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Senator KEFAUVER. I realize and appreciate your problem.
In connection with the Clayton Act, where “substantial” is used, and the connection with the Sherman' Act-in connection with the Clayton Act, both you and the Federal Trade Commission give advisory opinions to people who might be in question whether they are going ot violate the law or not.
You do the same thing in connection with "unreasonable restraint of trade" in section 1 of the Sherman Act. Would it be the intention of the Department of Justice to put out rules or regulations or advice as to what might be substantial or might not be substantial?
Attorney General KENNEDY. Well I expect that it is going to be clear from testimony before congressional hearings and it is going to be clear from the discussion on the floor of the Senate and the House of Representatives, and it is going to be clear, I would think, from your report.
We hadn't planned to issue rules or regulations. I think we should keep in mind that there is no penalty involved in this, Senator. First, a particular establishment would have to make a determination or decision that it wanted to discriminate. The worst thing that ultimately happens, is now anyone is sent to jail. There is no monetary fine, as there is, I believe, in 30 out of the 32 States that already have this kind of bill. All that happens is that the establishment has to stop discriminating. That is the penalty.
Also, as I say, you have had other legislation that has been passed under the commerce clause, which has not been defined mathematically—the Fair Labor Standards Act, for instance. Ultimately it went through the courts and there were some definitions by the Supreme Court and other courts as to what was or was not covered.
As I say, the vast majority, 99 percent of the business establishments, would know whether they were or were not covered. If Congress decides they want to be more precise, we could write it into the report, work it out on the floor or put it into the bill.
We would be glad to work with Congress or Members of Congress on that matter, or congressional committees.
Senator KEFAUVER. Mr. Attorney General, I don't want to take up too much of your time, but I wanted to get your thinking about the words on page 16, lines 6 and 7, of S. 1731. Apparently this would cover a person-page 16, lines 6 and 7, this is— Whenever any person has engaged
We understand what that means. That is the language, I think, of most of the other commerce statutes. But the part that seems to be new, I wanted to see what you thought it meantor there is reasonable ground to believe that any person is about to engage in any act or practice prohibited by section 203.
203 has to do with the commerce provision. That is a new type of language, I believe.
Attorney General KENNEDY. It is language taken from the 1957 Civil Rights Act, Senator. It is incorporating language from there.
Senator KEFAUVER. And applying that to the public facilities?
Attorney General KENNEDY. The public accommodations, yes; that is the basis of it.
Senator KEFAUVER. But that language does not appear, I believe, in the Clayton Act or the National Labor Relations Act, or the Fair Labor Standards Act, does it?
Attorney General KENNEDY. I do not believe it does. I think it is to cover those.
Senator KEFAUVER. Well, that does present a problem. I should think a person may feel that he is about to prevent somebody from getting an accommodation.
Attorney General KENNEDY. I think it would be quite clear.
Senator KEFAUVER. As I get it from the bill, the matter of contempt would be determined by the district judge, is that correct?
Attorney General KENNEDY. That is correct.
Senator KEFAUVER. When the 1957 voting rights bill was up, I voted for the voting rights bill, but I felt very strongly that the matter of contempt should be tried by a jury and offered an amendment; that is, the person proceeded against should have the right of a jury trial—and offered an amendment to that effect. I would like to give you the amendment I offered and let you consider it, or if you want to express an opinion now as to whether in a contempt proceeding against a person violating the public accommodations section, he should have a right to trial by jury.
Attorney General KENNEDY. Well, Senator, we would accept the same provisions of the 1957 act, which I think grants a trial by jury if there is a fine of more than $300 or a prison sentence, or sentence of 45 days.
We would accept the same language that is found in the 1957 act, which was accepted by Congress, passed by Congress.
Senator KEFAUVER. I would like later to submit to you the amendment that I offered.
Attorney General KENNEDY. Thank you, Senator.
Did you understand that-it was my thinking that this right of a jury trial ought to be applied to the public accommodations part of the bill?
Is that clear?
