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Some witnesses before congressional committees have stated that the law could not be enforced without turning the Nation into a police state, that troops would have to be withdrawn from all over the world to patrol our own streets, and that the President's proposals have brought us to the brink of civil war.
It is interesting to note that such statements have been made by Governors who once made similar threats about the unenforceability of school desegregation orders in their own States. These Governors, when their threats were put to the test, capitulated ignominiously, and they stand today as living testimony to the primacy of Federal law.
If one thing has been proved by various civil rights incidents of recent months, it is that the Federal law and Federal court orders will be upheld with a minimum of difficulty, regardless of the pusillanimous efforts of petty politicians to the contrary.
Different approaches may be taken to reach the same desired goal of eliminating discrimination in businesses which offer their goods and services to the general public. Thus, we have both the administration proposal, based on the Commerce Clause, and the one Senator Cooper and I have introduced, based upon the 14th amendment. While we favor our bill as being more direct and comprehensive, we are both cosponsors of the administration's public accommodations bill, and certainly would support it in a vote.
There is no doubt as to the constitutionality of basing a public accommodations bill on the Commerce Clause. It is clearly within the powers of Congress to prohibit, as the administration bill would do, discrimination in businesses which affect interstate commerce.
Senator Cooper and I believe, however, that it is equally constitutional and much more effective and meaningful to deal with discrimination directly, as a matter of equal rights and due process, rather than to attack it indirectly as a burden on interstate commerce.
But the most important distinction between the two approaches is that this is primarily a moral question, a constitutional question, a question of rights, not of economics.
What we are concerned with is insuring that all citizens have the right to equal access to goods, services, and facilities held out for public use.
The Cooper-Dodd bill is based on the proposition that discrimination by businesses, licensed by a Sate or its subdivisions, denies the privileges, immunities and protections guaranteed by the 14th amendment.
It is stronger and more far reaching, in our view, than the administration proposal. The administration bill would cover only businesses engaged in interstate commerce or substantially affecting the movement of persons or goods in interstate travel or commerce, while the Cooper-Dodd bill would cover virtually all businesses, regardless of their size, volume of business, or the people they serve.
It is my opinion that there would be considerable difficulty in determining which businesses come under the commerce provision, and that, as Senator Cooper has stated, a great deal of litigation would inevitably result. Further clarification by Congress would eventually be required, bringing extensive and detailed Federal regulations, and I fear that this would lead to spelling out definitions in terms of dollars and cents to show who is and who is not covered.
This would constitute only a partial remedy, because some businesses would be permitted to continue policies of segregation or discrimination. More important, a great moral and legal issue would be degraded by the spelling out of the applicability of equal rights in terms of money, volume of business, and so on.
We seek not only a worthy goal. We seek a legislative vehicle that is worthy of that goal. We seek to guarantee precious rights, and this guarantee should rest, not on the sections of the Constitution dealing with matters of commerce, but upon those sections dealing with the rights of man.
For these reasons, I believe the approach based on the 14th amendment is more satisfactory than that of the administration bill. It is my firm belief that the court would find such a statute constitutional and enforcible.
I hope a public accommodations bill will be approved this year, and I will certainly give my full support to achieving this, whether it be in the form of the bill introduced by Senator Cooper and myself, or that of the administration recommendation.
Senator Dopp. Yesterday I heard Senator Ervin discuss the civil rights cases of 1883. And others have discussed them. And Senator Ervin is a very distinguished jurist. And I say this not fulsomely, but earnestly. He is a great lawyer and a very wise and thoughful man.
But I wounder if he would not agree with me that the claim that the Supreme Court ruled—and the claim that the decision has never been overturned—that equal access to public accommodations was not a right guaranteed by the 14th amendment is not true.
Senator Ervin. I cannot agree with you on that, because the case held, that under the 14th amendment the Congress had no power whatever to pass a law on that subject.
Senator Dodd. Then, it is a matter of our individual interpretations of that decision.
I reread it last night. It seems perfectly clear that the Court did not state this at all. It found only—and I read and reread the decision to the best of my ability—that in the case of the 1875 civil rights laws, the power of Congress did not extend to individual acts of discrimination, because State acting bringing it within the scope of the provisions of the 14th amendment was not shown.
