And I point out, Senator, you could be as wrong on this as you were on some of the other bills.

Senator ERVIN. I think the only provisions of the previous civil rights bills I claimed to be unconstitutional which have been held valid by the courts were the following: (1) the provisions providing in substance that whenever the Attorney General brought suits under the bill in behalf of particular people state administrative statutes automatically became inoperative as to such people while remaining in effect as to all other persons; and (2) the provisions which failed to restrict the coverage of the act to the fields in which Congress has specific power to legislate. I was of the opinion that the Supreme Court would follow its previous decisions to the effect that acts of Congress which go beyond the constitutional power of Congress will not be restricted to their proper sphere by the action of the court, but will be struck down as unconstitutional. It happens that at all times since the ratification of the 14th amendment down to this moment, every judge who ever wrote a majority opinion for the Supreme Court of the United States and every responsible text writer who has ever written on the subject of the 14th ̄amendment is still on my side of this argument rather than yours.

Attorney General KENNEDY. But they have not examined whether this affects State action and I think you can have a very legitimate argument in favor of State action. I think there is a question about it, as I said before. But I think you can make a very legitimate argument, as many have, that you are meeting the effects of State action. But to make sure that it is constitutional and there can be no question, we place it under the commerce clause.

Senator ERVIN. I have to challenge the validity of your statement that the judges didn't examine the activities in question to see whether there was State action. That is exactly what they examined in the civil rights cases. Such activities have been examined in a multitude of cases since then, and were examined in the Federal court in Alexandria in 1959 in Williams v. Howard Johnson's Restaurant.

Attorney General KENNEDY. First, on the question of the decision of 1883, the Jim Crow laws were passed after the decision of 1883, by and large. Some of them beforehand, but by and large, the Jim Crow laws came into effect after that, for instance, the prevention of individuals from voting. Many people had voted prior to that time. Then the Jim Crow laws, the grandfather clauses were passed between 1890 and 1910. They are still having their effect. Some of them are still in existence.

Now, the Howard Johnson case, Senator, did not deal with whether Congress had the right to pass legislation dealing with this problem. It just dealt with whether you had an constitutional right. But it didn't pass on whether Congress had the right to pass legislation

in this area.

Senator ERVIN. It passed on the exact question. You and I can argue about that later. But I will get to that.

The Civil Rights Cases were approved again in an opinion written by Justice Clark in Burton v. Wilmington Parking Authority. I will read from page 721:

The Civil Rights Cases, 109 U.S. 3 (1883), "embedded in our constitutional law" the principle "that the action inhibited by the first section (Equal Protection Clause) of the 14th amendment is only such action as may fairly be said

to be that of the States. That amendment erects no shield against merely private conduct, however discriminatory or wrongful."

I will read again what Chief Justice Warren said in his opinion and what Justice Harlan said in his concurring opinion in Peterson v. Greenville, decided on May 20, 1963. Chief Justice Warren said:

It cannot be disputed that under our decisions, "private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it."

Justice Harlan stated:

In deciding these cases the Court does not question the long-established rule that the 14th amendment reaches only State action. Civil Rights Cases, 109 U.S. 3, 27 Law Edition, 836; 3 Supreme Court Reports 813 * * * The ultimate substantive question is whether there has been "State action of a particular character," (Civil Rights Cases supra, 109 U.S. 11) whether the character of the State's involvement in an arbitrary discrimination is such that it should be held responsible for the discrimination.

I shall read a digest of the decision in Cooper v. Aaron, 358 U.S. 1, which explains in clear language the only way in which a State can take action within the meaning of the 14th amendment. I read this digest from the 1963 Cumulative Supplement to the U.S. Supreme Court Digest Annotated, which incidentally was published by the Lawyers Cooperative Publishing Company in Senator Keating's home city of Rochester, N.Y.

Senator KEATING. A very fine company.

Senator ERVIN. And I may say they print very fine law.
Senator KEATING. They do very good printing.

Senator ERVIN (reading):

The command of the 14th amendment that "no State shall deny to any person within its jurisdiction the equal protection of the laws means that no agency of the State, or of the officers or agents by whom its powers are exerted shall deny to any person within its jurisdiction the equal protection of the laws; a State acts by its legislative, its executive, or its judicial authorities and is unable to act in any other way."