Attorney General KENNEDY. Yes; as to contempt. If there is any contempt, and the individual is tried for contempt, we apply the provisions dealing with jury trial in the 1957 act to this, the public accommodations part.
Senator KEFAUVER. To the public accommodations part?
Senator Ervin. Mr. Attorney General, this country has a written constitution; does it not?
Attorney General KENNEDY. It does, Senator.
Senator Ervin. Would you summarize in a brief way why the Founding Fathers decided to have a written constitution in this country rather than have an unwritten one like they have in England?
Attorney General KENNEDY. They wanted to insure, Senator, that the individual citizens in this country knew what their rights, privileges, and responsibilities might be, and what would be their relationship to the Government, the courts, and the Congress, and the Congress which would be established.
Senator Ervin. That is a very good statement as far as it goes,
but don't you believe that one of the major purposes of adopting a written constitution for the Government of this country was to define the kind of government that was being created and the powers it was to take?
Attorney General KENNEDY. Well, I would think that was incorporated in my answer.
Senator Ervin. I would like to ask you if you have any quarrel with a certain statement made by one of the great lawyers of this country and by the Court in the case of Ex parte Milligan, 4 Wallace, starting at page 1. And I quote these remarks of Jeremiah S. Black, counsel for Milligan.
Attorney General KENNEDY. Can you give me—could we have the date of this?
Senator ERVIN. It is Ex parte Milligan.
Senator Ervin. I don't have the opinion; just some extracts of it. But it was an opinion handed down by the Supreme Court in the case of a civilian in Indiana, who was tried before a military court for what amounted to aiding and abetting the Confederacy or treason against the Union. He was tried by å military court although he was a civilian and was sentenced to death. An appeal was taken to the Supreme Court from the death sentence by counsel, headed by Jeremiah S. Black, one of the greatest lawyers this country has ever known.
In his argument before the Court in case, Mr. Black gave this as a reason why this country adopted a written constitution. He said the Founding Fathers knew “that tranquillity was not to be always anticipated in a republic”; “that strife would rise between classes and sections, and even civil war might come"; and “that in such times judges themselves might not be safely trusted in criminal cases, especially in prosecutions for political offenses, where the whole power of the executive is arrayed against the accused party.”
That is a statement in part of what that great lawyer, Jeremiah S. Black, said in his argument in Ex parte Milligan.
As I construe that, he says in effect the Founding Fathers established the written constitution for the same reason you expressed in other words; that is, to give the people of the country, among other things, protection against the powers of government.
Do you have any quarrel with this statement?
Attorney General KENNEDY. No; I am with you completely so far, Senator.
Senator ERVIN. The Court said this is Ex parte Milligan: “They”— that is, the Founding Fathers-knew "that what was done in the past might be attempted in the future.”
And “that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive methods to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law."
Do you have any quarrel with that statement?
Senator Ervin. The basis you have for asking the committee to approve the administration bill and asking Congress to adopt it is that we are now having troublous times because of demonstrations in the streets of the country, north, south, east, and west.
Attorney General KENNEDY. No; that isn't correct. Excuse me, Senator.
Senator Ervin. Would you deny that this matter has been accentuated by the fact that there have been demonstrations of this character!
Attorney General KENNEDY. I think that is correct.
Senator ERVIN. Would you say that your advocacy of the administration bill is not prompted in any part by the fact that we are having, in that sense, troublous times?
Attorney General KENNEDY. I think it is. But that is not the reason we are offering the legislation.
Senator Ervin. The proposed legislation, other than the voting part and the proposal to extend the life of the Civil Rights Commission was not offered before the demonstration occurred, was it?
Attorney General KENNEDY. I don't think that there was a general feeling in the country or in Congress, Senator, to do much about it. You and I went through this a year ago in connection with the voting bill. As you remember, not very many people were interested. You were interested, we were interested but there weren't many others that were interested in it. There wasn't a great demand around the country and there wasn't a great demand in the Congress. If we couldn't get that very basic bill by, and a very elementary bill, if we didn't have more success with that, we would hardly have great success with legislation that went beyond that. But the reason that we need this legislation—that is what the question is, whether the legislation is needed—the reason it is needed is not because there are demonstrations taking place but because there are injustices that should be remedied and the legislation would take a step toward remedying those injustices.
