employer. This is a basic human and civil right embodied in and historically followed as a constitutional policy in social and business conduct under the free enterprise and competitive business system.

We believe the proposed civil rights bill is in flagrant conflict with this concept and that proposals for additional powers for the Attorney General to prosecute and intimidate in connection with the education-integration element of the bill tends toward gestapo tactics of a police state.

We fear that such a bill if enacted would be used by the administration in threats and reprisals against businesses and cities throughout the Nation and that the bill expresses prejudicial favoritism and partiality for minorities at the expense and danger of the loss of freedom for all citizens. This program would, we believe, obstruct business expansions, shackle free enterprise, and intimidate many owners of private property while affording advantage and partiality for a minority. We also feel that such legislation would create racial tensions and hate in religious life that would bring havoc in our churches.

It is my conviction that there is a moral degeneracy and apostate religious deviation from a high moral social pattern of American life toward racial infidelity. In the light of basic historic Christian concepts, it is my prayer that you gentlemen will weigh well this review and evaluation of the conflicting philosophies underlying the problems of the present racial crisis.

Senator THURMOND. Mr. Chairman, Mr. Garner is here. Would you please stand sir? We wanted to hear him, and we don't have time now. His statement will be included in the record.

Mr. GARNER. Thank you.

Senator THURMOND. We are glad to have you with us, Doctor. I am very sorry we didn't finish sooner so you could testify.

Senator PASTORE. This hearing will now come to a close. The record will remain open, as I announced yesterday, until 5 o'clock Tuesday next; that is August 6, I believe, and thereafter the committee will meet in executive session upon order of the chairman, whom we expect to return to us after his recent illness.

Thank you very much.

(Whereupon, at 12 o'clock noon the committee was adjourned.)

U.S. SENATORS, GOVERNORS, AND PROFESSORS OF LAW STATEMENT OF HON. JOSEPH S. CLARK, U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

I am grateful to the chairman and the membership of the Senate Commerce Committee for granting me this opportunity to express my strong support for President Kennedy's bill banning discrimination in public accommodations, S. 1732.

No one whose skin is white can know the bitter humiliation a Negro feels when he is turned away from a restaurant, a motel, a theater-simply because he is a Negro. I find it hard to imagine an insult more calculated to produce embarrassment and a sense of inferiority.

Yet millions of Americans are forced to accept these indignities as a fact of life, and to suffer the innumerable daily hurts that are the poisoned fruit of the tree of racial prejudice.

It is a source of deep shame to me that the political system to which I owe allegiance has so long condoned the hateful and vicious practice of racial discrimination by businesses offering public accommodations in interstate commerce. Obviously, no bill which we pass now can right the many wrongs which we have permitted to be done in the past. But S. 1732, of which I am proud to be a cosponsor, can at least insure, for the future, that those who do business with the general public will carry on their businesses without creating invidious distinctions between American citizens.

Some concern has been expressed over the fact that this bill does not contain an exemption for small businesses. In my view, there can be no logical or ethical basis for distinguishing between businesses on the ground of size. No business,

no matter how small, which offers public accommodations in interstate commerce, should have the right to insult and humiliate Negroes by refusing them service. The smallness of the enterprise neither justifies nor mitigates the offense.

I think it is abundantly clear that the administration shares this view, and will resist any attempt to place a "floor" under the operative provisions of this bill. Any doubts about the administration's position on this matter ought certainly to have been dispelled by the testimony which the Attorney General gave before this committee on July 1. Members of the committee will recall that he said:

"We intentionally did not make the size of a business the criterion for coverage, because we believe that discrimination by many small establishments imposes a cumulative burden on interstate commerce. It may be that Congress will want a sharper definition and, if so, we would be glad to work with the committee. But if this is done, I believe it should be to sharpen definitions rather than to create loopholes or water down the bill."

I strongly second the Attorney General's statement, and I urge the committee in acting upon this bill not to create loopholes or water it down.