Isn't that so? Isn't that what that case says?
Senator ERVIN. Yes. It held that under the 14th amendment Congress had no power to legislate with respect to the actions of individuals.
Senator Dodd. Yes. And that is precisely the point.
But it did not say that access to public accommodations was not a right guaranteed by the 14th amendment. It simply said in these cases you have not shown that there was State action.
And everybody who has testified—I won't say everyone—but it seems to be a great number of people have made it appear that the Court said what it did not say. People claim the decision states that equal access to public accommodation was not a right guaranteed by the 14th amendment. But the decision doesn't say anything of that kind.
You are a great lawyer. And I think you will agree with me that the case doesn't say anything of the sort.
Senator Ervin. I disagree with you most emphatically. I will say this to my friend, casting no reflection on the Senator in any respect. When I served on the Supreme Court of North Carolina my chief justice had a favorite expression which he often used when lawyers put different constructions on the same case. He would say that the brethren have read the same books, but have drawn different conclusions therefrom.
Senator Dodd. I don't think it is possible to draw a different conclusion on that question.
Senator ERVIN. I am sorry you were not here this morning, because I read three passages from it which were a complete answer to your proposition.
Senator Dopp. I know you did. But I think you have to read the whole decision.
Senator ERVIN. And also a statement from Judge Harlan in the Peterson case, where he said that in order to have State action the State must be responsible for the discrimination itself.
Senator Dodd. Well, I know what he said.
I tried to read this carefully, and I am sure you have, too. I don't know how we will ever resolve this.
But it does seem so clear to me that it has never said that equal access to public accommodation was not a right guaranteed by the 14th amendment. But, anyway, that is a different view. You feel you are right, I feel I am.
Anyway, Mr. Chairman, it is my contention, and that of Senator Cooper, and those who joined us, that when a State grants a permit to operate—when a State or a subdivision certifies, through issuing a license, that a business meets the requirements of State law, and is observing the regulations and requirements of local law—that this brings the State sufficiently into the act of discrimination to place such
action under the 14th amendment.
And the question as such is not covered by the Supreme Court decision of 1883.
Also, I think the argument that a public accommodations bill will be an infringement on private property and individual rights is not valid.
A store, a movie house, a motel, a restaurant, or any other such facility, in my view, is not private property in the same sense that a man's home is private property.
When I open for public business a restaurant or a motel, I think I abandon much of my right to privacy. I think I subject myself and my business to all kinds of regulations and controls. I operate under a public license, with all that implies. My public business does not stand on all fours with my private home. By no means does it stand in the same posture.
I think my property assumes a public character, a public purpose, and a public function. And, because of this, I and the employees of my establishment are not unconditionally free to do as I or they wish.
I think they have certain responsibilities to meet in the exercise of the duties connected with my business, the employees do, and I have. And I think my actions and those of my employees are limited, both by the Constitution of the United States and by appropriate Federal, State, and local statutes.
For the life of me, the contention that a man who owns a movie theater has the same right to determine who shall or shall not enter as he does in the case of his private home is incredible. I don't understand how one can argue this.
I think it is important to point out here, too, that 32 States have prohibited, by legislative action or executive order, or by some other means, discrimination in public facilities, and that these various measures have not been declared unconstitutional, either.
Now, there is another argument that has been made in opposition to these public accommodation bills, an irresponsible argument—I say this, I hope, with grace to my friend. Some witnesses have stated that the law cannot be enforced without turning this Nation into a police state, and that troops would have to be withdrawn from all over the world to patrol our own streets.
And that the President's proposals have brought us to the brink of
Well, I am sure the Senator from North Carolina doesn't feel this way. I am confident he doesn't. But I think it is a sad thing that this sort of testimony should be given before our committee, or any other congressional committee.
And I point out that these statements have been made by officials who once made similar threats about the unenforcibility of school desegregation orders in their own States.
If one thing has been proven by various civil rights incidents in recent months, I think it is that the Federal law and Federal court orders will be upheld. They will be upheld with a minimum of difficulty, regardless of the efforts of some people to the contrary.
I think it is important to say this. I find it distasteful to say. But candor and duty compels me to say so.
