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CIVIL RIGHTS-THE PRESIDENT'S PROGRAM, 1963

THURSDAY, JULY 18, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

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

Present: Senators Eastland, Kefauver, Johnston, Ervin, Dodd, Hart, Kennedy, Bayh, 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.

Mr. Attorney General, proceed, sir.

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

Attorney General KENNEDY. Mr. Chairman and members of the committee, we are today in the midst of a great debate, whether or not this Nation, the champion of freedom throughout the world, can now extend full freedom to 20 million of our own citizens who have yet to achieve it.

In view of the urgency of the bill before you, I welcome the opportunity to appear before this committee to state the views of the administration and to answer any questions that may arise.

It seems to me that no reasonable examination of this or any similar measure can proceed until we have answered one fundamental question: Is it needed, or not?

Clearly, it is needed. No American can condone the injustices under which many American Negroes and other of our fellow citizens are forced to live-injustices that vary in kind and in cause from place to place; injustices which are sometimes so intense that in one of our States, with a nonwhite population of more than 1 million, of which 442,000 are of voting age, less than 25,000 of those Negroes are registered to vote.

Consider also, the innumerable difficulties that face a Negro just traveling from State to State in our country something the rest of us take for granted. If he makes reservations in advance, they may not be honored.

If he seeks accommodations along the way, he is likely to be rejected time after time, until, just to obtain lodging and food, he must detour widely from his route-and if he does find accommodations available to him, they are likely to be inferior.

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An ironic note here is provided by two of the available tourist guidebooks. One lists only one establishment with overnight accommodations where a Negro can find lodging in Montgomery, Ala. None are listed for Danville, Va. But a dog, provided he is traveling with a white man, is welcome to spend the night in at least five establishments in Montgomery and in four in Danville.

Everywhere we look, we find irrefutable evidence that the Negroes in America have yet to be given full citizenship and we find increasing evidence, too, that they are no longer willing to tolerate the burdens we have imposed on them.

Many millions of white people, especially in the North-people who until recently assumed that the Negro was satisfied with the great social progress of the past 20 years-are faced now with the startling discovery that it's not true; that whatever progress Negroes have made is inadequate to their need for equality.

And none of us can deny that their need is real; that their frustration is genuine. We have been unreasonable about it, or ignorant of it, far too long.

Even as we sit here today, National Guardsmen patrol the streets of Cambridge, Md., to prevent violence. Unrest is boiling in Savannah, Ga., in Danville, Va., and in countless other cities in the North as well as in the South.

This is what happens when longstanding legitimate grievances are not remedied under law. Great moral damage is done to individuals, to communities, to States, and to the very fabric of the Nation.

We cannot excuse violence from any source or from any group. The responsibility of the Negro leaders who set these demonstrations in motion is very great as is the responsibility of the white leadership in every community. But our responsibility as a Nation is most plain. We must remove the injustices. The alternatives before us are narrow. We can either act or fail to act.

Obviously, we must act. In our judgment the bill before you charts the best course of action. All titles of the bill are important, but none is of more vital and immediate significance than the public accommodations bill.

I scarcely need remind this committee that for an American man, woman, or child to be turned away from a public place for no reason other than the color of his skin is an intolerable insult-an insult that is in no way eased by the bland explanation that it has been allowed to go on for a hundred years or more. It is plainly a wrong, and must be corrected. Moreover, this is the wrong that has caused most of the recent demonstrations.

If we can remove this cause, we will be giving the Negroes legal redress, taking the demonstrations off the streets and into the courts, averting the bitterness that will almost surely ensue if we fail.

We may draw some encouragement from actions taken recently by cities in the Southern and border States to desegregate all or part of their public accommodations on a voluntary basis; but there are many hundreds of communities that have not begun to do so; where no action will be taken unless there is a law.

It has been suggested that somehow a public accommodations statute might interfere improperly with private property rights. However, this is really not a valid argument. Thirty-two States already have

laws banning discrimination in business establishments and most of those laws are far more encompassing and far more stringent than the legislation we have suggested. Moreover, Federal action in this field involves no novel constitutional concept. Congress often has regulated private business enterprises to remove burdens from the national commerce.

The National Labor Relations Act, the Taft-Hartley Act, the Fair Labor Standards Act, and the Agricultural Adjustment Act-these are only a few that come readily to mind, and there are countless others.

Mr. Chairman, I have here a list of the Federal statutes based on the commerce clause which regulate private business and property, and I would like to submit that if I may.

The CHAIRMAN. It will be admitted into the record at the conclusion of your remarks, or would you rather have it at this point?

Attorney General KENNEDY. Right here, if I may. Could I read them into the record?

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Interstate Commerce Act.

Investment Company Act of 1940.

Labor-Management Relations Act of 1947.

Labor-Management Reporting and Disclosure Act of 1959

Livestock Contagious Disease Acts.

Meat Inspections Act.

Narcotics Manufacturing Act of 1960.

Natural Gas Act.

Plant Quarantine Act.

Poultry Products Inspection Act.

