From the moment the President's omnibus Civil Rights Bill was introduced
in June, the entire resources of the Federal Government have been thrown
behind its support. As a consequence, many Americans have heard only a
case for the bill.
This commentary is an attempt to present the other side.
VIRGINIA COMMISSION ON CONSTITUTIONAL GOVERNMENT
Travelers Building, Richmond, Virginia
The logic is said to go something like this: All decent Americans
should support good things. All decent Americans should oppose bad
things. Racial discrimination is a bad thing. Bills to prohibit racial
discrimination are good things. The President's pending Civil Rights
Bill is intended to prohibit racial discrimination. Therefore, his bill
is a good thing, and all decent Americans should support it.
If this were all there were to it - if the problem were as simple as A
plus B, and therefore C - nothing could be gained by further discussion
of the President's proposal. All decent Americans would be of one mind.
But the problems that have produced this bill are not easy
problems, and the bill is not a simple bill. One of the great
distinctions of the American system is that we try always to distinguish
between the means and the end - between the goal itself, and the way in
which a goal is reached. Such careful distinctions need to be made in
We believe this bill is a very bad bill. In our view, the means
here proposed are the wrong means. The weapons the President would
contrive against race prejudice are the wrong weapons. In the name of
achieving certain "rights" for one group of citizens, this bill would
impose some fateful compulsions on another group of citizens. The bill
may be well-intentioned - we question no man's motivation in supporting
it - but good intentions are not enough. In this area, we need good law.
And the President's bill, in our view, is plain bad law.
That is perhaps the least that could be said of it. In our
judgment, this bill violates the Constitution in half a dozen different
It would tend to destroy the States' control of their own voting
It would stretch the Commerce Clause beyond recognition.
It wrongly would invoke the 14th Amendment.
It would undermine the most precious rights of property.
It would raise grave questions of a citizen's right to jury trial.
The bill would open new doors to the forces of Government
And in the end, because of the violence that would be done to
fundamental law, Americans of every race would suffer equal harm. The
emotionalism of this turbulent summer is largely responsible for the
serious attention now given the bill and for the eminent voices raised
in its behalf. In a calmer climate, the bill's defects would be readily
apparent. But this is not a calm time; it is a passionate time, and
dispassionate thought comes hard. What is here proposed, in this brief
pamphlet, is simply that we sit down and reason together. Those of us
who strongly oppose the bill believe our position is sound. We should
like to explain this position to you.
THE BILL ITSELF
Mr. Kennedy's omnibus Civil Rights Bill of 1963 (S. 1731) is
divided into seven major titles. Briefly:
- Title I relates to "voting rights." It would place elaborate new
controls upon the States' constitutional authority to fix the
qualifications of voters.
- Title II relates to "Public accommodations." It would compel the
owner of almost every business establishment in the United States to
serve all persons regardless of race.
- Title III, relating to the "desegregation of public education,"
would vest sweeping new powers in the U. S. Commissioner of Education
and the Attorney General to deal with "racial imbalance" in schools
throughout the country.
- Title IV would set up a new Federal agency, the "Community
- Title V would continue the Commission on Civil Rights until
1967, and endow it with broad new authority.
- Title VI amends all statutes providing financial assistance by
the United States by grant, contract, loans, insurance, guaranty, or
otherwise. It would permit such assistance to be suspended upon a
finding of racial or religious discrimination.
- Title VII authorizes the President to create a "Commission on
Equal Employment Opportunity," possessed of "such powers as may be
conferred upon it by the President" to prevent discrimination under
contracts in programs or activities receiving direct or indirect
financial assistance from the United States government.
This is what the bill is all about. At first glance, perhaps, many
persons may see nothing wrong in the several proposals. In this
emotional hour, one is tempted to leap from a sincere conviction that
discrimination is wrong, to a false conclusion that a Federal law is the
proper way to prevent it. We do not believe the intensely personnel
problems of racial feeling can be solved by any Federal law; the roots
go deeper than Congress can reach. In any event, we believe that
whatever might be gained by this particular Federal law, if anything,
the positive harm that would be done to constitutional government would
far outweigh the hypothetical good.
TITLE I - VOTING RIGHTS
In the United States, beyond all question, the right to vote is
just that - a right to vote. For most Americans, probably the ancient
right of property ranks first in their daily lives; it is the oldest
right of all. But as political beings, they view the right to vote as
basic. As the President has said, it is ultimately the right on which
the security of all other rights depends.
