Senator ERVIN. It is in the same case. Mr. Attorney General, this report says here on page 327 that this is case number 71 and Mr. Justice Harlan's opinion, from which I read, says this in Mr. Justice Harlan's words:

Mr. Justice Harlan concurring in the result in No. 71.

So it was no dissenting opinion. It was concurring in the result in 71. I am right and you are wrong on that point.

The first case interpreting the first clause of the 14th amendment was the Slaughter House cases, which are reported in 83 U.S. at page 36. Its holding is set out in this headnote written by the Court:

The 1st clause of the 14th article was primarily intended to confer citizenship on the Negro race, and, secondly, to give definitions of citizenship of the United States, and citizenship of the States, and it recognized the distinction between citizenship of a State and citizenship of the United States by those definitions. It is stated in 12 American Jurisprudence, Constitutional Law, section 451, at page 99:

The first clause of the 14th amendment

This is the substance of the text, not the verbatim text

The first clause of the 14th amendment was adopted to nullify the ruling in the Dred Scot case that no man of African descent could be a citizen of the United States or of a State and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State.

I would ask how many lawyers do you have in the Department of Justice?

Attorney General KENNEDY. Excuse me?

Senator ERVIN. How many attorneys are under your supervision in the Department of Justice?

Attorney General KENNEDY. There are 900 here in Washington.

Senator ERVIN. I challenge you and those 900 lawyers to bring before this committee any decision of the Supreme Court of the United States or any statement by any reputable text writer which states that the 1st clause of the 14th amendment has any meaning different from what I have just read into the record.

Attorney General KENNEDY. Senator, I would say, and I have said it right from the beginning, that the Supreme Court has limited its interpretation of this clause of the 14th amendment tremendously. I admit all of that. I would say that you can make a very ligitimate argument as Justice Harlan made in the civil rights cases and as Dean Griswold made last week and others have made.

Now, there is disagreement within the Department of Justice on this matter, but there are some lawyers who feel very strongly that an argument, a very legitimate, proper argument could be made before the Spureme Court.

I am just saying if this legislation were passed by Congress, this is one of the areas that we would argue before the Supreme Court. Now, I think there are stronger matters, and this is not the strongest. But you could make a very legitimate and proper argument.

Could I just read-if we are going to read things could I read the dissent of Justice Harlan? Could I do that, Mr. Chairman?

Senator KEATING. May I inquire, is this the younger Justice

Harlan?

Attorney General KENNEDY. This is the grandfather.
Senator KEATING. Oh, the elder.

Attorney General KENNEDY. (reading):

The assumption that this amendment consists wholly of prohibitions upon State laws and State proceedings in hostility to its provisions is unauthorized by its language. The first clause of the first section-"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"-is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted, as well, citizenship of the United States as citizenship of the State in which they respectively reside. It introduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the political community known as the "people of the United States." They became, instantly, citizens of the United States, and of their respective States. Further, they were brought, by this supreme act of the Nation, within the direct operation of that provision of the Constitution which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."

The citizenship thus acquired, by that race, this virtue of an affirmative grant from the Nation, may be protected, not alone by the judicial branch of the Government, but by congressional legislation of a primary direct character; this, because the power of Congress, is not restricted to the enforcement of prohibitions upon State laws or State action. It is, in terms distinct and positive, to enforce "the provisions of this article" of amendment; not simply those of a prohibitive character-all of the provisions-affirmative and prohibitive, of the amendment. It is, therefore, a grave misconception to suppose that the fifth section of the amendment has reference exclusively to express prohibitions upon State laws or State action.

I won't take your time by reading the rest of this.

Senator ERVIN. The other eight Justices disagreed with the elder Justice Harlan who wrote that dissent, did they not?

Attorney General KENNEDY. Justice Harlan himself wrote this and the case was lost. I think he happened to reach a different decision. Senator ERVIN. Didn't the lawyer who argued for the side supported by the dissent lose the case?

Attorney General KENNEDY. Yes; he did.

