I think you can find a license tax in here on midwives, phrenologists, and beauticians.

And it would be a strange thing if all of these people would be held and construed to be operating as agents of the State, exercising State authority.

The only thing they are doing is paying some taxes to assist in supporting the State. And with all due respect to everyone who advances that suggestion, I would say that doesn't even have the stability of legal quicksand.

Senator DIRKSEN. Is Mrs. Murphy's boarding house in there? Senator ERVIN. Mrs. Murphy's boarding house is certainly in here even though she would not be allowed under this bill to exercise any authority about the guests who were to be in her boarding house. Senator HRUSKA. Suppose she changed her name would it still get her?

Senator ERVIN. It gets everybody whose surname starts with letter A down through Z, before it gets through, in its coverage.

Now, with reference to basing this bill on interstate commerce. Up to the present moment, this bill is unconstitutional under the interstate commerce clause despite the fact that interstate commerce clause has been construed in miraculous ways by various people its wonders to perform.

But, up to the present time, the validity of my position is supported by countless decisions of the Supreme Court of the United States. And I will quote from 15 Corpus Juris Secundum, Commerce, section 26, pages 301 to 302:

So the local sale of goods after they have been brought into the State from another State, and come to rest, there is not a transaction in interstate commerce, even though the buyers takes the thing purchased across the State line to another State or country, or may intend to do so.

The proponents try to base the bill in part on a man traveling through the State. Congress can regulate a man who is traveling in interstate commerce. And if he is traveling on a train or some instrumentality of interstate commerce, Congress can regulate that instrumentality. But when a man stops, his interstate transit stops and the power of the Federal Government to regulate anything based on his traveling, even to regulate him, ceases. And when an interstate traveler stops for any purpose other than an act which is in continuation of his transportation or his travel, then the continuity of interstate commerce is broken, and the power of the Federal Government to regulate him ceases.

But this bill goes far beyond this. It attempts to regulate the conduct of people who deal with a man traveling in interstate commerce in his own automobile when it stops for purposes having no relation to interstate commerce.

If the Federal Government can regulate the conduct of every man who deals in local transactions with a person traveling in interstate commerce, then we might as well throw the Constitution out the window and let Congress take charge of all the affairs of this country. This bill is an attempt to regulate commerce in the opposite direction.

The furthest that the Court has ever gone in interstate commerce, except in perhaps one or two rather extreme decisions, has been to sustain such things as the wage and hour law embodied in the Fair Labor

Standards Act. In that instance, Congress undertook to regulate the transportation of goods in interstate commerce, and the production of goods for transportation in interstate commerce under its power to prohibit movement in interstate commerce.

In other words, Congress specified in the Fair Labor Standards Act that goods could not move in interstate commerce if they were not manufactured under certain conditions. The pending bill proceeds on an entirely different theory. In truth, it does not attempt to deal with interstate commerce at all. The bill undertakes to act after all interstate commerce has ceased and the goods have come to their final rest within the borders of a State.

The provisions of title II of this bill constitute efforts to regulate the activities of individuals in private businesses within the border of a State on the theory that at some time in the past, however distant or however near, something such individuals use in their private businesses has moved in interstate commerce, and for that reason, Congress has the power to regulate the activities of these individuals.

Congress has no such power. It is well to remember that there is virtually no limitation on the interstate commerce power other than that expressed in the Constitution itself which is simply the power to regulate commerce among the States. If the theory that Congress can regulate the activities of the operator of a restaurant because he may use skillets or other utensils or cans of pork and beans which have moved in interstate commerce at some time between the ratification of the Constitution and the present moment, then Congress can regulate all of the activities of all the 180 million people residing anywhere in the 50 States. Congress can even invade all the homes of our people and regulate the relations of husband and wife and parent.

Stop and think for a moment.

If Congress can regulate on this basis, it can regulate marriage, because the groom gives the bride a ring that has moved in interstate commerce, or the bride wears a costume that moved in interstate commerce, or the groom wears a suit of clothes or a pair of shoes that moved in interstate commerce.