A moment's reflection, however, reminds us that the right to vote
is not an absolute right. Children cannot vote. Lunatics cannot vote.
Certain convicts cannot vote. Beyond these obvious limitations, it is
evident that persons in Virginia cannot vote for a Senator from New
York. Residents of Albany cannot vote for the City Council of
Schenectady. And the man who moves to Manhattan on a Monday cannot vote
for the Mayor on Tuesday. These are elementary considerations, of
course, but it does no harm to spell them out.
Why is all this so? It is because the right to vote, though it is
described in the 15th Amendment as a right accruing to "citizens of the
United States," is in its exercise a right accruing to citizens of the
several separate States. It never should be forgotten that whenever we
vote, we vote as citizens of our States. We never Note nationally. We
are always, at the polls, Virginians, New Yorkers, Texans, Missourians.
As voters, we are never "Americans." The idea is hard to get accustomed
to; but it is so. The Constitution makes it so.
Three provisions of the Constitution merit attention. First, the
15th Amendment. It is very short:
"The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of
race, color, or previous condition of servitude. [Emphasis added].
"The Congress shall have power to enforce this article by appropriate
The briefest perusal of Mr. Kennedy's pending Civil Rights Bill
will disclose that some of its most important provisions are not related
to the denial or abridgment of the right to vote "on account of race,
color, or previous condition of servitude." The 15th Amendment is not
relied upon at all. If the bill were based clearly upon the Fifteenth,
the position of the Virginia Commission would be wholly different. We
might object that a bill along these lines were unwise, or unwarranted;
but we would not oppose it as unconstitutional. No. In its provisions
relating to a standard literacy test, and in other provisions, the
administration's bill has nothing to do with State deprivals in the area
of "race, color, or previous condition of servitude." This bill applies
to all citizens, everywhere.
Therefore, other provisions of the Constitution come into play.
The first of these provisions appears in the second paragraph of Article
1. It tells us who shall be qualified to vote in what often are termed
Federal elections - that is, who shall be qualified to vote for members
of the Congress. It reads:
The House of Representatives shall be composed of members chosen
every second year by the people of the several States, and the electors
in each State shall have the qualifications requisite for electors of
the most numerous branch of the State legislature." [Emphasis supplied.]
The final provision of the Constitution of concern to us here is
to be found in Article 1, Section 4. It reads:
"The times, places, and manner of holding elections for Senators
and Representatives shall be prescribed in each State by the legislature
thereof: But the Congress may at any time by law make or alter such
regulations, except as to the places of choosing Senators." [Emphasis
Now, keeping these provisions in mind for the moment, consider
what is proposed in Title I of Mr. Kennedy's omnibus bill. We find some
First, and this is merely by way of example, we may note that the power
of the States to impose a poll tax (for good or ill) has not yet been
repealed. A constitutional amendment to achieve that end is actively
pending. At the time the President's bill was introduced, 36 States -
but not the necessary 38 States - had agreed to a constitutional
amendment to prohibit such taxes. As this is written, poll taxes are as
lawful, as constitutional, as any other tax. But the President's bill
simply ignores the process of formal constitutional amendment. It is as
if the pending constitutional amendment did not exist. The bill proposes
by simple statute to declare that "No person acting under color of law
shall...deny the right of any individual to vote in any Federal
election because of an omission of such individual relating to payment
of poll tax." The Virginia Commission takes no position, one way or
another, on the merits of a poll tax. Obviously, with the votes of only
two States to go, the levy is about to be abolished. Very well, we would
say; let it go. The point is that the machinery already is fully in
motion for abolition of this tax by proper constitutional process, but
the Administration is unwilling to wait upon such machinery. It is
filled with impatience. It cannot pause. So the President's bill
undertakes to accomplish by simple congressional enactment what the
Congress has decreed may be accomplished only by constitutional
This comparatively minor provision, of potential application to
five States only, is cited by way of example, to suggest the zeal for
hurried change that underlies this title of the bill. Title I goes on to
lay down rules for the use of literacy tests, not as such tests may
affect persons of "race, color, or previous condition of servitude," but
as they may affect every person. Here the bill leaves the 15th Amendment
altogether, and trespasses upon the other constitutional provisions
quoted. The bill would prohibit the use by any State of a literacy test
unless such tests met Federal requirements - unless the tests were
"wholly in writing" and unless a copy of such test were furnished the
individual registrant "within 25 days of the submission of his written
request." Beyond this, the bill would provide that State literacy tests
were of no consequence anyhow: Any person who had completed the sixth
grade in a public school or an accredited private school would
arbitrarily be deemed to possess "sufficient literacy, comprehension,
and intelligence to vote in any Federal election."
