That seems to be the general effect of United States v. Darby, 312 U.S. 100 (1941), and the basis for congressional action forbidding the interstate transportation of prostitutes, gambling devices, unregistered securities, etc. There is a reference to a misuse of interstate commerce in Brooks v. United States, 267 U.S. 432 (1925) sustaining the National Motor Vehicle Theft Act. The use of that terminology here is calculated to give further support to the provisions of section 3, and especially to support my proposed section 5.

Proposed subparagraph 3(a) (3) (iv). There is no clear precedent for this, but it seems a reasonable extension of the doctrine that the abolition of a remedy is State action for 14th amendment purposes (see below). In one case, there is an existing remedial structure from which the State deletes one remedy; in the other the State creates a new structure in which a particular remedy ought to be included but is not.

Proposed paragraph 3(a)(4). This deals with the situation in which the State has done away with a common law principle of nondiscrimination, or so interpreted it as not to be violated by discrimination against Negroes. There is ample authority that the doing away with a common law remedy is State action and must stand or fall with the policy it is calculated to implement. The numerous cases dealing with the abolition of the civil action for alienation of affections or breach of promise to marry, while they uphold the State action in question, deal with it in these terms. So do many cases dealing with the constitutionality of displacing the common law cause of action for negligence by a workmen's compensation proceeding, e.g., New York Central RR. v. White, 243 U.S. 188 (1917). In Truax v. Corrigan, 257 U.S. 312 (1921) the Supreme Court held that a State statute doing away with injunctive relief in what the Court considered an especially compelling case for such relief was violative of the 14th amendment. While that case is presumably no longer good law in the labor situation in which it arose, it should still be authority for determining what constitutes State action.

Proposed paragraph 3(a) (5). This is intended to embody the doctrine laid down in the recent sit-in cases as to what constitutes State action.

Proposed section 5. This is intended to invoke more directly the additional source of Federal power referred to in my discussion of my proposed subsection 2(f).

DEAR SENATOR: Thank you for your letter of July 12. I am happy to learn that you included my comment on Arthur Krock's column of July 4 in the record of the committee hearings on the public accommodations civil rights bill. Nothing Mr. Krock said in his discussion of my letter in his column of July 16 makes me in the least repentant.

In respone to your invitation to comment on the wisdom-as opposed to the constitutionality-of resting legislation in this field upon the commerce clause, I submit the following as a brief statement of my views.

First, it is the genius of our legislative institutions that Congress should not and does not intervene by legislation unless and until it is persuaded that there is a problem to be met which concerns the Nation as a whole and which demands a national solution. My own belief is that the problem of discriminatory exclusion from facilities of public accommodation has, unhappily, achieved this national dimension, but whether this is so does not appear to be the question that you put to me and I do not attempt to deal with it in this submission. The question that you say has troubled certain members of the committee is rather whether as a matter of policy it is wise to use the commerce power for solution of this national problem; and that is the issue I discuss.

Second, assuming, as I do, that there is a national need for Federal action to secure, within reasonable limits, equal access to facilities of public accommodation, I see no unwisdom in relying on the commerce power to accomplish this objective by an act of Congress. As the Supreme Court has frequently de

clared, the "authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the States over intrastate commerce." United States v. Rock Royal Co-operative, 307 U.S. 533, 569; United States v. Darby, 312 U.S. 100, 116. State legislation requiring equal access to various facilities which serve the public generally is, of course, very common in the country. The enactment of an equivalent Federal measure applicable in situations where interstate commerce is involved or is affected seems to me thus a quite conventional employment of the commerce power to achieve a national objective. The measure would, of course, be new but it involves no novel principle or novel use of commerce power and would set no precedent upon this score to cause concern.

I should add that I see nothing fictive in the proposition that the practices to which the measure is directed may occur in or affect "the commerce that concerns more States than one" or, even more plainly, may occur, as the TaftHartley Act requires, in an industry which affects such commerce. There are, in fact, effects upon such matters as the free movement of individuals and goods across States lines, the level of demand for products of the national market and the freedom of enterprises engaged in interstate commerce to abandon the restrictions that some of their local competitors may impose. To legislate within the area of such effects on commerce seems to me to fall within the great tradition of the Congress in the exercise of this explicit power.

