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All of this is to be done to enable the Federal Government to ascertain whether or not such contractors, subcontractors, and materialmen are complying with the rules, regulations, and orders issued by the Federal Government for the avowed purpose of preventing such contractors, subcontractors, and materialmen from discriminating against employees and applicants for employment because of their race, their creed, their color, or their national origin. Under the original draft of this Executive order, any businessman who wishes to sell a few tenpenny nails to anyone for use in a federally assisted construction project must surrender these powers to the Federal Government before he is permitted to make such sale.
In case any contractor, subcontractor, or materialman fails to comply with these stipulations or with any of the rules, regulations, or orders of the presidentially established Committee on Equal Employment Opportunity, he is subject to the following punishments: (1) His existing contract may be canceled, terminated, or suspended in whole or in part. (2) He may be declared ineligible for any further Government contracts. (3) He may have such additional sanctions * * * imposed “upon him as may be provided by rule, regulation, or order of the President's Committee on Equal Employment Opportunity."
Every businessman in America would do well to anticipate the harassment he will suffer at the hands of the Fe eral Government if titles VI and VII of the administration's civil rights bill are enacted into law. Every time he fires or demotes an employee for drunkenness or incompetency he may be confronted by the charge that his action was prompted by discrimination against such employee because of his race. Every time he promotes one employee rather than another he may be confronted by the charge that the latter was denied promotion because of his race. Every time he makes any difference between the compensation of one employee and that of another he may be confronted by the charge that the difference in compensation constitutes a discrimination against the employee receiving the lesser compensation because of his race. The businessman will have to disprove these charges or suffer such penalties as the cancellation of rights under existing contracts or rights to make future contracts not only with the Government but also with contractors or subcontractors working on federally assisted projects. Moreover, the businessman will have no remedy at the hands of the Federal Government if he suffers these penalties unjustly because of an improvident or injudicious decision by a Federal bureaucrat whose very identity may be hidden from him.
The Chinese have a proverb to the effect that a journey of a thousand miles starts with a single step. History taught the Founding Fathers that the journey of a people toward total governmental tyranny could start with a single legislative act. As a consequence, they vested all of the legislative power of the Federal Government in Congress and none of it in the President. It is well that they did so because the pressure of the demands of militant groups for coercive governmental action in their own behalf bears more heavily upon the single occupant of the Presidential office than it does upon the many occupants of congressional seats. For this reason, Senators and Representatives are more likely to remember that the overhauling majority of the people of America desire to retain the liberty to manage their own affairs in their own ways.
4. THE ADMINISTRATION'S CIVIL RIGHTS PROPOSALS AS A DENIAL OF
DUE PROCESS OF LAW
The Founding Fathers knew that governments of unlimited power use the forms of law to crush those who oppose their will. As a consequence, they decreed in the fifth amendment that "no person shall * * * be deprived of life, liberty, or property without due process of law."
This principle did not originate in the American system of constitutional law. It was one of the ancient English liberties which the barons wrung from the reluctant hand of King John at Runnymede in 1215. Chapter 39 of Magna Charta declared : “No free man shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of his peers or by the law of the land.”
The principle was reasserted by the petition of right which the English Parliament sent to Charles I in 1628. This petition said that no man should be "in any manner destroyed but by the lawful judgment of his peers, or by the law of the land," and that no man should be "put out of his land or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.”
As the textwriter states in 12 American Jurisprudence, Constitutional Law, section 573, "One of the most famous and perhaps the most often quoted definition of due process of law is that of Daniel Webster in his argument in the Dartmouth College case, in which he declared that by due process of law is meant 'a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.'"
The due process clause of the fifth amendment limits the legislative powers of Congress, the Executive powers of the President, and the judicial powers of the Federal courts. In short, it forbids any department of the Federal Government to take from any person any liberty or any property except by due process of law.
The administration's civil rights bill contemplates that the provisions of titles VI and VII are to be enforced against alleged violators by administrative decisions of the President, acting in person or through some executive agency, and the President's Commission on Equal Employment Opportunity, in some kind of administrative proceedings not defined in any way in the bill.
