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I would not say this myself, but that salty jurist, Circuit Judge Hutcheson, who wrote the opinion in the Givens case, said the notion that the acts of private attorneys constitute State action under the 14th amendment is fantastic.
The Grubbs case, the Swift case, the Givens case, and the Kenney case make it crystal clear that there is no constitutional basis for the theory that the action of individuals practicing professions or carrying on business becomes State action within the meaning of the 14th amendment merely because they are licensed by the State to practice such professions or to carry on such business.
Mr. Attorney General, if I construe your written statement aright, you and I seem to agree on this particular aspect of the matter.
Attorney General KENNEDY. That is correct, sir.
Senator Dodd. May I say to my colleague that I do not know where he gets the idea that I take a very different view. I have only said that I think the licensing power is one way in which we can get at this difficulty.
I do not know why we have to fuss about it. If the 14th amendment will help, let's take it. If the commerce clause will help, let's follow it on that. If there are any other provisions of the Constitution which will help, let's have them all in. I do not see why we have any argument on it, myself.
Attorney General KENNEDY. I understood that was your position, Senator.
Senator Dodd. That is my position.
The CHAIRMAN. The State can only act under the law through its agents. Isn't the complete answer to it that the State acts only through agents?
Senator ERVIN. I think so. This point is important because the 14th amendment authorizes Congress to enact legislation to deal only with the violations of certain prohibitions upon State action. Certainly, it is important to show that the courts have held that there is no validity in the theory that when a State licenses a man to do something, the license converts the action of that man into State action within the purview of the 14th amendment. I consider that rather important.
Senator Dodd. I did not mean it was unimportant, Senator. I do not think it is conclusive, as far as we are concerned, here.
Senator ERVIN. I call attention to the case of Harrison v. Murphy, (205 F. Supp. 449), which holds that restaurant owners who had no connection with a State agency were not acting under color of law in refusing service to a Negro under Delaware law which was permissive in character and permitted the owner of a restaurant to refuse service to persons whose reception would be offensive to a major part of his customers and would hurt his business.
This decision was handed down in May 1962, and cites an opinion in the case of Williams v. Howard Johnson's Restaurant, which I will also cite in a moment.
Harrison v. Murphy expressly repudiates the argument that the fact that the State licensed the restaurant to operate did not convert the action of the restaurant owner in denying service to a Negro into State action within the purview of the 14th amendment.
The case of Williams v. Howard Johnson's Restaurant (268 F. 2d 845), holds in substance that the public accommodations provision of the pending bill cannot be sustained under either the 14th amendment or the commerce clause. This decision was handed down by the U.S. Court of Appeals of the Fourth Circuit. The opinion was written by Judge Soper and concurred in by Judge Sobeloff and Judge Haynesworth. The court of appeals held that the privately operated restaurant located in Alexandria, Va., which was situated beside an interstate highway and which served interstate trade along with its other customers, had a right to select its own customers and that the commerce clause and the 14th amendment did not prevent it from excluding Negroes. This opinion was handed down July 16, 1959. I will read at this time only that portion of the opinion which makes it clear that the public accommodations provisions of this bill find no support in the 14th amendment. The plaintiff concedes that no statute
For the guidance of the reporter, I will say I am reading from the beginning of the last paragraph on page 845.
The plaintiff concedes that no statute of Virginia requires the exclusion of Negroes from public restaurants and hence it would seem that he does not rely upon the provisions of the 14th amendment which prohibits the States from making or enforcing any law abridging the privileges and immunities of citizens of the United States or denying to any person the equal protection of the law. He points, however, to statutes of the State which require the segregation of the races in the facilities furnished by carriers and by persons engaged in the operation of places of public assemblage; he emphasizes a long established local custom of excluding Negroes from public restaurants and he contends that the acquiescence of the State in these practices amounts to discriminatory State action which falls within the condemnation of the Constitution. The essence of the argument is that the State licenses restaurants to serve the public and thereby is burdened with a positive duty to prohibit unjust discrimination in the use and enjoyment of the facilities.