Third, it is, of course, entirely true that the proposed measure constitutes an interference with the free use of private property, a problem which you say concerns some members of the committee. That problem is both genuine and inescapable. It is, however, wholly unrelated to whether Congress legislates upon the basis of the Commerce Clause or of some other constitutional provision, such as the 14th amendment. The owner's freedom will be equally impaired, whatever Congress chooses as the source of the authority it undertakes to exercise.

On the merits of this problem, I need not point out that you are dealing with an area in which there is an inevitable conflict between the claim for the autonomy of ownership and the claims of individuals whom such autonomy affects adversely and who press for its control in this respect by law. The issue seems to me entirely similar to that dealt with by the National Labor Relations Act, when a similar conflict between employees' rights to organize and employers' rights to hire and to fire freely was resolved in favor of the claims of employees. I am, myself, persuaded that the circumstances of our time call for the measured establishment of a Federal right to equal accommodation in facilities purporting to serve the general public, but I claim no special wisdom on the subject, which is difficult for all concerned. Anyone who has heard the Vice President's depiction of the problems of a Negro family traveling by motor from the Great Lakes to the gulf is likely to conclude, as I do, that the limitation sought to be imposed on the free use of property is reasonably calculated to protect compeling human values, in which the Nation has a vital long-range interest. You may make any use of this statement that you deem appropriate. With high regard, I am,

Faithfully,

HERBERT WESCHSLER

ADDITIONAL STATEMENTS SUBMITTED FOR THE RECORD STATEMENT OF AMERICANS FOR DEMOCRATIC ACTION, PRESENTED BY JOSEPH L. RAUH, JR., VICE CHAIRMAN FOR CIVIL RIGHTS-CIVIL LIBERTIES

Americans for Democratic Action endorses and supports the testimony of Mr. Roy Wilkins, NAACP executive secretary, presented to this committee on July 22, 1963. Mr. Wilkins stated the moral case for an immediate and complete end of discrimination in public accommodations simply and poignantly. In words that cannot be improved upon :

"The players in this drama of frustration and indignity are not commas or semicolons in a legislative thesis; they are people, human beings, citizens of the United States of America. This is their country. They were born here, as were their fathers and grandfathers before them. And their great-grandfathers. They have done everything for their country that has been asked of them, even to standing back and waiting patiently, under pressure and persecution, for that which they should have had at the very beginning of their citizenship."

Mr. Wilkins speaks for all those who believe in equal rights, be they white or black. We need a strong public accommodations law like S. 1732-now. What has disturbed ADA, as the Commerce Committee hearings have progressed, is the apparent disagreement over what constitutional provision or provisions should serve as the basis for ending discrimination in public accommodations. The principal constitutional provisions that have been relied upon by the various witnesses are the commerce clause and the 14th amendment. The recent reports in the press that the administration is willing to support both of these approaches is most encouraging, for ADA believes that a combination of the two provisions will serve as the best constitutional predicate for ending discrimination in facilities open to the public.

The basic goal is to end discrimination in all public facilities. For historical and political reasons, and as the most effective means of assuring that all facilities are in fact open to the public, the public accommodations legislation should be based upon both the Commerce Clause and the 14th amendment.

HISTORICAL REASONS

The 14th amendment, as well as the 13th and 15th amendments, have a direct relationship to the history of the Republican Party. The Republicans were the prime movers in the enactment of these amendments in the immediate post-Civil War years. It is they who are responsible for establishing the constitutional framework that gives racial equality an incontrovertible legal basis.

It is the Democratic Party, particularly during the New Deal days, that has been the prime mover in injecting life into the Commerce Clause. The social and economic legislation on the statute books today-legislation that serves as the framework for democratizing our highly industrialized society-is based on the plenary powers of the Commerce Clause.

***

COMMERCE CLAUSE

Article I, section 8, of the Constitution gives the Congress power "to regulate commerce among the several States ***." The Supreme Court has already ruled that Congress has authority to regulate racial discrimination under its commerce powers (Boynton v. Virginia, 364 U.S. 454 (1960)). In the Boynton case the Court held that the Interstate Commerce Act, which forbids discrimination in motor vehicles acting as interstate common carriers, grants to all persons, regardless of race, a Federal right to be served in a restaurant operated as a part of the carrier's terminal facilities although the restaurant was not operated specifically by the carrier.