I know there are different approaches. Different approaches have been taken by the administration, by others, and as far as I am concerned by myself and Senator Cooper and those who have joined us.
As we all know, the administration premises its posture or position on the interstate commerce clause. And we premise ours on the 14th amendment.
I, of course, will support the administration bill. But I believe that our bill is a better bill. Our bill is more direct and more comprehensive. And generally I think it is more desirable.
There is no doubt, of course, as to the constitutionality of basing a public accommodations bill on the commerce clause. I don't question its constitutional situation. It is clearly within the powers of Congress to prohibit, as the administration bill would do, discrimination in business which affects interstate commerce.
As I understand the Constitution, I don't think there is any doubt about that.
But I believe, and Senator Cooper believes, that it is equally constitutional, and much more effective, and much more meaningful, to deal with discrimination directly—as a matter of equal rights and due processes rather than to attack it indirectly as a burden on interstate commerce.
But the most important distinction I think between our bill and the administration bill is that this is primarily a moral question. And this is important. It is primarily a moral question, a constitutional question, à question of rights, not of commerce or of economics.
We are concerned with insuring that all citizens have the right to equal access to goods and services and facilities held out for public use.
And our bill is based on the proper situation that discrimination by businesses licensed by a State denies the privilege and immunities and protections guaranteed by the 14th amendment.
And it is stronger and more far reaching than the administration bill.
Now, finally, I would say that what we are seeking in our bill is not only a worthy goal—we seek a legislative vehicle that is worthy of that goal, we seek to guarantee these precious rights, and this guarantee, we think, should rest not on the sections of the Constitution dealing with matters of business and commerce, but upon those sections dealing with the rights of man.
For these reasons, I believe that the 14th amendment approach is more satisfactory.
It is my firm belief that the Supreme Court would find such a statute constitutional and enforciable because I hope this bill will be approved.
But I will, of course, support the administration bill.
But, Senator, I say again that I felt it was important to make this statement at this time. I am sorry I wasn't able to be here this morning.
It was reported to me what you had to say about my views, referring to what I said yesterday.
So I wanted it to be made a matter of record, and I wanted you to hear it.
Senator ERVIN. Well, I am delighted to hear the expression of your views. I would like to avail myself of this opportunity to say that you and I have worked together on many problems. You are a Senator whose devotion to his country and whose sincerity I never question.
And I usually find that your views are a little sounder than they are on this particular proposition.
But I would say that the Civil Rights Act held—that inns and restaurants were involved in that. And inns have been regulated by the laws of States from the very beginning of this Nation.
And the inns involved in the interstate I mean, in the—the inns involved in the Civil Rights cases in 1883 were regulated by the States involved there.
And furthermore, if I am correct in my date, in 1960 they had this very question presented in a case over here in the Federal court in Alexandria--a Negro sued the Howard Johnson over there for service. And the court went into all of this question-Howard Johnson was licensed. And the Circuit Court of Appeals for the Fourth Circuit held in that case that the plaintiff did not have a civil right to demand that he be served a meal by the Howard Johnson.
There is some discussion of this subject there.
And so at the present time the interpretation of the 14th amendment sustains my views rather than yours.
Senator Dodd. I know. But wasn't it because in that case again, it was not shown that State action was involved?
Senator Ervin. Well, that is where you and I part company. Judge Harlan said in order for the 14th amendment to apply, that the State had to be involved in the very discrimination.
Senator Dodd. Well, isn't it?
Senator ERVIN. No. No more than when the State licenses a fellow to purchase a pistol. That is, it is no more involved in the case of denial of service in a restaurant that has been licensed than it is in a murder committed by the fellow with a pistol for which he received a license from the State to buy.
Senator Dodd. Wait a minute. Let's analyze that.
I don't contend that the licensing of pistol owners or a fortune teller, makes the State responsible for every act, every misdeed, every violation of law committed by the licensee.
But I do say that within the licensing power the individual takes on the character to that extent of the State.
And I don't see how you can argue it otherwise.
I don't have in mind, I am not familiar with the license forms or pistol permits in the several States. But I am sure it requires that it be used for only certain purposes.
Now, if the individual exceeds the purport-no one can argue that the State is responsible, because he has exceeded, when he commits a crime, the authority transferred to him in the form of a license of the State.