whether he is covered, is whether he is going to deny service to an individual because he is a Negro. That is what it comes down to. He is not affected under this bill if discrimination is not present. He has got to make a decision, this man, this poor fellow is going to have to make a decision that he is not going to serve people not because they are not dressed properly, not because they don't have enough money, not because they don't look well, but just because they are Negroes, and then he has got to decide whether his establishment has an effect on interstate commerce.

I would say, Senator, that you could tell him that generally if he runs an eating establishment that he has an effect on interstate commerce, and that he would be covered. So I don't see that there is a problem for him, if that is the great difficulty as to whether he is or is not covered. I would think that restaurants generally would be covered under this bill.

Senator ERVIN. Mr. Attorney General

Attorney General KENNEDY. Hotels, motels, and restaurants would generally be covered, except the hotels and motels which are of a social, personal nature.

Senator ERVIN. You take the position that all righteousness is on your side of this argument and none on the side of people who believe that the freedom of individuals, such as their freedom to use their own property in their own way and to select their customers as they wish, ought to be preserved.

Attorney General KENNEDY. Senator, I am not in the business of judging anybody else. I am just saying

Senator ERVIN. That is what you are doing.

Attorney General KENNEDY (continuing). Saying how I feel about it. You can have your opinion. I have great respect for you and I have great respect for many who differ from me.

But I am not judging them nor am I judging anyone else. I just think for many, many years, Senator, the Negro population has been mistreated here in the United States, that this is the source of the injustice, and that we have the authority to rectify and remedy the situation and that we should do it.

I think that it is long overdue. I think it would have been much better if it had been done at the local level. I think it would have been much better if it had been done at the State level rather than having the Federal Government become involved.

But I think it is too late to wait now, Senator. Being quite frank about it, I don't think we can wait any longer. That is why I think that this legislation is so necessary and so essential. If we didn't have this problem, Senator, I wouldn't advocate this legislation. But I think it is essential in view of the situation in our country today, I think that it is essential. The injustices have existed for a long period of time, and it does not appear that they will be remedied internally by a local community or State in a number of areas of the country. I think it is essential that we take action through this legislation.

Senator ERVIN. You think that all Americans of all races ought to be robbed by Federal legislation of the right to use their own property according to their own wishes, and the right to determine whom they shall serve in order to confer a supposed equality by the coercive power of law for the benefit of one segment of our population?

Attorney General KENNEDY. Senator, let me say this: I don't think that any property right is absolute. As I pointed out, just under the commerce clause there have been about three dozen different statutes enacted that have an effect on one's property rights. There is not an establishment that we are suggesting be covered under this legislation that is not covered already by Federal legislation under the commerce clause.

So, this is not something new. This is not something that we are Senator ERVIN. Mr. Attorney General, why are you asking for this law, if you say they are already covered by Federal legislation? Attorney General KENNEDY. Because there is

Senator ERVIN. I dispute that.

Attorney General KENNEDY. Senator, I said that there were laws that deal with these establishments under the commerce clause.

Senator ERVIN. I do not know of a single act of Congress which undertakes to extend the hand of Federal regulation into such local activities as the operation of hotdog stands and the like.

Attorney General KENNEDY. There are a lot, Senator.
Senator ERVIN. Not acts of commerce.

Now, Mr. Attorney General, one other question along this line. If Congress can regulate the use of privately owned property and the personal activities of individuals within the borders of the State merely because the use of such property and the rendition of such personal services may involve the use of some goods which at some time past have moved in interstate commerce, cannot Congress regulate the activities of husband and wife and parent and child within the homes if they make use of any goods which have moved in interstate commerce?

Attorney General KENNEDY. No.

Senator ERVIN. Well, why can't it? If Congress can regulate the use of private property and the rendition of personal services by the operators of so-called places of public accommodations within the borders of a State on the ground that such operators use goods which have moved in interstate commerce, then Congress would have unlimited power under the commerce clause to regulate all of the activities of all the people in every nook and corner of the United States. This would be true because the power of Congress under the interstate commerce clause is virtually unlimited within the scope of its coverage. Attorney General KENNEDY. I suppose you could make the same argument about oleomargarine if they pass a law dealing with oleomargarine, does it mean they can pass legislation dealing with the relationship of husband and wife?

