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C~ngressmen.couJLdn'tvery well swallow even the Jenner provisions." **** The Jenner bill as originally proposed, thus proved too strong a measure, even for some of the southern critics who didn't like the desegregation decision. The bill had to be made more palatable if it was to stand a chance of passage, and this was undertaken by a series of provisions offered in the Senate Judiciary Com mittee by Senator John Marshall Butler, Republican, of Maryland. The Butler amend ment struck out the most criticized features of the original Jenner bill -- those denying the Court jurisdiction in cases arising out of the five controversial categories. Thus the · Butler amendment, by restoring the Court's right to review in these areas, sought to remove the biggest impediment to the bill as a serious proposal and enhances its chances of passage in Congress. Senators Jenner, Butler, and James o. Eastland, leading southern proponents of the measure and chairman of the Senate Judiciary Committee, declined to have their comments recorded for this program. From their public statements, their main argu ment is that the measure will restore States rights, save the country from unbridled rule by the Court, and return to Congress its broad powers of congressional investi gation . The Butler amendment to the Jenner bill would accomplish this by re establishing the laws declared unconstitutional by the Court. For instance, the amendment called for extension Qf the loyalty-security program to all Government employees, whether in sensitive or nonsensitive jobs, but this provision failed to win committee approval.

However, three other provisions were approved. One permits Congress to de termine whether questions asked in investigations are pertinent, where that is now a question for the courts. Another says that all acts passed by Congress in the antisubversive field will supersede State laws only to the extent that they specifically say they will. And the third declared that not only advocating and teaching violent overthrow of the government is a crime, but mere teaching of the abstract doctrine is a crime as well.

The measure was approved in the Judiciary Committee by a surprising 2 to 1 majority, suggesting that it could conceivably be pushed through the Senate. "Mr. Sutton. While the authors of the bill refused to speak publicly at this time, North Carolina Democratic Senator, Sam Ervin, voting with the majority, con sented to explain the modified Jenner measure. "Mr. Ervin. The Jenner bill attempted to curb the inordinate exercise of power of the Supreme Court by denying it appellate jurisdiction in the cases covered by the bill. The Butler bill abandons this concept, except in the first provision, and adopts a method of amending laws.

"Mr. Sutton. Why was the Butler amendment mcessary?

"Mr. Ervin. Well, I think there were some people who felt that something should be done in this field, people who did not like the concept of the Jenner bill -- that you would allow lower Federal courts to try and convict a man of a crime and then deny him the right of appeal.

"Mr. Sutton. Doesn't the Butler amendment, however, in effect, accomplish the same thing since what it proposes, in its last three provisions, is to change the law in those decisions by the Court which are controversial? "Mr. Ervin. Well, no; it does not in the last provisions, because the last provisions only represent an attempt by the Congress, at least by the proponents of this bill, to make those acts conform to the recent congressional intent and to circumvent the erroneous interpretation put on them by the Court. In other words, the Court said Congress intended so and so, and this bill merely says Congress didn't intend that at all; it intended this other thing. And that is something which has been done times without number in our history.

"Mr. Sutton. Well, why do you object to these controversial decisions of the Court which the Jenner-Butler bill is designed to get around?

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"Mr. Ervin. The only thing I can explain: I do not know any decision of this Court in recent years that has contributed anything to States' rights, except that one that apparently favors States being allowed to tax people. There has been a constant whittling away and a judicial erosion of States' rights during latter years, and I can't think of a single decision offhand which protects any right on the part of the State, except the right of the State to tax. And I be lieve the Court once said tbat the power to tax is the power to destroy, and maybe they think that by taxation the States would be more effectively destroyed than any other way, I don't know.

11Mr. Sutton: Well, I'm still wondering what's going to happen to the bill, Senator?

"Mr. Ervin. Well, I think that if the bill reaches the floor, that regard less of its ultimate fate, if the bill is adequately debated on both sides, I think that the American people will understand better than they do now our system of government and will understand that under our Constitution that legislative powers belong to Congress and that the States have functions in local matters,and that it is not the policy of the Supreme Court of the United States to make itself a judicial oligarchy ... **** The leading opponent of the bill, Senator Thomas c. Hennings, a Missouri Democrat, declined for now to discuss the bill for this program. He and other members of the Judiciary Committee minority who voted against tbebill have filed a sharply worded report in the Senate saying the measure reflects a kill-the umpire philosophy. They charge the measure would in fact frustrate efforts to combat Communist subversion in this country. One of the group, Senator Alexander Wiley, a Wisconsin Republican, said flatly that the bill would rob individuals of important civil rights, and undermine and unbalance the constitutional separation of governmental powers. If and when the Senate does debate the bill, one of the leaders in the fight to kill the measure will be Senator Hubert H. Humphrey, Democrat, of Minnesota. These are his views:

"Mr. Sutton. Senator Humphrey, what are the dangers of the Jenner-Butler bill?

"Mr. Humphrey. Well, first of all this bill is a legislative hodgepodge that attempts to reverse several Supreme Court decisions that are unpopular with one group or another. The Butler bill, for example, would deny the jurisdiction of the Supreme Court in a particular type of case,tbat dealing with admissions to the State bar, the right of lawyers to practice. The consequences, it seems to me, of that particular provision of the legislation would be rather severe. It could leave a lawyer defenseless against arbitrary denial of his rights under the United States Constitution -- denial of due process. States might very well exclude without a remedy whole groups of lawyers from practicing because of their race. The legal profession, mind you, would be singled out for this special consideration -- no other profession is so treated. It seems to me that this legislation would establish the practice here of the Congress of the United States literally picking and choosing what cases it wished the Supreme Court to handle or to have jurisdic tion over. In this way you would destroy the so-called separation of powers and the balance of power in your constitutional system. I think that's the chief danger implicit in the bill.

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