Mr. JACOBS. In our country, we exalt the idea of equal pay for equal work. It seems to me along those lines rather than along the lines of long-distance busing, which as the gentleman has pointed out is quite artificial in its final result; it seems to me along those lines we could do what we all want to do, and that is make this country a place where we can be brought together when that is not just a pretty phrase of oratory.

I especially appreciate the gentleman's testimony. I believe it is the best we have had so far.

Mr. DINGELL. I thank my good friend very much.

Mr. HUNGATE. The gentleman would prefer to reach this by a statute rather than amendment?

Mr. DINGELL. The answer is "Yes." Like my friend, Mr. O'Hara. I am not sure what the Lent amendment does. I don't know whether it takes us back before Brown or whether it is the same as Brown or whether it is in some fashion different. It is a very ambiguously drawn piece of constitutional law. There is the other problem, and I think this is something most people have tended to overlook, which is that constitutional amendments take a long time. They are very difficult to bring to a successful conclusion.

Once they have been adopted into the Constitution, they then are subject to lengthy litigation to find out what they mean. So we would find ourselves, if we were to amend the Constitution, it would be a very time-consuming process.

We have a national problem. A lot of our children are being denied full educational opportunity. Let's try and put forward a quick, effective, and properly drafted resolution of the problem. I think— and I have no pride of authorship here, I would say H.R. 13534 may not be perfect in its approach, but at least it is in my view the way out of this thicket.

It will give this Nation the means of putting to rest for good and all this question of equality of opportunity and it will say that we are going to give the children what they really need in terms of equal opportunity. That is the idea.

Mr. HUNGATE. Thank you very much. We appreciate your contribu

tion.

No further questions?

Thank you again.

Mr. HUNGATE. The next witness is our colleague, the Honorable Ben B. Blackburn of Georgia.

We want to thank you for waiting. We are glad to have you.

STATEMENT OF HON. BEN B. BLACKBURN, A U.S. REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA

Mr. BLACKBURN. Mr. Chairman, I will submit my statement for the record and summarize the high points of the statement.

Mr. HUNGATE. Your statement will be made a part of the record at this point.

(The statement referred to follows:)

STATEMENT OF HONORABLE BEN B. BLACKBURN, A U.S. REPRESENTATIVE IN

CONGRESS FROM THE STATE OF GEORGIA

Mr. Chairman and Members of the Committee, hearings are being conducted today because policies affecting the operation of public school systems through

out the United States have been instituted by court decrees. These policies, which are meeting a broad resistance from all areas of the country, generally require the transportation of school children from the school facilities most convenient to their homes to school facilities at varying distances from their homes in order to achieve, what the courts have determined to be, a desirable racial mix in individual schools.

Parents, demonstrating a very human instinct to keep their children as close to home as possible during their educational periods, are objecting to these policies. School boards and school revenue authorities, finding that the financial burdens imposed by such massive transportation requirements, combined with the increased complication of scheduling classes, are protesting likewise. In some school systems extracurricular activities have been curtailed, if not eliminated, because of the combination of financial burdens and scheduling complications. Many parents and school boards are expressing fear that the quality of education is suffering under the policies now being promulgated and implemented under Court decrees.

I personally fear that their concerns are valid. When courts initiate policies which the majority of the people do not support, then grave questions arise as to the proper role of government in the affairs of the citizens in a democratic society. The courts are an instrument of government. In a constitutional democracy, the ultimate authority for government action is the will of the people. The will of the people is expressed first in the legal document which gives authority to government, the Constitution itself. It has always been my understanding that the role of the courts in our government is to protect the citizenry against abuses of the executive or legislative branches of government when either of these two branches, or both, exercise authorities not granted in the Constitution. These hearings are testimony to the fact that the people of the United States are becoming alert to the danger that their desires can be subverted by the courts themselves. The courts are no longer content to prevent excesses of authority by the other two branches of government but have now assumed the role of a legislative body.

When the courts assume a legislative function and promulgate policies that are not supported by the will of the people, then a duty arises on the elected representative branch of government, that branch which reflects the will of the people, to take affirmative and responsible action to bring national policies into a position more consistent with the will of the people. To fail to do so is to permit a tyranny of the Judiciary.

