Imágenes de páginas
PDF
EPUB

TESTIMONY IN SUPPORT OF THE CIVIL RIGHTS ACT OF 1963

The Council for Christian Social Action of the United Church of Christ would like to present this testimony in support of the Civil Rights Act of 1963. This instrumentality of the United Church of Christ consists of 27 laymen, women, and clergy, elected by the general synod which represents the 2 million members of the United Church of Christ. Various occupational activities and geographic locations are represented on the council. Its assignment of responsibility is to study and offer recommendations from time to time on issues of social policy. The council does not presume to speak for the United Church of Christ as a whole, nor for its 2 million individual members. On this occasion, however, my testimony will reflect views expressed in official statements adopted by the general synod on several occasions, most recently at its meeting July 4-11, 1963, in Denver, Colo. The general synod is the highest deliberative body and the nationally representative body of the United Church of Christ.

At its meeting in July 1959, the second general synod called upon the churches and their members to pray and work "for the end of racial segregation and discrimination in our communities-in church life, in housing, in employment, in education, in public accommodations and services, and in the exercise of political rights."

The third general synod, at its meeting in Philadelphia in July 1961, issued a pronouncement entitled "A Call to Renewed Responsibility for Racial and Cultural Relations" in which it said, in part, "Nothing less that our total commitment and our determined efforts in behalf of a nonsegregated church in a nonsegregated society will demonstrate the reality of our repentance and our obedience to God."

The general synod on that occasion called on the members of the United Church of Christ to work for the elimination of segregation and discrimination in every aspect of life and begin with the local churches and church-related institutions. After commending the work of the NAACP, the pronouncement commended "those citizens who have protested by nonviolent demonstrations the wrongness of particular laws and customs." The statement also commended "the men and women who, with admirable self-discipline and courage, have by peaceful means opposed the inequities of segregation in churches and in places of public accommodation." In another part of the 1961 statement, the synod said: "The time has come when our Government should question whether it has the constitutional right to make funds available to institutions, projects, or programs that discriminate against persons on the basis of race or color."

The preceding quotations demonstrate that at its meetings in 1959 and 1961, the general synod advocated many of the policies which are now being proposed in the Civil Rights Act of 1963. At its meeting on July 4-11, 1963, the fourth general synod called upon its members to advocate, demonstrate, and involve themselves in support of the principles of the proposed Civil Rights Act of 1963" and "to urge their Senators and Representatives to support such legislation on a nonpartisan basis in this session of Congress" and it also instructed "the Council for Christian Social Action to present testimony in support of civil rights *** legislation before committees of Congress."

To demonstrate that they are sincere in their support of civil rights for all, the delegates to the fourth general synod gave its support to the following resolution:

"General synod declares its policy to be to contribute funds only to institutions and churches which, as of July 1, 1964, have a policy of openness without respect to race, national background, or ethnic origin, and further urges the instrumentalities, conferences, and churches to adopt and pursue such a policy in respect to contributions."

WHY THE CIVIL RIGHTS ACT OF 1963 SHOULD BE PASSED

The moral position in regard to discrimination based on race, creed, or color, needs no elaboration. Anyone who takes seriously the principles underlying our Judeo-Christian heritage must admit that discrimination against the members of any group whom God has created is a sin against God and a corruption of whatever religious faith we profess. The very inconsistency of racial discrimination with our religious heritage is clearly demonstrated by the fact that as soon as I said I was representing a religious organization, everyone knew what position I would take regarding the civil rights legislation which is the subject of this hearing. It would be inconceivable for a church which calls itself the United

Church of Christ to take any other position and still claim it has a right to keep the name under which it is organized. The same can be said for any of the churches or synagogues which profess a belief in the fatherhood of God and the brotherhood of man.

Just as such discrimination is inconsistent with our religious beliefs, it is also contrary to the American principle of equality of opportunity and the belief in the dignity and integrity of the individual. If we take seriously these principles which have been so characteristic of America, we cannot defend acts of discrimination which would make these principles a colossal mockery. We must not permit the image of America as the land of equality and justic to be destroyed by those who defend their prejudices in order to protect what they believe to be their interests.

That such discrimination weakens the cause of America in its struggle with communism is clear. Dean Rusk has stated: "The biggest single burden we carry on our backs in our foreign relations in the 1960's is the problem of racial discrimination here at home." Anyone who fails to see what acts of discrimination are doing to our relations with the uncommitted nations has simply not been paying attention to what is going on in the world; and anyone who does understand what these acts are doing and continues to defend them, is placing his personal prejudices ahead of the Nation's interest. In other words, those who continue practices which deny to any individual or group equal opportunities in access to public accommodations, in education, employment, political participation, housing, and the administration of justice, are working against the interests of the United States.

