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I am also proud of the fact that in Durham, N.C., we have the Merchants and Farmers Bank, which has a branch bank in Charlotte, N.C. This bank is also owned and operated by members of the Negro

race.

I am also proud to say that in the city of Winston-Salem members of that race enjoy a municipal franchise for the transportation of passengers in that city.

And we have hundreds and hundreds of other very successful men of the Negro race who have made great successes in their lives and their economic endeavors.

I respect very much the Senator from Michigan. I know he and I both share a desire to assist all Americans and particularly those of the minority races in securing a more abundant life. I have a high respect for his sincerity in this field, and the study that he has made in it and his zeal in this activity. I commend him for it. My only regret is that he doesn't share what I conceive to be sound views on this particular subject.

But I appreciate the Senator's comments and his courteous remarks. The CHAIRMAN. Senator Keating?

Senator KEATING. I only have one area of questioning to address to the distinguished Senator from North Carolina. He knows that I respect his legal ability and his sincerity completely. And by his loyalties, on what I consider the wrong side of the issue, he has made a fine presentation. He and I are in disagreement fundamentally.

But I would like to ask him to address himself to this questionwhether he feels that any State and local laws which compel segregation should or might require Federal action under the 14th amendment, at least to deal with those specific cases.

Senator ERVIN. I do not think so. State laws which compel segregation have been adjudged by the Supreme Court of the United States to be absolutely null and void.

And I do not believe it requires any Federal action to annihilate a nullity.

Senator KEATING. The Senator has complained of the intrusion of the Government into the operation of a man's business as one of the reasons for opposing the public accommodations section of this law. Wouldn't the Senator concede that the intrusion of State government in some instances has been equally great-specificially to cite two or three-in Birmingham, Ala, a city code forbids any restaurant to serve whites and Negroes in the same room unless they are both separated by a solid partition extending from the floor upward to a distance of 7 feet or higher, and unless a separate entrance from the street is provided for each compartment?

And in Durham, N.C., in the Senator's State, the city code requires separate rooms for Negroes and whites in any public eating place, and says "the partition between such rooms shall be constructed of wood, plaster or brick or like material, and shall reach from the floor to the ceiling," and violations are punishable by $10 for each violation. And in Greenwood, S.C., the city code makes it unlawful for any person operating a cafe, restaurant, or drinking fountain to serve Negroes and white people with the same dishes and glasses.

Now, it impresses me that those are greater intrusions upon a man's method of operating his business than anything which is embodied in this Federal statute.

Would the Senator disagree with that?

Senator ERVIN. From the time of the adoption of the 14th amendment, down to a recent decision of the Supreme Court, to wit, from 1868, until the 17th of May 1954, those statutes, which were enacted, I imagine, before May 17, 1954, were perfectly valid exercises of the constitutional power of the States.

And at noon on the 17th day of May 1954, the Constitution suddenly changed its meaning, not as a result of any action taken by the only bodies that are empowered to change the meaning of the Constitution; namely, the States and the Congress, but by the action of the Supreme Court.

And since that action of the Supreme Court, statutes of that kind, although they were perfectly vaid when enacted, have ceased to be valid. Senator KEATING. In other words, the Senator would concede the invalidity of all of these city ordinances as of today.

Senator ERVIN. I would say that under the pronouncements of the Supreme Court of the United States, starting at noon on the 17th of May 1954, that we would have to accept the fact, that those ordinances and laws of that type are void.

And under the interpretation then placed upon the 14th amendment, they become prohibited State action.

Senator KEATING. I congratulate the Senator on his candor. As a good lawyer, that is the answer I would expect him to give. And my only comment is that the great hue and cry which we now encounter about the public accommodations title, about it being an interference with man's business, was not heard when city and State laws prescribed the color of doors and the height of ceilings and the type of partitions and other very detailed provisions about promotion of segregation. Senator ERVIN. I would accept this as valid-although the Senator from New York may disagree with me, as he would have a perfect right to do.

But there is an editorial in the Ledger Star of Norfolk, Va., of June 12, 1963, which says this:

But can the Nation fulfill its promise of freedom by restricting the freedom of one group in order to enhance the freedom of another group?

It seems to us to be not only a denial of freedom, but a strange and ironic twist to the very philosophy of freedom the Federal Government, through three administrations at least, has tried to follow.

