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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 cominerce 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 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’.”)
DEPARTMENT OF JUSTICE,
Washington, December 20, 1963. Mr. CHARLES E. BOSLEY, Administrative Assistant to Senator Clair Engle, Senate Office Building, Washington, D.C.
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.
A. Protection of the right to vote
1. In many localities, local election officials have a habit of turning down Negroes on the ground that they are illiterate (even those who are teachers or college graduates) while at the same time registering white applicants who are unable to read or write.
2. The bill would rectify this situation by requiring that equal standards be used for all applicants. And the bill makes no changes in existing law, under which the courts—not the Justice Department-have the right to register persons who are eligible to vote when those persons have been illegally turned down by local officials.
3. The bill also would prevent long and unnecessary delays in voting suits by requiring that such suits be heard on an expedited basis, with a provision for prompt appeals.
4. The bill does not give the Department of Justice power “to gain Federal control of the electoral machinery.” It merely requires fairplay for all eligible voters, regardless of race. That is as it should be. B. Public accommodations
1. The bill contains no provisions whatever governing the sale or rental of private homes.
2. The bill does not affect doctors, lawyers, or realtors.
3. The bill does not affect small rooming houses with no more than five rooms for rent which are actually used by the proprietor as his residence.
4. The bill does not affect places of business merely because they pay State or local license fees to operate their establishments.
5. The bill would prevent racial discrimination when it is supported by the State. Discrimination of that type has already been declared unconstitutional.
6. The bill would require that certain business establishments, whose operations affect interstate commerce and which held themselves out as serving the public, provide these services to the public, without distinction as to race. These establishments include hotels and motels furnishing lodging to transients, restaurants and lunchrooms, motion Dicture houses, theaters, and gasoline stations.
7. At least 30 States and many municipalities now have such legislation requiring fair treatment of all races in places of public accommodation. Federal legislation would extend this protection throughout the country. Under article I of the Constitution and under the 14th amendment the Congress has the clear constitutional authority to pass such legislation.
8. Many Southern States have long had laws on the books prohibiting businessmen from serving their customers on a nondiscriminatory basis. There is no record of protests that this constituted an unwarranted governmental interference with business. C. Nondiscrimination in programs assisted by Federal funds
1. The bill provides that, where Federal money is used to support any program or activity-money which is paid into the Treasury by Negro and white citizens alike the program must be used for the benefit of both races, without discrimination. This is basic American justice and fairplay.
2. Sweeping statements in the advertisement intimating that the bill would affect persons who borrow money from or deposit mony in a federally insured bank, farmers who have financial dealings with Federal agencies, and the like, are distortions designed to arouse resentment. The bill will not punish innocent beneficiaries of Federal aid for wrongs committed by others. The bill would not affect an individual farmer, for example, who borrows money through a Government agency. It would affect the distributor of those funds if the distributing agency refused to lend to Negroes but did lend to white persons.
3. The bill does not require the calling of any loans or "blacklisting' of individuals.
4. The bill will permit the appropriate Federal agency to refuse to give further Federal aid to those who are carrying out certain programs or activities with Federal assistance but who deny the benefits of these programs to individuals solely because of their race. Even this cutoff will not be made until all methods of persuasion and voluntary compliance have been completely exhausted.
5. The bill provides that the courts will be the ultimate judges of whether funds may be cut off, Ample opportunity is provided for judicial review of any Federal agency action which cuts off assistance on grounds of racial discrimination.
D. Desegregation of public schools
1. Under the bill, the Federal Government will have no control whatever over hiring and firing of teachers or selection of textbooks.
2. It is not true that the bill would enable the Commissioner of Education to "force the transfer of children from one school to another."
3. The charge that the bill would mean "thought control" of future generations is untrue and absurd.
4. The bill provides for technical assistance and financial grants to schools which are complying with the law of the land by beginning the desegregation of their classes—if, and only if—the local authorities request such assistance. Local authorities would remain in complete control of their school systems.
5. It is a startling fact that today, nearly 10 years after the Supreme Court of the United States declared that compulsory segregation in public education violates the Constitution, almost two-thirds of the previously segregated school districts have still not afforded Negro children their constitutional rights. The bill would enable the Federal Government, under certain conditions, to bring suit in court for school desegregation in compliance with the Constitution. Thus, the bill would simply implement the law of the land and hasten the enjoyment by all our citizens of their constitutional rights. E. Fair employment opportunity (employers, employees, and unions)
1. Nothing in the bill permits any individual to demand employment.
2. The bill contains no provision to require a quota system or racial or religious "balance” in employment.
3. The bill does not permit the Federal Government to control the internal affairs of employers or unions or to tell them whom to hire or fire.
4. The bill does prohibit racial discrimination by certain employers engaged in interestate commerce, and by labor organizations, and it continues existing prohibitions against racial discrimination in Federal employment and employment under Government contracts.
5. The statement that "Federal administrative personnel would be prosecutor, judge, jury, and executioner" is completely inaccurate. The Commission would seek to obtain voluntary compliance. If unsuccessful, the charges of discrimination would be tried before a Federal court, with full right of appeal.
6. Some 25 States now have laws to prohibit discrimination in employment. Federal law would extend this protection throughout the 50 States. F. Effect on "everyone"
The legislation will be unwelcome only to those who wish to treat our Negro citizens as second-class human beings. Negroes serve in our Armed Forces, pay taxes which support our local, State, and Federal governments, and contribute to the economic welfare of the country by buying goods and services. They must no longer be subjected to hardship and humiliation because of their color.
The legislation will be welcome to all of us who believe in the American ideal of equal opportunity for all our citizens and who wish to maintain the respect not only of other nations but—what is most important—of ourselves. Thank you for writing to the Attorney General about this matter, Sincerely,
Civil Rights Division.
New Haven, Conn., August 9, 1963. Senator JACOB K. JAVITS, Senate Office Building, Washington, D.C.
DEAR SENATOR JAVITS: Your letter of June 28, asking my views on the pending civil rights bills prohibiting discrimination in public accommodations, arrived during my absence from New Haven on vacation, and I have hence not had a chance to respond before this. Since the issues have by now been rather thoroughly canvassed in testimony before the Senate Judiciary and Commerce Committees, I will simply state my general conclusions with respect to S. 1731.
It seems to me that the public accommodations provisions of S. 1731 are quite clearly constitutional under the commerce clause. I believe also that they can be sustained under the powers vested in Congress by section 5 of the