The CHAIRMAN. We are making just as much progress as we can. We are meeting every day. I am not going to agree to be in session. Senator KEATING. Would the chairman consider the calling of a meeting of the committee, of the full committee, in executive session, to consider whether a majority of the committee would agree?

The CHAIRMAN. Of course, I will agree to meet with the full committee at all times.

I am subject to the direction of the full committee at all times, but I have had some objections from the committee as to meeting tomorrow. I am going to meet tomorrow. I don't think we gain anything by meeting after the Senate is in recess. I don't think it is a proper hearing and a proper procedure for just one Senator to be present in order that a record be made.

These hearings are for the benefit and enlightenment of the full committee. For that reason, the full committee took this bill from the subcommittee, and I think it would be far better that we hold the hearings where we can have a substantial number of the full committee present.

Senator KEATING. I would hope that

The CHAIRMAN. I don't think there is anything to this thing of one member sitting here making a record. I think that is a travesty on the legislative system.

Senator ERVIN. Mr. Chairman, before you go, I would like to close what I have to say on the public accommodations feature. But I would like to put into the record

The CHAIRMAN. It will be admitted.

Senator ERVIN. A statement entitled "The 'Right to Be Nasty,'" by Laurence H. Eldredge, a very distinguished lawyer, which appeared in the Evening Bulletin of Philadelphia, Pa., on July 24, 1963, and an editorial from the Wall Street Journal of June 20, 1963, entitled "The Wrong and the Remedy." I would like to put them in the record as expressing my views on the public accommodations feature. (The articles referred to follow :)

[From the Evening Bulletin, Philadelphia, Pa., July 24, 1963]

THE "RIGHT TO BE NASTY"

(By Laurence H. Eldredge)

(NOTE.-Mr. Eldredge is the reporter for the Supreme Court of Pennsylvania, former chairman of the Board of Governors of the Philadelphia Bar Association, and former professor of law in the University of Pennsylvania Law School and the Temple University School of Law. He has been invited by the Senate Judiciary Committee to present his views at the current hearings on the proposed civil rights legislation.)

I am completely sympathetic to the efforts which the members of the Negro race are making to eliminate in our public life the gross injustices which they have suffered in the past. Much of what has happened to them, and is still happening, both in the North and in the South, flagrantly violates our fundamental ideas of equal justice and equal right for all citizens.

Nonetheless, the proposal for the Congress to enact a statute of nationwide application which would compel all persons who engage in providing services or selling goods to serve all prospective customers without any discrimination, under penalty of criminal sanctions, disturbs me greatly.

In the first place, every thoughtful student of legal history knows that there are some things which cannot be accomplished by law. Our laws do and must undergo change, and they reflect the felt necessities of the times.

However, with his customary acuity, Justice Holmes warned us long ago: "It cannot be helped, it is as it should be, that the law is behind the times. I told a labor leader once that what they asked was favor, and if a decision was against them they called it wicked. The same might be said of their opponents. It means that the law is growing. As law embodies beliefs that have triumphed in the battle of ideas and then have translated themselves into action, while there still is doubt, while opposite convictions still keep a battlefront against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field. It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellowmen to be wrong."

It is essential for the enforcement of any law that it have at least the approval of a majority of the decent people in the community. A law which does not have such community support cannot be enforced.

A striking example of it in our own history, which is well known to you and me if not to the younger generation, is the history of the prohibition amendment. All the power of the U.S. Government, with the aid of the Coast Guard and of State enforcement agencies, could not compel obedience to the law, which was violently opposed by large numbers of responsible citizens in various parts of the country.

The Congress of the United States cannot, by statute, compel the people on a nationwide scale to measure up to a standard of what a portion of the population believes to be fair and decent and good morals. Deep-seated prejudices widely held can be eradicated only by education and persuasion.

CAN'T SET STANDARDS

It has always been a fundamental part of the Anglo-Saxon tradition of law that private citizens have a right to lead their own lives as they see fit, to make utter fools of themselves and incur community condemnation, and to be eccentric, unreasonable, bigoted and nasty, if they choose to lead that kind of a life. Of course there are limits to this, and when an eccentricity expands to shooting one's neighbor because he is cross eyed, that requires community sanctions.

To me a shocking thing about the pending Senate 'bill is that it is based upon the constitutional power of Congress to regulate interstate commerce. This is intellectual dishonesty. The only rational basis for such legislation would be the 14th amendment. The very fact that the Attorney General has not based the power of Congress to enact such legislation upon that amendment emphasizes the distinction which has always existed between the power to control State action and the lack of power to control the conduct of private citizens.