We take no position here on the merits of these proposals as such.
They are as may be. Our contention is that such proposals plainly deal
with the qualifications of electors in the several States. These
proposals have nothing "whatever to do with the "times, places, and
manner of holding, elections." In our view they are simply beyond the
authority of the Congress to enact. They plainly encroach upon the power
of each State to fix "qualifications requisite for electors of the most
numerous branch of the State legislature."
The President's bill continues with a provision aimed at certain
of the Southern States, in which - in a scattering of counties - fewer
than 15 percent of the adult Negroes have registered to vote. The
Virginia Commission would make its own position clear: We have no
patience with conspiracies or chicanery or acts of intimidation intended
to deny genuine qualified Negroes the right to vote. We have no patience
with acts of bland partisanship that may give the vote to certain white
persons and prohibit the vote to Negroes of equal stature. Wherever such
acts have occurred, the are to be emphatically), condemned. We do say
this: There is abundant law on the books - there was abundant law on the
books even prior to enactment of the Civil Rights Acts of 1957 and 1960
- to prohibit and to punish such willful acts by local registrars. All
that is required is that the existing laws be enforced. If the Congress
somehow is persuaded that still further law is required to enforce the
15th Amendment, the Virginia Commission will raise no constitutional
objection. In the area of "race, color, or previous condition of
servitude," the Amendment plainly vests in Congress the power to adopt
We come back to the larger point. The key provisions of Title I,
as a whole, have nothing to do with "race, color, or previous condition
of servitude." These provisions assert, on the part of the Congress,
some power to fix general qualifications for voters throughout the
United States. If this principle be accepted, as to literacy tests and
the rest, it must follow, that the Congress may fix a uniform age for
voters, a uniform period of residence in State or city or precinct, and
in ever), other fashion control the qualifications of electors. For
sound reasons, the Constitution deliberately left the fixing of such
qualifications in the control of each separate sovereign State. When the
President's bill attempts to ride roughshod over this plain provision of
the supreme law of the land, the President's bill violates the
Constitution. And we object. The person who takes the time and trouble
to read the remaining provisions of Title I will find many other areas
of grave concern to those who believe in adhering to the Constitution.
Only in the interests of a decent brevity do we pass over them here, in
order to get to the even more outrageous provisions of -
TITLE II - PUBLIC ACCOMMODATIONS
Perhaps the most obvious wrongness of Title II may be summed up in
a phrase: This section is conceived in hypocrisy, and cannot rise above
its shabby origins.
Title II opens with a long recital of "findings." In these opening
paragraphs, the Congress purportedly "finds" all sorts of burdens upon
interstate commerce, all resulting from acts of racial discrimination.
It is of passing interest to inquire how the Congress has found these
things, for the Administration's witnesses have provided no convincing
evidence to point them out. Possibly we are to rely on faith alone. In
any event, the Congress here "finds that a substantial number of
Negroes, traveling in interstate commerce, are denied convenient access
to hotels, motels, and eating accommodations; that practices of audience
discrimination in the entertainment industry create "serious and
substantial" burdens upon interstate commerce; that fraternal,
religious, and scientific conventions "frequently" are dissuaded from
meeting in particular cities by reason of discriminatory practices; that
business organizations "frequently" are hampered in setting up branch
plants by reason of discrimination; and finally, that -
"(h) The discriminatory practices described above are in all cases
encouraged, fostered, or tolerated in some degree by the governmental
authorities of the States in which they occur, it which license or
protect the businesses involved by means of laws and ordinances and the
activities of their executive and judicial officers." [Emphasis
This is the strange and ominous foundation on which Title II is
made to rest. Read it, we beg you. Ponder it! Reflect, if you please,
upon this assertion of some Federal authority over any business that may
be "licensed" by State authority. Reflect, if you please, upon the
vagueness of these "activities" of a State's executive and judicial
officers. Because the very next sentence of this "finding" ties it all
"Such discriminatory practices, particularly when their cumulative
effect throughout the Nation it considered, take on the character of
action by the States and therefore fall within the ambit of the equal
protection clause of the 14th Amendment to the Constitution of the
The object of this smooth leaping and hurdling is apparent to the
most casual student of the Constitution. Obviously, the 14th Amendment
does not prohibit acts of private discrimination in ordinary daily life.
