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The CHAIRMAN. I understand Senator Dodd is on his way down to make a statement.

We will recess until he arrives.

(Brief recess.)

The CHAIRMAN. Come to order, please.

STATEMENT OF HON. THOMAS J. DODD, A U.S. SENATOR FROM THE STATE OF CONNECTICUT

Senator DODD. Mr. Chairman, I don't think it is necessary for me to say how much I respect and admire Senator Ervin. Generally, I think he is a wonderful lawyer and a great Senator.

I was not able to be here yesterday or this morning, when Senator Ervin went on with his statement. But I have been informed that the Senator has stated that a license in no way signified a State action or participation in or responsibility for the operations of the licensee. And the Senator cited a long list of activities that are licensed in his own State of North Carolina. And in his own inimitable way he selected the case of a gypsy fortuneteller. And added merry-go-round operators.

And he concluded that it was ridiculous to assume that because a fortuneteller pays a license fee, that the State has any responsibility for her activities.

I

say "her" because I think most of them are females. Anyway, they are out where I live.

Well, this interested me. And so when I heard about it this morning, Senator Ervin, I tried to think it out, and I thought it was important that I answer your observation.

And I wish to dispute this head on. I am willing to take up the case, the extreme case of the fortune teller. It is an extreme case, I think you will agree-it is an attractive one, and a semihumorous one.

When the State issues a license to a fortuneteller, that license obviously is to operate. The fortuneteller in North Carolina cannot do business without this State license. She cannot operate, therefore, without the authority of the State of North Carolina.

Now, if the State involved, any State, or any of its subdivisions, are doing their job properly, a license signifies more than the mere payment of a tax. It should mean, and I am confident it does mean, in North Carolina or in any other State, that the person given the license meets some standard of acceptability. It should mean some protection to the patrons of the fortuneteller.

For example, that they are not dealing with an extortionist.

It should mean that the premises are being used for what the license says they are being used for, and not for gambling, for example, or for prostitution, or something of that sort.

But let us look to more pertinent examples, and by more pertinent examples I don't mean to run down the example that you cited-but I think there are others, you will agree, that are more pertinent, such as restaurants, stores, motels, motion picture theaters, and business of this kind.

Now, here it seems to me involvement of a State or any of its subdivisions is far more pronounced. Here the business which receives a permit is subject to rules and regulations regarding, for

example, sanitation, public health, fire regulations, and other forms of control through which the State recognizes its responsibility for protecting the rights of the public in connection with that business. This must be so.

Thus, I say the licenses and permits through which a business is allowed to operate do represent a degree of participation, sanction, and responsibility by the State for the operation of that business. I think it is hard to deny this. I cannot imagine anyone saying this is not so.

Now, my view is that this authority resides in all the people of that State.

In the case of those businesses which practice racial discrimination, we have the strange situation of a business which has received a grant from the State to offer goods and services for sale, a grant received from all of the people of that State, a large percentage of whom may be Negroes, and refusing to deal with the very people in whose name it is authorized to open for business-refusing to deal the business licensed refusing to deal with the very people in whose name it is authorized to open for business.

So it is my view that the contention of Senator Cooper, and 30 other cosponsors of S. 1519—and I, of course, with Senator Cooper, introduced that bill-it is our view that a business which is authorized, controlled, and regulated by the State in this manner should not be allowed to pursue practices in violation of the Constitution of the United States, which is the law, not only of the Nation but of the States and localities.

And I think it is ironic that witnesses before the various congressional committees, in opposition to the 14th amendment approach, should make the plea that private businesses are strictly private property which have a right to operate as they see fit.

I point out that there are at least eight States in this country, all located-well, I say all located in the region from which this kind of argument originates-that require segregation in public accommodations by law. There are eight such States.

Let's say they say, "If you are to do business in this State, you must segregate. ." And this is a statute.

Now, I say these laws are clearly unconstitutional. And I expect they are doomed as soon as the Supreme Court can get to them.

But I think the important point is that these States currently are controlling the operations of private businesses to such a minute. degree as to require that dishes used by Negroes in a restaurant must be washed by separate facilities from those used by white people. Now, I think that the involvement of the State in segregation of public accommodations is inescapable, whether that involvement be direct, through laws enjoining segregation, or whether it be indirect, as in the case of discrimination in businesses which can operate only by permit in the State, and which are controlled and regulated by the State and its subdivisions.

I wasn't here to hear my good friend make his statement; but this is my answer to the argument put forth by the distinguished Senator from North Carolina, so far as I have been able to hurriedly get it together.