Attorney General KENNEDY. I think that is very well said.
Senator ERVIN. But that is not what your bill says.

Attorney General KENNEDY. It does, Senator. You keep saying that, but it does.

Senator ERVIN. Your bill doesn't say that. Your bill says that hotels, motels, tourist homes, shoeshine parlors, beauty parlors, swimming pools, and soda fountains, are all exercising State action under the 14th amendment.

That is the theory on which your bill is based.

Attorney General KENNEDY. No, it isn't, Senator; excuse me. Senator ERVIN. I forgot to mention also hotdog stands.

Attorney General KENNEDY. I won't go into details, but that is not what it is based upon, Senator.

Senator ERVIN. It is based upon the theory that the action of the operator of the hotel or motel or tourist home or swimming pool or theater or restaurant or soda fountain or beauty parlor or any of these other places is exercising State power in excluding persons of the Negro race from their services or accommodations. Attorney General KENNEDY. Could I put it in my words? Senator ERVIN. Yes.

Attorney General KENNEDY. It is based on the passage of legislation in localities and in the States-Jim Crow laws, which required a separation of the races, which treated the Negro as an inferior being, as a second-class citizen. These laws now have been declared unconstitutional, but some of them are still in existence. And the effects of these laws, laws passed by the States, enforced by the police powers, enforced by the Governors of several of the States, are still in existence. This constitutes State action. Therefore, it can be argued that the proposed legislation is constitutional under the 14th amendment.

Senator ERVIN. In other words, what your argument comes down to is this, that because some States in times past have passed unconstitutional laws, the operators of hotels, motels, swimming pools, theaters, shoeshine parfors, and beauty parlors are exercising either the legislative or judicial or the executive powers of the States?

Attorney General KENNEDY. No. But, Senator, I think it would be better-I don't try to rephrase what you say. I explained the basis of the argument under the 14th amendment. The legislation is also constitutional under the commerce clause.

Once again, I go back and say what I said before, if I were going to argue this before the Supreme Court, it would be argued under both the 14th amendment and the commerce clause and there would not be any question in my judgment that it would be declared constitutional.

Senator ERVIN. Your statement comes down to the very simple proposition that because States in the past have passed unconstitutional laws, a shoeshine boy who has received his polish and other equipment in interstate commerce is exercising State authority and his action is the action of the State when he declines to shine the shoes of a would-be customer because of the would-be customer's

race.

Attorney General KENNEDY. In the first place, I do not think he would be covered, but I would be glad to discuss that aspect of it with you. I say that the laws were passed by these States; they were in existence for 70, 80, 90 years following the Civil War. They treated Negroes as inferior, second-class citizens and you still have the effect of that. You have it in the field of education, Senator. In a number of these States, 40 percent of the Negro race have not finished the fifth grade. You have it in the field of voting.

Just 15 years ago, in one of these States, only 5,000 Negroes were registered to vote, where you have a population of over a million Negroes.

It has an effect in traveling, an effect on the whole life of the community. And it was all brought about by action of the State to relegate the Negro back into an inferior position. That is why Congress has the right and the responsibility now to pass legislation which will deal with this problem that has been created over the period of the last hundred years.

Senator ERVIN. What would be the result from a constructional standpoint if Congress should pass this law and then all of the States would repeal all of these unconstitutional laws?

Attorney General KENNEDY. As I say, Senator, and as I have said, you still have the effect of these State laws. The effect of the State laws is still in existence even in the States which don't have this legislation at the present time.

Senator ERVIN. That is your statement?

Attorney General KENNEDY. Senator, how many Negroes do you have elected, for instance, in elective office in the State of North Carolina?

Senator ERVIN. I would say far more than you have in the State of Massachusetts. You have an attorney general in the State of Massachusetts who has been elected. We have many Negroes who have been elected to city councils in North Carolina. We have a Negro on the State board of education; we have five Negroes who are presidents of State colleges in North Carolina. Do you have any in Massachusetts?

Attorney General KENNEDY. Yes. These are Negro colleges?
Senator ERVIN. State colleges.

Attorney General KENNEDY. Negro colleges?

Senator ERVIN. They are attended by Negroes.

