protection clause was designed as a safeguard against acts of the State and not against the conduct of private individuals or persons. It does not add anything to the rights which one citizen has against another under the Constitution. Mr. Chairman, I would like to insert in the record here a few decisions of the Supreme Court of the United States interpreting and applying the equal protection clause. These decisions make it crystal clear that the equal protection clause of the 14th amendment applies to State action alone, and that under this clause, Congress has no power whatever to legislate with respect to the action of individuals. The CHAIRMAN. You may. (The document referred to follows:) PRIVILEGES AND IMMUNITIES CLAUSE Slaughter House cases, 16 Wall. (U.S.) 36 McPherson v. Blacker, 146 U.S. 1 Twining v. New Jersey, 211 U.S. 78 Rosenthal v. New York, 226 U.S. 260 Maxwell v. Bugbee, 250 U.S. 525 Ownbey v. Morgan, 256 U.S. 94 Prudential Ins. Co. v. Cheek, 259 U.S. 530 New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 Senator ERVIN. Mr. Attorney General, I don't want to get involved in any further argument with you, but I can't imagine any way in the world by which the operator of a hotel can make or enforce any law which shall abridge the privileges or immunities of citizens of the United States in violation of the second clause of the 14th amendment. Moreover, I cannot imagine any way in the world by which an operator of a restaurant can deprive any citizen of the United States or any person within the jurisdiction of any State of due process of law. Likewise, I cannot conceive of how any operator of a soda fountain can deny to any person within the jurisdiction of any State the equal protection of the laws. We can argue until doomsday on this, but that is precisely what any effort to sustain this bill on the basis of the 14th amendment asserts to be possible. Attorney General KENNEDY. I believe I have answered it, Senator. Senator ERVIN. Let's come to the commerce clause. I am not going to dwell on it long. What this public accommodations provision undertakes to do is to regulate the use of private property and the activities of people within the borders of a State. Is that not true? Attorney General KENNEDY. Could I put it in my words, Senator? Senator ERVIN. Yes. 21-579-64- -13 Attorney General KENNEDY. The legislation finds that there has been discrimination; practices of discrimination have had an effect, an adverse effect on interstate commerce and attempts through legislation to remedy this situation. Senator ERVIN. Let's put it down to a practical application. Does not this legislation say to the owner of a restaurant which is located within the borders of a State, "You will have to cook and serve meals to everybody who applies to you, irrespective of their race, color, national origin, or religion"? Attorney General KENNEDY. No; it does not quite say that, Senator. Senator ERVIN. Does not it say that, even if it says something else? Does it not say that? Isn't that what it provides? Attorney General KENNEDY. No; it does not. Senator ERVIN. If the bill does not say that, we might be able to preclude further argument on this point. This is true if the bill does not attempt to secure access to places of public accommodations to any people, but that is not what the bill says. Attorney General KENNEDY. It says you cannot refuse service because a man's race, color, or nationality, but that is quite different, Senator. You can refuse service because a person is not dressed properly or does not pay his bills. You didn't bring that in. Senator ERVIN. Yes, I did. Read my question. What I said was Attorney General KENNEDY. Why don't we read it? Senator ERVIN. I said irrespective of four things. Read my question back. (Question read.) Attorney General KENNEDY. But they do not have to serve everybody who applies, Senator. Senator ERVIN. That is not my question. I confined it to specific grounds. Attorney General KENNEDY. The question was whether they have to serve everybody, irrespective of race, color, creed, or national origin. They can turn him down for other reasons. Senator ERVIN. I didn't ask you that. I confined it. Read it again. (Question read again.) Attorney General KENNEDY. Senator, they do not have to serve everybody who applies to them. We can spend a lot of time on this. The second point is, it does not mention anything about interstate commerce. Their establishment has to have an effect on interstate commerce. Senator ERVIN. That is in your own words. This is a command. When it says to somebody you cannot refuse to do something, that is the same as saying you must do so and so. But let's read from lines 17 to 21 of the bill, page 13, section 202, subsection (a): All persons shall be entitled, without discrimination or segregation on account of race, color, religion, or national origin, to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the following public establishments: That is what it says. Attorney General KENNEDY. That is correct. Senator ERVIN. That is precisely, for all rightful intents and purposes, the question asked. Attorney General KENNEDY. I just do not happen to agree, Senator. But we can move on. Senator ERVIN. We can not move on if you are going to change my questions. I never asked you whether they can exclude a man whose clothes are dirty or who is drunk or who didn't have a coat on. Attorney General KENNEDY. I wanted to make sure that that is clear in the record, Senator, that they can refuse to serve an individual if he is not dressed properly, if he does not have the ability pay his bills, and for other reasons. to Senator ERVIN. I understood that fully and that is the reason I restricted my question. Attorney General KENNEDY. I wanted to make sure that was understood and the second point I wanted to make sure was understood is that they have to have an effect on interstate commerce, which was not included in your question. I think you have to include all of these things, Senator. Senator ERVIN. Mr. Attorney General, I cannot ask you a question about everything in this title II at the same time. Attorney General KENNEDY. I understand that, but I wanted to make sure in my answer that there was not any misunderstanding. Senator ERVIN. Let me ask you again. Maybe I will change it just a little. Does not this bill say in effect to the operator of a restaurant that he must serve or at least refrain from refusing to serve a meal to any person who may apply on account of his race or his color or his national origin or his religion? Attorney General KENNEDY. No. It does not, Senator. Attorney General KENNEDY. In the first place, you have left out the effect on interstate commerce, which is a very important matter. Senator ERVIN. In the first place, I am assuming in my question and I wish you would do me the kindness to so assume, too, the existence of one of the requisites set out in sub-sub-sections i, ii, iii, and iv on pages 14 