And, further, if Congress can regulate on this basis, not only can it regulate marriage, but it can regulate birth and all that precedes birth, because babies stimulate interstate commerce by using safety pins and diapers, which have moved in interstate commerce.

And, not only that, Congress can regulate death, on the same theory because corpses are buried in coffins and caskets which have moved in interstate commerce.

These things show the ridiculousness of this whole theory concerning the interstate commerce clause.

There is another thing about this title which bears weighing. Not only would the public accommodations provisions thrust the hand of Federal regulations into every nook and corner in the United States, even down to the shoeshine business, but they would impose burdens of unprecedented nature upon anyone engaged in any of the businesses covered by this bill.

The Attorney General is reported to have said in his testimony before the House, or in an interview afterward, that 99 people out of 100 would know whether they were covered by this bill. He was asked, as I recall, what the word "substantial" meant, and he admitted he didn't know.

If a lawyer like the Attorney General doesn't know what the word "substantial" means and who is brought within the purview of the bill by that word, how does he expect laymen engaged in running hotdog stands to have superior legal knowledge than he professes in the interpretation of the bill which he advocates?

I once read about a Roman emperor named Caligula. He issued oral laws. When the people of Rome protested, he made this concession to them. He wrote out his laws in small letters and hung them high on the wall so no one could read them. I respectfully submit that the Department of Justice is, in essence, emulating the example of Caligula.

Do we want to pass a law when the Department of Justice itself admits it doesn't know what the law means because of its use of the word "substantial"?

What is a man going to do? He is to be covered if his goods or services or facilities are provided to a substantial degree to interstate travelers.

If he ran a hotdog stand or resturant or hotel or motel he wouldn't know whether he is covered by the bill unless he hired somebody to put these questions to every person who applied to him for a hotdog or a steak or a room: "What is your name? Where do you live? How are you traveling? Are you traveling in interstate commerce?" The operator of such a business not only would have to have somebody to cross-examine every person who came into his place of business, if he wanted to obey the law, he would also have to have somebody take all the information down so he could ascertain whether the people he was serving were to a substantial degree interstate travelers.

Not only that, he would have to ascertain whether a substantial portion of the goods he offered to sell, or to rent, have moved in interstate commerce.

If the man operating a hotdog stand went to a wholesaler, or to a grocery store to buy some hotdogs, he would have to make other inquires to find out where these hotdogs came from.

Can you think of anything which would be more ridiculous for the great Government of the United States to undertake to do than to regulate all businesses, however large or however small, to such an extent that the men who conducted those businesses have to resort to such activities as those I've described in order to know whether they come under the terms of this bill? And even then they would not know, because if the Attorney General doesn't know what the word "substantial" means, they would not know.

And yet that is the kind of regulation that the Federal Government imposes on every aspect of commercial life if this bill becomes law.

Senator HART. Mr. Chairman, I just have one question.

The CHAIRMAN. Would you yield to Senator Hart?

Senator ERVIN. Yes.

Senator HART. Judge, just one question.

You have been emphasizing this so strongly. Would you support a bill if it is clearly limited to those establishments over which Congress has unquestioned power under the Commerce Clause?

Senator ERVIN. I would not support any bill which would undertake to deprive private individuals of the right to say how they will use their own property, or who they will select to be their customers. And, under the civil rights cases of 1883, it is impossible for Congress to pass any bill that is constitutional relating to the activities. of individuals in this area of commercial life.

Senator HART. Thank you, Mr. Chairman.

Senator HRUSKA. Would the Senator yield further on that same point?

Senator ERVIN. Yes.

Senator HRUSKA. It is considered that the constitutional basis for a bill of this kind is primarily a legal question. Upon whom does the duty and the responsibility of determining the constitutionality of the bill devolve?

Senator ERVIN. It devolves upon anyone who is a member of any one of the three branches of Government. It devolves upon each Senator, and each Congressman to keep his oath of office and not to vote for a bill which he thinks is unconstitutional. This is true because he has sworn to uphold the Constitution.