STATEMENT OF HON. HUBERT H. HUMPHREY, U.S. SENATOR FROM THE STATE OF MINNESOTA

Mr. Chairman, I would like to compliment you and your committee for the diligent, fair, and comprehensive examination of S. 1732. All sides have been given full and fair opportunity to voice their opinions to the Congress. All positions have been set forth for your careful consideration.

The significance of your work and the importance of this portion of the civil rights bill cannot be overestimated. The eyes of the country and of the world have been centered on this committee during the weeks of these hearings. The bill that you report to the Senate will reflect, I am sure, the dedication of your labor.

A great deal of time has been expended in attempting to determine the efficacy and constitutionality of basing the public accommodations section of the administration's civil rights bill on the Commerce Clause (art. I, sec. 8) rather than on the 14th amendment to the Constitution.

As far as the efficacy of this particular bill is concerned, some of those who have testified before this committee have contended that prejudice and intolerance cannot be legislated against and that it makes little difference, therefore, whether this bill passes or not. They say that it will not be easy to erase the memories of centuries of custom and that attempting to impose a solution from outside will merely exacerbate the situation. I agree that there is no easy or entirely pleasant way in which to change the mores and customs of a nation. This difficulty should not deter us.

It was not easy to colonize this country; nor to establish our Constitution; nor to defend the freedom of our seamen; nor to abolish slavery; nor to make the world "safe for democracy"; nor to oppose Nazi racism and tyranny; nor to conduct a cold war. We have done those things, though, either through necessity or because we thought they were right.

There are those that contend that those battles entitle us to self-righteousness and repose. They contend that we have achieved perfect democracy and need fight no more difficult contests. Some want to know why we cannot leave this problem of inequality alone and stop filling the Negroes with "dangerous ideas." It is my contention that God filled man with the desire to be free and that there is very little that we here in Congress can do to counteract it. Freedom and equality are the birthright of every American. We cannot give or withhold it from any one, or any class, or any race. These ideas of equality and opportunity are heady brews. The Founding Fathers drank deep and we can still intoxicate the world with their dreams. Abraham Lincoln let American Negroes taste of the cup 100 years ago; now it must go fully round.

There will be opposition to legislation requiring the sharing of this right of equal access. Basing this bill on the Commerce Clause will not make it more popular than any other means. I am convinced, though, that it will be effective and that such a decision can be logically grounded on precedent and experience. I wish that no action were necessary on this subject; I would prefer that every State would equitably solve its own racial problems; recent events make it painfully clear that that is not the case.

However, since there has been considerable debate among those sincerely interested in seeing a meaningful bill over whether we should rely on the Commerce Clause or the 14th amendment, I support the suggestion that the bill be based on both. There is ample precedent for this, the Tennessee Valley Authority, for example, was based on three constitutional powers. I believe that the Supreme Court would uphold the constitutionality of this public accommodations provision if we relied upon both the Interstate Commerce Clause and the 14th amendment. My reasons for so thinking are based on Supreme Court decisions concerning the 14th amendment, the Commerce Clause, and our common law heritage.

I believe that many of those who contend that this bill is revolutionary would find, through reference to history, that this is not the case. The principle of free public access to business establishments is rooted deep in the Anglo-Saxon law. Throughout the 13th century, and for hundreds of years thereafter, the duty to serve all who come to public establishments was covered by criminal statute. Reference to legal precedent will reveal that even in the South it was common practice to serve all who might come. Unfortunately, after the Civil Rights Cases of 1883, many laws were passed which denied this right to some. This was a departure from accepted practice and custom.

Interestingly enough, in those decisions of 1883 the Supreme Court specifically referred to those powers obtaining to Congress under the Commerce Clause: "Of course, these remarks do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the States, as in the regulation of commerce *** among the several States * *. In these cases Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof." More recently, the Court's findings in the case of Wickard v. Filburn, in which the former's action, though "indirect" and "trivial," was held to be illegal, and NLRB v. Reliance Oil, where it was decided that the restrictions of the Commerce Clause applied even though the oil in which Reliance was dealing had come to rest within the State prior to its purchase by them, indicate clearly the opinion of the Court on the "reach of Congress" in relation to the regulation of interstate commerce.