The Supreme Court of the United States repeatedly has said so. In an
unbroken chain of opinions reaching back to 1883, the Court has ruled
that the amendment prohibits only those acts of discrimination that may
be charged to the States themselves in such areas as voting rights, jury
service, and access to public institutions. The amendment says that "no
State" shall deny equal protection. What individuals do is their own
business. But suppose as this bill proposes - that individual acts "take
on the character of State acts"? In this event, the smallest retail
establishment, the humblest soda fountain, "takes on the character" of
the State itself. In effect, it becomes an agency of the State. Its acts
are State acts. Its denials are State denials. And in this fateful
moment, the ancient distinctions between private property and public
agencies fly out the window. Under the precedent here proposed, private
property, as such, in this regard will have ceased to exist.
This is the very crux of Title II of the President's bill. These
case "findings" do not affect the South alone. They affect every State,
every locality, every businessman. In this mad confusion of the Commerce
Clause and the 14th Amendment, nothing makes sense. The alleged acts of
racial discrimination by private business establishments simultaneously
are found to be burdens upon interstate commerce and denials of equal
protection by the States themselves.
The final finding reflects this confusion:
"(i) The burdens on and obstructions to commerce which are
described above can best be removed by invoking the powers of Congress
under the 14th Amendment and the commerce clause of the Constitution of
the United States to prohibit discrimination based on race, color,
religion, or national origin in certain public establishments."
We invite the thoughtful reader to go back and read that paragraph
once again. Ostensibly, the bill is here concerned with "burdens on and
obstructions to" commerce. The power of the Congress in this area
derives from Article 1, Section 8, vesting in Congress the power "to
regulate commerce among the several States." But the object of this bill
is not really to regulate commerce. The object of the bill, in its own
revealing words, is "to prohibit discrimination." The Commerce Clause is
here being deceptively adapted not to commerce, but to social reform.
The substantive provisions of the President's bill then are set forth:
"Sec. 202. (a) All persons shall be entitled, without
discrimination or segregation on account of race, color, religion, or
national origin, to the full and equal enjoyment of the goods, services,
facilities, privileges, advantages and accomodations of the following
And the bill sets them forth. We put them line by line, the better
to emphasize the sweep of this bill. The law, by its own terms, is to
Every other public place engaged in furnishing lodging to transient guests,
including guests from other States or traveling in interstate commerce;
Every motion picture house,
Every sports arena,
Every exhibition hall,
Every other public place of amusement or entertainment which
customarily presents motion pictures, performing groups, athletic teams,
exhibitions, or other sources of entertainment which move in interstate
Every retail shop,
Every department store,
Every gasoline station, and
Every other public place which keeps goods for sale;
Every lunch counter,
Every soda fountain, and
Every other public place engaged in selling food consumption on
the premises; and
Every other establishment where goods, services, facilities,
privileges, advantages, or accommodations are out to the public for
sale, use, rent, or hire...
Then follows the superficial saving grace of "if." The provisions of
Section 202 are to apply to such establishments "if"
"(1) The goods, services, facilities, privileges, advantages, or
accommodations offered by any such place or establishment are provided
to a substantial degree to interstate travelers, or
"(2) 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..."
There are two other such provisions, but it is needless to quote
them. The second proviso impales the smallest hotdog stand upon the
transportation of its mustard. There is not a neighborhood soda fountain
in American, not a dress shop, not a hat shop, not a beauty parlor, not
a single place or establishment beyond the tiniest roadside stand of
which it may be said that a substantial portion of its goods, held out
for sale or use, has not moved in interstate commerce.
We would urge thoughtful Americans, wherever they may live,
whatever their views may be on questions of race relations, to ponder
the twisted construction here placed upon the Commerce Clause. When the
Congress first began to regulate "commerce among the several States,"
the object was to regulate the carriers in which the goods were hauled.
In time, a second area of regulation developed, as the nature of the
goods themselves came into the congressional power. Then a third area
developed, as Congress sought to regulate the conditions under which the
goods themselves were manufactured.
In this bill, a fourth area is opened up. It is as wide as the
world. Here the Congress proposes to impose a requirement to serve.