Senator Ervin. Let us see if we can agree on this proposition: That as a result of the demonstrations which have occurred in Birmingham and unfortunately in Greensboro and Lexington, N.C., and in Cambridge, New York City, Chicago, and Los Angeles, and other areas, we can describe this as a period of troublous times.
Attorney General KENNEDY. Yes.
Senator ERVIN. All right. Can't we also describe this bill as a proposal to deal with the situation or with the field—I will not confine it to a situation—by sharp and decisive methods? Aren't the proposals in this bill rather sharp and decisive?
Attorney General KENNEDY. I expect it would probably depend on what your definition of sharp and decisive is. I would make it as sharp and decisive as possible.
Senator ERVIN. I would think that would be correct. I would describe the proposals in the bill to provide that the Federal Government is to regulate business affairs, as I would contend, down to the last bootblack on the local level
Attorney General KENNEDY. For instance, Senator Kefauver raised a question that has been raised by a number of your colleagues whether it is sharp and decisive enough in that area.
Senator Ervin. You won't quarrel with me if I say that in my opinion this bill is perhaps the most sharp and decisive bill in this area since the Reconstruction Acts of 1867, would you?
You wouldn't quarrel with me if I had that opinion ?
Attorney General KENNEDY. I think, Senator, you have had a long distinguished career and you are entitled to any opinion. I have only the greatest respect for you and your ideas. .
Senator ERVIN. I appreciate that.
Attorney General KENNEDY. Very sincerely, though, Senator, I have worked with you a long period of time and I have only the greatest respect for you.
Senator Érvin. I would say to the Attorney General that as some of us, including myself, see this bill, it is a very drastic assault on the principles of constitutional government and on the private rights of individuals. My opposition to the bill does not arise out of any matter of race.
Many years ago, I was elected to represent my county in the North Carolina
Legislature. One of my first acts was to introduce a bill to provide for the issuance of bonds to defray the cost of building an adequate school building for Negro schoolchildren in my hometown. As a member of the State legislature, as a member of the school board in my hometown, and as a citizen, I have always done everything within my power to insure that all of North Carolina's children of all races should have adequate educational opportunities. As a lawyer, a judge, and a citizen, I have likewise always done everything within my power to see to it that all men of all races stand equal before the law. Moreover, I have always taken the position that all qualified persons of all races should be accorded their right to register and vote, and that any State or local election official who willfully denies to any qualified citizen that right ought to be prosecuted under State statutes or under section 242 of title 18 of the United States Code. Consequently, I do not base my opposition to this bill upon any matter of race. I would be glad to see the operators of places of public accommodation open such places to all persons by voluntary action on his part whenever he feels that it would be appropriate for him to do so and whenever he feels that he can do so without suffering any unpleasant incidents and without suffering economic loss. I am opposed, however, to any effort to solve problems of this nature by the coercive power of law. All Americans should be permitted to keep their individual rights to use their private property as they wish, and to select their customers as they wish. I oppose this bill because it constitutes a drastic assault upon fundamental constitutional principles and upon basic individual rights. I shall read in a moment what I conceive to be a true statement concerning written constitutions and how they should be interpreted.
Incidentally, I was taught constitutional law by Eugene Wombaugh in the Harvard Law School.
Attorney General KENNEDY. I went to the University of Virginia Law School.
Senator Ervin. I had the great privilege of sitting at the feet of Eugene Wombaugh. My ideas of constitutional law may not be as sound as Eugene Wombaugh's were, but they are probably sounder than yours would have been if you had received your legal education in the same place you received your earlier education.
Senator KEATING. In the same place as the Senator from North Carolina.
Senator Ervin. Yes. On one occasion I was privileged to speak to the Harvard Law School Association of New York City. I took that occasion to make some remarks entitled “Alexander Hamilton's Phantom" in which I charged that during recent years members of