Congress can quite clearly forbid discrimination at places of public accommodations which utilize supplies or personnel from outside the State. Furthermore, the landmark cases under the Fair Labor Standards Act and other laws predicated upon the Commerce Clause have made abundantly clear that a minimal crossing of State lines is sufficient to permit use of the Commerce Clause for purposes of congressional regulation.

The National Labor Relations Act has even a broader scope since it regulates activities "affecting commerce." Congress may regulate those intrastate activities that affect interstate commerce The Supreme Court has held that the National Labor Relations Act applies to retailers whose sales are wholly intrastate and only one-ninth of the firm's purchases are outside of the State. See Meat Cutters v. Fairlawn Meats (353 U.S. 20 (1957)).

Indeed, Congress even has the authority to regulate the wheat a farmer grows on his own farm, solely for his own consumption, even though the amount he grows is trivial. See Wickard v. Filburn (317 U.S. 111 (1942)).

Under these precedents Congress has the authority to prohibit discrimination in public facilities, which might in the ordinary course of events be deemed local, on the ground that such discrimination may adversely affect other establishments engaged in interstate commerce.

In short, Congress clearly has the authority to prohibit discrimination in public facilities under the authority of the Commerce Clause. To argue otherwise is to suggest that Congress has the power to regulate the color of the margarine that goes on the restaurant table but does not have the authority to protect a citizen of color who desires to sit at that table.

FOURTEENTH AMENDMENT

Another appropriate constitutional base for ending discrimination in all public facilities is the 14th amendment. Section 5 of the 14th amendment provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Section 1 of the amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Thus, Congress clearly has power to enforce the equal protection clause.

The argument against Congress acting under the 14th amendment is that the 1883 Civil Rights Cases (holding unconstitutional the 1875 public accommodations law) is still good law. This suggests that discrimination by a restaurant, hotel, retail store, or entertainment facility is the action solely of the private owner and not of the State. (The equal protection clause applies only to State denials of equal protection.) But since 1883 there has been a steady broadening of the concept of State action. The argument that discrimination by a restaurant, hotel, retail store, or entertainment facility is solely private action flies in the face of continuing Supreme Court decisions such as Shelley v. Kraemer (334 U.S. 1 (1948)) which prohibited State courts from enforcing restrictive covenants and Burton v. Wilmington Parking Authority (365 U.S. 715 (1961)), which prohibited discrimination in a restaurant leased from a Delaware governmental agency. In both cases a limited degree of State involvement was deemed adequate to bring the 14th amendment into the picture. These and similar cases point the way toward invoking the 14th amendment wherever the State authorizes, licenses, protects, or regulates private facilities open to the public.

The other argument against the 14th amendment as a constitutional predicate for S. 1732 is that it unconstitutionally regulates private property rights. Such an argument is as outmoded as it is extreme, for it blindly attempts to relegate to the ash heap the ever-ascending precedents which permit regulation of property rights in the public interest. See, e.g., Nebbia v. New York (291 U.S. 902 (1934)).

Just as Plessy v. Ferguson did not stand the test of time, the reasonable probabilities are that the 1883 decision will one day be overruled or distinguished into oblivion. The 1883 case is a shell that is only waiting for its obituary notice. It is a shell, because on the one side the Court has moved away from the narrow concept of State action, and on the other side the Court has moved away from the idea that property may not be regulated in the public interest.

Although some concern has been expressed that the 14th amendment approach might be rendered nugatory by a State repealing all its laws dealing with authorizations, licenses, protection, or regulation of private facilities open to the public, it is not believed that such a total abnegation of State responsibility is a very real possibility. At any rate, the inclusion of the Commerce Clause as an equal predicate for the bill would remove any incentive for such State repeal of laws in this area.

If any matter of constitutional law can be stated with certainty, it is that the Supreme Court will find the public accommodations bill constitutional on one or both of the above bases. The Court will attach great weight to findings by Congress under the Commerce Clause and equally so to a finding by Congress that there is adequate State involvement under the 14th amendment wherever the State authorizes, licenses, protects, or regulates private facilities open to the public. It becomes almost ludicrous to suggest that the Supreme Court, which has so long protected the rights of Negroes while Congress stood idly by, should now, when Congress at long last does begin to move, find constitutional deficiencies in its action.