Let me enumerate the constitutional requirements of due process in respect to administrative proceedings affecting a person's personal or property rights as they are set out in 16A Corpus Juris Secundum, Constitutional Law, section 628, pages 849 to 873, both inclusive. They are as follows:
1. In proceedings of an administrative character affecting a person's liberty or property, notice and an opportunity for hearing are essential to due process.
2. Due process of law, with respect to administrative proceedings, requires an adequate hearing in which the procedure is consistent with the essentials of fair play.
3. In order to comply with the requirements of due process, the hearing in an administrative proceeding must be a full and fair one before an impartial officer, board, or body, free of bias, hostility, and prejudgment. A hearing is not a full and fair one unless it includes a reasonably fair opportunity to cross-examine opposing witnesses, to offer evidence in one's own behalf, and to be heard in one's own defense.
Moreover, "as a general rule, in order to satisfy the requirements of due process, it is required that administrative proceedings affecting property rights shall be subject to a review in the courts, and to a judicial determination made on notice and a hearing; and the right of judicial review of the constitutionality of statutes is essential to due process before rights and property of a citizen can be taken from him by a legislative or executive body." (16A C.J.S., Constitutional Law, sec. 629, pp. 873–874.)
It is well settled that administrative convenience or even necessity cannot override constitutional requirements of due process. Moreover, it is not enough that a person may be accorded notice and a hearing as a matter of favor or courtesy in an administrative proceeding. It is essential to due process that these rights be secured to him by the law authorizing the proceeding.
It seems advisable to note at this point that rights under existing contracts are property and rights to enter into future contracts are liberties within the protection of the due process clause of the fifth amendment.
It is astounding beyond measure that Congress should be urged to enact into law titles VI and VII of the administration's civil rights bill 748 years after the principle of due process of law was embodied in Magna Charta, and 173 years after it was enshrined in the fifth amendment of our Constitution. Titles VI and VII ignore every requirement of due process of law. They undertake to vest in the President, acting in person or through executive agencies, and the President's Commission on Equal Employment Opportunity, the arbitrary and tyrannical power to take from States, local subdivisions of States, charitable institutions, business enterprises, and individuals rights under existing contracts and liberties to enter into future contracts without notice or hearing or trial in flagrant violation of the due process of law guaranteed to all persons by the fifth amendment.
Undoubtedly Daniel Webster had such tyrannical governmental actions in mind as those proposed by titles VI and VII of S. 1731 when he uttered these eloquent words:
“Other misfortunes may be borne, or their effects overcome. If disastrous wars should sweep our commerce from the ocean, another generation may renew it; if it exhaust our treasury, future industry may replenish it; if it desolate and lay waste our fields, still, under a new cultivation, they will grow green again, and ripen to future harvests.
It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the dust of the valley. All these may be rebuilt.
But who shall reconstruct the fabric of demolished government?
Who shall frame together the skillful architecture which unites national sovereignty with State rights, individual security, and public prosperity ?
No, if these columns fall, they will be raised not again. Like the Colosseum and the Parthenon, they will be destined to a mournful and melancholy immortality. Bitterer tears, however, will flow over them than ever were shed over the monuments of Roman or Grecian art; for they will be the monuments of a more glorious edifice than Greece or Rome ever saw—the edifice of constitutional American liberty.” (Daniel Webster, 1832.)
Attorney General KENNEDY. Senator, I will tell you why I think this is an improvement, to get to the heart of this matter.
Senator ERVIN. That is exactly what I am asking.
Attorney General KENNEDY. I think it is an improvement in that the recipients of benefits under the programs, those who participate in programs, will know what the rules and regulations are that they have to follow.
I do not think that was true in title VI as we originally introduced it. I think that it is also an improvement in that it gives judicial review when an administrator of a program determines that discrimination has existed and decides to take certain action dealing with the program.
It permits the recipient of the program to have judicial review of that decision, and I think also that that is important.
Senator ERVIN. That is what I had to say in the speech I made, upon title VI in its original form. It left to the discretion of the President, acting in person or through some Federal Executive agency, the writing of the law. Moreover, its failure to provide for judicial review was a violation of the due process clause of the fifth amendment.
