in 1883 because we have gone 80 more years when these practices and procedures still exist. So I think it is about time that we in the executive branch of the Government and the legislative branch of the Government do something about it. One hundred years have gone by. The States are not going to do it Senator. You know; you come from South Caroline, which produces very distinguished people, produced Major Anderson who performed that very heroic act in Cuba. But there is no question, Senator, if the matter is just left on its own for a long period of time to come, the Negro is going to have a difficult time. I'm not saying he is not having a difficult time in Boston, Chicago, New York, and Los Angeles, and all these other communities. As I said this morning, there has been a good deal of hypocrisy on this. But at least where we can pass some legislation to help and assist these unfortunate fellow citizens, that it is constitutional, I think that kind of action is required. Senator THURMOND. Since you mentioned South Carolina, I might say that we have as good or better schools down there for our Negroes than we do for whites and you have probably visited some. And they have hotels and other facilities but they just prefer to be with their own people if they have their choice. They feel that way; they would rather be with their own people. Mr. KENNEDY. Senator, I don't want to cast any aspersions on South Carolina but there is an education problem and the Governor is working very hard on it. There is a major education problem in South Carolina, as you know, I'm sure. Senator THURMOND. I don't know of any major education problem down there that we have. They were all getting along fine until the NAACP and the CORE organization came in there and instituted lawsuits. I can give you an example: For instance, down in Summerton School District in Clarendon County-I want you to hear this-they built a new school for the Negroes and I might say that in that district, 90 percent of the school district is Negro. And in spite of a new building that they have, some lawyer from New York came down there and brought a suit, and got the parents of 40 children to bring a suit against the district to integrate, to send those Negroes to the old school building that the white children occupy. Now they were perfectly satisfied until this outsider came in and brought this little gimmick. The building is brand new and the facilities are better. As I say, 90 percent of them are Negro and it just shows that the outside influence is doing this. It is not the will of the people. And I think the Justice Department or our Government as a whole is misconstruing in a lot of cases the true situation in different States because when a suit is brought like that, you get the impression that the white people are not treating the Negroes right down there, where, as a matter of fact, they have a newer building and better facilities for them. I just wanted to mention that because I think it is worthy of your taking note. Mr. KENNEDY. Thank you, Senator. Senator THURMOND. Now I notice you mentioned, too, here about Greenwood, S.C., having an ordinance. Did you mention the mayor's name? I don't believe you did. Anyway the mayor is W. H. Leary. They do not have any ordinance now on that and I thought I would call your attention to that because I knew you would want to make the correction if you were in error. Mr. KENNEDY. Do you know when that ordinance was repealed? Senator THURMOND. It was repealed. We called the mayor today just after you made that statement and he says they do not have an ordinance to that effect. Mr. KENNEDY. I think, Senator, that the Supreme Court decision in the last 3 weeks has had an effect on these ordinances. Senator THURMOND. Well, it may have had. Mr. KENNEDY. These ordinances and laws have been out of existence for just a short period of time. Senator THURMOND. There are some other questions I might ask Mr. Attorney General but I think we have covered most of it. I want to thank you for your patience and your consideration in answering these questions. Mr. KENNEDY. Thank you for your courtesy, Senator. The CHAIRMAN. All right. Thank you, Senator Thurmond. The chairman just wants to say for the benefit of the American amateur historians here today and the committee that Vermont was the last State to sign the Constitution, but Vermont was part of New York when the other States signed and they had to pay $30,000 to get released from New York and become a State. So they signed on January 10, 1791. But Rhode Island was the last State to sign it on May 29, 1790, and New Hampshire was the ninth State to sign it and thereby tipped it and the Constitution, so both Rhode Island and New Hampshire contributed. Senator COTTON. I know the distinguished Attorney General would not discriminate against New Hampshire, but it was my understanding that the Attorney General said Rhode Island was the State that brought the Constitution into being, and I merely want to say that perhaps I misunderstood him. But I merely want to make it very clear that the Constitution came into being when the ninth State ratified it and that was the State of New Hampshire which ratified it on June 21, 1788. So I just want to get that into the record. Mr. KENNEDY. I'm glad you straightened it out. The CHAIRMAN. It was a vote of 47 to 66 and Vermont didn't have the $30,000 so they came in later after they paid New York. Then Rhode Island voted 34 to 32 Senator PASTORE. On May 29, 1790. The CHAIRMAN. Correct. Now we will recess until 10 o'clock tomorrow morning. (Whereupon, at 4 p.m., the committee was recessed to reconvene at 10 a.m. tomorrow morning.) CIVIL RIGHTS-PUBLIC ACCOMMODATIONS TUESDAY, JULY 2, 1963 U.S. SENATE, COMMITTEE ON COMMERCE, Washington, D.C. The committee reconvened at 10 a.m., in room 318, Old Senate Office Building, the Honorable Warren G. Magnuson, chairman of the committee, presiding. The CHAIRMAN. The committee will come to order. Yesterday at adjournment time we ended up with the Senator from Vermont, who has several questions to ask the Attorney General about the proposed legislation. He was ready to do so, but the hour got late, and we decided to begin again this morning. The Chair recognizes the Senator from Vermont. FURTHER STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY Mr. Attorney General, I might say first that I am up to my neck in proposed legislation relating to this overall question. As a member of the Labor Committee, I am concerned with FEPC, manpower retraining, education. Quite frankly, when I became a member of the Commerce Committee, I did not imagine we would be dealing with civil rights legislation. I am not a lawyer, but I have picked up a little information