Indeed, I am of the opinion that the courts are themselves in violation of clear constitutional limitations. For example, Article I, Section 7, Clause 1 of the Constitution provides that revenue measures arise out of the Lower House: "Article I, Section 7. All Bills for raising Revenue shall originate in the House of Representatives...."

It is obvious that in the enactment of the Constitution, the people of this country demonstrated a high concern for the protection of their pocketbooks. So that unpopular invasions into their pocketbooks could be rectified by calling to account at the next general election those who impose tax burdens, the people insured a direct link between themselves and the policymaking organ of government which exercises the most direct impingement upon their financial affairs.

When the courts impose substantial financial burdens on the school systems of our country, the courts are imposing a tax. Local taxing authorities and school boards either have the option of decreasing the quantity, or quality, of academic services in order to meet the cost of additional transportation expenses to comply with busing requirements or, such authorities must increase revenues by increasing tax burdens on local citizens. Yet, the citizenry who must bear the additional taxes cannot call to account the court responsible for imposing such taxes.

A challenge has been posed to the Congress. Recent public opinion polls reveal that currently approximately 80% of Americans oppose the transportation of school children over long distances where such transportation is not necessary. It is the Congress which is the instrument of government charged with the responsibility of reflecting the will of the people in government policy. When government policy runs counter to the will of the people, then government has ceased to be the servant of the people. Do we as Congressmen have the right to remain silent when the people who have placed such trust in us are demanding relief from government abuses. The fact that these abuses have arisen

from the judicial branch of government makes them no less onerous and makes our responsibility to respond even more clear.

The court decisions which are creating the problem arise under the provisions of the Equal Protection Clause of the 14th Amendment. In the enactment of the 14th Amendment, the framers of that amendment specified the authority of the Congress to enforce the provisions of that Act.

Specifically, Clause 5 of the 14th Amendment states, "The Congress shall have the power to enforce the provisions of this article." The Supreme Court regards Clause 5 as a positive grant of power by the people to the Congress to be used in the enforcement of the 14th amendment. In Ex parte Virginia, 100 U.S. 339, at page 345 the Court states: "It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective."

When the 14th Amendment was on the Floor of the Senate Under discussion in 1867, Senator Jacob M. Howard of Michigan described Clause 5 as "a direct affirmative delegation of power to the Congress," and added, "It casts upon Congress the responsibility of seeing to it, for the future, that all sections of the amendment are carried out in good faith and that no state infringes the rights of persons or property. I look upon this clause as indispensable for the reason that it imposes upon Congress this power and this duty. It enables Congress in case the state shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment." Con. Globe, 39th Cong., 1st Sess., 2766, 2768 (1866).

Clause 5 of the 14th Amendment is a logical extension of Article I, Section 8, Clause 18 of the Constitution in which the Congress is given the general power"... to make all laws which shall be necessary and proper for carrying into execution . . ." the powers vested by the Constitution in the government of the United States.

There have been proposals advanced before this Committee that to meet the demands of the public for relief from court-ordered transportation schemes the Congress should enact a constitutional amendment prohibiting “busing" of school children. I am not in agreement with such suggestions. The United States Constitution is a document intended for promulgation of statements of broad public policy. One of its principal purpose, as repeated throughout THE FEDERALIST PAPERS, and as specified in the first 10 Amendments, is to limit the parameters of Federal activities as they might impinge on individual freedoms. The Constitution should not become a legislative vehicle to deal with particulars of the day-to-day mechanics of government operation.

The proposal for a constitutional amendment is unrealistic in the present politi. cal climate. The Senate, within the past week, by a narrow vote has defeated legislation dealing with the subject matter of school busing. To suppose now that the same Senate would adopt by a % vote a strong constitutional amend ment is unrealistic.

Securing ratification of a constitutional amendment requires the cooperation of state governments as well as federal action. The mere mechanics of securing passage of a constitutional amendment complicates and would delay the granting of relief to the American public. Thus, on several grounds, I am opposed to the proposed constitutional amendment as being unwise, unnecessary, and too cumbersome.

It is my suggestion that the Congress exercise the authority which it now possesses under Clause 5 of the 14th Amendment. I suspect that the courts, having plunged into the thicket of school administration and financing would welcome congressional direction. The courts were never intended to be legislative bodies. They operate in the confines of narrow rules of evidence. Conflicting attorneys, in presenting their cases are seeking to serve the immediate needs of their clients. The courts can only act on the basis of facts presented before them and differing skills and resources of legal counsel have a great influence on the factual basis upon which a court can act. In short, a court, proceeding in accordance with established rules of evidence and legal procedures is not equipped to legislate or formulate new public policies which have wide-ranging and direct effects on our citizenry.