Heretofore, such a requirement has been imposed solely in the area of
public service corporations - the telephone companies, electric power
companies, gas and water companies - the companies that operate as
regulated public utilities. Now the restricted class of public service
corporations is to be swept aside. Here Clancy's Grill and Mrs. Murphy's
Hat Shoppe are equated with AT&T. The neighborhood drug store is treated
as the gas company: It must serve. Within the realm of Section 202, the
owner has no option, no right of choice. Yes, he may reject drunks,
rowdies, deadbeats. But his right to discriminate by reason of race or
religion - or any other related personal reason - is denied him under
the pain of Federal injunction and the threat of prison sentence for
contempt of court.
At this point in our argument the Virginia Commission would beg the
closest attention: We do not propose to defend racial discrimination. We
do defend, with all the power at our command, the citizen's right to
discriminate. However shocking the proposition may sound at first
impression, we submit that under one name or another, this is what the
Constitution, in part at least, is all about. This right is vital to the
American system. If this be destroyed, the whole basis of individual
liberty is destroyed. The American system does not rest upon some "right
to be right," as some legislative majority may define what is "right."
It rests solidly upon the individual's right to be wrong - upon his
right in his personal life to be capricious, arbitrary, prejudiced,
biased, opinionated, unreasonable - upon his right to act as a free man
in a free society.
We plead your indulgence. Whether this right be called the right
of free choice, or the right of free association, or the right to be let
alone, or the right of a free market place, this right is essential. Its
spirit permeates the Constitution. Its exercise colors our entire life.
When a man buys union-made products, for that reason alone, as opposed
to non-union products, he discriminates. When a Virginian buys
cigarettes made in Virginia, for that reason alone, as opposed to
cigarettes made in Kentucky, or North Carolina, he discriminates. When a
housewife buys a nationally advertised lipstick, for that reason alone,
as opposed to an unknown brand, she discriminates. When her husband buys
an American automobile, for that reason alone, as opposed to a European
automobile, he discriminates. Every one of these acts of
"discrimination" imposes some burden upon interstate commerce.
The examples could be endlessly multiplied. Every reader of this
discussion will think up his own examples from the oranges of Florida to
the potatoes of Idaho. And the right to discriminate obviously does not
end with questions of commerce. The man who blindly votes a straight
Democratic ticket, or a straight Republican ticket, is engaged in
discrimination. He is not concerned with the color of an opponent's
skin; he is concerned with the color of his party. Merit has nothing to
do with it. The man who habitually buys the Times instead of the Herald
Tribune, or Life instead of Look, or listens to Mr. Bernstein instead of
to Mr. Presley, is engaged in discrimination. Without pausing to chop
logic, he is bringing to bear the accumulated experience - the
prejudice, if you please - of a lifetime. Some non-union goods may be
better than some union goods; some Democrats may be better than some
Republicans; some issues of Look may be better than some issues of Life.
None of this matters. In a free society, these choices - these acts of
prejudice, or discrimination, or arbitrary judgment - universally have
been regarded as a man's right to make on his own.
The vice of Mr. Kennedy's Title II is that it tends to destroy
this concept by creating a pattern for Federal intervention. For the
first time, outside the fully accepted area of public utilities, this
bill undertakes to lay down a compulsion to sell.
We raise the point: If there can constitutionally be a compulsion
to sell, Why cannot there be, with equal justification, a compulsion to
buy? In theory, the bill is concerned with "burdens on and obstructions
to" commerce. In theory, the owner of the neighborhood restaurant
imposes an intolerable burden upon interstate commerce if he refuses to
serve a white or Negro customer, as the case may be. But let us suppose
that by obeying some injunction to serve a negro patron, the proprietor
of Clancy's Grill thereby loses the trade of ten white patrons. In the
South, such a consequence is entirely likely; it has been demonstrated
in the case of Southern movie houses. Can it be said that the refusal of
the ten whites imposes no burden on interstate commerce? Plainly, these
ten intransigent customers, under the theory of this bill, have imposed
ten times as great a burden on commerce among the several States. Shall
they, then, be compelled to return to Clancy's for their meals? Where
does this line of reasoning lead us?
How would all this be enforced? Under Title II, the Attorney
General would be required to investigate complaints of denial of
service. Persistent acts of discrimination would be prohibited by
Federal injunctions, obtained in the name of the United States. Any
person who attempted to interfere With Clancy's decision would be
subject to individual injunction And at the end of every such proceeding
lies the threat of fine or imprisonment for contempt of court. There
would be no jury trials.
