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Greensboro Daily News editorial for June 2. It says this, speaking of this civil rights package:

But their greatest collective fault is that they would endow Federal officials, in the name of the noble cause of racial justice, with sweeping and unheralded authority to intrude in almost every nook of local life, superseding home authority, discouraging such voluntary effort as is encouragingly evident all over North Carolina and other States, and generally tempting those who should be thinking and working to think only of the mañana when a Cox's army of Federal officials will descend to do our work.

That reference to the depriving of the home of home authority is involved in the next section of this bill. I wish to discuss the next section of this bill. I hate to transgress upon the time of the committee to such an extent, but I have very serious feelings about this type of legislation.

I think that in fighting this type of legislation I am not only fighting to preserve the constitutional system of government which we have known and loved, but I am also fighting to preserve the basic rights of American citizens.

Senator DODD. Mr. Chairman, if the Senator is going to another subject, may I ask a question?

Senator ERVIN. Yes.

Senator DODD. I have been very interested in your testimony. As you know, Senator Cooper and I introduced a bill premised on the 14th amendment. I assume you would agree that in many of these businesses in the States there are discriminatory practices. Many Negroes cannot buy lodging or food or many other services or commodities, as you have discussed.

Now, what is wrong with the idea that these discriminatory practices are in all cases fostered, encouraged, are certainly tolerated, in some degree by the State government in which they occur because the State licenses these businesses?

Why doesn't the discriminatory practice in the given business take on the character of action by the State which licenses the business that engages in the discriminatory practice, and, therefore, why doesn't it fall within the equal protection provision of the 14th amendment? Senator ERVIN. I will tell you why. Because the State is not running these plants. The State, such as North Carolina, says the owner of property can use that property as he sees fit, and can select his own customers. The State expresses no opinion on it at all. As a matter of fact, there are many places in North Carolina that are desegregated. And you cannot say that the State is compelling a man to do something because the State gives him liberty to make his own choice. That is the trouble with that argument.

Senator DODD. I don't suggest it is compelling him. But I say doesn't it take on the character of State action when the State saysit considers, I assume, whether it will license a given business or not. And if it licenses businesses that openly engage in discriminatory practices, isn't it giving a kind of blessing to it, and doesn't the business take on the character of the State?

Senator ERVIN. Not at all, any more than the State encourages robbery and larceny by having a jail to lock up people that commit those crimes.

The State does nothing

Senator DODD. You are not serious about that example, are you?

Senator ERVIN. No. I must confess that this illustration does not constitute a serious example of the point I am making. I withdraw it. I have the highest respect for my good friend from Connecticut.

Senator DODD. And I have a high respect for the Senator from North Carolina.

Senator ERVIN. But all the State does is two things. It says to these people, you can use your own property as you see fit, and you can select your own customers. You can select customers of one race or the other race, or both races, just as you please. We have nothing whatever to do with that. But you are going to have to pay a license tax to help support the State government, so we can carry on our functions. I cannot accept the theory that when the State grants liberty to a man to use his own property in his own way, the State is responsible for what the man does.

Senator KEATING. Mr. Chairman, I assume that we will be adjourning due to the objection by Senator Johnston. May I ask that the statement which I prepared be entered in the record at the appropriate point. And I will not hold the committee.

The CHAIRMAN. At the conclusion of Senator Ervin's remarks. Senator HRUSKA. May the same apply, Mr. Chairman, to a statement I shall prepare for that purpose? (Refer to page 75.)

The CHAIRMAN. Yes, following Senator Keating's statement. It is 12 o'clock.

Senator ERVIN. I was going into an entirely new section. I want to apologize to the committee for taking up its time. I feel very keenly that it is my duty, as U.S. Senator, to present my views on this bill. "I am sincerely of the opinion that in fighting against this bill, and especially against its public accommodations provisions, I am fighting for the preservation of constitutional government as we have known it in the United States, where the powers of government are divided between the Federal Government on the one hand and the State on the other.

And, also, I am fighting for the preservation of basic rights of citizens to use their own property in their own way. If the Government can enter this field and dictate in this fashion to property owners, it can take similar action in all other fields, and virtually deny men the right of ownership of private property.

Senator DIRKSEN. Mr. Chairman, I don't believe the distinguished Senator need apologize. I notice in the press in the last 2 days some expressions of disappointment on the part of Senators serving on the Commerce Committee that they have not heard any constitutional discussion on title II. And I am delighted indeed that our learned friend, who has served with distinction as a jurist, has undertaken to put the emphasis on the constitutional aspect, because it is very helpful. Senator ERVIN. Thank you.

The CHAIRMAN. We will recess until 10:30 in the morning.

Senator ERVIN. I wish to discuss other provisions of the bill at the next session of the committee. I would like to make this statement before the committee adjourns. The validity of the provisions of this bill does not depend upon the whereases and recitals the bill contains. The courts have held that the power of Congress to pass a law must be found in the Constitution itself. Congress cannot extend its power by making recitals. If Congress could, it could extend this power to

legislate in respect to all things under the sun by the simple expedient of uttering a few legislative lies.

(Senator Keating's statement is as follows:)

STATEMENT OF SENATOR KENNETH B. KEATING PREPARED FOR DELIVERY BEFORE THE SENATE COMMITTEE ON THE JUDICIARY ON CIVIL RIGHTS LEGISLATION

I have joined as a cosponsor of the President's civil rights bill (S. 1731) because in my judgment its enactment would permit substantial progress to be made in enforcing constitutional guarantees.

It presents Congress with an opportunity to contribute to the advance of human freedom in America, and this is an opportunity which we cannot afford to reject.