This argument fails to observe the important distinction between activities that are required by the State and those which are carried out by voluntary choice and without compulsion by the people of the State in accordance with their own desires and social practices. Unless these actions are performed in obedience to some positive provision of State law they do not furnish a basis for the pending complaint. The license laws of Virginia do not fill the void. Section 35–26 of the Code of Virginia, 1950, makes it unlawful for any person to operate a restaurant in the State without an unrevoked permit from the commissioner, who is the chief executive officer of the State board of health. The statute is obviously designed to protect the health of the community, but it does not authorize State officials to control the management of the business or to dictate what persons shall be served. The customs of the people of a State do not constitute State action within the prohibition of the 14th amendment. As stated by the Supreme Court of the United States in Shelley v. Kramer, 334 U.S. 168, Supreme Court 836, 842, 92, Law Edition 116:
Since the decision of this Court in the Civil Rights cases, 1883, 109 U.S. 3, 3 Supreme Court 18, 27 Law Edition 835, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the 14th amendment is only such action as may fairly be said to be that of the State. That amendment erects no shield against merely private conduct, however discriminatory or wrong.
I will make reference later to what the court of appeals says about interstate commerce.
Mr. Attorney General, yesterday you made a suggestion which I do not believe appears in your prepared statement, and which I therefore assume you did on the spur of the moment, that the power of Congress to enact the public accommodations section of this bill can be found in the 13th amendment. Do you seriously take that position?
Attorney General KENNEDY. I do, Senator.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2Congress shall have power by appropriate legislation to enforce the provisions of this article.
It would seem to me that anyone who takes the position that the 13th amendment will support legislation of this character asserts this proposition to be true: Every man is a slave if Congress does not give him the legal power to say to the operator of a restaurant, “You must fix and serve a meal to me whether you wish to do so or not,” or to the operator of a tourist home, “You must make up a bed for me and let me sleep in it whether you wish to do so or not." The only slavery or involuntary servitude embraced in this proposition is that of the operator of the restaurant or tourist home.
Is that not so?
Attorney General KENNEDY. Well, first, so that I can explain what my position is on this legislation, I think it rests clearly on the commerce clause.
I do not think that anyone examining this legislation can argue with any validity that this legislation is not constitutional under the commerce clause. I think it is clearly constitutional under the commerce clause. That is why we have established it firmly on that basis. I think, although I think it is difficult, I think it could also be claimed that this legislation is constitutional under the 14th amendment and under the 13th amendment. I think that is more difficult and I think you can argue with a good deal of validity that it would not be constitutional under the 13th amendment. I would respect that argument and I can understand how that argument could be made.
I personally believe, Senator, that it would be declared constitutional under the 13th and 14th amendments and I think there are many others who feel the same way.
There are others who feel like you that it would not be declared constitutional under either the 13th or 14th amendment.
Now, why I bring in the 13th amendment is because, as I said yesterday, slavery was the ownership of an individual, but it was also all of the other degradations that went along with ownership. Basically an individual was being treated as a second-class citizen. He was profiting
Senator ERVIN. I think you would have to say that slaves were not citizens at all. That is what the Supreme Court held in the Dred Scott case.
Attorney General KENNEDY. He was treated as property. The Civil War was fought and he was freed. Then we had the civil rights cases and then we began the passage of the Jim Crow laws beginning in the 1890's and going through 1910. Again, Jim Crow laws which covered the whole society of many of these States in the South, so that an individual Negro went back into the position of being a secondclass citizen, who lost all of his rights.
He was not able to vote, he was not able to go to restaurants or go to hotels or go to theaters.
Senator Ervin. Mr. Attorney General, you are somewhat in error. Under the Reconstruction Acts, the white leaders of the Southern States were disfranchised and Negroes were given the absolute right to vote. Some have voted in some Southern States ever since the passage of the Reconstruction Acts.
