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14th amendment. It is true that a somewhat similar law was held invalid under the 14th amendment in the civil rights cases in 1883, but I believe that circumstances and legal doctrine have sufficiently changed in the 80 years since that decision to justify a conclusion that such provisions would today be upheld by the Supreme Court.
As to the merits of S. 1731, I think the bill would be of substantial assistance in implementing the fundamental constitutional rights intended to be secured by the 14th amendment. But I feel the bill does not go far enough, particularly in providing serious measures to cope with violation of Negro rights in the area of employment and voting.
If I can be of any further assistance, please feel free to call upon me.
THOMAS I. EMERSON.
UNIVERSITY OF PENNSYLVANIA,
Philadelphia, Pa., August 26, 1963. Hon. WARREN G. MAGNUSON, Chairman, Senate Commerce Committee, Washington, D.C.
DEAR SENATOR MAGNUSON: I enclose a letter in which a favorable view of the constitutionality of legislation such as the public accommodations provisions of the current civil rights bill is expressed. That letter is joined in by the law school professors and law school deans whose names appear at the foot thereof. Obviously, it was not feasible to circulate the letter all over the country for manual signature. I have the concurrence of each man whose name is included and I assure you of my authority to identify him with the letter.
You will note that the name of the law school of each subscriber is set opposite his name. This is simply for identification. Each subscriber speaks for himself as an individual; he does not speak for his institution, nor for his faculty colleagues. It is anticipated that there will be additional subscribers, whose names will be furnished you in due time, as well as some individual letters from law school people. Sincerely,
JEFFERSON B. FORDHAM.
GENTLEMEN : The legislative proposals for congressional action prohibiting segregation or discrimination, by reason of race, color, religion, or national origin, in places of public accommodation, now pending before the Senate and House of Representatives, have given rise to debate concerning the source of congressional power to enact such legislation.
It is our opinion as teachers of constitutional or public law that Congress has the authority to enact a comprehensive law securing equality of treatment without regard to race, color, creed, or national origin in business establishments dealing with the public. Since segregation or discrimination in such establishments usually obstructs or distorts the movement of people or goods in interstate commerce, such laws as the National Labor Relations Act, the Fair Labor Standards Act, and the Agricultural Adjustment Act of 1938, as amended, and the decisions upholding them, furnish ample precedents for sustaining an equal public accommodations law under the power to regulate interstate commerce. The Supreme Court has also frequently upheld the use of the commerce clause to promote policies based not merely upon public health or commercial welfare but moral principles. In this connection it should be remembered that the triviality of the effect of an activity upon interstate commerce, when judged by itself, is not enough to remove it from the scope of Federal regulation where its impact, taken together with the impact of many others similar to it, is important.
In pointing to the commerce clause as an ample source of power under established principles, we do not minimize the importance of the 14th amendment. This amendment could also provide a sufficient basis for sustaining a comprehensive equal public accommodations' law as applied to many, and perhaps all, the covered establishments.
Without depreciating in any way the force of the arguments based on the amendment, we feel obligated to observe, however, that, in the present state of the law, reliance solely upon that provision would raise substantial constitutional issues in a number of possible applications and put the proposed public accommodations sections to legal risks which could be avoided by additionally drawing upon the commerce clause as a source of congressional power.
We reject the argument that an equal public accommodations law is an unconstitutional interference with private property. Both the Supreme Court of the United States and the State courts have time and time again upheld the legislative power to regulate businesses offering accommodations or services to the public.
It is our conclusion, therefore, that Congress should enact or reject an equal public accommodations law on its merits without confining the legislation to any one constitutional theory to the exclusion of others. Any other course would unnecessarily limit counsel and the courts in upholding the statute as applied in particular cases.
Hazard, Jr., E. C. Halbach, Jr., I. M. Heyman, Dean Frank C.
UNIVERSITY OF HOUSTON,
Houston, Tex., July 18, 1963.
DEAR SENATOR PASTORE: I am enclosing herewith the prepared statement on the public accomodations bill which you requested in your letter of August 6. I am sorry that I was unable to prepare this statement and forward it to you earlier. However, the circumstances prevented this.
You caught me figuratively with my pants down: all of my books and notes were packed and en route to Houston; I was in the process of preparing and grading final examinations; and I was also in the process of packing and oving to Houston. This move has now been completed.
In spite of this turmoil I have prepared the enclosed statement. I hope it is of sufficient importance to warrant its inclusion in the official hearing record of the Committee on Commerce. I wish to thank you once again for this opportunity. Respectfully yours,
JOHN P. GREEN,
Assistant Professor in Political Science. P.S.—Please note that I am now oflicially at the University of Houston, and no longer affiliated with Louisiana State University in New Orleans.
Gentlemen, every American schoolchild learns, in addition to the Pledge of Allegiance to this country, portions of Thomas Jefferson's Declaration of Independence, especially that part in which he states that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."
This Declaration, although it is not legally a part of our Constitution, is as fundamental to the American way of life as are the Constitution and the Bible. While the principles embodied in the Declaration have no legal foundation under our constitutional system of government, they underlie that Constitution and provide its moral basis. Without the Declaration, and its faith in the equality of man, the American system would be bereft of its historical and emotional impact upon the human race.
