Attorney General KENNEDY. No, Senator, because I think it applies only to State action. I think the 14th amendment applies only to State action. Senator ERVIN. That is what I think and I do not think the States run these places of public accommodation. I think they are run by individuals. Attorney General KENNEDY. I think that is true also, Senator. Senator ERVIN. You say, however, your strongest position in respect to this question is based on the commerce clause, do you not? Attorney General KENNEDY. Yes; and I have explained that I believe it also would be held constitutional under the 14th amendment for the reasons that I gave passage of the laws, particularly the Jim Crow laws which have now been found to be unconstitutional, but the effects of which are still in operation. Therefore, I think that Congress could pass legislation dealing with those laws and the effects of those laws and that it would be held constitutional. Therefore, I think that the situation is changed since the decision of 1883 and that the Supreme Court would now hold such legislation as we have recommended here constitutional under the 14th amendment. Senator ERVIN. Mr. Attorney General, do your bills advise me as to what provisions of the 14th amendment you think the Supreme Court could use to justify a reversal of the civil rights acts of 1883? The CHAIRMAN. We will have to recess. Attorney General KENNEDY. Shall I answer that question? Attorney General KENNEDY (reading): All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Then section 5 The Congress shall have power to enforce by appropriate legislation the provisions of this article. Senator ERVIN. In other words, you make your prophetic position on the basis of section 1 and section 5? Attorney General KENNEDY. That is correct. Senator ERVIN. We will discuss those sections at our next session. I want to express my regret that you do not entertain the same sound opinions as I do concerning the provisions of this bill. This fact compels me to examine you at such length. It is a bill of such enormous importance and sweep that it deserves a thorough analysis. Attorney General KENNEDY. Senator, I enjoyed being with you for 3 years and I enjoy seeing you again. Senator KEATING. I did not hear that. Attorney General KENNEDY. I worked for Senator Ervin for 3 years. Senator KEATING. I hope it won't be 3 more years this time. The CHAIRMAN. We are recessed subject to call. (Whereupon, at 12 noon, the committee adjourned, subject to call of the Chair.) 21-579-64- -12 CIVIL RIGHTS TUESDAY, JULY 30, 1963 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to notice, at 10:35 a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland, Kefauver, Johnston, Ervin, Hart, Long of Missouri, Kennedy, Dirksen, Hruska, Keating, and Scott. 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. STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES; ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION Senator ERVIN. Mr. Attorney General, when we recessed last, you had just testified that you thought the Supreme Court of the United States could throw all of its previous decisions dealing with the 14th amendment out of the window on the basis of section 5 and section 1 of the 14th amendment. Now, section 5 Attorney General KENNEDY. I did not testify to that, Senator. Senator ERVIN. Maybe I am wrong. I believe you did say that you thought that the Supreme Court would be justified in reversing its previous holding on the 14th amendment by sections 1 and 5. Attorney General KENNEDY. Yes. On the specific case, civil rights case of 1883. Senator ERVIN. I don't think we need to discuss section 5 to any great degree, because it merely says that the Congress shall have the power to enforce by appropriate legislation the provisions of this article. Therefore, I go back to the first section of the 14th amendment. It has four clauses in it. The first clause says this: All persons born or naturalized in the United States and subject to the jurisdiction therof are citizens of the United States and of the State wherein they reside. You do not contend that that clause, the first clause of the 14th amendment, would justify the Supreme Court in overruling the civil rights decision of 1883, do you? Attorney General KENNEDY. Senator, I think you could make an argument in favor of that. I know Dean Griswold did before the Commerce Committee. I do not think that that is based on the decisions. I do not think that that argument is as strong as some of the arguments you can make on the Senator ERVIN. As a matter of fact Attorney General KENNEDY. Could I just finish? Senator ERVIN. Excuse me. Attorney General KENNEDY. Some of the other parts of the 14th amendment. Senator ERVIN. While you might make that argument, do you not know that the argument would be inconsistent with everything that has ever been put in a law book as to the meaning of that first clause? Attorney General KENNEDY. Well, Senator, let me say this: I think that you could make an argument that