Attorney General KENNEDY. They lost that, though, Senator, in the early 1900's so that they could not vote.
They had a very difficult time.
Senator ERVIN. Frankly, that is a generalization which is not altogether supported by the facts. There have always been Negroes in my State who voted. They could vote after 1900 if they could pass the literacy test established at that time.
Attorney General KENNEDY. I would say, Senator, that if you looked at the record, you would find that up to just 15 years ago, the number of Negroes that were registered in many of these States was minute and Negroes were not permitted to vote in a number of States.
They were not permitted to vote between 1900 and 1947 or 1948. It has just been in the last 15 years. In 1 State, there are only 25,000 that are registered at the present time, even though there are some 400,000 Negroes of voting age in that State. So that the whole life in these areas was the life of a person
who lived in a very second-class position. Part of that was the denial of the right to use public accommodations. Not the denial of the right because an individual didn't have a proper character or was not dressed properly or was not able to pay his bill, just on the fact that he was an inferior being, on the grounds that he was a Negro.
It went back to the time that a Negro was property, that he was chattel
. So growing out of all of this, this is an incident of slavery. It is an incident of the operation of the States which passed these Jim Crow laws.
Therefore, I think that under both of those theories, this legislation would be valid under the 13th and 14th amendment.
Senator Ervin. Do you have any decision that so holds?
Senator Ervin. Do you not know that the Court holds exactly the opposite?
Attorney General KENNEDY. I think the situation has changed and I will tell you why I believe it has changed.
Senator ERVIN. Please answer my question first. Don't you know that all the decisions of the Supreme Court of the United States or all other courts on the subject are to the contrary?
Attorney General KENNEDY. I go back specifically in dealing with public accommodations to the civil rights cases of 1883 and that decision. Since then, after that decision, Senator, the Jim Crow laws were passed which brought about the condition that we are in at the present time.
That is why I think that the situation has changed so drastically in the United States. That is why I think that this legislation would now be considered valid under the 13th and 14th amendments.
Senator ERVIN. I think that among the other serious defects in your argument is the fact that the Supreme Court has held that Jim Crow laws are unconstitutional, null and void.
Here we are dealing with a situation where the exclusion of these people is based upon the action of private individuals.
Attorney General KENNEDY. Of course, some of those laws are still in existence.
Senator ERVIN. Well, they are null and void according to the decision of the Supreme Court.
Attorney General KENNEDY. They are still in existence. They still have the support of the State, they still have the support of the Governor of the State, they still have the support of the police of the State; whether the laws are in existence or not.
All you have to do, Senator, is look at what happened at Oxford, Miss., with Ross Barnett or George Wallace at the University of Alabama.
Senator Ervin. I do not believe I would change the whole system of constitutional government in America on account of illegal actions of Ross Barnett or unwise actions of George Wallace.
In the civil rights cases of 1883, that point was made by counsel and rejected by the Court which held that an act of Congress similar to the public accommodations provisions of this bill had no support in the 13th amendment. Here is what the Court said on that point.
Attorney General KENNEDY. I have read all that, Senator.
Can the act of a mere individual, the owner of the inn, the public conveyance or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant or only as inficting an ordinary civil injury properly cognizable by the laws of the State and presumably subject to redress by those laws until the contrary appears. After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the State; if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or State action, prohibited by the 14th amendment. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.
And also in the case of
Attorney General KENNEDY. Could I make a comment on that, Senator?
Senator ERVIN. Yes.
Attorney General KENNEDY. The situation at that time was considerably different. Negroes could vote, they did participate in the everyday life of a community and a State. But after that decision, the Jim Crow laws were passed. The Jim Crow laws were passed, which you have just said were unconstitutional. You are still living with the effects of those laws, however, and Congress has the right, in my judgment, to pass legislation to do away with the effects of