The Declaration of Independence with its emphasis upon the natural rights of the individual was not a unique document; that is, it did not spring into full maturity like Pallas Athena from the brains of Zeus. Rather, it was the culmination of the doctrines and beliefs raging throughout the American Colonies and the British homeland.
Lockeian though it may have been in origin, the Declaration embodies and exemplifies the American version of the natural rights doctrine. The Virginia bill of rights, for example, had already stated that “all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive, or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." Similarly, the Pennsylvania constitution of 1776 referred to the fact that all men "have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending life and liberty.” The Massachusetts constitution of 1780 reaffirmed that “all men are born free and equal."
The full import of this doctrine of equality upon the American social scene was, perhaps, most cogently revealed by President Lincoln: "Four score and seven years ago our fathers brought forth upon this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal.”
The doctrine of equality heralded to the world in the American Declaration of Independence was not embodied into the American Constitution as a legal right until the 14th amendment was added to that document. In the 14th amendment the equality of man is assured each citizen against the actions of the several sovereign States through the “equal protection of the laws" clause. "Equal protection" in the 14th amendment immediately follows the "due process" clause.
Subsequent to the passage of this amendment, the Supreme Court of these United States has averred that the Federal "due process" clause of the fifth amendment includes “equal protection of the laws.” Hence, it is now the law of the land that every American is assured protection against the actions of any State or the National Government insofar as this principle of equality is concerned.
“Equal protection of the laws" is derivative of, and consonant with, the doctrine of the equality of man; it is, essentially, naught but the legal statement of the moral principle. This was made explicit in the development of the notorious "separate but equal facilities" doctrine. In Roberts v. City of Boston (1848) the highest court of Massachusetts was faced with the issue of the legality of separation of the races. In this case, this court enunciated the "separate but equal facilities” doctrine, maintaining that such facilities were not a violation of the Massachusetts constitution in which it was stated that “all men are born free and equal." This doctrine was later adopted by the American Supreme Court in the famous Plessy decision, the Court holding in this opinion that "separate but equal facilities” were not a violation of the “equal protection of the laws” clause of the 14th amendment. It must be stressed that the Plessy decision affirmed the principle of equality : its importance and impact lay in the fact that the Court held here that such facilities did not in fact violate the principle of equality, or, in other words, that equality is not denied where segregation of the races exists if the separate facilities are equal.
The 1954 decision in Brown v. Board of Education is important because the Court in this instance held that the principle of equality is violated in fact whenever and wherever separate facilities exist.
It is with this problem of the relationship of separate facilities to the fundamental moral and constitutional doctrine of the equality of man that this committee and this Congress must deal. Although the problem is a constitutional one, it is primarily a moral issue, In essence, this Congress has been asked to reaffirm the basic principles upon which this Union was founded. In this sense, the moral issue before this committee is : will the National Government, through the exercise of legitimate congressional powers, act to assure the fulfillment of the moral ideals under which this Republic was created.
The vitality of the American political system has lain to a great extent in the ability of its political leaders to compromise and thus achieve positive results. Compromise cannot exist in a doctrinaire environment. It can only exist where fundamental principles have already been accepted. In the United States the fundamental principles of a democratic republic have been agreed upon. Consequently, the give and take in American politics between "liberal" and "conservative” has operated primarily over the means of achieving the accepted
goals of the Amerian dream, within the confines of the political system established by the Constitution.
On the issue now before this committee, compromise is not possible. This committee is debating a bill which involves the fundamental moral issue of the equality of the citizens of this great Nation. This committee is not debating an issue on how to best achieve some secondary or derivative goal; it is, rather, debating whether or not this Congress and this Nation will adhere to its fundamental moral beliefs.
The issue, as such, is clear. There are no gray areas here. This Congress must choose between accepting or rejecting the basic doctrine that all American citizens are in fact to be treated equally. The Federal courts have already spoken in this field and have received now the full support of the executive branch.
Congress can no longer avoid the issue. It must either enact the proposed bill by which all Americans regardless of race or color or national origin can fully use public accommodations or else it must reject the proposition that American citizens are to receive equal treatment in public matters. Congress cannot merely sit back now. To do so—to avoid the issue by procrastinationwould constitute an explicit acceptance by this Congress of the present state of affairs in which American citizens are denied their birthright, a birthright granted by God to all mankind and not to be violated by governmental decree or governmental inertia.
Federal and State inaction in granting this God-given right to equality has already led to open near-revolution by minorities who have too long been denied their natural rights. The Negro revolution now occuring, it must be noted, did not begin until the Supreme Court had agreed with that minority that its right to equality had been denied. It did not gain momentum, furthermore, until time had shown that in spite of the Supreme Court's ruling, the States had nevertheless continued to deny this right and had indicated the intention of perpetuating this denial.
