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make it clear that the bill is resting on the principle of equal protection and not on the rights of United States citizens.
Section 2 creates a reasonable presumption of denial of equal protection from the State's failure, neglect, or refusal to “provide and maintain protection to the life of any person within its jurisdiction against a mob"; the presumption does not arise merely from failure actually to prevent or punish the taking of life, which might be held unreasonable, but from failure to provide and maintain protection. It is easy to show that the States are providing and maintaining this within reasonable human limits, except as to lynching.
Section 3 acts upon the State or municipal officer in the same way that the statute declared constitutional in Er parte Virginia acted on the county judge. The officer is held because through him the State fails, neglects, or refuses to make all reasonable efforts to prevent or punish homicide when committed under certain circumstances, thereby denying the equal protection of the laws to the victim slain under those circumstances.
There is, perhaps, more question as to the provision against “ those who so conspire, combine, or confederate with such officer" (lines 10 to 12, p. 3), but they are conspiring with the State itself to deny the equal protection of its law9. It would be highly desirable to have such a provision sustained by the Supreme ('ourt; if it should not be, this, under section 8, would not invalidate any other provision of the law.
Section 4, giving the Federal court jurisdiction to prosecute in case of a refusal, failure, or inability on the part of State agencies to prosecute, constituting a denial of equal protection, should be held constitutional under the opinion of Mr. Justice Strong in Virginia v. Rives (100 U.S. 313, at 318) [italics mine):
“ Congress by virtue of the fifth section of the fourteenth amendment may (nforce the prohibitions wherever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of enforcement is left to its discretion. It may secure the right-that is, enforce its recognition—by removing the case from a state court in which it is denied into a Federal court where it will be acknowledged. Of this there can be no reasonable doubt. Removal of cases from State courts into courts of the United States has been an acknowledgeil mode of protecting rights ever since the foundation of the Government. Its constitutionality has never been seriously doubted."
Section 5 certainly is designed to act upon the State and not upon individuals in the traditional way of imposing a fine on the municipal body. If it be said that the power to tax the State subdivision is the power to destroy, the answer must be that Congress is authorized by the Constitution of the United States to go to such stern measures if they are necessary to prevent the denial to a man of the equal protection of the laws.
I suggest changing " should " to "shall ” in line 13, page 4.
Section 7 appeals to the Federal authority derived from treaties. Sections 8 and 9 are unexceptionable.
Now, sir, I urge upon you the conclusion that you should not refuse to force this bill out of committee and urge its passage with all the power at your command, merely because neither you nor I can guarantee that the Supreme ('ourt is going to take the view of this bill that I have set forth above. The bill is very ably drawn. It is probably the best bill that can be framed under the peculiarly artificial restrictions of our Constitution. It ought to be held constitutional by the Supreme ('ourt. I think it is entirely true to say that the court can hold the bill constitutional on sound reasoning if it wants to. This is a case, therefore, where the problem ought to be put squarely up to the Court; it is not a case of passing the responsibility of the Court because the legislature does not want to incur the popular odium of refusing the remedial statute.
But look at the matter from a broader point of view. Suppose the constitutionality of the act doubtful. The evil is rampant, it is hellish in particular instances, it is dangerous to the Nation in its increasing threats of race war and mob rule. To cure such a cruel cancer in our body politic, every curative forre should be set in motion. Even if the Court should make vain your efforts, it is tremendously important that the most representative body in the world should go on record as opposing lynching and desiring to stamp it out. At least the lyncher will no longer be able to say that the toleration he and his neighbors feel for his bloody sport exists also in a Congress which raises no protesting voice. We need not deceive ourselves that this law, even if upheld to the last comma and enforced fearlessly, is going of itself to do away with lynching. No law perfectly fulfills its object until the public sentiment behind it renders it practically superfluous. The necessary change of public opinion must perhaps be effected by publicity, education, example; possibly by the removal of such fear as may beset the whites through agencies such as a State constabulary to insure against crimes in sparsely settled districts by blacks against whites as well as by whites against blacks; but those are other questions. The first step, the step which we are looking now to you to take, is to report out the Dyer bill and to get it passed by the Senate. Very respectfully,
HERBERT K. STOCKTON. Senator Van Nuys. The committee will now stand adjourned subject to the call of the chairman.
(Thereupon, at 3:45 p.m. the subcommittee adjourned subject to, call of the chairman.)