When I taught the law of torts, I thought it was a fundamental concept of property law that one of the most important attributes of ownership of real estate is the right to exclusive possession of that real estate, and that anybody who enters without my permission is a trespasser, unless he has a law-given privilege to enter.

I may stand at the door of my shop and tell a man who wants to enter, "Keep out. I just saw you kick a dog and I don't like you." I may also keep him out upon less rational grounds, such as the fact that I do not like the color of his necktie.

In other words, it has always been a part of my rights as a citizen owning property to be mean, ornery, cantankerous, and wholly unreasonable in living my life. This carries over into my disposition of my property after my death, and citizens may make strange dispositions of their property by will. What is done with property during life, and even after death may incur community condemnation because it does not fit in with the community thinking, and yet, except in extreme instances, no laws are violated.

PUBLIC AND PRIVATE

Getting back to the power of Government to regulate business, I realize that even the early English common law imposed special duties upon the innkeeper and the common carrier, and a few others, upon the ground that such businesses were of peculiar public interest. There were strong reasons why the weary traveler who knocked at the door of the inn late in the afternoon should not have the door slammed in his face, with the only other accommodations a day's journey distant.

It is also true that our concept of what businesses are affected with a public interest, and hence subject to special regulation, has undergone change and expansion to reflect "the felt necessities of the time." Nonetheless, the fundamental distinction has always been preserved between "private business" and "public business" or public utilities. Up to the present "private business" has been in the large majority.

It is of course possible, subject to constitutional limitations, for Congress to say that in the year 1963 every person who engages in business or offers services, and hopes the public will come to his premises to buy his wares or partake of his services, is operating a public utility and the Government can tell him how he must conduct himself in accepting or rejecting customers. I suppose this could even apply to doctors and lawyers and dentists.

REVOLUTIONARY CHANGE

However, if this change takes place in our law, it will mark a revolutionary change in what has been a fundamental concept of the rights of private citizens engaging in what has heretofore been considered "private" business to conduct such business as ineptly as they choose, even though it results in bankruptcy. This is the "big brother" concept with a vengeance. The Congress will set up a nationwide standard which is, in large part, a standard of morality and human decency as to how the businessman must treat customers and prospective customers. I doubt that it is the function of law to impose such standards even where 75 percent of the nation strongly approves of the standard and its imposition. Unless we come to a welfare state, the other 25 percent have the right to remain free to be unreasonable and nasty if they can withstand the community condemnation which results.

I doubt that the standard presently being considered by the Senate is now approved by a large majority of our population. The question is one of intense dispute among decent people in many States in all geographical parts of this vast Nation. As Holmes put it, the "opposite convictions still keep a battlefront against each other." A legislator, as well as a judge, should not forget "that what seems to him to be first principles are believed by half his fellow men to be wrong."

[From the Wall Street Journal, June 20, 1963]

REVIEW AND OUTLOOK-THE WRONG AND THE REMEDY

More than 3 months ago President Kennedy proposed additional civil rights legislation, principally concerned with strengthening the voting privilege for Negroes. Presumably, after long consideration, this bill was the sum of what Mr. Kennedy thought necessary to meet the problem.

Yesterday Mr. Kennedy sent to Capitol Hill new and far more sweeping recommendations. His message is frankly a response, developed only in the past few weeks, to the increasing violence which is marring race relations. The fires of frustration and discord, he says, are burning hotter than ever; worse explosions are in store unless the Federal Government leads the way to immediate remedies. We find this tone of haste, almost of political panic, deeply disturbing. This, if nothing else, raises the most serious questions about the proposed remedy, particularly as it applies to privately owned "accommodations" which serve the public.

It is true, at least in our opinion and that of most Americans, that a Negro traveler should be able to stop at a public inn and not be turned away solely because of his race. It is a fact that he is still denied that opportunity in many places. That is a wrong which, as the President says, calls for a remedy.

But it is also true, as the President acknowledges, that it is being rapidly remedied. Some 30 States, the District of Columbia and numerous cities have enacted laws against discrimination in places of public accommodation; in addition, merchants have done it on their own. In Mr. Kennedy's words, "many doors long closed to Negroes, North and South, have been opened."

In those circumstances it is a question whether a Federal law is needed to remedy what is already being remedied. The President's only real justification is that the progress is not fast enough. That seems to us a dubious justification for a law of this nature.

