legislate in respect to all things under the sun by the simple expedient of uttering a few legislative lies.

(Senator Keating's statement is as follows:)

STATEMENT OF SENATOR KENNETH B. KEATING PREPARED FOR DELIVERY BEFORE THE SENATE COMMITTEE ON THE JUDICIARY ON CIVIL RIGHTS LEGISLATION

I have joined as a cosponsor of the President's civil rights bill (S. 1731) because in my judgment its enactment would permit substantial progress to be made in enforcing constitutional guarantees.

It presents Congress with an opportunity to contribute to the advance of human freedom in America, and this is an opportunity which we cannot afford to reject.

There are a number of respects in which the bill may be usefully amended, and any legislation of this scope justifies careful study. In my judgment, however, this subject deserves the highest priority, and we must act with dispatch in reporting a bill to the Senate and giving every Member an opportunity to vote on its merits.

The Subcommittee on Constitutional Rights, after full hearings, has reported favorably separate legislation to extend the Commission on Civil Rights, identical to title V of S. 1731. The Senate Committee on Commerce has held several weeks of hearings on a public accommodations bill, identical to title II of S. 1731. In both cases, extensive testimony has been presented both by the proponents and opponents of these measures, and no question can be raised about the fairness of these hearings. There is no need for this committee to duplicate these proceedings, or in the case of the Commission on Civil Rights-to delay action because of these hearings on the President's omnibus bill.

I do not want to take the time of the Attorney General by commenting in detail on each of the provisions in S.1731 this morning. However, I would like to offer some brief general comments which I hope will serve to place this subject in proper perspective.

In my judgment, there is no area of national affairs which the Federal Government has approached more timidly than the area of civil rights. In too many instances, bold declarations have been promoted as a substitute for decisive action. The result has been widespread confusion as to the need for and the impact of these measures.

Let me cite just two examples indicating the incredible inconsistencies of our actions to date.

Early last month, after a few minutes of debate, the Senate passed a bill authorizing the Federal Government to spend up to $2,500,000 each year on sanitation facilities for migratory workers, including toilets and handwashing facilities.

No one charged that this bill violated States' rights. The responsibility of the Federal Government to provide for the health of migratory farm laborers by building toilets and washbasins on private farm property was not challenged by a single member of this committee or the Senate.

The contrast in attitudes toward this type of legislation and the civil rights bill we are now considering is startling. And I will never understand how Senators who don't blink an eye at Federal legislation for toilet construction can raise such a thunder of protest against Federal legislation to enforce constitutional rights.

I am not critical of any program to relieve the substandard conditions under which our migratory farmworkers work. But certainly, if authority can be found in the Constitution for a sewer, toilet, and washbasin grant-in-aid program, then authority exists for Federal assistance to those seeking help in enforcing equal protection, equal opportunity, and equal voting rights under the Constitution.

The Senate has done its part to improve sanitary conditions on the farmlands of America. We should now act with comparable dispatch and unanimity to enhance human freedom and justice in America.

Of course, this is only one of myriad examples which could be cited to demonstrate the difference in attitude toward legislation relating to civil rights and legislation relating to economic and other issues. There is no need to spell out the reasons for this contrast, but certainly there is nothing in the Constitution which justifies less Federal concern for human rights than for sanitation and similar problems.

However, as the second example I want to mention will illustrate, it isn't only Congress which has been inconsistent. The executive branch has produced some equally bewildering examples of inconsistency, such as the regulations issued by the Administrator of the Area Redevelopment Agency. These regulations do require that housing and related facilities financed under the act be made available on a nondiscriminatory basis. The regulations, however, specifically exempt from this requirement "transient or hotel facilities or parts thereof which are intended for occupancy for a period of less than 30 days."

I have carefully studied the statutes applicable to such grants and find nothing which suggests any such distinction. This is not an insignificant matter since one-fourth of all the loans under the Area Redevelopment Agency have gone into the construction of public accommodations, such as hotels and motels, but the Administrator still refuses to apply a nondiscrimination standard to this program, even though he has done so for residential construction.

The President in his first civil rights message to Congress early this year indicated that "legalistic evasions" designed to thwart civil rights would not be tolerated. I agree with this statement and would add that neither can we tolerate legislative or executive evasions of the issues confronting us. What is involved here fundamentally is the question of whether we are going to enforce all the provisions of the Constitution. In my judgment the commands of the Constitution have a firm moral as well as legal foundation and cannot be ignored I am confident that a majority of the Congress is ready to fulfill its responsibilities and whatever is necessary must be done to make certain that Congress is not denied that privilege and opportunity.

(Whereupon, at 12 o'clock noon, the committee recessed, to reconvene at 10.30 a.m., July 17, 1963.)

CIVIL RIGHTS-THE PRESIDENT'S PROGRAM, 1963

WEDNESDAY, JULY 17, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to recess, at 10:40 o'clock a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Johnston, Ervin, Dodd, Hart, Kennedy, Hruska, and Keating.

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.

Senator Ervin, proceed.

STATEMENT OF HON. SAM J. ERVIN, JR., A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA-Resumed

Senator ERVIN. Mr. Chairman, yesterday I was asked a question by the able and distinguished senior Senator from Connecticut, Mr. Dodd, as to why a State could not be held responsible under the 14th amendment for the acts of persons operating so-called public accommodations under laws which required them to pay a State license tax. The answer to that question is given in many decisions of the Supreme Court, and particularly in the Civil Rights cases of 1883. The CHAIRMAN. Just a minute. I am not going to permit pictures to be taken while the witness is testifying. You may take them before or after he testifies.

