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Racial problems should be solved by voluntary action. Certainly Congress ought not to pass a bill which not only constitutes an attack upon the principle of local self-government, but which constitutes an attack upon some of the basic economic, legal, and personal rights of all Americans.

I thank the committee for its long indulgence. That finishes my statement.

The CHAIRMAN. I want to congratulate the Senator. He madethis has been one of the ablest discussions I have ever heard. It certainly put the guts of this thing before the American people.

And the Chair is in full agreement with your views.
Senator Hart.

STATEMENT OF HON. PHILIP A. HART, A U.S. SENATOR FROM THE

STATE OF MICHIGAN

Senator HART. Mr. Chairman, Senator Ervin, I feel that I am fortunate to have been able to be present throughout the presentation in a scholarly tone, tempered in expression; by the distinguished Senator from North Carolina.

This has not characterized some of the hearings I have recently participated in. And I think the record has been benefited enormously.

I would make only this one specific comment. Not many minutes ago, Senator Ervin, you said that the theory behind all this administration proposal is that it is evil to want to select one's neighbors, to enjoy one's property.

I just flatly disagree, respectfully disagree, that this is an accurate characterization of the theory behind the administration proposal. It is contained in six or seven titles fully.

You make the point that there are tools in the Department of Justice hands now that should be acted upon. I have read some of the testimony that was intended to be offered yesterday by the Attorney General that persuades me, and I was persuaded before, that the tools are not adequate. It doesn't have anything to do with freedom to select your neighbor or enjoy your property.

I introduced the identical bill, which is not title I of this bill. Clearly, I am on record as believing it is sound.

The second title, “Public Accommodations." Here again I introduced a bill based upon the commerce clause only some several months ago. I feel that where the public is invited, the public should in fact be admitted that color is not a legitimate factor for excluding.

And I suppose this is the area where you would insist most strongly that the right of private property is invaded.

I can only reply that Congress many times has regulated private business enterprises so as to remove burdens on the economy.

And then there is the effort to desegregate schools. That is title III. Here I simply feel that the rights that the Supreme Court carved out in the Brown against the School Board case 9 or 10 years ago have been long overdue in delivery. They are present rights that the court in the last month or so reminded us, and this is an effort to make good.

The Civil Rights Commission, extension and expansion of authority-you permitted me to testify before your subcommittee in hearings on this. I know that you know that you know my views on it. I introduced this identical bill in February.

I am glad your subcommittee voted to report this section favorably to the full committee a week or so ago. I note that Senator Ervin voted against it.

The sixth title is the nondiscrimination in Federal assistance. I don't see this has to do with inhibiting one's right to select a neighbor or enjoying one's property. It is just an effort to stop the Federal Government subsidizing discrimination. If you would take the money from everbody, but inhibit the use by some, you are just not making sense, as I see it.

And it is not correct. Employment opportunities in Federal Government should be open to all-indeed that should be true of all employment.

This morning, in another committee, we heard the commissioner of baseball and the commissioner of both football leagues describe the basis of employment there--which man can play the game most effectively.

I like to think that is the way each of us is judged, whether it is employment, as good neighbors, or anything else.

Senator ERVIN. If the Senator will pardon me, I would say I agree on that point.

But I think that the power to select the man who is going to play baseball or do anything else should belong to the man who is operating the baseball team, and not to the Government.

That is where the Senator and I would disagree, I think.

Senator HART. I think when you talk about the obligation on the men and women of America to climb to the top of the hill to get fresh water, you have got to recognize opportunities such as equality of employment are essential if that climb is to be made. You cannot ask them to climb the hill if you throw roadblocks on the trip. This is the way I feel about this inhibition of employment opportunity.

Šo in summary I did enjoy, and I am sure the record benefits by the testimony which you, as I say, was extremely able.

I support fully each of these titles recommended by the administration, and hope that this committee will act promptly on the legislation that has been presented to us.

We must remember we have yet to hear the offerer of the legislation, the Attorney General, who I am sure will make specific response to many of the things that have been raised.