This has been a very abbreviated summary of the "public accommodations"
features of the President's bill. A definitive analysis could be much
extended. Not only is the Commerce Clause distorted beyond recognition,
the provisions of the Fourteenth Amendment also are warped to cover
individual action as opposed to State action. Our hypothetical Clancy
could not call upon the police to eject an unwanted customer,
trespassing upon his booths and tables. Reliance upon local police to
enforce old laws of trespass, under this bill, would be regarded as an
exercise of "State action." Clancy has become the State. Like Louis of
old, he too may say, "L'etat, c'est moi."
TITLE III - DESEGREGATION OF PUBLIC EDUCATION
Title III of the President's bill goes far beyond all decisions of
the Supreme Court in the field of school desegregation, for it
implicitly couples the formal desegregation of public schools in the
South with the elimination of "racial imbalance" in schools throughout
the land. The bill proposes to achieve these aims by vesting broad new
powers in the Commissioner of Education and the Attorney General. Even
private schools, if their pupils received tuition grants from a
governmental source, would be brought into line.
The opening provisions of Title III authorize the Commissioner,
upon application from local school officials, to engage in a wide
variety of programs of advice, technical assistance, grants, loans,
contracts, and training institutes. The Commissioner would control the
mounts, terms, and conditions of such grants. They would be paid n the
terms he prescribed. He alone would fix all "rules and regulations" for
carrying out these programs to promote desegregation and to relieve
Presumably, the authority of Congress to promote this busywork for
the Commissioner is to be found in the fifth section of the 14th
Amendment. This is the section that empowers Congress to adopt
"appropriate legislation" in support of the Equal Protection Clause. If
the Equal Protection Clause truly were intended to prohibit a State from
maintaining racially separate public schools, such legislation perhaps
would be "appropriate." The history of public education in the United
States, in the years immediately following the purported ratification of
the 14th Amendment in 1868, utterly denies any such intention. To this
day, no law of the United States requires desegregation. These programs
of the Commissioner of Education are cart before horse; they are the
sort of programs that would implement a law if there were a law; but
there is no law. There is the Supreme Court's opinion of 1954 in Brown
v. Board of Education, and there are other high court opinions emanating
from it, but impressive and historic as these decisions may be, they are
still no more than judgments binding named defendants in particular
It should be emphasized, again, that these decisions have nothing
to do with "racial imbalance" in public schools. They are limited to
judgments requiring that the States shall not deny to any, person on
account of race the right to attend any school it maintains. The
shifting of students from school to school in order to "remove racial
imbalance," with or without Federal aid and regulation, is not within
the ambit of the desegregation decisions. Under this gross distortion of
the 14th Amendment, school children throughout the country would become
pawns in a game of power politics.
It seems to us desirable to keep this distinction in mind, between
laws enacted by the Congress, and judgments imposed by the court. The
Constitution is the supreme law of the land, but when the court acts in
a suit arising under the Constitution it acts judicially, not
legislatively. If local school boards throughout the South are to be
prohibited by law from maintaining separate school systems, a law must
be passed "pursuant to the Constitution" to impose such a prohibition.
Until then, such grants and loans and training programs as these
would appear premature. And we would take the position, in the light of
the history of the 14th Amendment, that such a law would not be
"pursuant to the Constitution." It would violate the plain intention
both of those who framed the amendment and also of the States that
ratified it. Such legislation would not be "appropriate" legislation.
Meanwhile, we do not intend to be captious or legalistic. The
Brown decision has been treated as if it were indeed legislation. For
good or ill, the desegregation of public schools proceeds. These
particular provisions of Title III are better subject to criticism
simply as manifestations of the bureaucratic Federal sprawl.
More serious, in our view, are the provisions of Title III that
would vest elaborate new powers in the Attorney General. The effect of
these provisions would be to throw the entire massive weight of the
Department of justice, with its unlimited resources, into the scales of
almost any parent in search of a free lawsuit. The basic complaint would
be that some local school board "had failed to achieve desegregation."
But as we have tried to point out, in the overwhelming majority of
school districts in the South, there is now no legal requirement that
local school boards even attempt to achieve desegregation. Before there
can be a failure of a duty, there must first be a duty. These provisions
of the bill simply assume the duty, and leap to its failure.
Our apprehension is that the awesome power here proposed, for a
proliferation of suits "in the name of the United States," would create
more turmoil than it would settle. The "orderly progress of
desegregation in public education" would not be enhanced, but impaired,
as resentments were stirred up that otherwise might be peacefully
resolved. And we cannot see the end to the bureaucracy that could be
required to prosecute suits "in the name of the United States," once
this precedent were set in the single area of school desegregation.