Senator ERVIN. Let me read you what Justice Harlan's grandson, the present Justice Harlan, said after he had the benefit of the enlightenment of further contemplation on that very point.

Senator KEATING. Would the Senator yield to tell which case that was in?

Senator ERVIN. This is the Peterson case No. 71, where the present Justice Harlan wrote a concurring, rather than a dissenting, opinion. Attorney General KENNEDY. Senator, let me just say, this is not the part-we can argue it all the time. Just look at your statement. This is not the part you quoted in your original opening statement on the first day.

Senator ERVIN. I quoted several passages from Justice Harlan's opinion in the Peterson case. It was so good I quoted several. But I want to quote now what the grandson said about the necessity of State action under the 14th amendment.

Attorney General KENNEDY. Thank you, Senator.

Senator ERVIN. I read from page 329 of Peterson v. Greenville, 10th Law Edition, 2(d) 323:

An individual's right to restrict the use of his property, however unregenerate a particular exercise of that right may be thought, lies beyond the reach of the 14th amendment.

That is what the grandson says.

Senator KEATING. But he lost the case, too, didn't he?

Senator ERVIN. No. He and Chief Justice Warren agreed as to the decision in that particular case.

Senator KEATING. In the result, yes.

Senator ERVIN. Mr. Attorney General, I want to read you the following from Volume 16-A: Corpus Juris Secundum, Constitutional Law, section 505, pages 307 and 308:

The 14th amendment applies only to action by a State government. It does not apply to action by Congress, or to action by a territory of the United States, an individual, or a private corporation.

Do you have any quarrel with that statement, which is the interpretation that has been put by the majority of the Court on the 14th amendment in every case it has ever decided?

Senator KEATING. I think the State action has to be involved, Senator.

Senator ERVIN. Yes. The word "State" as used in the amendment applies to every one of the 50 States in the Union, doesn't it? Attorney General KENNEDY. That is right.

Senator ERVIN. It doesn't even cover the District of Columbia, according to the decisions, does it?

Attorney General KENNEDY. I believe that is true.

Senator ERVIN. And does not cover any of the territories. When I made inquiry of you concerning the holding in the Harris case, you asked the age-or rather, the year it was handed down. Since a lot of "chlorophyll" has gone out of my hair, I will take occasion to make a defense of things which occurred in times past. I do not think all the wisdom of the earth got here with the present generation. I think a little of it got here before.

I do not see what the age of the Harris case has to do with it. Eleven American Jurisprudence, Constitutional Law, section 61, page 674, correctly states the fundamental principle of constitutional construction as follows:

The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it.

This means that in determining what a clause in the 14th amendment means, we must ascertain the intent of those who framed and ratified it.

In order to show that United States v. Harris and the Civil Rights Cases of 1883 are still good law, I would like to put in the record at this point a list of decisions of the Supreme Court of the United States interpreting the 14th amendment. All of these cases hold that Congress has no power to deal with the actions of individuals under the 14th amendment, but on the contrary the power of Congress under the 14th amendment is restricted to State action in three respects only, namely, State action which abridges the privileges or immunities of citizens of the United States, or deprives persons of due process of law, or the equal protection of the laws. The cases cited on this list start with United States v. Cruikshank, which was handed down in 1875, and end with Peterson v. City of Greenville, which was handed down on May 20, 1963. The Peterson case is even newer

than the new frontier.

(The document referred to follows:)

FOURTEENTH AMENDMENT CASES

U.S. v. Cruikshank, 92 U.S. 542

U.S. v. Harris, 106 U.S. 629
Civil Rights Cases, 109 U.S. 3
Virginia v. Rives, 100 U.S. 313

Re Virginia, 100 U.S. 339

Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239

Nixon v. Condon, 286 U.S. 73

Shelley v. Kraemer, 334 U.S. 1

Rice v. Sioux City Cemetery, 349 U.S. 50

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1960)
Peterson v. Greenville, 10 L. Edd (2d) 323 (May 20, 1963)

Senator ERVIN. I wish to read from the opinion of Justice Woods, in United States v. Harris, 106 U.S. 629, at page 638:

It [the 14th amendment] is a guaranty of protection against the acts of the State government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the State, not a guaranty against the commission of individual offenses; and the power of Congress, whether express or implied, to legislate for the enforcement of such a guaranty does not extend to the passage of laws for the suppression of crime within the States. The enforcement of the guaranty does not require or authorize Congress to perform "the duty that the guaranty itself supposes it to be the duty of the State to perform, and which it requires the State to perform."