Such action is also wrong because it is contrary to the principles of common decency and justice. By purely ethical standards—regardless of whether or not one is committed to principles of national loyalty or religious faith-to deny a person or group equal opportunities in any of the above-mentioned areas because of race, color, creed, or national origin is unjust and indecent. No further reason for bringing discrimination to an end is necessary.

Many persons may say that racial discrimination is wrong, but that it must be eliminated by friendly persuasion, by education, but not by law. "You can't change attitudes by law" is the statement one often hears to defend the status quo. This is only a half truth. The law changes behavior, which in turn usually changes attitudes. Discrimination in public accommodations in the city of Washington, D.C., is race and unexpected, whereas a decade ago it was accepted as the standard and normal pattern of society. After 1953, when the Supreme Court enforced the 1873 Legislative Assembly Act forbidding discrimination in restaurants (District of Columbia v. John R. Thompson, Inc., 346 U.S. 100), discrimination in restaurants ended with full acceptance by restaurant owners and public alike. In 1956, the District Court of Appeals enforced the 1869 Washington ordinance prohibiting social discrimination in places of public amusement. Central Amusement v. District of Columbia (121 A. 2d 865 (D.C. App. 1956)). The result was that all places of public amusement were opened without disorder. This was done without it being necessary for a single owner or manager of any restaurant or amusement enterprise to be prosecuted under the District's nondiscrimination laws.

Another reason for the elimination of discrimination by law is that many proprietors and employers are people of good will who feel compelled to discriminate, not by law but by custom. Many proprietors of places of public accommodation would cease discrimination if their competitors would serve all persons regardless of race. Those who say laws are bad because they compel persons to conform ignore the fact that, in the absence of law, it is custom which demands conformity. In such a situation as this, the law not only increases the freedom of those discriminated against, but also gives the proprietor the freedom to serve all, which custom had made extremely difficult.

A third reason is closely related to the second; namely, that since most laws have the effect of restricting one person's freedom by increasing the freedom of another, we must see the function of law as that of selecting priorities. To say that laws against discrimination are bad because they restrict the freedom of choice of the proprietor, is to ignore the fact that such laws greatly increase the freedom of choice of the Negro who wants a place to eat, a place to sleep, a place to work, and a right to vote. No conscientious person who has seen a colored parent explain to this child what it means to be a Negro in America could defend discrimination in any form or under any circumstances. In other words, the quickest way for anyone to appreciate the necessity of law in this field is to put

himself in the shoes of a Negro who in the absence of such laws must face the sting and pain of humiliation daily. Such experiences should not be forced upon anyone not for a day and certainly not for a lifetime.

A fourth reason we must continue to outlaw discrimination is to make the world know that, when discrimination exists, it does so in spite of the law and not because of it nor in the absence of it. We must serve notice everywhere that racial discrimination is contrary not only to American principles, but also to American law. When American tourists are deluged with questions abroad about the race problem in America, they should be able to say that discriminatory practices are those of individuals who are violating the law. If such is the case, we may never need to apologize, because no nation need ever be ashamed of the actions of some of its citizens when such actions are contrary to what the nations requires in its laws and constitution.

GEORGETOWN, S.C., September 6, 1963.

Senator WARREN MAGNUSON,

Chairman, Committee on Commerce,
Washington, D.C.

DEAR SIR: I enclose herewith a statement in opposition to the public accommodation law proposed by the administration. I am confident that the case against this bill, as presented to your committee, will convince the majority of you that the proposal is clearly unconstitutional, unwise, and unnecessary. My arguments concentrate on the constitutionality of the proposed. The bill must be defeated. I would like my statement to be considered by your committee. I doubt if many members need to be convinced as to the constitutionality of the bill. I hope not, at least.

If there are any copies available to the public, I would appreciate a copy of your committee hearings on this bill. Thank you for your consideration.

Sincerely,

JOHN A. CUTTS, III.

Mr. Chairman and gentlemen of the committee, if Congress enacts the proposed public accommodations bill, it will be sanctioning legislation which cannot withstand a constitutional test. The Attorney General sees a basis for this legislation in article I, section 8, which grants to Congress the power to regulate commerce among the several States. This clause has been the basis for antitrust legislation, laws setting rates for public utilities, making kidnaping a crime if the victim is carried across a State line, prohibiting convict-made goods from traveling in interstate commerce, establishing a minimum wage, and all the rest. Notice is taken that there is no express provision for these actions other than the interstate commerce clause. However, such is not the case with discrimination based on race or color. The 14th amendment was adopted specifically to deal with this question. "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." Section 5 of the amendment gives Congress the power to enforce the amendment.