Having done that, I hope the committee will take up the business of voting up or down each of these titles so that Congress may respond to what I think is the most urgent need across the country. This legislation is needed. It moves in areas long overdue. And it does so within the structure of our Constitution, as I see it.

Senator Ervin. I would say to the Senator from Michigan that I know many members of the Negro race who have climbed to the top of the mountain.

In my State of North Carolina we have many successful businesses carried on by members of that race. These people do not accept the theory that there is some duty on the part of the Government to deprive all of their fellow citizens of their rights as a condition precedent to their succeeding in life.

I am very proud of the North Carolina Mutual Insurance Co. of Durham, N.C., which is owned and controlled by members of the Negro race, and which, I am informed, is the strongest financial institution so owned and operated on the face of the earth.

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I am also proud of the fact that in Durham, N.C., we have the Merchants and Farmers Bank, which has a branch bank in Charlotte, N.C. This bank is also owned and operated by members of the Negro

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I am also proud to say that in the city of Winston-Salem members of that race enjoy a municipal franchise for the transportation of passengers in that city.

And we have hundreds and hundreds of other very successful men

of the Negro race who have made great successes in their lives and their G

economic endeavors.

I respect very much the Senator from Michigan. I know he and I both share a desire to assist all Americans and particularly those of the minority races in securing a more abundant life. I have a high respect for his sincerity in this field, and the study that he has made in it and his zeal in this activity. I commend him for it. My only regret is that he doesn't share what I conceive to be sound views on

this particular subject. ise

But I appreciate the Senator's comments and his courteous remarks.
The CHAIRMAN. Senator Keating?

Senator KEATING. I only have one area of questioning to address to

the distinguished Senator from North Carolina. He knows that I to pa

respect his legal ability and his sincerity completely. And by his loyalties, on what I consider the wrong side of the issue, he has made a fine presentation. He and I are in disagreement fundamentally.

But I would like to ask him to address himself to this questionwhether he feels that any State and local laws which compel segregation should or might require Federal action under the 14th amendment, at least to deal with those specific cases.

Senator ERVIN. I do not think so. State laws which compel segregation have been adjudged by the Supreme Court of the United States to be absolutely null and void.

And I do not believe it requires any Federal action to annihilate a nullity.

Senator KEATING. The Senator has complained of the intrusion of the Government into the operation of a man's business as one of the reasons for opposing the public accommodations section of this law.

Wouldn't the Senator concede that the intrusion of State government in some instances has been equally great-specificially to cite two or three-in Birmingham, Ala, a city code forbids any restaurant to serve whites and Negroes in the same room unless they are both separated by a solid partition extending from the floor upward to a distance of 7 feet or higher, and unless a separate entrance from the street is provided for each compartment?

And in Durham, N.C., in the Senator's State, the city code requires separate rooms for Negroes and whites in any public eating place, and says "the partition between such rooms shall be constructed of wood, plaster or brick or like material, and shall reach from the floor to the ceiling," and violations are punishable by $10 for each violation.

And in Greenwood, S.C., the city code makes it unlawful for any

person operating a cafe, restaurant, or drinking fountain to serve n pract Negroes and white people with the same dishes and glasses.

Now, it impresses me that those are greater intrusions upon a man's method of operating his business than anything which is embodied in this Federal statute.

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Senator ERVIN. From the time of the adoption of the 14th amendment, down to a recent decision of the Supreme Court, to wit, from 1868, until the 17th of May 1954, those statutes, which were enacted, I imagine, before May 17, 1954, were perfectly valid exercises of the constitutional power of the States.

And at noon on the 17th day of May 1954, the Constitution suddenly changed its meaning, not as a result of any action taken by the only bodies that are empowered to change the meaning of the Constitution; namely, the States and the Congress, but by the action of the Supreme Court.

And since that action of the Supreme Court, statutes of that kind, although they were perfectly vaid when enacted, have ceased to be valid.

Senator KEATING. In other words, the Senator would concede the invalidity of all of these city ordinances as of today.

Senator Ervin. I would say that under the pronouncements of the Supreme Court of the United States, starting at noon on the 17th of May 1954, that we would have to accept the fact, that those ordinances and laws of that type are void.

And under the interpretation then placed upon the 14th amendment, they become prohibited State action.