Will you name me a Negro who is a president of some State college in Massachusetts? I will withdraw that question because I don't want to get into anything personal, or anything that is local. I do not want to make a war between North Carolina and Massachusetts. But if you come to North Carolina, you will find many Negroes in city councils in North Carolina.

In my home county, we have a Negro serving as a deputy sheriff. Attorney General KENNEDY. I think tremendous progress has been made in the State of North Carolina, Senator. But I do not think anybody can examine the facts over the last 70 years and not be aware of what has existed in the past.

North Carolina happens to have made tremendous progress. Many of the Northern States, who talk a great deal about this and preach a great deal about it but I do not do a great deal, need to progress.

But the fact is, in many of these States, and in North Carolina in the past, there has been a practice to treat Negroes as inferior beings in all aspects of their lives. That has been State action and they are just recovering from that at the present time. I think Congress has the right and responsibility to pass legislation in this field. Senator ERVIN. Let me read you the second clause in the first section of the 14th amendment. To speed matters up a little, I will read you the clause and then I will read you the interpretation that has been placed on the clause.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The case of Breedlove v. Suttles, 302 U.S. 277, at page 283, declares:

The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources.

That is also the holding in the Hamilton v. Regents of the University of California, 293 U.S. page 245, and Ownbey v. Morgan, 256 U.S. 94, and the Slaughter-House cases. The Slaughter-House cases were reported in 83 U.S. at page 36.

The opinion in the Slaughter-House cases was written by Justice Miller and is summarized clearly in one of the head notes as follows: The second clause protects from the hostile legislation of the States the privileges and immunities of citizens of the United States as distinguished from the privileges and immunities of the citizens of the States.

1

I would now like to read from 12 American Jurisprudence, Constitutional Law, section 448, pages 92 and 93:

The second clause of the 14th admendment

places the privileges and immunities of citizens of the United States under the protection of the Federal Constitution and leaves the privileges and immunities of citizens of a State under the protection of the State constitution. This clause of the 14th amendment does not add to the privileges and immunities of citizenship in the United States; it merely furnishes guaranties additional to those which already existed.

Then from volume 16-A, Corpus Juris Secundum, subject: constitutional law, section 458, pages 171-172:

It [this clause] operates only as a protection against State action * and not as against action by individuals, or by the Federal Government. Mr. Chairman, to save time, I would like to insert in the record at this point a multitude of decisions of the Supreme Court of the United States sustaining as sound law the principles which I have just read.

The CHAIRMAN. You may.

(The document referred to follows:)

EQUAL PROTECTION CLAUSE

United States v. Cruikshank, 92 U.S. 542

Virginia v. Rives, 100 U.S. 313

Ex Parte Virginia, 100 U.S. 339

United States v. Harris, 106 U.S. 629

Civil Rights Cases, 109 U.S. 3

Truax v. Corrigan, 257 U.S. 312

Corrigan v. Buckley, 271 U.S. 323

Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239

Shelley v. Kraemer, 334 U.S. 1

Senator ERVIN. The 3d clause in the 14th amendment is what we call the due process clause. It reads as follows:

Nor shall any State deprive any person of life, liberty, or property without due process of law.

The best definition of the due process clause that I have found is that made by the Supreme Court of the United States in Ownbey v. Morgan, 256 U.S. 94, at pages 110 and 111. It is as follows:

It [the due process clause of the 14th amendment] restrains State action, whether legislative, executive, or judicial, within bounds that are consistent with the fundamentals of individual liberty and private property, including the right to be heard where liberty or property is at stake in judicial proceedings. This brings me to the 4th and last clause of the 1st section of the 14th amendment, the equal protection of the laws clause:

Nor shall any State * ** deny to any person within its jurisdiction the equal protection of the laws.

This clause is a pledge of equal protection of the laws or protection of equal laws; and the means and is a guaranty that all persons subjected to State legislation shall be treated alike under like circumstances and conditions, both in privileges conferred and in liability imposed.

That statement is taken from volume 16-A, Corpus Juris Secundum, constitutional law, section 502, pages 296 and 297.

The following statement on the same subject is taken from 12 American Jurisprudence, constitutional law, section 473, page 136:

The equal protection clause of the 14th amendment is a restriction on the State governments and operates exclusively upon them ** The equal