Attorney General KENNEDY. Could I just finish my answer? Attorney General KENNEDY. If there is any confusion about that, and I don't think there should be, all we have to place in there is a reference to places that promote goods or sell goods, a substantial portion of which are held out to the public. So then there cannot be any confusion. Senator ERVIN. The word "use" means for use of the public. The CHAIRMAN. Gentlemen, we must recess. Senator KEATING. Mr. Chairman, could I address an inquiry before we recess to the distinguished Senator from North Carolina? The CHAIRMAN. Yes. Senator KEATING. Could the Senator advise us at all about a statement as to how long he might be questioning the Attorney General? Senator ERVIN. I cannot tell you because we have to deal with answers as well as with questions. I expect to explore the meaning of this bill. I have heard that this bill is not going to come up in the Senate until some time after Labor Day, and I have been told that Congress will be in session until Christmas Eve or thereabouts. Senator KEATING. Well, Mr. Chairman, I think that if we go on with this colossal debate, we may be here until Christmas. But I wonder if this would be a reasonable request? The Committee on Commerce has been meeting after the Senate adjourns to deal with a very important railroad problem. I wonder if we could meet after the Senate adjourns in order to deal with this problem? The CHAIRMAN. I will take it up with the committee and see about having a quorum. Senator ERVIN. I will say to my friend from New York that I consider this bill a most drastic piece of legislation. I think it is bad in several respects. I think some of its salient features are unconstitutional and have been so declared. And I think it is also bad in that it robs all Americans of basic economic, legal, personal and property rights for the benefit of only a portion of the population. Also, I think that this bill vests in the President, the Attorney General, and the Federal Commissioner of Education vast discretionary powers which are to be exercised by them according to their respective caprices or whims or good intentions. I think that vesting such discretionary powers in Government officials is the shortest cut to governmental tyranny. I am going to try to find out all that is in this bill before I get through. Senator KEATING. I recognize the sincerity of the Senator's intentions, but it seems to me that the Senator's remedy would be to oppose the bill and to vote against it. We certainly cannot take on the obligations of the judicial branch of the Government. I happen to be satisfied as to the constitutionality of the bill on both grounds, the commerce clause and the 14th amendment. It seems to me that has to ultimately be decided by the Supreme Court anyway, and that we ought to get on with our work here. That is my reason for making the suggestion for expediting this procedure. Senator ERVIN. I have a little difficulty getting on with my work. because my friend the Attorney General comes down and admits that the courts have declared these things unconstitutional and then predicts that they will reverse their rulings. Attorney General KENNEDY. Senator, that is not an accurate account. Senator ERVIN. Did you not state Attorney General KENNEDY. Just give it in the whole context. I said I thought this bill, this aspect of the bill was clearly constitutional under the commerce clause and I think that based on the changed situations in the country since 1883, the Supreme Court would now declare them constitutional under the 14th amendment. Senator ERVIN. That is exactly what I said. Senator KEATING. I do not think you gave the full explanation, Senator. Senator ERVIN. I have a little difficulty. I am reminded of the old lawyer who was invited to speak to a law school. He said, "I would advise you under no circumstances to ever look up the law before you try the case, because you might find the law is against you and that will cause you to lose confidence in your case and it is very important for the lawyer to have confidence in his case." Then one of the students said, "What are you going to do if the other side looks up the law and brings it into court and uses it against you?" He said, "That is easy. All you have to do is say to the judge, "This is bad law and ought to be overruled.'' The CHAIRMAN. We stand adjourned. (Whereupon, at 12:15 p.m., the committee adjourned, subject to the call of the Chair.) 21-579-64--14 CIVIL RIGHTS WEDNESDAY, JULY 31, 1963 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to notice, at 10:30 a.m., in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland, Johnston, Ervin, Long of Missouri, Kennedy, Bayh, Dirksen, 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? Senator ERVIN. Mr. Attorney General, I am not going to spend much time debating with you the question of the interstate commerce clause because if we do we could debate that until the last lingering echo of Gabriel's horn trembles into ultimate silence. I make that statement because I read last night in Dr. Bernard Schwartz' book, "The Powers of the Governments," volume 1, page 179, that the Supreme Court handed down 1,400 decisions on the interstate commerce clause up to 1900, and since that time there have been hundreds and hundreds of additional decisions on that clause. I am not going to go into any great detail into the cases. But I would like to point out that the interstate commerce clause was placed in the Constitution originally, and it has been there since the Constitution was ratified and became effective in 1789. I will make the statements concerning the interstate commerce clause and if you want to make any comment on them I will yield for that purpose. In the Civil Rights cases of 1883, at page 10, Judge Bradley, who wrote the majority opinion, said: Has Congress constitutional power to make such a law? That is, a law giving all persons equal access to places of public accommodations irrespective of race or color. Has Congress the constitutional power to make such a law? Of course. no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments— referring to the 13th, the 14th, and 15th amendments. My position is that this is not an attempt to regulate interstate commerce in any way, but, on the contrary, is an attempt to regulate the use of private property within the borders of a State, and to regulate the right of persons engaged in the operation of public accommodations within the borders of a State to select their own customers, and that reference that is made to interstate commerce merely to use it as well, I don't like to use the word "pretext," which has some sinister connotation, but something in that nature— as an alleged basis for the law. Title 2 of the bill deals with sales and activities within the borders of States, such as the sale of food, the use of The CHAIRMAN. Wait a minute, Senator. We can't take pictures while the committee is in session. Senator ERVIN (continuing). Of property and personal services. I want to call attention to 11 American Jurisprudence, subject commerce, section 41 The CHAIRMAN. Wait a minute, please. We can't take pictures while the committee is in session. You can take them before or take them after the meeting. Proceed. Senator ERVIN. At page 39, it says this: Sales which are consummated wholly within the limits of a State do not constitute interstate commerce and may not be prohibited or regulated by Congress. STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES; ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION— Resumed Attorney General KENNEDY. What is that again, sir? Senator ERVIN. Eleven American Jurisprudence; subject, commerce, section 41, page 39. Attorney General KENNEDY. Could I make just a comment on that? Senator ERVIN. Yes. Attorney General KENNEDY. I think offhand of one case, United States v. Sullivan, which seems perhaps somewhat different from what you have read there. The case concerned some drugs that were sent into a State, to a drugstore. The drugs were properly labeled. The drugstore then changed the label on the drugs that were sold, and the Court held that this sale was still in interstate commerce. (At this point, Senator Keating enters the hearing room.) Senator ERVIN. Can you give me the citation? Attorney General KENNEDY. That is 1948 I believe. Shall I give it to you? Senator ERVIN. Yes; I would be glad to have it. Attorney General KENNEDY. 332 U.S. 689, 1948. It is a violation of the Federal Food, Drug, and Cosmetic Act of 1938, of course, under the commerce clause. Senator ERVIN. 330 what? Attorney General KENNEDY. 332 U.S. 689. A retail druggist sold sulfa drugs-if I may fill in the details-a retail druggist sold sulfa drugs without the proper label, and the Court held that the controlling legislation was a proper exercise of the commerce power by Congress. Although the retailer had received the drug from a wholesaler who had shipped it to him as direct consignee of interstate shipment; Con |