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The rights of the States, furthermore, are coextensive with the duties of the States. For, if the States have the right to protect the morals of their citizenry, for example, they also have a duty to protect the morals of their populace. It is unfortunate that many of those who hide behind the cloak of States rights are willing to forget the duties and obligations of the States toward their citizens.
The doctrine of States rights is based not only upon the 10th amendment but also upon the pragmatic principle that it is preferable to leave the management of local affairs to the local units of government whenever possible. This principle rests partly upon the belief that local affairs are better managed and understood locally, and partly upon the belief that it is desirable to restrict the National Government and to strengthen the several State governments so that checks and balances might be maintained between the two elements of our Federal system. Although prudence teaches us the efficacy of such a practice, prudence also tells us that where the States are derelict in their duties it is better to have the Federal Government act, if possible under the Constitution, than to have inaction in matters of deep concern to the citizens of this Nation. Prudence teaches us, that is, that even in those areas which logically should be left to the States, Federal action is sometimes desirable.
This committee is faced with the problem of whether the action proposed to this committee is in fact a violation of the rights and duties of the States. I do not think it will be denied that the action proposed does extend into that area in which the States have prime interest and as such is a violation of States rights.
This does not, however, constitute an excuse for inaction by this Congress. Congress is confronted with a conflict between two constitutional rights: the right of the individual to equality, and the right of each State to manage its internal affairs. In such a conflict, only one solution is possible. The individual rights must take priority over the right of the States. Such a solution is logical, moral, necessary, and constitutional.
It is logical inasmuch as this Nation is composed of individuals, and each governmental body at whatever level is legitimate only to the extent that it protects the rights of the individual. The several States have been remiss in their duty to protect the rights of the individuals within their boundaries. Hence the proposed action is intended to provide that protection.
The morality of this action is undeniable. As stated previously, the moral issue is that of the equality of all peoples. This is the basis of the American system and must be upheld by this Congress.
It is necessary because to deny any action at this time will lead to bloodshed. Consequently, to deny action at this time would constitute a dereliction of duty by this Congress to protect the Nation against senseless anarchy and internal dissolution. It is necessary, furthermore, because the Federal Government is entrusted by the Constitution to guarantee the rights of citizens against unconstitutional restrictions by the States.
And it is constitutional since the Federal Government is supreme over the several sovereign States whenever a conflict arises between the powers of the National Government and those of the States. It is constitutional because, although on the face of it, it violates the principle of States rights, in fact it does not violate this principle: the Federal Government is acting only because of the inaction of the States.
It has been argued, secondly, that the proposed action is a violation of individual rights; specifically, of the right of individuals to enjoy the fruits of their labor. This argument was best presented to this committee in the testimony of the Governor of Florida wherein he presented the paradox that should this Congress enact the proposed legislation it would give to each buyer the right to buy from whom he pleased, but would deny to the seller the similar right to sell to whom he pleased.
It cannot be denied that the passage of this legislation does entail restrictions upon property rights. But here, as in the case of the rights of the States, the conflict between two rights must be settled on the basis of which right is paramount. And here again, the right of the individual to full equality in public matters must take priority.
The right to property, essential though it is, is secondary to the right to equality. It is, in fact, a derivative of the right to equality. For the individual has a right to property only because he is, first and foremost, equal to every other individual. The right to property, furthermore, may be restricted. In this country the right to property has often been restricted.
Restrictions on the right to property are legitimate when and only when they are based upon the principle of equality. All restrictions upon the right to ownership, that is, must be based upon equitable treatment. Any restriction upon this right that is not so based is by its very nature immoral and contrary to the laws of nature.
The proposed legislation is not immoral. It does fulfill the natural law. The restrictions placed upon private property in this instance are based upon the principle of equal treatment; all businesses covered by the proposed legislation will be equally restricted. This is a legitimate exercise of power.
The plaint of the Governor of Florida is a meaningless one. In all States, owners of public accommodations are already under restrictions. This new legislation will provide one further regulation, it is true. But as before, so now, the owner of public accommodations has the free choice of operating under the restrictions placed upon him by the State and the Federal Government, or not operating at all. This imposition of restrictions upon public accommodations for the protection of the morals, health, or safety of the general public is no innovation for either the States or the Federal Government.
The restriction of private property under the proposed legislation is moral and in accordance with the natural law and the Constitution. Is it justifiable? It is, since the purpose of the restriction is the maintenance of that principle of equality upon which our whole society is based.
The final argument against the proposed legislation is that the use of the commerce clause as a basis of this legislation would be a dangerous extension of the powers of Congress under that clause. With this argument I concur. Although it cannot be denied that Congress has the right and power to use the commerce clause in this manner, I think it should be pointed out that the principal purpose and intent of that clause is the regulation of commerce, and not the enactment of moral legislation. Congress has already, it is true, used the commerce clause as a basis for moral legislation: the Mann Act provides a worthy example of this use of the commerce clause. But in those instances wherein the Congress has so used this clause, it had no alternative source of power. Restraint in the use and extension of the commerce clause would appear to be a more prudent exercise of congressional power than unrestrained use of this clause.