Senator KEATING. I congratulate the Senator on his candor. As a good lawyer, that is the answer I would expect him to give. And my only comment is that the great hue and cry which we now encounter about the public accommodations title, about it being an interference with man's business, was not heard when city and State laws prescribed the color of doors and the height of ceilings and the type of partitions and other very detailed provisions about promotion of segregation.

Senator ERVIN. I would accept this as valid-although the Senator from New York may disagree with me, as he would have a perfect right to do.

But there is an editorial in the Ledger Star of Norfolk, Va., of June 12, 1963, which says this:

But can the Nation fulfill its promise of freedom by restricting the freedom of one group in order to enhance the freedom of another group?

It seems to us to be not only a denial of freedom, but a strange and ironic twist to the very philosophy of freedom the Federal Government, through three administrations at least, has tried to follow.

The laws that made it illegal for a hotel or a restaurant or a store to serve Negroes were an exercise of police power that denied the Negro a freedom of choice. But a law that will make it illegal for a hotel or restaurant or store not to serve Negroes is also an exercise of police power that denies the operator a freedom of choice. If one set of laws is immoral because they deny the Negro a right, is not the other law as immoral in denying a right to others?

We see no moral difference whatsoever between a law that forces a person not to serve a man and a law that forces a person to serve a man. If one is a denial of_individual freedom, the other is an equal denial of individual freedom. Rights of some citizens cannot be guaranteed by diminishing rights of others.

I recognize that these are differences between the Senator and myself in respect to the meaning of the Constitution. I recognize that the States have police power—at least the States which have common law systems and they can regulate matters of this kind.

And in my judgment the Federal Government has no power to regulate matters of this kind.

And that is our difference.

Senator KEATING. The police power is not the basis for the validity of the statute, but the Interstate Commerce Clause and the 14th amendment. It is my view that we should amend the bill to provide it is based upon both.

Senator ERVIN. I don't think it makes any difference.

As I told the Senator yesterday, I don't care what recitations are put in the bill. The power to enact a law has to be found in the Constitution. If Congress can extend the coverage of the Constitution by putting some recitals in a bill, Congress could extend the coverage of the Constitution into every area of life by the simple expedient of uttering a few legislative falsehoods.

Senator KEATING. I agree that Congress must have a basis for making those findings. I believe that that basis exists.

I won't pursue the questioning further, Mr. Chairman. We will have time to debate this summer.

Senator Ervin. I thank the Senator for his complimentary remarks concerning myself, and I reciprocate them.

The Senator and I serve together on the full committee and also on several subcommittees, particularly on the Subcommittee on Constitutional Rights. I am glad to testify that this is the only area of constitutional rights in which I have found the Senator in error. I think he and I have agreed substantially on most other constitutional questions that have confronted us.

Senator KEATING. This is a very important area. And, apparently, we are in a disagreement here.

Mr. Chairman, I have a short additional statement. I don't know if the Senator from Michigan desires to make any further statement.

Senator Hart. No, I summarized the statement I wanted to make yesterday.

STATEMENT OF HON. KENNETH B. KEATING, A U.S. SENATOR FROM

THE STATE OF NEW YORK

Senator KEATING. I have received permission to put in the record a somewhat more detailed statement, which primarily calls attention to the inconsistencies evidenced both' in the legislative and the executive branch in dealing with this important area of civil rghts.

In the legislative branch, we have the fact that a few days ago we passed a sewers, toilet, and washbasin grant-in-aid program of $21,2 million for migratory workers, which was passed unanimously in the Senate, and we provided for building toilets and washbasins on private farm property; whereas now we are in a great hassle over something to enforce the equal protection rights of all of our citizens, and their equal voting rights under the Constitution of the United States.

We have improved the sanitary conditions on the farmland. And I believe we should move with equal dispatch and unanimity to enhance human freedom and justice under the American Constitution.

And I also call attention to the inconsistency in the executive branch. The Administrator of the Area Redevelopment Agency has issued regulations that require that housing and related facilities financed under the act be made available on a nondiscriminatory basis. But those regulations expressly exempt transient or hotel facilities or

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