and 15 Attorney General KENNEDY. That is fine. Senator ERVIN. I will assume that the restaurant has a skillet and some pork and beans which at some time in the past moved in interstate commerce. I will go so far as to assume that a substantial part of his cooking apparatus and his tables and his chairs and his food moved in interstate at some time between the ratification of the Constitution and the day he is called on for the service. With that assumption, would you answer the question? Attorney General KENNEDY. What kind of an establishment is it, Senator? Senator ERVIN. A restaurant. Attorney General KENNEDY. A restaurant that serves food would be covered. Senator ERVIN. I don't know of any restaurant that does anything else, sir. Attorney General KENNEDY. Senator, you brought in the chairs, the tables and all the rest of it. Senator ERVIN. I was trying to make it plain that I was not talking about a lunch counter. I was talking about a restaurant which had some tables on which they placed the food that their customers ate. Attorney General KENNEDY. I thought you were talking about the fact that the chairs and tables might have moved in interstate commerce and therefore it would be affected. It is a restaurant and it would be affected. Senator ERVIN. I was trying to make it plain that I was assuming one of the four conditions enumerated in the lines between line 14 on page 14 and line 3 on page 15. Attorney General KENNEDY. It would be covered, Senator. Senator ERVIN. And what he would have to do, he would have to cook and serve a meal to any person who applied, insofar as race, color, national origin, or religion was concerned he could not deny service on those four grounds, could he? Attorney General KENNEDY. That is correct. Senator ERVIN. It took us a long time to get to that point. Attorney General KENNEDY. I want to make sure we get it all straight and clear, Senator. I do not want to create any misunderstanding before this committee. Senator ERVIN. This would apply to a restaurant that was situated in Springfield, Mass., or Greenville, N.C., or any place else within the borders of a State, wouldn't it? Attorney General KENNEDY. That is correct, Senator. Senator ERVIN. And what the operator of the restaurant is trying to do is render personal services by serving certain articles of food inside his restaurant within the borders of his State. You say he would be covered? Attorney General KENNEDY. I would say all the establishments we cover by this bill have been covered by other legislation passed by Congress under the commerce clause. Senator ERVIN. We will come to that as soon as we find out what this bill does. I am confining it to the constitutional field for the time being. This would apply to all places of public accommodations mentioned in subsection (3) of section 202 where the goods, services, facilities, privileges, advantages, or accommodations offered by any such place or establishment are provided to a substantial degree to interstate travelers. Attorney General KENNEDY. That is correct, Senator. Senator ERVIN. Can you cite me a single case which holds that Congress has the right to regulate local activities of people within the borders of the State simply because they might render some service to an interstate traveler, for example, serve a meal or sell a cigar to a man who happens to be traveling in his automobile from one State to another? Attorney General KENNEDY. I think the decisions under the Interstate Commerce Act and under the Motor Carrier Act. Senator ERVIN. Only where the facility is a part of the interstate apparatus. That is as far as the cases go. This bill does not stop there. This bill would regulate a fellow who is running a restaurant where there is nothing but a road going by that. Attorney General KENNEDY. And the other fellow is running a restaurant with nothing but a train going by. Senator ERVIN. You have gotten the old regulatory mule hitched to the back of the interstate commerce cart. You are trying to regulate the conduct of individuals within the borders of a State having no relation to interstate commerce merely because some men who may be traveling in interstate commerce happen by-aren't you? Attorney General KENNEDY. No; what we are recommending under this legislation, Senator, is that these establishments which have an effect, a cumulative effect on interstate commerce, and there is no question that this kind of discrimination has an effect on interstate commerce, shall be regulated under this bill, just as under the Motor Carrier Act and the Interstate Commerce Act these other establishments were regulated. Senator ERVIN. Congress has the power to regulate a person traveling in interstate commerce as long as that person's transit in interstate commerce is not broken. But I challenge you and your 900 lawyers in the Department of Justice to bring any case here that sustains the position that a man who may render some local service to an interstate traveler is subject to the regulatory power of Congress. Attorney General KENNEDY. Senator, first I go back Senator ERVIN. In other words, the bill is based on the theory that because Congress has the power to regulate an interstate traveler as long as he is in transit, it has the right to regulate the conduct of everybody who has any dealings upon a local plane with that interstate traveler whether he is in transit or not. Attorney General KENNEDY. First we have to go back to why we feel this legislation is necessary and the effect it has on interstate commerce. Could I just outline to you the effect? Senator ERVIN. You are not discussing the same things I want to discuss. Attorney General KENNEDY. I want to, Senator. Senator ERVIN. I am inquiring concerning the theory upon which this bill is based. Under the theory set out in lines 14 to 17 in subsubsection (i) of section 202 (a) on page 14, Congress is to regulate the use of private property and the activities of operators of so-called places of public accommodations without reference to any connection with interstate commerce of any character outside of the fact that interstate travelers might happen by and demand what are essentially local services. In other words, operators of so-called places of public accommodations would be brought within the coverage of the act under this particular provision without proof of any connection whatever with interstate commerce other than the fact that they may serve to a substantial degree interstate travelers who are no longer in transit. Attorney General KENNEDY. I think that is more important, for instance, than oleomargarine and you regulate oleomargarine. What can be more important than a practice that has an effect on individuals, citizens of the United States, traveling in interstate commerce. Certainly the Congress, if it can deal with oleomargarine, and with dozens and dozens of other commodities, has the right to remove an impediment to individuals. I feel it has the right to do |