The fact that the Supreme Court, in 1883, held some civil rights laws based on the 14th amendment unconstitutional should not deter us, in 1963, from also basing this legislation on that amendment. Recent decisions, like the restrictive covenant cases, Shelly v. Kraemer, and the Delaware restaurant case, Burton v. Wilmington Parking Authority, indicate that the present Supreme Court views the 14th amendment from a perspective considerably removed from the one which existed in 1883. These decisions, as well as the other epochmaking actions of the Court in the field of civil rights, lead me to conclude that the 1883 Ciril Rights decisions may well be overruled in the same manner as Plessy v. Ferguson was overruled in 1954.

There is nothing unique or potentially threatening to our liberties in the letter or intent of this bill. It only requires that those who have practiced discrimination against customers, purely as a matter of racial prejudice, will be required to extend the right of access and service to all. To the vast majority of Americans there is no question about the reasonableness or rectitude of this requirement. As an example of national opinion on this issue, it should be noted that 31 States have already, voluntarily, enacted public accommodations laws. And despite the fact that some of these laws have been far more stringent than the measure we are here considering, there has been no evidence of the economic and constitutional disasters conjured up by opponents of this bill. In some of the 19 States not having equal accommodations statutes, the business community is restrained by State law from opening its doors to all customers. Such laws, I should add, are clearly proscribed by the 14th amendment. I am sure that many businessmen in those States would welcome the opportunity to serve this large market which is presently barred to them, especially if they could cite law and uniform practice as their reasons for so doing.

Finally, in reply to the assertions and implications I find hardest to understand and countenance, I would like to comment on the remarks which have attempted to link this honest effort to give constitutional rights to Communist influence.

My contention has always been, and remains, that the most effective way which we can combat communism is to demonstrate positively the superiority of our free enterprise system. Segregation is obviously an impediment to us in this contest. The communists are desirous of fomenting discord on this subject only so long as we do nothing about the situation. As we act to eliminate areas of discrimination and thus strengthen our democracy, we also progressively reduce the number of situations available to Communist propagandists in their campaigns of ridicule. Therefore, even if the weight of moral and philosophical rectitude were not on the side of this measure, I would still say that it is mere sophistry to contend that the exposure of this problem aids the Communists. The solution of the civil rights crisis will be a historic setback to the Communists throughout the world.

Its

The very essence of this bill is antiCommunistic and anticollectivistic. raison d'etre is the stimulation of private enterprise and the freer distribution of the products of a free society, produced by free businesses.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM THE STATE OF HAWAII

As one of the cosponsors of this bill, I am pleased to make a statement in support of it. The necessity of guaranteering the civil rights of all American citizens has captured the imagination of the entire country, and made it a paramount issue in this session of Congress.

The bill to eliminate discrimination in public accommodations, S. 1732, hits directly at one of the most basic issues of the current civil rights crisis. Although questions of equal opportunities to vote, to get a good job, to live in a decent neighborhood, and to go to a good school are all important aspects of the civil rights problem, it is in such places of ostensible public accommodation as segregated restaurants, segregated theaters, segregated hotels, segregated department stores, and segregated lunch counters that the daily insult of discrimination is imposed upon minorities.

There has been a great deal of debate about whether or not this bill is constitutional. Far too little has been said about whether or not it is right. As far as I am concerned the right of all Americans to use public accommodations equally is perfectly self-evident. I know the vast majority of Americans also feel that this is self-evident. A recent poll published in the Washington Post shows that 74 percent of Americans felt that the Federal Government should guarantee the right to use public accommodations to all citizens.

In this issue, human rights are paramount, not States' rights or property rights alone. When we talk about States' rights we forget that they have no value as an end, but only as a means of protecting personal rights, supposedly against the Federal Government. As a Senator from a small and isolated State I am certainly concerned about States' rights, and I voted to preserve rule 22 because I felt that this was a necessary protection for States' and minority rights. I think, that it would be far better if the States and localities were willing to take the necessary action to prevent discrimination. The record of recent years clearly indicates, however, that some of our States simply are not willing to protect these basic human rights. If the States default, then the Federal Government must act.