SUGGESTED REVISION

Although the findings of title II of S. 1731 include reference to the 14th amendment, the operating sections of title II are drafted solely in terms of the Interstate Commerce Clause. The operating sections use such terms as "traveling in interstate commerce." goods and services “provided to a substantial degree to interstate travelers," and activities which "substantially affect interstate travel or the interstate movement of goods."

Inherent in these above quoted definitions are limitations on Commerce Clause coverage of public accommodations. To avoid these limitations and to utilize fully the 14th amendment underpinning of the bill, we strongly urge that the bill rely equally on both Commerce Clause and 14th amendment in its findings. The operating section should be rewritten to eliminate Commerce Clause limita

tions. The operating section of the bill should simply forbid discrimination in all facilities open to the public expect those which Congress deems it necessary to exempt. (Later we deal with the exemption problem.) Reliance should be placed on both constitutional bases, but neither should serve as a limitation on the public facilities covered by the bill.

Incidentally, there are direct precedents for combining the Commerce Clause and 14th amendment as the constitutional basis for prohibiting discrimination in all facilities open to the public. At least three basic pieces of legislation have relied on more than one constitutional power. The Tennessee Valley Authority was based on three constitutional powers-the war power, the navigation power, and the right to dispose of property. The Holding Company Act and the Securities Exchange Act were both based on the commerce and postal powers of the Constitution.

MRS. MURPHY

ADA strongly opposes exemptions in public accommodations legislation. There is no possible justification for a dollar limitation, in any form, on what is covered by the legislation. It is just as immoral for a small business to discriminate as it is for a big business. A person seeking service at a small lunch counter may be just as hungry as one who sits down at Howard Johnson's.

Congress should follow the experience of the many States that have prohibited discrimination in public accommodations. This experience indicates that economic criteria have no relationship to prohibiting public facilities from discriminating. No sound policy reason exists for Federal legislation to permit exemptions in public accommodations legislation.

Congress has, however, evinced considerable interest in the celebrated Mrs. Murphy. If there is a reason for excluding Mrs. Murphy's guest house, it is not the small size of her place but rather her right of privacy. If Congress chooses to exclude an owner-operated guest house, in which the owner resides, it should be on the basis of privacy-the principle on which State fair housing laws grant exemptions.

ADA strongly opposes using Mrs. Murphy's guest house as a device to enact loopholes into public accommodations legislation on the basis of volume of busiThe right of privacy does not apply to restaurants, entertainment facilities, hotels, and public facilities generally.

ness.

CONCLUSION

We support early enactment of public accommodations legislation that is part of a civil rights package that will protect all our citizens in all of their rights and avoid daily humiliation for millions of Negro citizens.

We urge that public accommodations legislation be predicated upon both the Commerce Clause and the 14th amendment. The operating section should cover all facilities, large and small, open to the public and the limitations of S. 1732 should be removed. If an exception is made for Mrs. Murphy, it should be only on the right of privacy and only to cover guest houses in which the owner resides. No sound reason exists for any dollar limitation in public accommodations legislation.

STATEMENT OF THE AMERICAN NURSES' ASSOCIATION ON S. 1732, To ELIMINATE DISCRIMINATION IN PUBLIC ACCOMMODATIONS AFFECTING INTERSTATE COMMERCE The American Nurses' Association is the organization of about 170,000 registered professional nurses, with constituent associations in 54 States and territories, Puerto Rico, and the District of Columbia. The bylaws of the ANA include a nondiscriminatory provision within the statement of purpose of the organization in article I, section 2, which reads:

"The purposes of the American Nurses' Association shall be to foster high standards of nursing practice, promote the welfare of nurses to the end that all people may have better nursing care. These purposes shall be unrestricted by consideration of nationality, race, creed, or color."

Ever since the national association was founded in 1896 it has offered membership to all qualified professional nurses, regardless of race, color, creed, or national origin. This has not always been true of some of the State associations. However, since January 1962, membership has been open to all qualified professional nurses in the 54 constituent associations.