The laws that made it illegal for a hotel or a restaurant or a store to serve Negroes were an exercise of police power that denied the Negro a freedom of choice. But a law that will make it illegal for a hotel or restaurant or store not to serve Negroes is also an exercise of police power that denies the operator a freedom of choice. If one set of laws is immoral because they deny the Negro a right, is not the other law as immoral in denying a right to others?

We see no moral difference whatsoever between a law that forces a person not to serve a man and a law that forces a person to serve a man. If one is a denial of individual freedom, the other is an equal denial of individual freedom. Rights of some citizens cannot be guaranteed by diminishing rights of others. I recognize that these are differences between the Senator and myself in respect to the meaning of the Constitution. I recognize that the States have police power-at least the States which have common law systems-and they can regulate matters of this kind. And in my judgment the Federal Government has no power to regulate matters of this kind.

And that is our difference.

Senator KEATING. The police power is not the basis for the validity of the statute, but the Interstate Commerce Clause and the 14th amendment. It is my view that we should amend the bill to provide it is based upon both.

Senator ERVIN. I don't think it makes any difference.

As I told the Senator yesterday, I don't care what recitations are put in the bill. The power to enact a law has to be found in the Constitution. If Congress can extend the coverage of the Constitution by putting some recitals in a bill, Congress could extend the coverage of the Constitution into every area of life by the simple expedient of uttering a few legislative falsehoods.

Senator KEATING. I agree that Congress must have a basis for making those findings. I believe that that basis exists.

I won't pursue the questioning further, Mr. Chairman. We will have time to debate this summer.

Senator ERVIN. I thank the Senator for his complimentary remarks concerning myself, and I reciprocate them.

The Senator and I serve together on the full committee and also on several subcommittees, particularly on the Subcommittee on Constitutional Rights. I am glad to testify that this is the only area of constitutional rights in which I have found the Senator in error. I think he and I have agreed substantially on most other constitutional questions that have confronted us.

Senator KEATING. This is a very important area. And, apparently, we are in a disagreement here.

Mr. Chairman, I have a short additional statement. I don't know if the Senator from Michigan desires to make any further statement. Senator HART. No, I summarized the statement I wanted to make yesterday.

STATEMENT OF HON. KENNETH B. KEATING, A U.S. SENATOR FROM THE STATE OF NEW YORK

Senator KEATING. I have received permission to put in the record a somewhat more detailed statement, which primarily calls attention to the inconsistencies evidenced both in the legislative and the executive branch in dealing with this important area of civil rghts.

In the legislative branch, we have the fact that a few days ago we passed a sewers, toilet, and washbasin grant-in-aid program of $212 million for migratory workers, which was passed unanimously in the Senate, and we provided for building toilets and washbasins on private farm property; whereas now we are in a great hassle over something to enforce the equal protection rights of all of our citizens, and their equal voting rights under the Constitution of the United States.

We have improved the sanitary conditions on the farmland. And I believe we should move with equal dispatch and unanimity to enhance human freedom and justice under the American Constitution. And I also call attention to the inconsistency in the executive branch. The Administrator of the Area Redevelopment Agency has issued regulations that require that housing and related facilities financed under the act be made available on a nondiscriminatory basis. But those regulations expressly exempt transient or hotel facilities or

parks thereof which are intended for occupancy for a period of less than 30 days.

Now, there is nothing in the statutes that suggests any such distinction.

About one-fourth of the loans that have been made under the Area Redevelopment Agency have gone into the construction of public accommodations, such as hotels and motels. But the Administrator refuses to apply a nondiscrimination standard to this program, even though he has done so for residential construction.

I feel that is an inconsistency which should be dealt with while we are dealing with this problem.

I don't want to go into any detail about proposed changes. But I do believe that in order that the committee may have it in mind that I should mention one. I see no reason to limit the extension of the Commission on Civil Rights to 4 years.

The proposed Community Relations Service, which is provided for in the act, is not so limited, and neither should the Commission on Civil Rights, which has performed such an excellent service to the Nation.

In the Subcommittee on Constitutional Rights where we have been considering that matter, I offered an amendment to change the 4 years and make it a permanent agency, which was defeated by a tie vote, and it will be my intention, if we take that up separately, as I believe we should, in the full committee, to reoffer that amendment.

I also see no reason to limit the substantive provisions of the public accommodations law to the cases involving interstate commerce.