So I agree with both of those observations.
Attorney General KENNEDY. I hope you will support it now, Senator.
Senator ERVIN. No, I cannot. Rewritten title VI still has too many serious defects in it.
Senator KEATING. Will the Senator yield for an insertion at this point?
Senator ERVIN. Yes.
Senator KEATING. I ask unanimous consent to insert at this point the text of the Keating amendment and the remarks made by the distinguished Senator from Connecticut, Mr. Ribicoff, and myself on August 20, found at pages 14547 and 14548 of the Congressional Record.
Senator JOHNSTON. I hear no objection. It shall be printed into the record and become a part of the record.
(The document referred to follows:)
AMENDMENTS TO TITLE VI OF S. 1731, THE CIVIL RIGHTS ACT OF 1963 Mr. RIBICOFF. Mr. President, on behalf of the distinguished junior Senator from New York (Mr. Keating) and myself, I submit, for appropriate reference, an amendment intended to be proposed by us jointly in the nature of a substitute for title VI of S. 1731, the Civil Rights Act of 1963.
This amendment represents a combination of the proposals previously made individually by the Senator from New York (Mr. Keating) and myself. On August 9, the junior Senator from New York submitted his amendment, and on August 13, I submitted my amendment. Since then we have endeavored to combine our proposals into a comprehensive revision of title VI that meets the objectives both of us were seeking. The amendment we submit today is the result of that effort, and it is my hope that it will be received in the spirit of constructive bipartisanship in which it is offered.
I have joined with the Senator from New York (Mr. Keating) to revise title VI of the civil rights bill to make it both more effective and more humane. The administration's bill is defective in two ways. It relies entirely on the punitive remedy of cutting off funds and yet it gives Federal administrators the discre tion to take no action at all to end discrimination. It is an all-or-nothing approach that might work great hardship upon many people in some cases and be totally ineffective in other cases.
Since the administration bill has been introduced, much criticism of title VI has been expressed. Many sound arguments have been raised against title VI on the floor of the Senate. I believe many of the arguments that have been made are valid. I agree that it is wrong to allow a cutoff of Federal funds without any provision for judicial review.
I agree that an antidiscrimination provision should be used to take away benefits on a wholesale basis where no discrimination exists just to get at one instance where it does exist. I agree that an administrator should not have unlimited discretion to decide whether or not he will take any action to end discriminaion in programs using Federal funds.
Our amendment remedies all of these objections. In its main outline, it works as follows:
First. Discrimination would be prohibited in every program or activity that is financed with Federal funds. This is a matter of simple justice. It is also very likely a requirement of the fifth amendment.
Second. If any discrimination occurred, the administrator of the program would be required to take action. He could either ask the Attorney General to institute a civil action to end the discrimination or he could withhold further financial assistance. I would hope and expect that principal reliance would be placed on the remedy of a lawsuit. Cutting off funds does not end discriminations—a lawsuit does.
Third. The Attorney General would be specifically authorized to bring a civil action for preventive relief to end discriminations in Federal financed programs. Such a suit could also be instituted by the person alleging he has been discriminated against.
Fourth. If a situation developed in which a lawsuit was not effective and it became advisable to withhold funds, judicial review is provided so that the recipient of the Federal assistance can challenge in court the allegation of discrimination.
In authorizing suit by the Attorney General to end discrimination in federally financed programs, we have followed the wording of the Civil Rights Act of 1957 and have specifically added the provisons authorizing suit as amendments to that act. This means that all of the difficult questions concerning contempt powers and jury trials will be resolved in title VI lawsuits in the same way they were resolved by Congress in voting cases under the 1957 statute.
Mr. President, I will not repeat here the arguments I advanced last week in support of this revised approach to title VI. My statement appears on page 14027 of the Record.
Let me add only that my purpose is to provide a constructive answer to the many problems I saw in this field as Secretary of Health, Education, and Welfare. I have drawn on that experience in formulating this proposal.