Some have argued that Congress should use the “equal protection of the laws'' clause of the 14th amendment in spite of the fact that the Supreme Court in the civil rights cases denied the power of Congress to use this clause for legislation such as is now being proposed. The argument here is that the Supreme Court today would reverse the prior decision and uphold the power of Congress under the 14th amendment. The argument again is that since the proposed legislation deals with the problem of equality, the Congress should not use subterfuge. To this argument I fully subscribe. Should the Congress use the 14th amendment as the basis of the proposed legislation it would avoid any dangerous extension of the commerce clause, it would openly support the legislation on the moral basis upon which it should rest, and it would avoid all subterfuge.
A third alternative is open to Congress. The ninth amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Certain it is that one right not enumerated in the Constitution, but basic to our structure of government and society, is the right to equality. The ninth amendment can be and should be used (either in conjunction with the 14th amendment or by itself) as the basis of this legislation.
I would like to indulge this committee with one further thought. It has become common knowledge that should this committee submit the proposed legislation to the full Senate a group of Senators will use their prerogatives and dulge in a lengthy and destructive filibuster.
It must be noted that in 1957 and in 1960 when Congress enacted "civil rights" legislation, filibusters had been used in which the arguments against such legislation were fully expounded. Furthermore, since the Brown decision of 1954 this Nation has continuously heard arguments against that decision and against proposals for granting full equality to all American citizens. And, lastly, since the demonstrations of last spring these arguments have been re iterated with even greater vociferation.
I would not deny the right of any Senator to fully expound his position on the floor of the Senate. But I believe that the issue of the equality of all Americans presented by this legislation is of such moral impact that to allow any Senator or any group of Senators the right to abuse their prerogative of
full debate is in itself immoral. The right of any minority, such as represented by those Senators who intend to filibuster, must not be denied ; yet the right of the majority to have its way after full deliberation cannot be denied either. In short, the Southern Senators should be allowed a respectable time for debate. But the indulgence of filibuster should not be tolerated. For 100 years now the Negro has been supposedly free and yet for 100 years he has been denied his constitutional rights Nearly 10 years ago the Federal courts reaffirmed the fact that the Negro has been denied his rights. And, as noted elsewhere, the denial of the rights of the Negro has essentially been equally a denial of the rights of all other Americans. Further delay is clearly unwarranted.
No Senator can today hide behind the argument that Senators have a prerogative to filibuster. This fiction was destroyed last year when the Senate invoked cloture upon a small group of Senators after reasonable debate had occurred. If the Senate could invoke cloture then, it can and must invoke cloture after reasonable debate has taken place on this proposed legislation.
In view of the gravity of the issue, I would say to this committee and to the full Senate—that those Senators who refuse to overthrow the proposed filibuster are morally incompetent and are deserving of the contempt of the American people.
I want to thank this committee for the opportunity of presenting my views. I sincerely hope that this committee, this Senate, and this Congress will enact the proposed legislation. I fully believe that only such action will be in keeping with the ideals of our Nation and will be commensurate with the problems now besetting this Nation internally. Thank you.
OFFICE OF THE GOVERNOR,
Springfield, Ill., September 20, 1963. Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, U.S. Senate, Washington, D.C.
DEAR SENATOR MAGNUSON: The Civil Rights Act of the State of Illinois has been in existence since 1885. It is not possible to review case by case the record of the past 78 years. The Commission on Human Relations of the State of Illinois has had considerable experience in investigating complaints under this law. Their experience would be of help.
The public accommodations law of the State of Illinois, chapter 38, article 13, has been a good law.
The State human relations commission investigates all complaints brought to its attention. The commission's policy and procedure is simple and effective. Respondents are consulted with a view toward compliance under the law. A statement of policy is sought which is affirmative with respect to the law. Failure to secure voluntary compliance means that the complaint is submitted to the local State's attorney or to the attorney general. These two offices have fixed responsibility to act under the law.
The significant point is that voluntary compliance with the law is the rule rather than the exception. Of 73 cases filed with the commission in 1962, none went to court. Two cases did go directly to the State's attorney where the matter was adjusted in a pretrial conference. Utilization of the human relations commission to secure compliance develops a better understanding of the nature of the problem, insofar as the respondent is concerned. Thus, in a practical way, the law can become the framework, which was referred to earlier.
Often respondents have fear of loss of business or of status and prestige. Although unfounded in reality, nevertheless these fears have a powerful meaning to a businessman. Every citizen has a right to know why he should obey any particular law. Indeed, government has a responsibility to make all of the necessary interpretations. Utilization of the human relations commission staff meets this test.
There is no case in Illinois where an open nondiscriminatory policy has been to the detriment of the proprietor. Negroes do not take over, nor do whites stay away in droves from any establishment under the law.
In summary, a public accommodations law speaks effectively on a problem solving level. Its force and impact is increased substantially when utilized in conjunction with professional human relations agencies and it develops, among other things, a climate most beneficial for all Americans.