Congress intended, with the adoption of the 14th amendment, to give to those slaves that had been freed all of the rights that were conferred on an individual by the United States as well as by the State in which he resides. Senator ERVIN. Mr. Attorney General, I realize that a man could make an argument to any effect. He can argue that the moon is made out of green cheese. But my question is this: Do you know that every law book and every decision that has had anything to say about the first clause of the 14th amendment declares that the purpose of that clause was limited to these things: first, to nullify the ruling of the Dred Scott case to the effect that a person of African descent, whether a slave or free, could not be a citizen of the United States or the State in which he resides? Attorney General KENNEDY. Is that the end? Senator ERVIN. That is one. The second is this: This clause was to give a clear definition of what citizenship in the United States and of the States meant; and third, it was to make it clear that there is a distinction between citizenship in the United States and citizenship in the State. The final clause of the 14th amendment was to do those three things. Attorney General KENNEDY. I would say, Senator, that the Supreme Court ruling on the situation as it is today might reach a decision that legislation passed under the 14th amendment, and this clause of the 14th amendment, would be declared constitutional. Now, Justice Harlan argued this quite forcefully in his civil rights cases and I think it has been argued by other lawyers. You don't have to agree with it. Dean Griswold was one, Justice Harlan was one, and there have been others who said this clause of the Constitution would apply. But I come back to the point that I don't think you make as strong an argument on this because of the decisions coming down from the Supreme Court which restricted the meaning of this clause. No. 2, I think there are other clauses in the 14th amendment which are stronger, and beyond that, I think the legislation would be constitutional under the commerce clause. But if I were going to argue this case before the Supreme Court, I would bring this in now, Senator. I would argue this. Senator ERVIN. You and I are not arguing a case before the Supreme Court now. You are a witness. I asked you a question and I wish you would answer it. My question is, What do those who have written on the law say that this clause means? Attorney General KENNEDY. Senator, I can't tell you everything that is written on the law. I am telling you what Dean Griswold said last week. I will be glad to look into it, but you can't ask me to give you everything that has been written on the law in this matter. It is not a very reasonable request. Senator ERVIN. I believe what has been said by members of the Supreme Court and by text writers on this clause has more validity than what the dean of Harvard Law School may have said last week. Attorney General KENNEDY. But Senator, Justice Harlan said it in the civil rights case. Senator ERVIN. The first Justice Harlan wrote a dissenting opinion. in the civil rights cases of 1883. The other eight members of the Supreme Court disagreed with his dissenting opinion and joined in a majority opinion written by Justice Bradley. The majority opinion has been cited with approval in 200 or more subsequent decisions. One of the latest of them was an opinion written by Justice Harlan's grandson, the present Justice Harlan, which was handed down on May of this year. And even the first Justice Harlan's grandson disagrees with him. Attorney General KENNEDY. You quoted from Justice Harlan's grandson, which was a minority opinion also, Senator. It was a dissenting opinion. Senator ERVIN. No; it concurred in the rulings of some of the sit-in decisions and dissented in respect to other of those decisions. Attorney General KENNEDY. But, Senator, let me just get the record straight. The part that you quoted was part of the dissent. Senator ERVIN. No; it was not. As a matter of fact, I was quoting from the case of Peterson v. Greenville and what I quoted from Justice Harlan's opinion in that case about State action was in harmony with what Chief Justice Warren said in the majority opinion in that case. I will read you what Chief Justice Warren said. I read from Peterson v. Greenville, which is reported in the 10th Law Edition, Second Series, 323. I read from Chief Justice Warren's opinion on on page 326: It cannot be disputed that under our decisions "private conduct abridging individual rights does no violence to the equal protection clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it." That is what I am reading from now. Attorney General KENNEDY. But, Senator, if I may say so, I have read your statement on the first day when I was supposed to testify and that is not the statement that you read. Excuse me. Senator ERVIN. It is in the same opinion. Attorney General KENNEDY. It might be in the same opinion, Senator, but it is not the statement you read. |