people that they have had to confront them since the terrible days of the Reconstruction.

Those relations have deteriorated markedly, and they must not be impaired further by the enactment of unnecessary and punitive legislation remindful of our earlier period of trial.

Tennessee is sovereign; do not impair that sovereignty. Tennesseeans govern themselves well and justly; allow them to continue to do so.

The CHAIRMAN. You said there Tennessee is sovereign; do not impair that sovereignty.

Any questions, Senator Kefauver?

Senator KEFAUVER. I had 1 or 2. I do not find it in the listed bills here, but you testified, Mr. McCanless, about a poll-tax bill. Which bill is that you are testifying about?

Mr. McCANLESS. I have it here, Senator. I have forgotten the number of it. I do have it here.

Senator KEFAUVER. Is that the bill, the resolution for a constitutional amendment, or is that

Senator JENNER. S. 901 is the poll-tax bill, not of direct concern to Tennessee because the poll tax was abolished by constitutional -amendment in 1952. It is on page 5.

Senator KEFAUVER. I know, but what is S. 901?

Mr. McCANLESS. The poll-tax bill, Senator.

Senator KEFAUVER. This is a bill by Senator Humphrey which outlaws the poll tax as a condition of voting in any primary or other election.

There is also a bill here-a bill something like S. 901 passed the House quite a number of years ago, but it did not get passed over here. I feel that the great majority of our people are against the poll tax down there, and this is based upon the form of the bill, or just what?