concerning some of the legal and constitutional questions involved, with the help of qualified attorneys, and I hope that perhaps you can add to my store of knowledge in this respect as a result of a few questions which I have to submit. Mr. KENNEDY. Fine, Senator. Senator PROUTY. Would you turn to page 6. A lengthy discussion evolved around the four subsections. Yesterday you indicated that the retail store, gasoline station, or restaurant would not have to meet all of the conditions set forth on page 6 in order to be covered by the bill. You indicated further that if one of these establishments met only one of the conditions, it would be covered. Am I correct? Mr. KENNEDY. That is correct. Senator PROUTY. Now, may I draw your attention, Mr. Attorney General, to the fact that the word "or" does not appear between conditions one and two, nor does it appear between conditions two and three, and therefore, a literal reading of the bill I think would lead one to believe that an establishment is covered if it meets the conditions set forth in one, two, and three conjunctively, or if it meets the fourth condition. I think I know what the intention was. Does the language carry out that? 21-544-63-pt. 1- -9 121 Mr. KENNEDY. No, I think that is a fair criticism, Senator. I think we should clarify that and have "or" between each one of the paragraphs. Senator PROUTY. Again on page 5, and page 6, applying to hotels and motion pictures. According to the legislative counsel's office, because of the indentation of the conditions on page 6 and for other reasons, the conditions appear to qualify only the establishments described in paragraph 3 of page 5. I call that to your attention. Mr. KENNEDY. I appreciate that, Senator. Senator PROUTY. On page 29 of the reported transcript of yesterday's hearings, you said, and I quote: I think I haven't seen anybody contend that this would be unconstitutional on the Commerce Clause. Similarly, on page 32 of the transcript you were recorded as saying, and I quote: There cannot be any legitimate question about the Commerce Clause. That is clearly constitutional. We need to obtain a remedy. The Commerce Clause will obtain a remedy and there won't be a problem about the constitutionality. Now to come to this conclusion you must have decided that the Civil Rights Cases of 1883 did not deal with the issue of whether Congress had the power to pass such public accommodation laws within its interstate commerce power. On page 35 of the transcript you are recorded as saying, and I quote: In that 1883 decision the Supreme Court specifically stated that this kind of legislation might very well have been passed under the Commerce Clause; they said they were not passing on that question, just on the question of the 14th amendment. During the hearing you testified that there was some doubt that this bill would be found constitutional if based on the 14th amendment alone. Therefore, I must assume that the constitutionality of this bill as you see it rises or falls on the validity of the bill under the commerce clause. You said the Court, in the Civil Rights Cases of 1883, was not passing on the question of whether the validity of the Civil Rights Act of 1875 might be found in the commerce power of Congress. I am going to quote you a statement by one of your predecessors. Mr. Charles Devens, who was Attorney General at the time the Civil Rights Cases were before the Supreme Court. This statement comes from the briefs of the United States for three of the litigants in the Civil Rights Cases. It seems to urge upon the Court that this law should be found constitutional and within the commerce powers of Congress. As you recall, the Civil Rights Cases involved in part actions by several persons to gain access to inns. I now quote from the Attorney General's brief: Inns are provided for the accommodation of travelers, for those passing from place to place. They are essential instrumentalities of commerce * * * which it was the province of the United States to regulate even prior to the recent amendment to the Constitution. Now, Mr. Attorney General, I would ask you to review your statement of yesterday that the Supreme Court did not consider the issue of whether Congress had the power to pass such a law under the com merce clause of the Constitution. Do you still feel that the Court didn't have to deal with that issue? Mr. KENNEDY. What I am saying, Senator, there is a specific quote in this case by the majority, saying that they hadn't passed on the commerce clause. I had it marked in my other book. It will take me some time to find it here. Senator PROUTY. I think perhaps I can help you. Are you referring to 6, under the "Statement of Facts," which reads Mr. KENNEDY. No. It is in the decision. Senator PROUTY. You will find it at the bottom of page 19. Mr. KENNEDY. Shall I read it into the record? Senator PROUTY. Yes, if you wish to. I would like to point out, I think the key words are public conveyances. I am starting on page 19, at the bottom: And whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another, is also a question which is not now before us, as the sections in question are not conceived in any such view. They are referring to public conveyances. Mr. KENNEDY. I think in the context, Senator, in the decision that was handed down, it included all of these matters. As far as public conveyances, and as far as the travel were concerned, they determined that they were constitutional. Senator PROUTY. You certainly wouldn't consider theaters public conveyances back in that period. Mr. KENNEDY. As I say, I think that in the context of it, Senator, and the basis of this decision, it included all of these matters. Senator PROUTY. I do have a copy of the Attorney General's brief of 1879 from which we have quoted. I would ask unanimous consent that I be permitted, Mr. Chairman, to submit that for the record. The CHAIRMAN. Without objection, it is so ordered. I think, though, that we ought to put in the record the brief of the other counsel along with it, to get the two in proper context. Senator PROUTY. Certainly I have no objection to that. The CHAIRMAN. We can get that. How long are they? Senator PROUTY. I don't know. The CHAIRMAN. Let's leave it this way, without objection the pertinent parts of the briefs can be put in the record. We will decide later what it will be, so we won't have too long a record. (The document referred to follows:) IN THE SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1879. No. 26. UNITED STATES v. MURRAY STANLEY. No. 105. UNITED STATES v. SAMUEL NICHOLS. CIVIL RIGHTS CASES. BRIEF FOR THE UNITED STATES. The first and last of the above-entitled causes are indictments for denying to colored men the accommodations of an inn. |