There are a number of respects in which the bill may be usefully amended, and any legislation of this scope justifies careful study. In my judgment, however, this subject deserves the highest priority, and we must act with dispatch in reporting a bill to the Senate and giving every Member an opportunity to vote on its merits.

The Subcommittee on Constitutional Rights, after full hearings, has reported favorably separate legislation to extend the Commission on Civil Rights, identical to title V of S. 1731. The Senate Committee on Commerce has held several weeks of hearings on a public accommodations bill, identical to title II of S. 1731. In both cases, extensive testimony has been presented both by the proponents and opponents of these measures, and no question can be raised about the fairness of these hearings. There is no need for this committee to duplicate these proceedings, or in the case of the Commission on Civil Rights-to delay action because of these hearings on the President's omnibus bill.

I do not want to take the time of the Attorney General by commenting in detail on each of the provisions in S.1731 this morning. However, I would like to offer some brief general comments which I hope will serve to place this subject in proper perspective.

In my judgment, there is no area of national affairs which the Federal Government has approached more timidly than the area of civil rights. In too many instances, bold declarations have been promoted as a substitute for decisive action. The result has been widespread confusion as to the need for and the impact of these measures.

Let me cite just two examples indicating the incredible inconsistencies of our actions to date.

Early last month, after a few minutes of debate, the Senate passed a bill authorizing the Federal Government to spend up to $2,500,000 each year on sanitation facilities for migratory workers, including toilets and handwashing facilities.

No one charged that this bill violated States' rights. The responsibility of the Federal Government to provide for the health of migratory farm laborers by building toilets and washbasins on private farm property was not challenged by a single member of this committee or the Senate.

The contrast in attitudes toward this type of legislation and the civil rights bill we are now considering is startling. And I will never understand how Senators who don't blink an eye at Federal legislation for toilet construction can raise such a thunder of protest against Federal legislation to enforce constitutional rights.

I am not critical of any program to relieve the substandard conditions under which our migratory farmworkers work. But certainly, if authority can be found in the Constitution for a sewer, toilet, and washbasin grant-in-aid program, then authority exists for Federal assistance to those seeking help in enforcing equal protection, equal opportunity, and equal voting rights under the Constitution.

The Senate has done its part to improve sanitary conditions on the farmlands of America. We should now act with comparable dispatch and unanimity to enhance human freedom and justice in America.

Of course, this is only one of myriad examples which could be cited to demonstrate the difference in attitude toward legislation relating to civil rights and legislation relating to economic and other issues. There is no need to spell out the reasons for this contrast, but certainly there is nothing in the Constitution which justifies less Federal concern for human rights than for sanitation and similar problems.

However, as the second example I want to mention will illustrate, it isn't only Congress which has been inconsistent. The executive branch has produced some equally bewildering examples of inconsistency, such as the regulations issued by the Administrator of the Area Redevelopment Agency. These regulations do require that housing and related facilities financed under the act be made available on a nondiscriminatory basis. The regulations, however, specifically exempt from this requirement "transient or hotel facilities or parts thereof which are intended for occupancy for a period of less than 30 days."

I have carefully studied the statutes applicable to such grants and find nothing which suggests any such distinction. This is not an insignificant matter since one-fourth of all the loans under the Area Redevelopment Agency have gone into the construction of public accommodations, such as hotels and motels, but the Administrator still refuses to apply a nondiscrimination standard to this program, even though he has done so for residential construction.

The President in his first civil rights message to Congress early this year indicated that "legalistic evasions" designed to thwart civil rights would not be tolerated. I agree with this statement and would add that neither can we tolerate legislative or executive evasions of the issues confronting us. What is involved here fundamentally is the question of whether we are going to enforce all the provisions of the Constitution. In my judgment the commands of the Constitution have a firm moral as well as legal foundation and cannot be ignored I am confident that a majority of the Congress is ready to fulfill its responsibilities and whatever is necessary must be done to make certain that Congress is not denied that privilege and opportunity.

(Whereupon, at 12 o'clock noon, the committee recessed, to reconvene at 10.30 a.m., July 17, 1963.)

CIVIL RIGHTS-THE PRESIDENT'S PROGRAM, 1963

WEDNESDAY, JULY 17, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to recess, at 10:40 o'clock_a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Johnston, Ervin, Dodd, Hart, Kennedy, Hruska, and Keating.

Also present: Joseph A. Davis, Chief Clerk; L. P. B. Lipscomb, and Robert Young, professional staff members.

The CHAIRMAN. The committee will come to order.

Senator Ervin, proceed.

STATEMENT OF HON. SAM J. ERVIN, JR., A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA-Resumed

Senator ERVIN. Mr. Chairman, yesterday I was asked a question by the able and distinguished senior Senator from Connecticut, Mr. Dodd, as to why a State could not be held responsible under the 14th amendment for the acts of persons operating so-called public accommodations under laws which required them to pay a State license tax. The answer to that question is given in many decisions of the Supreme Court, and particularly in the Civil Rights cases of 1883. The CHAIRMAN. Just a minute. I am not going to permit pictures to be taken while the witness is testifying. You may take them be

fore or after he testifies.

Senator ERVIN. On page 13 of the Civil Rights cases of 1883, Judge Bradley says this:

And so in the present case, 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 14th amendment, no legislation of the United States under said amendment nor any proceedings under such legislation can be called into activity for the prohibitions of the amendment are against State laws and acts done under state authority.

A man is not acting under State authority when he has to pay a license fee for conducting his business. As for example, in North Carolina a gypsy's engaging in fortune telling.

On page 18 of the same opinion, Judge Bradley answers that question a second time. He states:

This abrogation and denial of rights, for which the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, 45

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