The question of racially segregated versus racially integrated schools has been long since laid to rest both in the courts and in the minds of our citizens. The matters of increasing concern to our citizens are those of quality and equality in educational opportunity to all of our children in the public school systems

and, increasingly, the convenience and expense involved in delivering those educational opportunities.

Let me suggest that legislation embodying the following general principles would be adequate. (1) There shall be equality of educational services in each school in a school system; (2) Each child shall be first designated to attend the school most convenient to his home, providing that school attendance zones are not created in such a manner as to create or perpetuate segregation and (3) It shall be provided that any child will have the right to transfer, upon reasonable notice, to any other school within the same school system at no expense to the school system.

In the final analysis we are dealing with a question of the will of the people when their desires are being over-ruled by an instrument of government, the courts. The legislative branch of government is a co-equal branch with that of the courts. As that branch of government most responsive and responsible to the will of the people, it is our duty to act as a co-equal branch of government and specify limits and conditions within which the judiciary may act in establishing government policy.

Mr. BLACKBURN. Mr. Chairman, What I say in my statement is that the courts are an instrument of government. The Federal court system is another instrument of government just as the Chief Executive is an instrument of government and as we are an instrument of government.

The courts today are instituting polices that are not supported by the great majority of people such as the busing business that brings us here today.

Under such a situation I think it is our responsibility as that organ of government which is designed and intended to be responsive to the will of the people to insert our views to correct the courts where the courts have gone beyond what the people want them to do.

I personally do not feel that we need a constitutional amendment. In fact, if we review the history of the 14th amendment, we find that clause 5 says specifically: "The Congress shall have the power to enforce the provisions of this article."

The Supreme Court has interpreted clause 5 of the language "It is the power of Congress which has been enlarged," talking about section 5 of the 14th amendment.

Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective.

When the 14th amendment was on the floor under discussion in 1867, Senator Howard of Michigan described clause 5 as "a direct affirmative delegation of power to the Congress" and he added "it cast upon the Congress the responsibility of seeing to it for the future that all sections of the amendment are carried out in good faith."

Clause 5 of the 14th amendment is a logical extension of article 1, section 8, clause 18 of the Constitution in which Congress is given general power "To make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States."

Gentleman, I also agree with my colleague, John Dingell, when he states that the constitutional amendment is a very cumbersome and very bulky process. It requires affirmative action on the part of State legislatures.

If the Congress will specify very clearly the parameters under which the Court can act in carrying out the purposes of the 14th amendment, we will be giving the Court a very welcomed congressional direction which at the present time is lacking.

I also point out in my testimony that a court operates under the confines of narrow rules of evidence. It operates under confines of the facts which are presented to the court which are determined in part by the differing skills of the attorneys, as well as the resources of the attorneys in the case, both of which are very much a part of the accessibility of the court to facts.

We are supposed to be the legislative body. I think we have authority under the Constitution to act in this field and I suggest that legislation be drawn. I have not prepared legislation but let me suggest that the following general principles would be adequate in legislation.

One, there should be equality of educational services in each school in a school system.

Two, each child should be first designated to attend the school most convenient to his home provided school attendance zones are not created in a manner to create or perpetuate segregation.

Three, it should be provided that any child should have the right to transfer to any school within the school system at the child's own expense.

Very briefly, Mr. Chairman, this is a summary and essence of the statement that I submit to the committee.

Mr. HUNGATE. That is a very helpful statement on ramifications of the 14th amendment. Your summary had 14 points and someone said the Lord only needs 10 and you got close to the Lord.

Thank you for your contribution.

Mr. Hutchinson?

Mr. HUTCHINSON. Mr. Chairman, I have no questions to put to the witness. I appreciate his appearing at this late hour today and his contribution will be most helpful.

Mr. HUNGATE. Mr. Jacobs?

Mr. JACOBS. It was an excellent contribution. Thank you.

Mr. HUNGATE. Thank you again. The committee will be in recess until 10 a.m., Wednesday.

(Whereupon, at 12:30 p.m., the committee adjourned, to reconvene Wednesday, March 8, 1972.)