TITLE IV - ESTABLISHMENT OF COMMUNITY RELATIONS SERVICE
This title would create a new Federal agency, the "Community
Relations Service," headed by a director at $20,000 a year. Presumably,
it would fulfill some functions not now fulfilled by the Civil Rights
Commission, the President's Fair Employment Practices Committee, the
established churches and various civic bodies, the countless racial
commissions around the country, and the civil rights division of the
Department of Justice. The duties of this Service would be "to provide
assistance to communities and persons therein in resolving disputes,
disagreements, or difficulties relating to discriminatory practices."
We are not inclined to haggle over the amount of time, energy and
money, that might be wasted by one more Federal agency in the civil
rights field. We do call attention to the italicized language. In our
own view it simply is not the function of Congress, under any provisions
of the United States Constitution, to dispatch Federal agents to
countless communities in order to resolve racial disagreements among
TITLE V - COMMISSION ON CIVIL RIGHTS
The Virginia Commission on Constitutional Government expresses
neither opposition to nor support of Title V of the President's bill.
This portion of the bill would extend the life of the Commission on
Civil Rights to November 30, 1967, and would lay down certain
standardized rules for its further hearings and investigations.
In our own view, the Commission on Civil Rights has contributed
little or nothing toward the unraveling, of the knotty tangles of race
relations in the United States. Its recommendations in the spring of
1963, proposing the withdrawal of grants, loans, and even contracts from
Southern States that did not meet its own notions of right conduct,
amounted to an outrageous proposal for denial of the very equal
protections it professes to support. We perceive no useful achievements
of this Commission, but we raise no constitutional objections to its
Title VI of the President's bill is not long. It had perhaps best
be quoted in full:
"Sec. 601. Notwithstanding any provisions to the contrary in any
law of the United States providing or authorizing direct or indirect
financial assistance for or in connection with any program or activity
by way of grant, contract, loan, insurance, guaranty, or otherwise, no
such law shall be interpreted as requiring that such financial
assistance shall be furnished in circumstances under which individuals
participating in or benefitting from the program or activity are
discriminated against on the ground of race, color, religion, or
national origin or are denied participation or benefits therein on the
ground of race, color, religion, or national origin. All contracts made
in connection with any such program or activity, shall contain such
conditions as the President may prescribe for the purpose of assuring
that there shall be no discrimination in employment by any contractor or
subcontractor on the ground of race, color, religion, or national
origin." [Emphasis supplied.]
The thinly veiled intimidation of Title VI goes back to a
statement made by Attorney General Robert Kennedy in London in October
of 1962. At that time, he speculated publicly that a threat to withdraw
Federal subsidies, grants, loans, and contracts might be used as a club
over the Southern States. Mr. Kennedy was quick to point out that such a
threat would have to be used with great delicacy. He seemed unsure of
its desirability. He did not defend its constitutionality. He was just
In April of 1963, the Civil Rights Commission evidenced no such
finesse. The Commission recommended flatly to the President that he seek
power to suspend or cancel either all, or selected parts of, the Federal
financial aid that now flows to such States as Mississippi, "until [such
States] comply with the Constitution and laws of the United States." It
was unclear precisely how a judicial determination would be reached that
entire States had failed to comply with the Constitution and laws of the
United States, but this small question of due process apparently
troubled the Commission not at all.
The question troubled Mr. Kennedy. In his press conference of
April 17, the President blinked at this startling, proposal and turned
away from it:
"I don't have the power to cut off aid in a general way as was
proposed by the Civil Rights Commission, and I would think it would
probably be unwise to give the President of the United States that kind
of power because it could start in one State and for one reason or
another might be moved to another State which has not measured up as the
President would like to see it measure up in one way or another."
It is a fair question to ask what happened. What happened between
April 17, when the President voiced these comments at his press
conference, and June 19, when his majority leader introduced his Civil
Rights Bill? How did a power that was "probably unwise" in April become
a power that was "essential" in June? The obvious answer is that the
interim was marked by widespread racial demonstrations. But it is not
pleasant to conclude that the President of the United States may be
coerced, intimidated, or black jacked into changing his mind so swiftly
on a legislative proposal of fateful importance. What happened?
We earnestly submit that the punitive terms of Title VI of this
bill threaten gross violation of every principle of due process of law.