Securities Act of 1933.

Securities and Exchange Act of 1934.

The Sherman Act.

Tobacco Inspection Act.

Trust Indenture Act of 1939.

U.S. Cotton Standards Act.

U.S. Grain Standards Act.

Work Hours Act of 1962.

They are all under the commerce clause.

Let me turn now to the question of the source of power under which Congress can enact this legislation. The bill, as you know, relies primarily on the commerce clause.

Whether the bill should be passed is a matter of national policy. The constitutional basis for the bill on the other hand is primarily a legal question. I will summarize again the legal reasons for preparing the bill as proposed.

In the first place, the congressional power is clear beyond question under the commerce clause. The suggestion that Congress should not exercise the commerce power because there is an overriding moral issue makes no legal or historical sense. It is because of the importance of the moral issue that Congress should act if it has power to act. Child labor, minimum wages, prostitution, gambling-all these raise moral issues too, and all have been dealt with by Congress under the commerce clause.

Secondly, very far-reaching and grave issues would be raised by a bill resting solely upon the 14th amendment.

That amendment deals only with State action, not individual action. To find State action in discriminations by private businesses solely because they are licensed by the State would impose on the legislation very heavy burdens which it need not carry.

A decision by the Supreme Court upholding such a bill would require overruling the decision in the civil rights cases of 1883. Passing and upholding a bill solely upon the licensing theory or some variation would have vast constitutional implications. Not only would such a theory break new soil, but if the businesses with which we are concerned are State action because they are licensed, then so are private educational establishments, charitable organizations, doctors, dentists, lawyers, and many other professional people for they are licensed too.

Further, there are serious practical problems. Under the licensing theory, the scope of the bill would depend upon what the various States decide to license or not to license. Any State which abandoned its licensing scheme could defeat the bill.

Even today its application would vary from State to State, defeating the need for national uniformity on this great moral principle. In Alabama, for example, such legislation would cover such occupations as architects, embalmers, sleight-of-hand artists and feather renovators but it would not reach department stores in Minnesota or, so far as we have found, hotels or motels in Pennsylvania.

But although there are grave difficulties about the licensing theory, the 14th amendment gives valuable support for the proposed provisions for equal public accommodations because they sweep away State laws and State executive and judicial action promoting discrimina

tion.

Historians have pointed out that the practice of segregation and other forms of public racial discrimination are the product of State legislation during the last quarter of the 19th century. Today public segregation and other forms of discrimination depend upon the support of State laws, municipal ordinances, and executive and judicial actions.

A Federal statute requiring equality of treatment without regard to race, color, religion, or national origin is an appropriate means of sweeping away unconstitutional State action and its consequences and assuring all peoples the equal protection of the laws. For these reasons, the 14th amendment is expressly invoked by the bill as one of the bases for the proposed legislation.

I think this constitutional theory might ultimately prevail, be upheld by this Supreme Court, but since there are uncertainties and potential difficulties, I believe it is essential that the bill be clearly limited to those establishments over which Congress has unquestioned power under the commerce clause.

We must now consider the scope of the public accommodations title the question which kinds of business would be covered and which would not.

Lodgings are covered if they are public and their guests are transient.

Places of amusement are covered if they customarily present entertainment which moves in interstate commerce.

Restaurants and retail stores are covered if a substantial part of their business is with interstate travelers; or if a substantial part of their goods have moved in interstate commerce; or if their activities substantially affect interstate commerce in some other way; or if they are an integral part of another business covered by any of the other provisions.

There is nothing new or unfamiliar in our definition of the coverage of the bill. There are decisions under the National Labor Relations Act dealing with almost every kind of establishment that might be affected. Decisions under the Fair Labor Standards Act also develop useful guides.

The fact of the matter is that relationship to interstate commerce supplies a very simple, practical test. A businessman knows or can easily find out whether he regularly serves interstate travelers; whether some of the goods that he sells or equipment that he uses come, directly or indirectly, from out of State; or whether his operations, like those of a local busline or taxi service, facilitate the movement of persons or goods in interstate commerce.

The word "substantial" was included to rule out a trifling, occasional, and haphazard relation to interstate commerce. Its use has been questioned as adding uncertainty. As I testified before the Senate Commerce Committee, we are willing to join in trying to work out more precise, clearer definition.

I should point out, however, that you cannot get rid of the problem just by omitting the word "substantial." There will always be questions of degree. No one can foresee all the borderline cases and answer them all in advance. That is the function of the courts as the specific cases arise. What Chief Justice Hughes said of the Constitution is also applicable to basic new legislation (Santa Cruz Co. v. Labor Board, 303 U.S. 453, 467):

Whatever terminology is used, the criterion is necessarily one of degree and must be so defined. This does not satisfy those who seek for rigid or mathematical formulas. But such formulas are not provided by the great concepts of the Constitution, such as "interstate commerce," "due process," "equal protection." In maintaining the balance of the constitutional grants and limitations, it is inevitable that we should define their applications in the gradual process of inclusion and exclusion.

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