Senator ERVIN. On page 13 of the Civil Rights cases of 1883, Judge Bradley says this:

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 14th amendment, no legislation of the United States under said amendment nor any proceedings under such legislation can be called into activity for the prohibitions of the amendment are against State laws and acts done under state authority.

A man is not acting under State authority when he has to pay a license fee for conducting his business. As for example, in North Carolina a gypsy's engaging in fortune telling.

On page 18 of the same opinion, Judge Bradley answers that question a second time. He states:

This abrogation and denial of rights, for which the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, 45

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the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.

Senator JOHNSTON. In other words, you could no more hold them for these acts than you could for adultery or murder or anything else, hold a State for it. That is what it means, does it not?

Senator ERVIN. Yes, sir.

And, again, on page 23 Judge Bradley answers that question a third time:

Under the 14th, as we have already shown, it

that is, the legislation of Congress

must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings.

And then a very fine answer to Senator Dodd's question is also to be found in the opinion of Justice Harlan in the case of Peterson v. the City of Greenville, which was handed down on May 20 of this year. He says:

The ultimate substantive question is whether there has been "State action of a particular character" (Civil Rights cases, supra at 11), whether the character of the State's involvement in an arbitrary discrimination is such that it should be held responsible for the discrimination.

In other words, the 14th amendment only applies if the State itself is responsible for the discrimination.

The State says to a citizen, "You must pay a license to engage in certain businesses, but when you engage in those businesses you may use your property as you see fit and select your customers as you see fit." If that individual practices what is popularly called discrimination, the State is not involved in that discrimination any more than would be the State involved in a murder if the State granted a man a license to buy a revolver and he goes out and shoots somebody. Senator HRUSKA. Would the Senator yield?

Senator ERVIN. Yes.

Senator HRUSKA. Since the Senator's testimony yesterday, it was suggested to me that if the license fees are construed as taxes, which I understand you say they are

Senator ERVIN. Yes.

Senator HRUSKA. That everything in the State would be the result of State action, because a man cannot own a home or a business building nor even a farm without paying taxes.

Senator ERVIN. Yes.

Senator HRUSKA. On that basis, it was suggested to me that if that proposition is correct, then everything would be the result of State action, and, therefore, subject for Federal legislation.

Is there any validity to that argument that was advanced to me? Senator ERVIN. That argument would be sound if the theory of this bill were sound. I have prepared a list of all the people who have to pay a license tax under the law of North Carolina, which I would like to have printed in full in the record. And it shows how absurd that theory is.

Senator HRUSKA. Of course, my question was directed to whether regular taxes could not be construed in that same fashion-inasmuch as the purpose of these license fees is to yield revenue.

Senator ERVIN. If the fantastic theory of the State being responsible for the action of all people who pay license taxes were adopted, it would apply to all forms of taxation. Then the Federal Government could regulate everything that goes on in the average dwelling house throughout the United States, because people have to pay taxes on their homes.

The Federal Government could regulate everything that goes on on all farms and in every privately owned forest in the United States. In North Carolina, Congress could regulate outdoor theaters, amusement parks, vaudeville shows, wild West shows, dog shows, pony shows, circuses, menageries, and carnival companies. It could regulate how attorneys at law should practice their profession, and how doctors should practice their profession. It could regulate the practice of veterinarians, surgeons, osteopaths, chiropractors, chiropodists, dentists, oculists, optometrists, and all people professing the healing art for fee or reward.

There is only one exception to that. If a person relies on prayer to heal in North Carolina, he doesn't have to pay a license tax. He is almost the only person who can do anything in North Carolina without paying a license tax according to our Revenue Code. And I suppose that this exception was in anticipation of the fact that praying would be decided to be somewhat unconstitutional and illegal, and, therefore, should not be sanctioned by a State tax.

Licenses are required of engineers, land surveyors, architects, landscape architects, photographers, canvassers for photographers, agents of photographers, members of partnerships, corporations engaged in real estate business, public accountants, morticians, embalmers, bondsmen, detectives, people conducting real estate auction sales, coal and coke dealers, collection agents, undertakers and retail dealers in coffins, horse traders, mule traders, phrenologists, itinerant photographers, agents and employees of itinerant photographers, bicycle dealers, pawnbrokers, people who sell cash registers or adding machines or typewriters or refrigerating or washing machines or coal stokers or vacuum cleaners or sewing machines, peddlers of spices or flavoring extracts or toilet articles or soaps or insecticides or proprietary medicines, peddlers of fruits, vegetables, and products of the farm, unless they are grown by them, contractors and construction companies, people who install elevators and automatic sprinkler systems, people who repair and service elevators, mercantile agencies, and gypsy fortunetellers.

It would be strange to say that a gypsy fortuneteller is exercising a public function and is an agent of the State.

Also included are lightning rod agents, hotels, tourist homes, and tourist camps.

Notice especially that Mrs. Murphy would have to pay a license tax in North Carolina to operate her tourist home.

And, while I am on that point, I would like to put in the record some extracts from the case of Purdy v. Moise, a case originating in Sumter, S.C., which was reported in 75 Southeastern Reporter, second series, at page 605. This case involved the question whether a person could build a tourist court or a motor court in an area which was zoned for hotels.