No provision whatever is made for determining, when individuals
"participating in or benefitting from" various programs are
"discriminated against." The two sentences of this Title define no
terms. They propose no judicial inquiry. They leave hundreds of millions
of dollars in "Federal funds," paid for by all of the people - black,
white, Liberal, Conservative - at the uncontrolled discretion of the
President or someone else who may determine this "discrimination."
These programs include aid to dependent children, aid to the
blind, aid to the permanently disabled. They include funds for
vocational education, hospital construction, public housing, the
insurance of bank deposits. Federal personnel would be authorized to
supervise loans by banks and building and loan associations, farm
financing of all kinds, Government subsidies, conservation programs,
small business loans and contracts in any activity affected by
government loans, insurance, guaranties, or grants. If a Federal agency
made an administrative finding that discrimination exists, Federal
support could be withdrawn and the institution or program wrecked.
To permit a President - any President - to suspend such programs
on his own unchecked conclusion that certain beneficiaries are
"discriminated against" would violate the whole spirit of uniformity
that pervades the Constitution. The supreme law of our land provides
that "direct taxes shall be apportioned among the several States
according to their respective numbers." Duties, imposts and excises
"shall be uniform throughout the United States." There must be a
"uniform rule of naturalization" and "uniform laws on the subject of
bankruptcies." Many other provisions attest this same concept of equal
treatment among the States.
Only by a fantastic distortion of the congressional power under
the 14th and 15th Amendments could this Title VI be justified. Its
effect would be to penalize the many for the occasional unlawful conduct
of the few. Its potential application would jeopardize the very lives
and well-being of thousands of innocent and law-abiding persons,
including veterans, blind persons, and disabled persons, in order to
bludgeon a handful of State officials into line with a President's
It seems to us sufficient merely to quote the language of this
tyrannical Title of the President's bill. The language speaks most
eloquently for itself.
TITLE VII - COMMISSION ON EQUAL EMPLOYMENT OPPORTUNITY
This final substantive section of the bill authorizes the
President to establish a "Commission on Equal Employment Opportunity."
This permanent agency of the government would be headed by the Vice
President; the Secretary of Labor would serve as vice chairman. There
would be up to 15 members in all. An executive vice chairman would run
the operation. The Commission would be empowered to employ "such other
personnel as may be necessary." The bill defines the commission's
"It shall be the function of the Commission to prevent
discrimination against employees or applicants for employment because of
race, color, religion, or national origin by Government contractors and
sub contractors, and by contractors and sub contractors participating in
programs or activities in which direct or indirect financial assistance
by the United States Government is provided by way of grant, contract,
loan, insurance, guaranty, or otherwise. The Commission shall have such
powers to effectuate the purposes of this title as may be conferred upon
it by the President. The President may also confer upon the Commission
such powers as he deems appropriate to prevent discrimination on the
ground of race, color, religion, or national origin in Government
employment." [Emphasis supplied.]
Again, it seems to us necessary merely to quote the provisions of
the bill in order to make their autocratic nature evident to every
thoughtful observer. The power here proposed to be conferred upon the
President is virtually unlimited. No legislative limitations of any sort
are suggested. The President may confer upon the Commission "such powers
as he deems appropriate." And whether these include the power to impose
criminal sanctions, or to seek civil injunctions, or to abrogate
contracts awarded under sealed bid, no man can say. The Commission's
powers would be whatever the President regarded as appropriate; and the
definition of "government employment" is as wide as the Federal budget
itself. The administration's bill proposes, in effect, that the Congress
abdicate, and turn its legislative powers over to the White House. The
powers here demanded are not the powers rightfully to be exercised by a
President in a free country. These are the powers of a despot.
There is a final Title VIII in the bill, authorizing, the
appropriation of "such sums as are necessary to carry out the provisions
of this Act." What these sums might amount to, again, no man can say.
This is the package Mr. Kennedy has asked of the Congress. He has
asked it in an emotional hour, under the pressures of demonstrators who
have taken violently to the streets, torch in hand.
We of the Virginia Commission ask your quiet consideration of the
bill. And we ask you to communicate your wishes to the members of the
Congress who represent you in the House and Senate.
Richmond, August, 1963.
Q.-(From May Craig, the Portland Press Herald) Mr. President, do
you think that Mrs. Murphy should have to take into her home a lodger
whom she does not want, regardless of her reason, or would you accept a
change in the civil rights bill to except small boarding houses like
A.-The question would be, it seems to me, Mrs. Craig, whether Mrs.
Murphy had a substantial impact on interstate commerce. [Laughter.]
-The Press Conference, July 17, 1963.
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