Imágenes de páginas
PDF
EPUB

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,

BURKE MARSHALL,
Assistant Attorney General,

Civil Rights Division.

YALE UNIVERSITY,

LAW SCHOOL,

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

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. With best personal regards,

Sincerely,

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.

Sincerely,

John G. Fleming, R. H. Cole, Albert A. Ehrenzweig, Geoffrey C.
Hazard, Jr., E. C. Halbach, Jr., I. M. Heyman, Dean Frank C.
Newman, Preble Stolz, University of California at Berkeley;
Dean Erwin N. Griswold, Paul A. Freund, Mark DeW. Howe,
Arthur E. Sutherland, Jr., Ernest J. Brown, Harvard University
Law School; Kenneth L. Karst, Ivan C. Rutledge, Paul D. Car-
rington, Roland J. Stanger, William W. Van Alstyne, Ohio State
University College of Law; Dean Allan F. Smith, University of
Michigan Law School; Dean Eugene V. Rostow, Yale University
Law School; Murray Schwartz, University of California at Los
Angeles; John O. Honnold, Jr., Howard Lesnick, A. Leo Levin,
Louis B. Schwartz, Dean Jefferson B. Fordham, Theodore H.
Husted, Jr., University of Pennsylvania Law School; Harlan
Blake, Marvin Frankel, Walter Gellhorn, Wolfgang Friedmann,
William K. Jones, John M. Kernochan, Louis Lusky, Jack B.
Weinstein, Columbia University Law School.

Senator JOHN O. PASTORE,

U.S. Senate, Committee on Commerce,
Washington, D.C.

UNIVERSITY OF HOUSTON, DEPARTMENT OF POLITICAL SCIENCE, 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 moving 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 officially 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

« AnteriorContinuar »