Senator ERVIN. I am not talking about oleomargerine.

Attorney General KENNEDY. I don't think there is any connection, Senator, any more connection between that and what you have suggested.

Senator ERVIN. Your theory is that Congress has the power to regulate the use of property and the rendition of services of private individuals within the borders of a State because they use or handle or sell some goods which in times past have moved in interstate commerce. I think that is a fair statement.

Attorney General KENNEDY. No, it isn't, Senator.
Senator ERVIN. Why isn't it?

Attorney General KENNEDY. Because you have left out the very important part of it. The activities that have taken place have had an adverse effect on interstate commerce, and therefore Congress, in my judgment, has the right to pass legislation under the commerce clause to deal with that problem. These same kinds of arguments, I am sure, Senator, were made originally when they had a minimum wage of 25 cents an hour, and when the child labor law and Fair Employment Standards Act were being considered.

Senator ERVIN. They should not have been because Congress has the power not only to regulate interstate transactions and interstate transportation, but also to regulate the steps leading to interstate transactions and to regulate the production of goods to be shipped in interstate commerce.

So that is a different question.

If you can regulate the activities of the people mentioned in this bill on the basis that a substantial portion of any goods held out to the public by any such place or establishment for sale, use, rent or hire has moved in times past in interstate commerce, then Congress has the power to regulate every activity of everybody anywhere in the country on the same theory.

Under that theory Congress could regulate birth because babies wear clothes which have moved in interstate commerce.

Attorney General KENNEDY. That is not correct, Senator. You said that before, but it just doesn't happen to be correct. You are not reading this bill.

Senator ERVIN. Will you tell me what limitation there is on the power of Congress to regulate if it has power to regulate the activities of people because they use goods which have moved in interstate commerce?

Attorney General KENNEDY. I think the same limitations that have existed on other legislation that has been passed by Congress, Sen

ator.

Senator ERVIN. Those are limitations put by Congress; they are not limitations put by the commerce clause.

Attorney General KENNEDY. Senator, I say if this bill is bad as you feel it is, I would think it would be sufficient to restrict our remarks to what the bill does or does not do.

You have suggested here, and in other statements you have made, things that this bill does not cover, and charged it with doing things that it does not do.

I would think if we could restrict our conversations and discussions and exchanges to what this bill actually does

Senator ERVIN. Sure, we could limit our discussion, Mr. Attorney General, if I was willing to accept your construction of these words. instead of my own.

Every statement I have made about what this bill does is an honest statement based on my reading of this bill and my attributing to the words of the English language used in this bill, the meaning I honestly think they require.

Attorney General KENNEDY. Will you tell me where the baby is going to be covered?

Senator ERVIN. I wasn't suggesting a baby would be covered by the bill. I was asking you about the power which you say Congress has. Clause (ii) on page 14 bases the right to regulate the activities

of those people on the fact that the goods have moved in interstate commerce in times past.

If Congress has the power to regulate the use of private property or the activities of individuals within a State on the theory that such use or activities may involve some goods which have moved in interstate commerce in times past, where does the regulatory power of Congress stop? It has no limit.

Attorney General KENNEDY. Senator, that is as old as this country. Congress has authority, under the commerce clause, to deal with goods and transactions that affect interstate commerce. That is nothing

new.

Senator ERVIN. When a man

Attorney General KENNEDY. That is what so shocks me.

Senator ERVIN. If Congress can regulate the use of private property or the rendition of personal services within the borders of States because the use of such property or the rendition of such services may involve goods which have come to rest within the borders of the State after prior movement in interstate commerce, then the regulatory power of Congress is illimitable. If that theory were valid, Congress could regulate relations of husband and wife. Virtually every married couple in the United States use in their homes furniture or linen or silver or other articles which have moved in times past in interstate

commerce.

The CHAIRMAN. Gentlemen, the Senate is in session.

Senator KEATING. Mr. Chairman, before adjourning, could IThe CHAIRMAN. Going to have to leave. You can ask a question but I want to announce we will meet tomorrow.