I agree with the Senator from North Carolina, it must be based on facts. And facts are given us in abundance in the reports of the Civil Rights Commission. Those findings rely on both the equal protection and the commerce provisions of the Constitution. And this, I believe, should be reflected in the substantive provisions of this law, so as to have its broadest application consistent with the Constitution and to strengthen the constitutional basis and background for the legislation. Nor do I believe that the President needs, as is asked for in this bill, specific statutory authority to require a policy of nondiscrimination under all of the programs that are receiving Federal assistance, or that he should reserve to the discretion of the agency heads the cases in which such authority would be exercised.

In my judgment, the President already has power under the Constitution to issue an Executive order to insist that Federal funds collected from all citizens without regard to any race, color, religion, or any other considerations, must be disbursed only in support of programs which operate on a nondiscriminatory basis.

And it would be my intention to offer an amendment to prohibit the use of funds for any segregated facility.

Now, undoubtedly there are other aspects in which the bill can be improved. I intend in the near future to propose a number of specific amendments for consideration by the committee. And I will present detailed discussion of those at that time.

I shall, of course, be for the bill. I am gratified that there is real leadership back of the movement to improve the rights of all of our citizens.

The bill will have my full support.

Although I do think in these respects and some others it can be improved by our committee.

Thank you.

Senator ERVIN. Mr. Chairman, I wish to thank you and the other members of the committee for the patience with which you have heard my presentation on this subject.

(The statement submitted by Senator Hruska is as follows:)

STATEMENT ON CIVIL RIGHTS

Mr. Chairman, I want to welcome the Attorney General to this hearing, which affords the Judiciary Committee its first opportunity to study publicly the legislative proposal recently submitted to the Congress. I am confident that each of us is looking forward to the Attorney General's testimony and to a frank exchange of views on the various provisions of S. 1731 and related legislation.

With the issue of civil rights commanding the attention of the country, a full discussion of the merits of these measures is exactly what the times call for. There is a widespread recognition of certain basic inadequacies in our statute books to cope with present-day problems, but by the same token there is no consensus as to how to go about remedying existing conditions or any clearcut idea regarding the proper course of action to follow. General awareness and a growing feeling on the part of the public that "there ought to be a law" does not justify our making a blanket endorsement of any new measure which might come along for the sake of attempting to enforce the fundamental concept in our Constitution of "equal protection."

It is not my purpose, however, to admonish my colleagues as to their duties. I do urge at these hearings and in the civil rights struggle which is taking place in every corner of our land that we not lose sight of those safeguards so essential for real progress and succumb, instead, to legislative gimmicks whose longrun effect may only serve to forestall the enjoyment of the blessings of liberty for every citizen.

Let me cite but one example of what I have in mind and why I deem these hearings to be so important. Title VI of the bill submitted and now under consideration grants a fantastic range of power to the Federal Government to strike at a grievous wrong. I do not tolerate for a moment the use of tax funds for discriminatory purposes. But I would not grant for a second the executive branch-and particularly some nameless individual nestled within it, as this title does-the unreviewable authority to withdraw financial assistance for any program by way of grant, contract, loan, insurance, guarantee, or otherwise upon his own determination that the benefits are not being applied applied equally and without discrimination.

On the cornerstone of our constitutional structure are inscribed the words that the end does not justify the means. A moment's reflection would make self

evident how misguided the good intentions of title VI are. To empower the Executive to withdraw a program involving Federal assistance upon such a single determination could inflict incalculable hardship on innocent beneficiaries who are dependent upon those funds while leaving untouched the individual perpetrating the discriminatory practice. I sincerely trust such a provision will undergo substantial revision and that each other provision of the bill will be tested by such judgment and sense of balance.

There is no reason to detain the committee or its distinguished witness any longer. Let me conclude by saying that the Senator from Nebraska shares the concern for social justice which is expressed by this legislation. I am mindful, however, of the need to carefully scrutinize the particular provisions of these bills lest we fasten upon ourselves a form of tyranny of greater proportions than has ever threatened our country.

I will study the formal statements and will follow the present testimony with keen interest in order to make certain that the language in the bills at hand or in any proposed alternative will be compatible with our constitutional principles and our personal rights. To that end I look forward, Mr. Chairman, to a productive session whereby the American dream may become an actuality for all our citizens and may be assured as well for their posterity.

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