In addition, let me point out that in 1961 this administration secured from the general assembly the first fair employment practices legislation in the history of Illinois. The 1963 session of the general assembly made it crystal clear that the legislation was applicable to government and labor organizations.
Last July, I called a meeting of Illinois mayors and city managers in Springfield. Some 200 mayors and city managers turned out for this meeting at which time I reviewed for them our responsibilities and duties in the area of civil rights. On this day, I issued by executive order a code of fair practices governing conduct in the areas of State seryices and facilities, fair employment practices, State licensing, public works, State financial assistance, training and apprentice programs, State employment service and professions and trades.
Subsequent to the meeting, these mayors and city managers returned home to apprise local authorities of civil rights responsibilities and in many cases to call for local ordinances in this area.
Of great importance, our State commission on human relations has done an outstanding job and has spurred interest in this area in many of our communities. As a result, the number of local human relations commissions has increased. Sincerely,
OTTO KERNER, Governor.
NATIONAL COMMUNITY RELATIONS ADVISORY COUNCIL,
New York, N.Y., August 27, 1963. Re S. 1732. Hon. WARREN G. MAGNUSON, Senator from Washington, Chairman, Commerce Committee, Senate Office Building, Washington, D.C.
DEAR SENATOR MAGNUSON: It is my pleasure to enclose a statement on the public accommodations bill (S. 1732) submitted by six national member agencies and 66 Jewish community councils throughout the Nation, all of which are affiliated together in the National Community Relations Advisory Council.
I would appreciate your distributing a copy of this statement to each member of your committee. Our organizations are ready to render whatever assistance we can to your committee during the course of its deliberations on this legislation. Best wishes. Sincerely yours,
LEWIS H. WEINSTEIN, Chairman.
STATEMENT ON PUBLIC ACCOMMODATIONS BILL BY CONSTITUENT ORGANIZATIONS
OF THE NATIONAL COMMUNITY RELATIONS ADVISORY COUNCIL The six national Jewish organizations and 66 Jewish community councils, all of which are affiliated together in the National Community Relations Advisory Council (NCRAC) and through which they concert their policies and programs, welcome this opportunity to submit this statement on proposed Federal legislation dealing with discrimination in public accommodations.
The constituent organizations of the NCRAC are the American Jewish Congress, Jewish Labor Committee, Jewish War Veterans of the U.S.A., and the congregational bodies representing the three wings of religious Judaism: Union of American Hebrew Congregations (reform); Union of Orthodox Jewish Congregations of America, and United Synagogue of America (conservative).
The 66 Jewish community councils joining in the present statement are: Jewish Welfare Fund of Akron. Albany Jewish Community Council. Atlanta Jewish Community Council. Federation of Jewish Charities of Atlantic City, N.J. Baltimore Jewish Council. Jewish Community Council of Birmingham. Jewish Community Council of Metropolitan Boston. Jewish Community Council, Bridgeport. Brooklyn Jewish Community Council. Jewish Federation of Broome County, N.Y. Community Relations Committee of the Jewish Federation of Camden County,
Jewish Community Federation, Canton, Ohio.
Los Angeles. Jewish Community Relations Council of Memphis. Milwaukee Jewish Council. Jewish Community Relations Council of Minnesota. Jewish Federation of New Britain, Conn. New Haven Jewish Community Council. Norfolk Jewish Community Council. Jewish Community Relations Council of Oakland, Calif. Central Florida Jewish Community Council (Orlando). Jewish Federation of Palm Beach County, Fla. Jewish Community Council of Paterson, N.J. Jewish Community Council of Peoria, Ill. Jewish Community Council, Perth Amboy, N.J. Jewish Community Relations Council of Greater Philadelphia. Jewish Community Relations Council, Pittsburgh. Jewish Community Council of the Plainfields, N.J. Jewish Federation of Portland, Maine. Jewish Federation of Portland, Oreg. Jewish Community Council, Rochester, N.Y. Jewish Community Relations Council of St. Louis. Community Relations Council of San Diego. San Francisco Jewish Community Relations Council. Jewish Community Council, Schenectady, N.Y. Scranton-Lackawanna Jewish Council. Jewish Federation, Springfield, Ill. Jewish Community Council of Toledo. Jewish Federation of Trenton. Tulsa Jewish Community Council. Jewish Community Council, Utica. Jewish Community Council of Greater Washington. Jewish Federation of Waterbury. Wyoming Valley Jewish Committee, Wilkes-Barre, Pa. Jewish Community Relations Council of the Jewish Federation of Youngstown,
We believe that the prohibition of discrimination in public accommodations, proposed by the administration as part of its 1963 Civil Rights Act, is one of the most significant parts of that bill, and we urge its adoption.
Our Nation is now vividly conscious of an abrupt change in the civil rights climate. We have been told unmistakably that the generation of Negroes which was to be sacrificed under the concept of gradual alleviation of discrimination is not in a sacrificial mood. Massive demonstrations in the North as well as the South have clearly revealed that the time has come for an abrupt break with the “too little, too late” policy under which we have been operating.