Attorney General KENNEDY. We will be back tomorrow?

The CHAIRMAN. If that is convenient to you, Mr. Attorney General. Attorney General KENNEDY. That is fine, Senator.

The CHAIRMAN. The time will be announced later. I want to confer with members of the committee. We might meet at 10 o'clock. Senator ERVIN. I will yield to you in just a moment. I would like to make a last statement.

Senator KEATING. Parliamentary inquiry of the chairman, if I may, before he leaves, if I could.

This bill, S. 1731, and the other bills I guess, 1750, were referred to the Subcommittee on Constitutional Rights on June 26, and so far as I am aware that is their present status.

The CHAIRMAN. That couldn't be correct because the full committee decided on hearings by the full committee.

Senator KEATING. May I make this inquiry? In the subcommittee, one member is a quorum, in any subcommittee, under our rules, for the purpose of conducting hearings, and may I have a ruling from the Chair as to whether in these hearings one would be sufficient for a quorum for the conduct of hearings?

The CHAIRMAN. As I recall, that is a rule in the full committee, I am not certain. I don't remember what the rule is.

Senator KEATING. If that is so, I wonder if it wouldn't be possible to proceed with evening sessions after the Senate adjourns. I for one, and I am sure others would be happy to be present for the purpose of constituting a quorum so that we could get along and make more progress.

The CHAIRMAN. We are making just as much progress as we can. We are meeting every day. I am not going to agree to be in session. Senator KEATING. Would the chairman consider the calling of a meeting of the committee, of the full committee, in executive session, to consider whether a majority of the committee would agree?

The CHAIRMAN. Of course, I will agree to meet with the full committee at all times.

I am subject to the direction of the full committee at all times, but I have had some objections from the committee as to meeting tomorrow. I am going to meet tomorrow. I don't think we gain anything by meeting after the Senate is in recess. I don't think it is a proper hearing and a proper procedure for just one Senator to be present in order that a record be made.

These hearings are for the benefit and enlightenment of the full committee. For that reason, the full committee took this bill from the subcommittee, and I think it would be far better that we hold the hearings where we can have a substantial number of the full committee present.

Senator KEATING. I would hope that

The CHAIRMAN. I don't think there is anything to this thing of one member sitting here making a record. I think that is a travesty on the legislative system.

Senator ERVIN. Mr. Chairman, before you go, I would like to close what I have to say on the public accommodations feature. But I would like to put into the record

The CHAIRMAN. It will be admitted.

Senator ERVIN. A statement entitled "The "Right to Be Nasty,'" by Laurence H. Eldredge, a very distinguished lawyer, which appeared in the Evening Bulletin of Philadelphia, Pa., on July 24, 1963, and an editorial from the Wall Street Journal of June 20, 1963, entitled "The Wrong and the Remedy." I would like to put them in the record as expressing my views on the public accommodations feature. (The articles referred to follow :)

[From the Evening Bulletin, Philadelphia, Pa., July 24, 1963]

THE "RIGHT TO BE NASTY"

(By Laurence H. Eldredge)

(NOTE.-Mr. Eldredge is the reporter for the Supreme Court of Pennsylvania, former chairman of the Board of Governors of the Philadelphia Bar Association, and former professor of law in the University of Pennsylvania Law School and the Temple University School of Law. He has been invited by the Senate Judiciary Committee to present his views at the current hearings on the proposed civil rights legislation.)

I am completely sympathetic to the efforts which the members of the Negro race are making to eliminate in our public life the gross injustices which they have suffered in the past. Much of what has happened to them, and is still happening, both in the North and in the South, flagrantly violates our fundamental ideas of equal justice and equal right for all citizens.

Nonetheless, the proposal for the Congress to enact a statute of nationwide application which would compel all persons who engage in providing services or selling goods to serve all prospective customers without any discrimination, under penalty of criminal sanctions, disturbs me greatly.

In the first place, every thoughtful student of legal history knows that there are some things which cannot be accomplished by law. Our laws do and must undergo change, and they reflect the felt necessities of the times.