The purpose of this revised title VI is to end discriminations in federally financed programs, and to do this not with merely the negative power of cutting off funds, but using the affirmative power to bring a lawsuit to end the discrimination.
If a Negro child is kept out of a school receiving Federal funds, I think it is better to get the Negro child into school than to cut off funds and impair the education of the white children. A nondiscrimination provision should not be a club to punish people. Its main purpose should be to end discriminations.
I ask unanimous consent that the amendment be printed at this point in the record and that it lie on the desk for 10 days so that interested Senators may join as cosponsors.
The VICE PRESIDENT. The amendment will be received and printed ; and, without objection, the amendment will be printed in the Record and will lie on the desk, as requested.
(The amendment was referred to the Committee on the Judiciary, as follows :)
Amendment intended to be proposed by Senator RIBICOFF and Senator KEATING to S. 1731 (the proposed Civil Rights Act of 1963): On page 34, beginning on line 23, strike out all the language of title VI through line 14 on page 35 and substitute in lieu thereof, the following:
"Sec. 601. DISCRIMINATION PROHIBITED.—Notwithstanding any provision to the contrary in any law of the United States providing or authorizing direct or indirect financial assistance for or in connection with any program or activity by way of a grant, contract, loan, insurance, guarantee or otherwise, no such assistance shall be furnished unless in the administration of the program or activity, no discrimination is practiced on the grounds of race, color, religion or national origin, and in the granting of any benefits of such program or activity, no individual for whose benefit the program or activity was designed is discriminated against on such grounds. The administrator of any such program or activity may adopt appropriate rules and regulations for the enforcement of this section.
"SEC. 602. REMEDY FOR DISCRIMINATION.-If the nondiscrimination requirement provided in section 601 is violated, the administrator of such program or activity shall act in one of the following ways:
“(a) Request the Attorney General of the United States to institute for or in the name of the United States a civil action under the provisions of section 604 of this title, or
“(b) Withhold all further financial assistance from the recipient until such requirement is complied with.
"Sec. 603. INTERIM RELIEF.—Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, any court before which a proceeding under section 604 or section 605 of this title is pending, is authorized to issue all necessary and appropriate process to postpone the effective date of any agency action under this title or to preserve status or rights pending conclusion of the judicial proceedings. Any agency is authorized, where it finds that justice so requires, to postpone the effective date of any action taken by it under section 602(b) of this title during the pendency of any judicial proceedings instituted under section 604 or 605 of this title.
"SEC. 604, CIVIL ACTION FOR PREVENTIVE RELIEF.—Part III of the Civil Rights Act of 1957 is amended by ading at the end thereof the following new section :
"SEC. 123. (a) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by the nondiscrimination requirement of section 601 of the Civil Rights Act of 1963, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction restraining order, or other order, may be instituted (1) by the person aggrieved, or (2) by the Attorney General for or in the name of the United States. In any proceeding hereunder, the United States shall be liable for costs the same as a private person.
“(b) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administrative or other remedy that may be provided by law.
“'(c) Whenever a proceeding for judiical review has been commenced under section 605 of the Civil Rights Act of 1963, the Attorney General in the name of the United States may intervene in the proceeding with all the rights of a party thereto.'
"SEC. 605. JUDICIAL REVIEW.-(a) Any person adversely affected or aggrieved by any final agency action under section 602 (b) of this title shall be entitled to judicial review thereof.
“(b) FORM AND VENUE OF ACTION.—The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence of inadequacy thereof, any applicable form of legal action (including motions for declaratory judgments or writs of prohibitory or mandatory injunction) in any court of competent jurisdiction.”
Mr. KEATING. Mr. President, I am very pleased to join with the junior Senator from Connecticut [Mr. Ribicoff) in the submission of this new amendment to revise title VI of the proposed Civil Rights Act, S. 1731, to bar discrimination under Federal grant-in-aid programs. Both the Senator from Connecticut (Mr. Ribicoff] and I have previously submitted separate amendments on this subject designed to make more effective the provisions in the original bill. We have reconciled our differences in the hope of mustering substantial bipartisan support for the needed changes in title VI.