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that you could not reach private action in this case, then I don't think that I would be advocating.
If it had remained, that the Court had remained silent on that point, then I think that I would have urged this nonetheless.
Senator ERVIN. You do note that Justice Harlan said in a footnote that the action of Justice Clark and his two associates was extraordinary.
Attorney General KATZENBACH. I don't recollect the footnote, but I will take your assurance that that is what he said.
Senator Ervin. I wish you would have one of your associates verify it. You will see that I am not a lone voice crying in the legal wilderness, by saying it is extraordinary for judges to announce what they will do in the future, if a case should happen to come before them.
Attorney General KATZENBACH. No, sir; but you appear to be a minority.
Senator ERVIN. I don't know about that. I expect-
Attorney General KATZENBACH. Just as Harlan, at least, was a minority on that point.
Senator Ervin. I expect that you could find out I would either be in the majority or a very strong minority.
Attorney General KATZEN BACH. Do I understand you to mean on this point, as to whether this is proper?
Senator ERVIN. Yes, on this point and also on the other.
Attorney General KATZENBACH. But we do agree on the need for Federal legislation in this respect?
Senator ERVIN. I agree on the proposition that before we pass title V we should amend the Constitution. We should remove from the Court the temptation to further twist the words of the 14th amendment.
Attorney General KATZENBACH. Well, of course, I don't think that they are.
Senator ERVIN. And also remove any temptation for the Attorney General to advocate such action.
Attorney General KATZENBACH. Could I just inquire for my own clarification, you talk about this as title V.
Senator ERVIN. Yes.
Attorney General KATZENBACH. Is it your view that every provision of title V is unconstitutional, or just those provisions which depend on the 14th amendment? Could we narrow the area of controversy in that way? I don't know whether
Senator ERVIN. I think most of title V depends on the interpretations placed on the 14th amendment to deal with the duty of the State to refrain from doing some things.
Now, there may be a provision in there to the effect that interference with one's right to travel interstate is a crime, I would agree that comes under something besides the 14th amendment.
Attorney General KATZENBACH. How about voting? Are we all right on voting?
Senator Ervin. No; because you are dealing with individuals. Only the United States or the States can violate the 15th amendment because it only applies to them.
Attorney General KATZENBACH. How about Federal elections on that?
Senator ERVIN. Federal elections, section 2, article I, I would agree that as far as Federal elections are concerned, it would be valid. Attorney General KATZENBACH. It would be all right as far as that is concerned.
Senator Ervin. But you have got plenty of law on that subject already.
Attorney General KATZENBACH. How about the employment provision?
Senator Ervin. The employment provision possibly would come under the interstate commerce clause which the Court seems ready to interpret to cover everything on the face of the earth, from sexual intercourse to burying the dead.
Attorney General ŘATZENBACH. I don't know whether it is worth going through them all or not, but a number of these do depend on provisions other than the 14th amendment, Mr. Chairman.
Senator ERVIN. I would take the position that there is nothing in title V which makes the operation of any of its provisions dependent upon the action of a State in denying any of the rights secured against State action, by the 14th amendment.
Attorney General KATZENBACH. No, sir; but my point is that with respect to all except two of these, you could base them on other sections of the Constitution other than the 14th amendment, so I would think that probably—and the 15th amendment on voting, although you would confine that to Federal elections, despite the Voting Rights Act case-it seems to me that only in terms of schools and in terms of the old title VI part of the 1964 act, that is, participating in and enjoying any benefits, service, or privilege from the State or Federal Government, really all of your arguments now are directed to those two sections.
Senator Ervin. There is a section in there with reference to negotiating sales of property.
Attorney General KATZENBACH. Oh, yes, sir; but I think that that might be justified under the commerce power. I thought you said a minute ago that was broad enough to do it.
Senator ERVIN. Well, I wouldn't go quite that far, but I say under the interpretations that have been placed on it, that the power to regulate commerce, which was originally intended to regulate the movement of persons, goods, and communications, from one State to another, now, under some decisions can be construed to cover everything that affects interstate commerce. Therefore, since people are created by sexual acts, Congress under that broad interpretation could regulate sexual intercourse, and it could also regulate the burial of the dead, because if the administrator buried the deceased in a coffin that had been shipped in interstate commerce, he would be promoting interstate commerce, and if he refused to do so, he would be impeding or obstructing interstate commerce. Under the suggestions in some of the cases, I don't believe I am very extravagant in those statements.
Attorney General KATZENBACH. No, sir; I don't think-you may be stating your case fairly broadly on this, Mr. Chairman, but I was interested yesterday in your quote from that Polish Alliance case. It fits with my view.
I don't think because Congress can constitutionally legislate something, it necessarily means that they should legislate that, and I don't think you think so either. There are many things that the Constitution does not require, that the Congress deem wise, and there is a leg.slative judgment which doesn't depend on the Constitution.
In your quote on the Polish Alliance case of Mr. Justice Frankfurter in your statement yesterday, I looked up the quotation afterward, and I was interested in the way in which Mr. Justice Frankfurter went on after that quotation, because from the point where you stopped, he starts, and he says:
On the other handand then he proceeds to go on with the old admonitionNever become stale. This Court is concerned with the bounds of legal power and now with the bounds of wisdom in its exercise by Congress. When the conduct of an enterprise affects commerce among the States, it is a matter of practical judgment not to be determined by abstract motions. The exercise of this practical judgment the Constitution entrusts, primarily and very largely, to the Congress, subject to the latter's control by the electorate.
Great power was thus given to the Congress, the power of legislation and thereby the power of passing judgment upon the needs of a complex society. Strictly confined, though far-reaching power was given to this Court, that of determining whether the Congress had exceeded limits allowable in reason for the judgment which it had exercised.
