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and the judgment reversed if such allegations are found to be untrue. This event, however, is not to take place until the State election officials have been robbed of their prerogatives under existing law and such prerogatives have been usurped and exercised under cover of these provisions by Federal officials.

These provisions call to mind this ancient couplet:

I oft have heard of Lydford law

How in the morn they hang and draw

And sit in judgment after.

I sincerely trust that the Congress of the United States will not give the Department of Justice the power to obtain merely upon allegations in a complaint, without any proof, without any evidence, and without any hearing, a court order giving it the judgment which ordinarily it would only get at the end of the trial.

The advocacy of these provisions indicates about the same amount of impatience that prompts a mob to lynch a man. The mob says, "Well, justice demands this man's execution. So we will just lynch the man now and try the case later.”

And that is what the Department of Justice asks in this.

Let's consider title II, injunctive relief against discrimination in public accommodations.

I want to talk about the provisions of this title of the bill. Senator Aiken, of Vermont, has been worrying about Mrs. Murphy. And well he might.

According to the quotations in the press, the Attorney General said this bill didn't apply to Mrs. Murphy, and didn't apply to little people.

Let's see how this bill does apply.

It refers in the first section to hotels, motels, and other public places engaged in furnishing lodging to transient guests, including guests from other States or traveling in interstate commerce.

That is a very adroitly drawn section. The Federal Government certainly has no power under the interstate commerce clause, even in the opinion of the Department of Justice, to regulate whom a hotel or motel or any other public place shall receive as guests, unless those guests travel in interstate commerce.

In my judgment, Congress cannot compel hotels, motels, or public lodging places even to receive persons traveling in interstate commerce. This is true because their interstate travel is interrupted when they stop at a local establishment of this nature to sleep. But the provisions of title II undertake to require all persons operating hotels, or motels, or other public places furnishing lodging to transient guests to receive any transients regardless of whether they are residents of the State in which such hotels, or motels, or places are located or residents of other States sojourning for long periods of time within the borders of the State within which such places are located or persons interrupting their interstate travel for the purpose of sleeping in such places. In other words, title II would require the reception of two groups of transients who are not connected in any way with interstate travel.

Now, let's see how this applies to Mrs. Murphy.
Senator DIRKSEN. Who is that-Mrs. Murphy?

Senator ERVIN. Mrs. Murphy-Senator Aiken's imaginary constituent. All of us represent a lot of Mrs. Murphys, widows who are renting some rooms in their dwelling houses to tourists.

The Attorney General says the word "public" excludes the Mrs. Murphys.

A public place within the purview of the law and within the purview of this bill is any place which invites the public to patronize it. And, any lady owning a dwelling house who puts up a sign indicating that she rents rooms to transient people, that is to tourists, is operating a public place. And to show that this is true, I invite your attention to page 14 of the bill, section 202, subsection (a) and subsection (ii).

This bill applies to any establishment where—

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 interstate commerce.

When a widow operates a tourist home, what does she rent to her guests? She rents rooms under a roof whose shingles have probably moved in interstate commerce. She rents beds and other furniture which have moved in interstate commerce. Under subsection (ii), section 202, on page 14, it is not a question of whether her action in renting her rooms has "a substantial effect" on interstate commerce. The only test is "whether a substantial portion" of the things she rents to tourists have moved in interstate commerce at some time in the past, however near or removed. Consequently, the bill would cover all of the Mrs. Murphys.

It would also cover any shoeshine boy whose sole stock in trade consisted of one can of polish and a rag which had moved in interstate commerce. This is clearly so because such can of polish and rag would constitute a "substantial portion" of the goods which he held out for the use of the public under the provision of subsection (ii) on page 14.

Section 204 lays down four tests of coverage in subsections (i), (ii), (iii), and (iv). These tests are stated in the disjunctive and not the conjunctive. Consequently, the tests in subsection (ii) would get all of the Mrs. Murphys, all the shoeshine boys, and virtually everyone else in any kind of business.

The bill would get beauty parlors, barber shops, shoeshine parlors, swimming pools, and virtually everything else. It is all inclusive. And under this bill the Federal Government would extend the hand of regulation into virtually every commercial enterprise throughout the border of the United States.

Is that the kind of legislation that the Congress of the United States wants to pass? Is that the kind of extension of Federal power this Nation needs?

This statute, in my judgment, is unconstitutional based on every decision of the Supreme Court that has been handed down to this date. I don't guarantee what is going to happen tomorrow. But, up to this date.

We have had a lot of talk as if the Civil Rights cases of 1883, 109 U.S. 3, were the only cases bearing upon questions of this kind. It is interesting to note the provisions of the 14th amendment. I think it is worth reading at this point. I can assert without fear of substantial contradiction that the 14th amendment has nothing to do with

the acts of private citizens and gives Congress no power whatever to legislate with respect to any matter, except in respect to State action. The amendment is rather long, and I would like to ask that it be reprinted in the record here.

(The 14th amendment is as follows:)

ARTICLE XIV

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

SECTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Senator ERVIN. I assert that there is not a syllable in the 14th amendment which authorizes Congress to legislate except in respect to State action. And with all due respect to everybody concerned, I would have to say that anybody who thinks that the public accommodations provision of this bill can be sustained on the basis of the 14th amendment has lost virtually all confidence in the intellectual integrity and the judicial stability of the Supreme Court of the United States as it is now constituted. How can any intellectually honest man give to the provisions about "State action" any meaning except what those words say-State action. He cannot attribute any other meaning to those words if he is going to refrain from murdering the king's and the queen's and everybody's English. If one is to be intellectually honest, he cannot give to those words the meaning that they apply to individuals.

