at this point no one can tell whether the bill would reach only franchised monopolies such as buslines and transit companies, whose action is State action for the purposes of the 14th amendment, or whether it would be held to reach any and all business subject to State regulations. IV. THE 13TH AMENDMENT MAY PROVIDE AN ADDITIONAL BASIS FOR A FEDERAL LAW PROHIBITING DISCRIMINATION IN ESTABLISHMENTS DEALING WITH THE PUBLIC It has been suggested that additional support for the constitutionality of title II may be found in the 13th amendment which outlaws slavery and involuntary servitude and authorizes Congress to enact "appropriate legislation" enforcing the prohibition. The first Mr. Justice Harlan, in his dissent in the civil rights cases, sought to sustain the Civil Rights Act of 1866 by urging that the 13th amendment was broad enough to permit Congress to prohibit not only the legal institution of slavery itself, but also the collateral burdens and incidents-the civil disabilities and inequalities-which either accompanied or followed it. He said that "the power of Congress under the 13th amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent, at least, of protecting the liberated race against discrimination, in respect of legal rights belonging to freemen, where such discrimination is based upon race" (109 U.S. at 37). While the most salient characteristic of the institution of slavery was the ownership of one person by another, this was by no means the only one. The slave system also encompassed the imposition on the slaves of many degradations, inferiorities, and disabilities designed to make impossible any relationship of equality between the slaves and their masters. Ownership of one human being by another was itself ended by the 13th amendment, but racial segregation, promoted by State law and other State action, replaced it as a device for perpetuating the inferior position of the Negroes. Outlawing of these additional racial barriers, it is argued, is also within the reach of congressional power under the 13th amendment, which was intended, along with the 14th and 15th amendments, to raise the Negro to a position of first-class citizenship with full civil rights. The majority of the Court did not adopt Justice Harlan's views, perhaps because at the time the civil rights cases were decided State-imposed racial segregation was not yet a widespread fact. It was only in the latter 1800's that Jim Crow laws, requiring segregation in establishments dealing with the public, were to spread throughout the South. These were the laws which reimposed on the Negro the badge of inferiority from which the 13th amendment, as read by Justice Harlan, sought to relieve him, and it is these laws, and their aftermath, with which we must deal today. Thus, the arguments first advanced by Justice Harlan today lend support to the constitutionality of Federal public accommodations legislation under the 13th amendment. It must be recognized, however, that there is no decisional law to support such an approach and that the scope of the 13th amendment power of the Congress is unclear. Consequently, while some aid may be gained from that amendment, it is at best an uncertain foundation, and one not to be relied upon either alone or even in sole conjunction with the 14th amendment. V. A FEDERAL EQUAL PUBLIC ACCOMMODATIONS LAW DOES NOT VIOLATE EITHER THE 5TH OR 10TH AMENDMENTS It has been suggested that for Congress to require places of public accommodation not to discriminate would be a taking of private property without due process of law in violation of the 5th amendment and would interfere with powers reserved to the States under the 10th amendment. Both arguments are clearly without merit. A. The fifth amendment So far as the fifth amendment is concerned, any Federal regulatory legislation is, to a certain extent, a limitation on the use of private property. "It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others." Wickard v. Filburn, 317 U.S. 111, 129. See also German Alliance Insurance Co. v. Kansas, 233 U.S. 389. The type of regulation proposed in title II is hardly novel. Some 32 States presently have public accommodations laws forbidding racial or religious discrimination. Many of these laws date back to the period immediately after the Civil War. See The power of the Federal Government to pass such laws is also clear. Boynton v. Virginia, 364 U.S. 454. "The authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the States over intrastate commerce." United States v. Rock Royal Cooperative, 307 U.S. 533, 569-570. B. The 10th amendment The 10th amendment provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In the annotation of the Constitution, Senate Document No. 170, 82d Congress, 2d session, page 915, it is pointed out: "That this provision [the Tenth Amendment] was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was clearly indicated by its sponsor, James Madison, in the course of the debate which took place while the amendment was pending concerning Hamilton's proposal to establish a national bank. He declared that: "interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States." Prior decisions invalidating Federal legislation on the ground of conflict with the 10th amendment were overruled, expressly or impliedly, in United States v. Darby, 312 U.S. 100, 123-124. It is clear that legislation enacted by Congress pursuant to a power delegated to the Federal Government by the Constitution cannot be validly attacked upon the ground that it infringes upon rights reserved to the States by the 10th amendment. See Everard's Breweries v. Day, 265 U.S. 545, 558, where the Supreme Court held that: "* * * if the act is within the power confided to Congress, the 10th amendment, by its very terms, has no application, since it only reserves to the States 'powers not delegated to the United States by the Constitution.'" Similarly, speaking of legislation enacted by Congress pursuant to the enforcement clause of the 14th amendment, the Supreme Court has said that State sovereignty cannot, by definition, be invaded by the enactment of a law “which the people of the States have, by the Constitution of the United States, empowered Congress to enact." Ex parte Virginia, 100, U.S. 339, 346. Hon. JAMES O. EASTLAND, U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, Chairman, Senate Judiciary Committee, DEAR SENATOR EASTLAND: We are submitting herewith the statistics requested by your committee in connection with the recent testimony of the Attorney General on civil rights legislation. The following material is enclosed: 1. Excerpt from table 2 of Bureau of the Census Current Population Reports, series P-20, No. 121, February 7, 1963, showing years of school completed by white persons 14 years old and over, by age, for the United States, March 1962. 2. Excerpt from table 3 of Bureau of the Census Current Population Reports series P-20, No. 121, February 7, 1963, showing years of school completed by nonwhite persons 14 years old and over, by age, for the United States, March 1962. 3. Table showing years of school completed by persons 14 to 24 years old, and 25 years old, and over, by color, in the 21 States requiring some form of literacy test. This was prepared from table 103 of the detailed characteristics volumes of the 1960 Reports of the Bureau of the Census (PC (1) series D). 4. Photocopies of first page of table 103 for each of the 21 States. These tables give a detailed breakdown of years of school completed for the total population and the nonwhite population, as of 1960. The Attorney General was also requested to furnish statistics on the number of Negro teachers in Massachusetts. The commissioner of education for the Commonwealth of Massachusetts advises us that these figures are not available. A copy of Commissioner Kiernan's letter is attached. Sincerely, NICHOLAS DEB. KATZENBACH, Deputy Attorney General. |