I hate to be tedious about this, Mr. Attorney General, but I want to make a record here so that if Congress should adopt the public accommodations provisions of this bill, it will do so with full knowledge of what the Constitution says on the subject and what the Constitution has been interpreted to mean the subject.

I now read from a case of Shelley v. Kraemer, 334 U.S., page 1, at page 13. This decision was written by Chief Justice Vinson.

Since the decision of this Court in the Civil Rights cases, 109 U.S. 3 (1883), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the 14th amendment is only such action as may fairly be said to be that of the States. That amendment erects no shield against merely private conduct, however discriminatory or wrongful.

We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the 14th amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the amendment have not been violated.

I will add to that quotation that Chief Justice Vinson places a footnote relating to it in which he cites U.S. v. Harris, and U.S. v. Cruikshank, evidencing the fact that in 1947 he thought those cases were still a good statement of the law.

Attorney General KENNEDY. Could I just ask you a question?
Senator ERVIN. Yes.

Attorney General KENNEDY. Was there legislation passed by Congress dealing with that subject?

Senator ERVIN. Now the case of Shelley v. Kraemer was not concerned with any statute passed by the Congress. But it involved directly the question of what constituted State action under the 14th amendment. Private individuals had placed restrictive covenants in their deeds prohibiting the sale of lands to non-Caucasians.

The question in the case was whether restrictive covenants violated the 14th amendment. The decision expressly held that such restrictive covenants did not violate the 14th amendment, because the 14th amendment does not relate to the action of private individuals or prohibit them from practicing discrimination in any way they see fit. The decision held further that such restrictive covenants could not be enforced by court action because court action constitutes State action, but that as long as such restrictive covenants were enforced by voluntary adherence to them by individuals, they did not violate the 14th amendment.

Attorney General KENNEDY. But the decision was not based on any legislation passed by Congress, such as we are considering here.

Senator ERVIN. No; but it was on what the 14th amendment says. It necessarily means that the 14th amendment determines the validity or invalidity of any act that Congress may pass to enforce the 14th amendment.

In other words, what this case holds, in effect, is that Congress can pass no law which would prohibit private individuals from putting in their deeds restrictive covenants based on race and enforcing those agreements so far as they could be enforced by the voluntary action of the private individuals.

From the standpoint of constitutional law, this is a square decision, holding that any effort by Congress to regulate action by private individuals as distinguished from State action is invalid under the 14th amendment.

Attorney General KENNEDY. Unless, of course, as you agree, there is State action involved.

Senator ERVIN. Yes.

Attorney General KENNEDY. That is why that decision is not on all fours with this proposal.

Senator ERVIN. It is squarely on all fours with the proposition that the public accommodations provisions of this bill are unconstitutional under the 14th amendment because they apply to the action of individuals.

Attorney General KENNEDY. Where there is not State action, though, Senator.

Senator ERVIN. There is no State action here.

Attorney General KENNEDY. There is State action involved in this proposal.

Senator ERVIN. The public accommodations provisions do not relate to State action; they relate solely to the actions of operators of hotels, motels, tourist homes, swimming pools, soda fountains, beauty parlors, and shoeshine boys, who are individuals.

Senator KEATING. Would the Senator yield for clarification?
Senator ERVIN. Yes.

Senator KEATING. The amendment which I introduced at the last session which the Attorney General says he would accept says that no person acting under color of any law, statute, ordinance, regulation, and so on, shall do these things and that was held in the 1883 case to be constitutional.

What we are dealing with here is State action.

Senator ERVIN. It may be in your amendment. I am talking about what the Attorney General is arguing. Your amendment would be unnecessary because there has been a statute to that effect on the books for many years.