Here are the salient points of the amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Every decision that the Supreme Court of the United States has ever handed down on this subject holds that Congress has power under this amendment only to deal with State action, and only with State action which violates the prohibitions on State action specified in the amendment itself.

And so this title of the bill is clearly unconstitutional under all of the decisions of the Supreme Court of the United States, starting back with the Slaughterhouse cases, 16 Wall. 36, down to the case of Collins v. Hardyman, 341 U.S. 651, which was handed down in 1951, and in which the opinion written by Associate Justice Robert H. Jackson stated emphatically that the 14th amendment did not empower Congress to legislate except in respect to State action.

Senator DIRKSEN. Is the distinguished Senator familiar with the case of Lombard v. Louisiana?

The opinion was written by the Chief Justice, and it was handed down on May 20 this year.

But it seems to me that what they were striving for was a degree of logic that brought them squarely in line with the decision of the 1883 case.

Senator ERVIN. Yes, I am familiar with it. In that case, the Chief Justice said for Congress to act under the 14th amendment these are not his exact words, but the substance of them, as I remember that it required State action. That is what Chief Justice Warren said in the Lombard case, which was the case where the police, acting at the instance of the mayor, ejected some trespassers from a restaurant in New Orleans. And, incidentally, in that same case, or, rather, in a companion case, there is a statement from the man who in my book is now the ablest member of the Court. Comparisons are odious, but I will nevertheless make this one. I refer to Justice Harlan. He wrote this in Peterson v. the City of Greenville, which was one of the sit-in cases. He says:

An individual's right to restrict the use of his property, however unregenerate a particular exercise of that right may be thought, lies beyond the reach of the 14th amendment.

That was said in a case which was handed down on May 20 of this year.

And I do not see how a clearer statement could be made of the principle that the 14th amendment cannot possibly support legislation based upon the public accommodations provisions of this bill.

Senator KEATING. Mr. Chairman

Senator DIRKSEN. As a matter of information, just at this point, was it Justice Harlan's grandfather who was the dissenter in the 1883 case? Senator ERVIN. Yes. Justice Harlan's decision in the 1883 case, as I interpret it, puts an even_narrower construction on the 14th amendment that the majority decision. He said that it should be construed in connection with the 13th and the 15th, and that it should be construed to mean that it outlawed discrimination against people on account of race.

The 14th amendment does not do that. The 14th amendment prohibits a State from denying due process of law and the equal protection of laws to men of any race.

Senator KEATING. May I just ask one question?

I don't want to prolong it, Mr. Chairman. And I realize, as does the Senator from North Carolina, this public accommodations section is based on the Interstate Commerce Clause of the Constitution.

But, bearing upon the 14th amendment basis, and in support of a possible amendment which might include the 14th amendment as a basis for the public accommodations, does not the Senator feel that this would be affected by this fact? The decision which the Senator has referred to, in the Civil Rights cases, says

until some state law has been passed or some state action through its officers or agents has been taken adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment nor any proceeding under such legislation can be called into activity for the prohibitions of the amendment are against state laws and acts done under state authority.

But I call the Senator's attention to page 12 of this bill in which there is the finding if the finding is accepted-it would have to be backed, of course, by facts which, in my judgment, it is—saying:

The discriminatory practices described above are all cases incurred, fostered, or tolerated in some degree by the governmental authorities of the States in which they occur which license or protect the businesses involved by means of laws and ordinances and the activities of their executive and judicial officers.

Doesn't the Senator feel that would form a basis, even though he and I would be in disagreement upon the facts—but a legal basis for action under the 14th amendment?

Senator ERVIN. Well, that wouldn't even have the stability of legal quicksand, in my opinion, because these people are merely the people that pay taxes. A license tax is just like any other kind of tax. The State doesn't tax its own agencies. This is raising taxes.

To show you how ridiculous it is—I though maybe somebody might ask me that question.

Senator KEATING. Sorry I asked you.

Senator ERVIN. I brought along volume 2C of the General Statutes of North Carolina. And I might state that North Carolina is a less law-ridden State from the standpoint of license taxes than many other States of the Union. It starts on page 535 with "License Taxes." And it keeps imposing license taxes from that page to page 602-67 pages.

Let me assure you that the State of North Carolina collects license taxes out of about everybody that it thinks has enough money to pay a license tax. And that is true in other States.

And after imposing license taxes, the North Carolina law has a section on franchise taxes, which are nothing in the world but another form of license taxes. These run from page 602 through page 621. So there is almost a hundred pages. And if the Senator will bear with me--I will tell you a few of them.

License taxes are applicable to attorneys-at-law, practicing physicians, veterinarians, veterinary surgeons, osteopaths, chiropractors, dentists, oculists, opticians, optometrists, any person practicing any profession, art or healing for fee or reward, every practicing professional engineer, every practicing land surveyor, every architect, landscape architect, photographer, canvasser for any photographer, agent of a photographer, and every person who is a member of a partnership under certain categories. The law goes on.

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