The measure now being considered by this committee is a direct result of the Negro movement. Consequently, it had been maintained by some that Congress is acting under coercion. It is true that coercion exists, but not from the Negro elements. The coercion results from the illegal actions of those public officials throughout this Nation, and especially in the South, who are actively engaged in the denial to American citizens of their natural and constitutional rights. The Negro movement, in short, is but the symptom of a disease; and it would be foolish indeed to maintain that the doctor is forced to take protective and preventive measures to remove the symptom, rather than to eliminate the disease itself. It is this disease—the denial to all Americans of their rights—with which this Congress must deal.
The issue before this committee is generally regarded as action to assure the rights of minorities such as the Negro. However, this proposed action assures all Americans of their rights, not merely the minorities of theirs. This action will guarantee to all Americans, whites as well as Negroes, their right to free access to the public domain.
With the permission of this committee I would like to illustrate this point with a personal story. I am sure that this story can, in its essential truth, be refashioned and retold time and again by every member of this committee.
When my father died, my mother decided to take a trip to visit her children as well as various friends who were scattered along the eastern seaboard and throughout the South. She had intended to have as her traveling companion a woman who was her closest friend, a woman who had begun working for my parents prior to the birth of their first child and who had raised all five of their children. This woman is a Negro, a second mother to myself as well as my brothers and sisters, and an individual with whom anyone would be proud to associate.
Needless to say, my mother decided to cancel the trip. For, although it would have been possible for them to travel together in the Northeast, the practical problem arose as to how they would be able to travel once they hit the southern areas. They would not be able to eat together; they would not be able to lodge in the same quarters; the inconveniences with which they would be faced, in short, would have been insurmountable.
Not only was my mother's friend being denied the right to associate with whom she wished, but so too was my mother. Southerners especially have insisted that segregation was based on the right of the individual to select one's own companions. Yet, in this instance, the doctrine of segregation actually prohibited the individual from just this very right.
The principle of this story is obvious: the denial of persons because of the color of their skin to free access of public accommodations is as much a denial of the rights of the whites as it is of the colored. It is but a variation of the fact that whenever the rights of one individual are denied, that denial ipso facto is a denial of the rights of all individuals.
The moral issue, thus, is quite clear. This committee and this Congress must either reaffirm the basic right of equality to all American citizens, or it must deny the basic right of equality to any American citizen.
Although the moral issue is clear, there have been several objections to the action being studied by this committee, objections which have a degree of validity to them.
First, it has been argued that the proposed action is a violation of States rights. Our constitutional system, as this committee is well aware, is based upon a Federal principle: the powers of the National Government are limited, and the powers of the States are reserved. Under this separation of powers between the sovereign National Government and the several sovereign States, there has arisen the doctrine of States rights.
There are in existence at least two versions of States rights. The first version is that our Constitution was derived from the States, not the people; that consequently the States have the ultimate right to interpose between the peoples of the States and the Federal Government; and, lastly, that the States have the right to decide when the Federal Government has overstepped its constitutionally limited powers. This concept of States rights has been denied by the Federal judiciary. In McCulloch v. Maryland the Supreme Court stated as dictum, in accordance with the Federalist papers of Hamilton and the arguments of Daniel Webster, that the Constitution was derived from the people of the United States, not from the several States. This dictum has been the law of the land ever since, and has often been reiterated by the Federal judiciary since that decision.
In Ableman v. Booth the Supreme Court went even further, denying the right of any or all States to interpose between the people of the several states and the Federal Government. It might be noted here that this decision, handed down by a predominantly southern court, and written by a great southern Chief Justice (Taney), was applauded by the South. (The issue at stake had been the Fugitive Slave Act and the question of whether a Northern State might interpose to prevent the return of fugitive slaves to the South.) The denial of the right of interposition by the States has continually been upheld by the Federal courts since this decision.
Inasmuch as the States cannot interpose, they equally cannot decide for themselves the question of when and where the Federal Government has overstepped its bounds. Should the Federal Government misuse its powers, the first recourse is of course the Federal courts. The Supreme Court, has, as we all know, often restrained the actions of the Congress and the Executive. Another recourse is constitutional amendment. This recourse has also been used.
In short, this interpretation of States rights has never been legally accepted in this Nation. The full maintenance of such a concept can lead only to the dissolution of this mighty Nation and in fact was instrumental in creating the bloodiest warfare in which this Nation has ever been engaged.
A more valid interpretation of the doctrine of States rights is the doctrine that the several States are sovereign within the limits placed upon them by the Federal Constitution. Essentially, this interpretation is based upon the 10th amendment which states that “The 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.”
It should be noted first that this amendment does not grant full reserved powers to the States. It is not a carte blanche to the States to undertake any action not prohibited them by the Constitution nor granted solely to the Federal Government. Rather, it reserves such powers to the States and to the people. If this is a “States rights” amendment, it is also a “people's rights” amendment.
It should be noted further that this amendment, although it does reserve powers to the States, does not mention any rights of the States. Nowhere, in fact, under our Constitution are the States explicitly granted or reserved any rights.
The rights which the several sovereign States do have are the rights which any legitimate government has: the right to protect the morals, health, and safety of its citizens; and the right to use its powers legitimately for the welfare of its citizens.
In either case, the rights of the States are subservient to the interests of their citizens.