It devolves upon the President. The President is under the duty not to sign a bill which he believes to be unconstitutional.

And it devolves upon the courts to determine whether it is constitutional or not.

So I say everybody connected with the Federal Government who has taken an oath to uphold the Constitution is under the obligation to refrain from supporting in any way a bill which he honestly believes to be unconstitutional.

Senator KEATING. Would the Senator yield for one question? Senator JOHNSTON. Mr. Chairman, may I interrupt? I have to leave now. I am enjoying this very much. But I am going to have to go to the floor. And I am going to object to any committees meeting while the Senate is in session.

Senator KEATING. Would the Senator yield for one question?

I assume that the Senator would concede that the proprietors of these businesses, the hotdog stand and so on, for whom he shows such compassion, would have a similar problem under other Federal statutes the minimum wage legislation, the fair labor standards legislation, child labor legislation, and general labor relations legislation, enacted by the Federal Government.

The

Senator ERVIN. I would disagree with the Senator on that. Fair Labor Standards Act covers people who are actually engaged in transporting things in interstate commerce, or producing goods for transportation in interstate commerce. I think a man knows when he is running a railroad, or when he is actually shipping goods from North Carolina to some point in Virginia. And I think that a man who is running a manufacturing plant to fill orders he receives knows where he is going to ship goods to fill such orders.

And I think there is no similarity between the two, with all due deference to my good friend from New York.

Senator KEATING. What about the Federal minimum wage law? Doesn't he have the same problem of deciding whether he is covered?

Senator ERVIN. As the law was finally written, it does not apply to anybody except those that are engaged in interstate commerce. It applies to the bigger department stores and others engaged in interstate commerce. They certainly know where their goods are coming from, because they are ordering them in interstate commerce. These people covered by title II don't. The operator of a hotdog stand goes to a wholesaler or meat market to buy hotdogs and mustard. He doesn't know where the dealer got those supplies.

Senator DIRKSEN. I might say to my friend that we did violence to the Constitution in the minimum wage amendments. Senator ERVIN. Yes, sir. I think you did.

Senator DIRKSEN. We put in laundries, drycleaning plants. And for want to any other standard, they finally accepted a cutoff limit of $250,000. So if you do $250,000 gross business or more, you are under the Commerce Clause. If you do $249,000 worth, buy your goods from the same place, you are not under the Commerce Clause.

I don't know how in the world you can hang a dollar sign on the Commerce Clause, and call that a fair interpretation.

Now, I may say to my friend, if he doesn't know it, that in the first draft of this bill, which they sent to me, in connection with retail establishments, they put in $150,000 cutoff. If you do business above $150,000 you were in. Under $150,000, you were out.

So two establishments across the street from each other, one doing the maximum business would be under this proposal, and the one on the other side of the street under that maximum would be out from under the proposal.

I raised the question. I asked Mr. Sorensen in my office-I said, "Where did you get this $150,000 figure?"

He said, "We asked the Department of Commerce to find us a figure that would include at least one department store in every town with a population of 10,000 or more in the United States, and the Commerce Department came up with the $150,000 figure."

Now, for the life of me, I do not understand the logic of putting a dollar sign on the Commerce Clause of the Constitution. And to say, you on the north side of the street, you are in-to say to me on the other side of the street, you are out.

I want to raise one other question, that I would like to have my distinguished juridical friend think about.

If you can carry the regulation this far, then what is to prevent the Federal Government from going in for other types of regulation, including Mrs. Murphy's boardinghouse?

Senator ERVIN. Nothing. That is the point I was trying to make. You not only wouldn't stop with Mrs. Murphy's boardinghouse, or tourist home, but you could go into one's private home under this theory and regulate activity inside the home, because all people use stuff shipped in interstate commerce.

I agree with the Senator about the dollar sign. And I also would make this observation.

It has been stated that this is a question of morality, that morality is being legislated. I never knew it was the function of the Federal Government to regulate morality. But here some say we would put up a dollar sign and say we will regulate a large amount of immorality, but not a small amount of immorality. I want to read from the