One of the proffered legal excuses for it is the Constitution's interstate commerce clause. Under this interpretation, almost every retail establishment in the Nation, from the lowliest hotdog stand to the grandest hotel, could be swept under new control, because almost all at some time use goods that cross State lines or serve people that do. Whatever else it may be, this is a swift and surging expansion of central authority.

The other proffered constitutional basis for the measure is the 14th amendment provision that no State law shall permit unequal treatment of any of its citizens. But the amendment also says no State shall deprive any person of property without due process of law. Antidiscrimination legislation, whether local or Federal, must risk doing just that.

Suppose a woman makes a meager living taking transients in her own home. If she does not want to accept Negroes, is she subject to the penalties of the law? If so and she refuses to comply, she has the choice of giving up her livelihood. Or the owner of a modest restaurant may not feel any personal prejudice and yet knows that if he opens his doors his clientele will become exclusively Negro; if he doesn't want that, he also has the choice of abandoning his property.

Does the Negro citizen's right to equality of treatment transcend another citizen's right to use his property as he sees fit? If so, it is not a very big step to decreeing that the private homeowner is no longer free to dispose of his property as he chooses.

The sad part is that the clash of rights does not have to be brought to this point. With patience and a minimal amount of good will on each side, it can be resolved by individuals and within communities. The proof is that it is being resolved in so many places North and South.

If nothing at all were being done to improve the Negro's position, the Federal Government's case for the course of compulsion would be more understandable. As it is, the Nation should think hard about a legislative course conceived in such haste, with such highly political overtones, and proposed as a conscious concession to illegal mob violence.

Most particularly we should all be concerned about the underlying attitude: That where there is a wrong, any remedy will do-no matter what fresh wrongs the remedy brings forth.

Senator ERVIN. I will also state that in my honest judgment if the power of Congress to regulate the activities of individuals and the use of privately owned property can be based upon the fact that goods used in connection with such property and activities have moved in interstate commerce, there is no limitation whatever upon the power of Congress to thrust the hand of Federal regulation into every human activity of all kinds carried on anywhere in the United States, including activities in private dwellings.

Senator KEATING. Would the Senator yield for a question?
Senator ERVIN. Yes.

Senator KEATING. Perhaps it has already been answered by the Senator. Did he indicate that his questioning of the Attorney General is now completed or just on this point?

Senator ERVIN. On the public accommodations issue, which is the most complicated one of these issues. I sincerely trust that I can complete my questioning in the next session.

I don't like to prolong this, but I am just as opposed to certain provisions in this bill as the Attorney General is devoted to them. I deem them unconstitutional and unwise.

Senator KEATING. Do I understand from the Senator that it is his intention to complete his questioning at the next session?

Senator ERVIN. Yes. I hope to finish at the next session.

(Whereupon, at 12:10 p.m., the committee recessed to reconvene at 10 a.m., Thursday, August 1, 1963.)

CIVIL RIGHTS LEGISLATION

THURSDAY, AUGUST 1, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to notice, at 10:45 a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Kefauver, Johnston, Ervin, Kennedy, Bayh, Dirksen, Hruska, Keating, Fong, and Scott.

Also present: Joseph A. Davis, chief clerk; L. P. B. Lipscomb, and Robert Young, professional staff members.

The CHAIRMAN. The committee will come to order.

STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES; ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION— Resumed

The CHAIRMAN. Senator Ervin?

Senator ERVIN. I have expressed the hope yesterday that I would have no further questions about the public accommodations provisions of this bill. However, I would like to know whether you agree with me in the interpretation that this bill would cover beauty parlors, barber shops, and swimming pools as well as the places and establishments specifically named in it, assuming they fell within one of the four alternate provisions?

Attorney General KENNEDY. I think beauty parlors, barber shops, and swimming pools would be covered only under very unusal circomstances. I think generally they would not be covered, Senator. Senator ERVIN. Wouldn't a barber be covered if he uses barber chairs, razors

Attorney General KENNEDY. No, I tried to explain that before. He would not. I don't think a barber shop would be covered under ordinary circumstances, I don't think a beauty parlor would be or a swimming pool.

Senator ERVIN. If a barber shop sold hair tonic and other things of that kind, it would be covered, wouldn't it?

Attorney General KENNEDY. No, it would not.

Senator ERVIN. It says here if a substantial portion of the goods held out for sale

Attorney General KENNEDY. Senator, I have tried to explain that before. What a barber shop offers is services, and services are covered on page 14 by subsection (3) (i). (3)(ii) doesn't refer to serv

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