The apparent conflict between property rights and human rights may have been overdrawn in some quarters. Property is valuable only because it is useful in the pursuit of happiness. The right of property is not an absolute one, and we have long recognized that property rights, if they are used for coercion or to destroy freedom, must be limited. The Sherman Act is just one example of how property rights have been so limited. Western history is replete with such controls over property.

This bill applies only to those businesses which profess to serve the public convenience. I do not think it is such a terrible imposition to ask these businessmen to serve everyone, regardless of personal preference.

Of course these preferences are based on attitudes, and it is a truism to say that we cannot legislate attitudes or morality. Everyone knows this. But the Government can make certain that these attitudes and moral beliefs do not result in actions which are extremely insulting and degrading to minority groups. That is all that this bill does.

Furthermore, although the State cannot make men moral, it can do much to create social conditions in which they are able to develop a responsible moral character for themselves.

With regard to the constitutional question, lawyers who are a great deal more skillful than I have argued that an approach based on either the 14th amendment or the Commerce Clause, or both, would be constitutional. I am much more concerned that we should pass the strongest possible bill and that this should be done by both parties, united in a common effort to guarantee civil rights. There is no room for partisanship in this issue, for both parties must be vitally concerned with making certain that the philosophy that "*** all men are created equal * * *” remains the philosophy of our great Nation.

STATEMENT OF THOMAS J. MCINTYRE, U.S. SENATOR FROM THE STATE OF NEW

HAMPSHIRE

Mr. Chairman and members of the Committee on Commerce. I am grateful to you for this opportunity to offer my support for S. 1732, which I am very proud to cosponsor.

I have little to add of a general nature to the excellent testimony the committee has received on the merits of S. 1732, other than to state that the clear dietate of my own conscience compels me to support this move toward justice for all citizens of the United States.

I would like to draw the committee's attention to one objection which has been made by the bill's opponents. This is that if S. 1732 becomes law, many proprie tors of small places of public accommodation will be forced to accept members of minority groups and will thus lose the patronage of old and valued customers who, it is claimed, will not want to associate with the new patrons.

The experience of the State of New Hampshire with its law prohibiting discrimination in places of public accommodation shows that this objection is without merit.

Our State law, chapter 354 of the New Hampshire Revised Statutes Annotated, goes well beyond the bill presently before this committee in its coverage of places of public accommodation and in the penalty which it provides for violation. Chapter 354 is not restricted in its operation to establishments of a given size, or any other standard, but includes all places of public accommodation as defined by the statute, a copy of which is set out below. Violators of chapter 354 are subject to criminal penalties.

New Hampshire prides itself on being a vacation State. Recreation is one of our largest industries. The beautiful countryside of New Hampshire is dotted with hotels, inns, and restaurants which serve travelers from all over the United States. Every one of these places of public accommodation falls under the mandate of chapter 354. And yet I have never heard of, nor received a complaint from, any proprietor of a New Hampshire place of public accommodation who could show that he had lost patronage because he was compelled by State law not to discriminate on the basis of race, creed, color, ancestry, or national origin.

It is in light of this fact that I feel that many of the opponents of S. 1732 are misinformed as to the actual effect which the bill will have when passed. Chapter 354 of the New Hampshire Revised Statutes Annotated has been in effect in its present form for 2 years and the difficulties which were predicted before its passage have never materialized. I might point out that passage of chapter 354 was a bipartisan effort and both the Republican and Democratic Parties worked in its behalf. The bill was supported by the leading citizens of my State.

I would like to conclude this statement with a quotation from the publisher of a New Hampshire newspaper who testified against S. 1732, Mr. William Loeb, publisher of the Manchester (N.H.) Union Leader.

Back on June 6, 1953, Mr. Loeb stated in a signed editorial that he would fight for the passage of a State antidiscrimination bill. He stated:

"For Americanism is not just a fine phrase. It is a question of practicing what our Founding Fathers preached. Basic in these American principles is the concept that all men are created equal and are entitled to equal treatment before the law and by their fellow men, regardless of race, creed, or color."

New Hampshire's General Court answered this need in 1961. It is time for the Congress to do the same.