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I have, as well, Mr. Chairman, a statement which I had prepared, which I would like to have included in the record at this point, on several points, particularly having to do with public accommodations. (The statement referred to follows:)

REMARKS OF SENATOR THOMAS J. DODD

Mr. Chairman, members of the committee, this committee has before it S. 1732, the administration's proposed public accommodations bill, of which I am a cosponsor. Several weeks before this proposal was introduced, Senator Cooper and I submitted a bill, S. 1591, to eliminate discrimination in public accommodations, based on the provisions of the 14th amendment, which is also before the committee. My remarks are addressed to both bills.

I strongly support legislation to prohibit discrimination in places of business that hold out goods and services for sale to the general public. I believe that the argument for this legislation cannot be overstated.

Racial discrimination, institutionalized intolerance, deliberate public humiliation, and inconvenience, is, as the Attorney General has said before the Commerce Committee, "morally wrong, legally insupportable, and socially destructive."

Every American citizen is entitled to equal rights and to the full protection of the law in the exercise of these rights. I do not believe that there is any question as to the power of Congress to act in this area, and I am convinced of the necessity for such action.

The opponents of public accommodations legislation have cast a shadow across it far out of proportion to the strength of their position. They have relied largely on what seems to me a rather spurious argument based on the civil rights cases of 1883. They claim that the Court at this time ruled, and the decision has never been overturned, that equal access to public accommodations was not a right guaranteed by the 14th amendment.

The Court did not state this at all. It found only that in the case of the 1875 civil rights laws the power of Congress did not extend to individual acts of discrimination, because State action, bringing it within the scope of the provisions of the 14th amendment, was not shown.

These cases, therefore, decided nothing on the question of whether or not all citizens have a right to equal access to public accommodations, which seems to me to be the more pertinent concern here.

It is the contention of Senator Cooper and I and 30 other Senators who joined us as cosponsors of S. 1591, that when a State grants a permit to operate, when a State or a subdivision of a State certifies, through issuing a license, that a business meets the requirements of State law and is observing the regulations and requirements of local law, we contend that this brings the State sufficiently into the act of discrimination to place such action under the 14th amendment. This question, as such, is not covered by the Supreme Court decision of 1883.

The argument that a public accommodations bill will be an infringement on private property and individual rights is not valid in my judgment. A store, a movie house, a motel, a restaurant, or any other such facility, is not private property, in the same sense that a man's home is. By opening a facility for public business, the owner necessarily abandons much of his right to privacy; he subjects his property to all kinds of regulations and inspections; he operates under a public license; his property assumes a public character, a public purpose, and a public function. Because of this, the owner and the employees of such establishments are not unconditionally free to do what they wish. They have certain responsibilities to meet, in the exercise of the duties connected with their business. Their actions are limited, both by the Constitution and by appropriate Federal, State, and local statutes.

The contention that a man who owns a movie theater has the same right to determine who shall or shall not enter as he does in the case of his own home is absolute nonsense. It is important to note here, I think, that 32 States have prohibited, by legislative action, executive order, or other means, discrimination in public facilities, and that these various measures have not been declared unconstitutional.

Another argument has been made in opposition to these public accommodations bills, an irresponsible argument.

Some witnesses before congressional committees have stated that the law could not be enforced without turning the Nation into a police state, that troops would have to be withdrawn from all over the world to patrol our own streets, and that the President's proposals have brought us to the brink of civil war. It is interesting to note that such statements have been made by Governors who once made similar threats about the unenforceability of school desegregation orders in their own States. These Governors, when their threats were put to the test, capitulated ignominiously, and they stand today as living testimony to the primacy of Federal law.

If one thing has been proved by various civil rights incidents of recent months, it is that the Federal law and Federal court orders will be upheld with a minimum of difficulty, regardless of the pusillanimous efforts of petty politicians to the contrary.

Different approaches may be taken to reach the same desired goal of eliminating discrimination in businesses which offer their goods and services to the general public. Thus, we have both the administration proposal, based on the Commerce Clause, and the one Senator Cooper and I have introduced, based upon the 14th amendment. While we favor our bill as being more direct and comprehensive, we are both cosponsors of the administration's public accommodations bill, and certainly would support it in a vote.

There is no doubt as to the constitutionality of basing a public accommodations bill on the Commerce Clause. It is clearly within the powers of Congress to prohibit, as the administration bill would do, discrimination in businesses which affect interstate commerce.

Senator Cooper and I believe, however, that it is equally constitutional and much more effective and meaningful to deal with discrimination directly, as a matter of equal rights and due process, rather than to attack it indirectly as a burden on interstate commerce.

