Cardona v. Power Page 13

Cardona v. Power general information

Media for Cardona v. Power

Audio Transcription for Oral Argument - April 18, 1966 in Cardona v. Power

Samuel A. Hirshowitz:

Yes.

Well then I think they would have to show that there is a discrimination --

Hugo L. Black:

Well, who would have show it? Does Congress --

Samuel A. Hirshowitz:

The extent of --

Hugo L. Black:

-- have to produce evidence to show that it has grounds to believe that the law ought to be passed or is it -- very heavy burden on the people who attack its law?

Samuel A. Hirshowitz:

I think there's --

Hugo L. Black:

It's all that it had no ground.

Samuel A. Hirshowitz:

Mr. Justice Black, I think this would be too easy in application of that section of the Fourteenth Amendment because the Congress would be enacting legislation without any proper background.

I think the position that caught took in the South Carolina case which we supported by a brief that we filed is a proper one that where there is efforts to show of -- that where is the record shows that efforts have been made by the federal judicial authorities and federal administrative officials to enforce the provisions for the Fourteenth Amendment and those efforts have been patently unsuccessful that Congress has a right to step in and otherwise, they could step in on every single occasion without any prior (Voice Overlap) --

Hugo L. Black:

Well, they could step in, in many fields where --

Samuel A. Hirshowitz:

No.

Hugo L. Black:

-- it has power to enact legislation in that field without having in a burden put on the Congress to show that it had a right to do it?

Samuel A. Hirshowitz:

Well Mr. Justice Black, the best illustration on what I'm trying to say is what happened in this 4 (e).

Mister -- Senators Javits and Kennedy, sponsors of this section from New York admitted on the floor of Congress that there was no evidence of discrimination by New York, that's in the congressional record and we cite that in our brief, yet Congress went ahead --

Hugo L. Black:

Most Congress believed that there was enough probability of it that it is necessary in the public interest to protect against discrimination on account of race or color or what not, why wouldn't have a right to do it under Section 5?

It is the burden on the Congress?

Samuel A. Hirshowitz:

I --

Hugo L. Black:

Or the Government to show that it had grounds for it or put on the people who attack the law?

Samuel A. Hirshowitz:

I would suggest first as you say Mr. Justice Black, it would have to be evidence of actual discrimination and secondly, --

Hugo L. Black:

I don't suggest that.

Samuel A. Hirshowitz:

Well, as stated for you.

Secondly, that the -- before this Court should uphold this extension of congressional power under Section 5 of the Fourteenth Amendment, the Court should be impressed with the fact that it was in the South Carolina case that there's a long history of frustration of judicial and administrative process to command respect for the dictates of the Fourteenth Amendment and this of course is wholly absent from this case and the only attempted evidence of that is to go back to 1920 -- 1915 to 1920 when the amendment was on the consideration.

Sure, there were people, I readily admit there were people at the constitutional convention who have narrow-minded concepts for the enactment of these -- this constitutional provision, but at the same time, there were hind-minded people and we have quoted from one or more of those people whose interest was in the promotion of the welfare of the State of New York.

Earl Warren:

Very well.

Paul O'Dwyer:

May I just for a moment.

Earl Warren:

You may just have a moment.

Paul O'Dwyer:

Your Honors that I think that the burden placed upon this Court in dealing with the 4 (e) matter has been considerably lightened by consideration of the facts outlined in the Cardona case which have not been questioned.

All of the allegations contained in the record are without contradiction.

In so consequently in order to arrive at the point where you feel that Congress is justified in the enactment of 4 (e) having first from to the conclusion that by virtue of the Grandfather Clause and the other provisions and the other arguments which are made that the law is unconstitutional in the first -- in the first place then this presents a basis for the -- for the establishment of the 4 (e) if the law at the present time.

But it would seem to me that they are intertwined to the point for a consideration of the first case must come after a full and complete consideration of the Cardona case.