To hold the Congress could not deem the activities here in question to affect what men of practical affairs call commerce, and to deem them related to such commerce, merely by gossamer threads and not by solid ties would be to disrespect the judgment that is opened to men who have the Constitutional power and responsibility to legislate for the Nation.
Mr. Justice Frankfurter it seems to me was agreeing with me, that the commerce power was extremely broad.
Senator Ervin. I don't think that you and I and Mr. Justice Frankfurter disagree on that at all. În your statement you said something about interpenetrations in modern society, and I quoted a part of Justice Frankfurter's opinion to the effect that these interpenetrations in modern society have not wiped out State lines, and even though scholastic reasoning may prove no activity is entirely isolated within the boundaries of a single State, that cannot justify absorption by the legislative power of the United States over all activity.
Attorney General KATZENBACH. Then he went on to say how broad that power was.
Senator Ervin. Yes; but he said also that it couldn't cover every activity. Now, frankly, I think that under judicial interpretations of the interstate commerce clause, the rule can be stated as follows: That Congress has the power to regulate interstate commerce, and it has the power to regulate intrastate activities as a part of its regulation of interstate commerce so far as such regulation is either necessary or appropriate to its effective regulation of interstate commerce. Of course, with hundreds and hundreds of cases dealing with interstate commerce, we sometimes are going to have Justices emulating Homer and nodding a bit, and I think they nodded very much when they said a man couldn't raise wheat on his own land for his own consumption. I don't see how that conclusion can exist under the due process clause of the fifth amendment, but the due process clause didn't seem to trouble the Court nevertheless.
I never did see any interstate commerce there. All I saw was the fellow moving his jaws when he consumed his wheat, and a like action on the part of his family and domestic animals.
I regret it takes time to present my point on this matter. It is not for any other purpose that I present this.
(Whereupon, Senator Javits entered the hearing room.)
Senator ERVIN. I want to call attention to the Civil Rights Cases of 1883, which are still, insofar as interstate is not affected, in effect, according to the opinion of Justice Stewart in the Guest case. He cites it to sustain his decision there.
The Civil Rights Cases reported in 109 U.S. at page 3, is often quoted, and it has a clear exposition of the point I wish to make, which I think is a correct interpretation of the words in the 14th amendment. Incidentally, I digress to say that these cases involved the Civil Rights Act of 1875. The opinion of the Court states, starting at
The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character, and prohibitory upon the States. It declares that:
"No State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation and State action of every kind which impairs the privileges and immunities of citizens of the United States or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the law.
It not only does this, but in order that the national will thus declared may not be a mere brutum fulmem, the last section of the amendment vests Congress with the power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition, to adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void and inoculous.
This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest the Congress with the power to legislate upon subjects which are within the domain of State legislation, but to provide modes of relief against State legislation or State action of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws and the action of State officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment.
Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed State laws or State proceedings and be directed to the correction of their operation and effect.
Now, I omitted some that is not particularly germane, and I continue on page 13:
And so in the present case, until some State law has been passed or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment nor any proceeding under such legisltaion can be called into activity: for the prohibitions of the amendment are against State laws and acts done under State authority.
Of course, legislation may and should be provided in advance to meet the exigency when it arrives; but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, State laws or State action of some kind adverse to the rights of the citizens secured by the amendment.
Such legislation cannot properly cover the whole domain of right appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them.
It is absurd to affirm that because the rights of life, liberty and property (which include all civil rights that men have), are by the amendment sought to be protected against invasion on the part oft the Sates without due process of law, Congress may therefore provide due process of law for there is indication in every case; and that, because a denial by a State to any persons of the equal protection of the laws is prohibited by the amendment, therefore Congress may establish laws for their equal protection.
In time the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is such as may be necessary and proper for counteracting such laws as the States may adopt or enforce in which, by the amendment, they are prohibited from making law enforcing, or such acts and proceedings as the States may permit or take and which, by the amendment, they are prohibited from committing or taking. and at page 14:
The truth is that the implication of a power to legislate in this manner is based upon the assumption that if the States are forbidden to legislate or act in a particular way on a particular subject and the powers conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such State legislation or action.
The assumption is certainly unsound. It is repugnant to the 10th amendment of the Constitution, which declares that 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.
Attorney General KATZENBACH. I think, if I might comment on that
Senator ERVIN. Yes, sir.
Attorney General KATZENBACH. It is important, Mr. Chairman, to remember that the issue before the Court in that case was the Public Accommodation Statute, and that the argument for its enforcement was based entirely on the 14th amendment.
I came and testified before with respect to these matters. I think the Department of Justice expressed, with respect to the public accommodations section, some reservations as to whether, in view of this, it could be justified on the 14th amendment. The Court there was talking about, at least in that context of time, were considered to be purely private rights. We are not talking about equal protection of the laws. We are not talking about that kind of situation.
It seems to me significant that even in the language which you read there, that it pointed out that even under the 14th amendment, that Congress was here not seeking to correct the effects of any past State action, and this was given some emphasis by the Court in there.
I think it is also important to note what Mr. Justice Brennan said about this in the Guest case. He said, and this is on page 9 of the opinion, Mr. Chairman:
I acknowledge that some of the decisions of this Court, most notably an aspect of the civil rights case 109 U.S. 311 have declared that Congress' power under Section 5 is confined to the adoption of "appropriate legislation for correcting the effect of prohibitive State laws and thus to render them effectually null, void, and inaccurate."
I do not accept that, and the majority of the Court today rejects this interpretation of Section 5. It reduces the legislative powers to enforcement provisions of the amendment to that of the judiciary, and it attributes a far too limited objective to the amendment's sponsors.
But, again, going back to title V itself, let's take the section which deals with schools, for example. I think it is clear, at least it is clear to me, Mr. Chairman, that one of the reasons that you have intimi