But the most important distinction between the two approaches is that this is primarily a moral question, a constitutional question, a question of rights, not of economics.

What we are concerned with is insuring that all citizens have the right to equal access to goods, services, and facilities held out for public use.

The Cooper-Dodd bill is based on the proposition that discrimination by businesses, licensed by a Sate or its subdivisions, denies the privileges, immunities and protections guaranteed by the 14th amendment.

It is stronger and more far reaching, in our view, than the administration proposal. The administration bill would cover only businesses engaged in interstate commerce or substantially affecting the movement of persons or goods in interstate travel or commerce, while the Cooper-Dodd bill would cover virtually all businesses, regardless of their size, volume of business, or the people they serve. It is my opinion that there would be considerable difficulty in determining which businesses come under the commerce provision, and that, as Senator Cooper has stated, a great deal of litigation would inevitably result. Further clarification by Congress would eventually be required, bringing extensive and detailed Federal regulations, and I fear that this would lead to spelling out definitions in terms of dollars and cents to show who is and who is not covered.

This would constitute only a partial remedy, because some businesses would be permitted to continue policies of segregation or discrimination. More important, a great moral and legal issue would be degraded by the spelling out of the applicability of equal rights in terms of money, volume of business, and so on.

We seek not only a worthy goal. We seek a legislative vehicle that is worthy of that goal. We seek to guarantee precious rights, and this guarantee should rest, not on the sections of the Constitution dealing with matters of commerce, but upon those sections dealing with the rights of man.

For these reasons, I believe the approach based on the 14th amendment is more satisfactory than that of the administration bill. It is my firm belief that the court would find such a statute constitutional and enforcible.

I hope a public accommodations bill will be approved this year, and I will certainly give my full support to achieving this, whether it be in the form of the bill introduced by Senator Cooper and myself, or that of the administration recommendation.

Senator DODD. Yesterday I heard Senator Ervin discuss the civil rights cases of 1883. And others have discussed them. And Senator Ervin is a very distinguished jurist. And I say this not fulsomely, but earnestly. He is a great lawyer and a very wise and thoughful

man.

But I wounder if he would not agree with me that the claim that the Supreme Court ruled—and the claim that the decision has never been overturned-that equal access to public accommodations was not a right guaranteed by the 14th amendment is not true.

Senator ERVIN. I cannot agree with you on that, because the case held, that under the 14th amendment the Congress had no power whatever to pass a law on that subject.

Senator DODD. Then, it is a matter of our individual interpretations of that decision.

I reread it last night. It seems perfectly clear that the Court did not state this at all. It found only-and I read and reread the decision to the best of my ability that in the case of the 1875 civil rights laws, the power of Congress did not extend to individual acts of discrimination, because State acting bringing it within the scope of the provisions of the 14th amendment was not shown.

Isn't that so? Isn't that what that case says?

Senator ERVIN. Yes. It held that under the 14th amendment Congress had no power to legislate with respect to the actions of individuals.

Senator DODD. Yes. And that is precisely the point.

But it did not say that access to public accommodations was not a right guaranteed by the 14th amendment. It simply said in these cases you have not shown that there was State action.

And everybody who has testified-I won't say everyone-but it seems to be a great number of people have made it appear that the Court said what it did not say. People claim the decision states that equal access to public accommodation was not a right guaranteed by the 14th amendment. But the decision doesn't say anything of that kind.

You are a great lawyer. And I think you will agree with me that the case doesn't say anything of the sort.

Senator ERVIN. I disagree with you most emphatically. I will say this to my friend, casting no reflection on the Senator in any respect. When I served on the Supreme Court of North Carolina my chief justice had a favorite expression which he often used when lawyers put different constructions on the same case. He would say that the brethren have read the same books, but have drawn different conclusions therefrom.

Senator DODD. I don't think it is possible to draw a different conclusion on that question.

Senator ERVIN. I am sorry you were not here this morning, because I read three passages from it which were a complete answer to your proposition.

Senator DODD. I know you did. But I think you have to read the whole decision.

Senator ERVIN. And also a statement from Judge Harlan in the Peterson case, where he said that in order to have State action the State must be responsible for the discrimination itself.

Senator DODD. Well, I know what he said.

I tried to read this carefully, and I am sure you have, too. I don't know how we will ever resolve this.

But it does seem so clear to me that it has never said that equal access to public accommodation was not a right guaranteed by the 14th amendment. But, anyway, that is a different view. You feel you are right, I feel I am.

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