In 1875 Congress "declared that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theaters, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves." Five cases came to the U.S. Supreme Court to challenge the validity of this prohibition in the Civil Rights cases, 1883, 109 U.S. 3. Mr. Justice Joseph P. Bradley of New Jersey wrote the opinion of the Court, concurred in by Justices Samuel F. Miller, of Iowa, Stephen J. Field, of California, Chief Justice Morrison R. Waite, of Ohio, William B. Woods, of Georgia, Stanley Matthews, of Ohio, Horace Gray, of Massachusetts, and Samuel Blatchford, of New York. Mr. Justice John Marshall Harlan, of Kentucky, delivered a dissenting opinion. The Court (8-1) voided this "public accommodations" section in these words:

"It is a State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. * * * To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and

innocuous is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the 14th amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed State laws, and be directed to the correction of their operation and effect * * *.

"*** It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection * * *.

"*** The truth is, that the implication of a power to legislate in this manner is based upon the assumption that if the States are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon the subject and not merely power to provide modes of redress against such State action or legislation. The assumption is certainly unsound. It is repugnant to the 10th amendment of the Constitution, which declares that powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively or to the people * * *.

"Civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful acts of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress ***.

"When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that State, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at that time, thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations."

The Civil Rights Cases state the constitutional law of today. Congress may only prohibit discrimination by State action. Under the 10th amendment, Congress may go no further, regardless of the power it seeks to invoke.

In certain instances Congress or the courts have voided discrimination in airlines, buslines, railroads, and shipping. It is true that these corporations enter interstate commerce, which fact enables Congress to regulate their fees, qualifications of their operators, mergers, routes, etc. But there is no constitutional provision dealing with these subjects as there is for discrimination. One must look elsewhere for justification of the prohibition against discrimination in these interstate carriers.

The Federal Government has subsidized the shipping industry for many years. It gave land to the railroads as a boon for transcontinental expansion; the railroads laid many thousands of miles of track on Federal territory given them. Buslines must use highways built with Federal funds. The Civil Aeronautics Act of 1938 created a Civil Aeronautics Authority which builds airways and airports. Thus all these carriers owe their existence in one way or another to

Federal moneys. Congress has the power to decide where and how to spend its money. Indeed, the administration expects to use this power as a weapon to coerce cities to end discrimination. Obviously, Federal money is not granted without strings attached. The Government can pull these strings and forbid discrimination on public carriers, since by accepting or utilizing Federal funds, the carrier assumes a quasi-public character which removed its right as a private concern to discriminate. Since the Federal Government, under the due process clause of the fifth amendment cannot allow discrimination in its agencies, it must outlaw it.

However, no hotel, motel, lodging house, restaurant, lunchroom, lunch counter, soda fountain, retail store, shop, department store, gasoline station, theater, or stadium receives any Federal subsidy. Therefore, the Federal Government cannot regulate its private discrimination.

In addition the Government cannot legitimately prohibit interstate transportation of goods intended for private businesses which discriminate since this amounts to an indirect attempt to accomplish what Congress cannot do directly. This bill must not be passed. Whatever the President hopes to gain by this proposal-whether political support or whatever-he can find no support for it in the interstate commerce clause. The protection of civil rights is the duty of all government, but the people have the right to expect that any action will be as the result of long and careful consideration, especially of the fact that there is no basis for the action which is proposed. If the situation is so explosive, as the President says it is, then the proper remedy is a constitutional amendment and not a public accommodations law. Congress must not succumb to marches on Washington or emotional predictions and demands to justify an unconstitutional action. This proposal should be defeated.

JOHN ALLEN CUTTS, III, University of South Carolina School of Law.

(The following letter was received by Senator Engle's office in response to an inquiry regarding the pamphlet by Loyd Wright and John C. Satterfield, entitled "Analysis of "The Civil Rights Act, 1963'.")

Mr. CHARLES E. BOSLEY,

Administrative Assistant to Senator Clair Engle,
Senate Office Building, Washington, D.C.

DEPARTMENT OF JUSTICE, Washington, December 20, 1963.

DEAR MR. BOSLEY: This is in reply to your request for our comments on a newspaper advertisement sponsored by the Coordinating Committee for Fundamental American Freedoms which you enclosed in your letter to the Attorney General. The advertisement attacks the civil rights bill now pending in Congress.

The purported analysis of the pending bill reveals a complete lack of understanding of the proposed legislation. The pending civil rights bill seeks simply to protect the right of American citizens to be free from racial and religious discrimination and to guarantee to them the full enjoyment of citizenship. As such, the bill is a constitutionally and morally justified exercise of the obligations and authority of the Federal Government.

The bill does not establish "dictatorial Federal control," as the advertisement claims. If enacted, it would simply help in the realization of the promise of the Declaration of Independence and the Constitution of the United States that all men are created equal and are entitled to the equal protection of the laws.

The extravagant statements made in the advertisement do not fairly represent either the contents of the bill or its purposes. These extreme statements are hardly calculated to assist in the solution of a problem which is of such immense importance to the United States and to the citizens most directly affected.

The following is an examination of what the various provisions of the bill would do, and also what the bill would not do. The latter is particularly important in view of the innuendoes, distortions, and exaggerations contained in the advertisement.

« AnteriorContinuar »