January 22, 1964

Four score years ago, in the year 1883, on October 15, the Supreme Court of the United States in one opinion decided five cases which were all founded on the first and second sections of an Act of Congress, known as the Civil Rights Act, enacted into law on March 1, 1875. Two of the cases arose out of the denial to Negroes of the accommodations and privileges of an inn or a hotel, two of them for denying to individuals because of their race the privileges and accommodations of theatres, and one of them for denying by the conductor to a Negro because of her race the privileges and accommodations of a railroad car.

That Civil Rights Act of 1875 provided:

"Whereas, it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political; bring the appropriate object of legislation enact great fundamental principles into law: Therefore,

"Be it enacted by the Senate and the House of Representatives of the
United States and Congress assembled,

"Sec. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude."

Section 2 of the Act provided the penalties. The Supreme Court in 1883, began its opinion with the simple statement:

"It is obvious that the primary and important question in all cases is the constitutionality of the law . . .

"Are these sections constitutional? . . . "

That is the first question we must ask ourselves as we consider this legislation affecting public accommodations proposed by the Administration. Let us compare the language sentence by sentence. We begin with the fact that both are called the "Civil Rights Act". That is the thrust of the proposed legislation. It is legislation relating to discrimination based upon race. The word "Negro" itself appears repeatedly, and neither we nor the courts can be unmindful of the context in which this legislation has arisen. This is not legislation which affects the general welfare of all the people in this country, but rather the welfare of particular group of people. This is nothing against the purpose of the legislation. We frequently legislate for the benefit of aid of particular groups. But in analysing a proposal to see if it will stand the test of an attack, it is a factor we must consider, because every proposal must have a sound base before we make it a statute on the books.

I have already made it abundantly clear that I have particular difficulty with Title II of the Administration Civil Rights proposal and I have the same difficulty whether it is Title II or a separate piece of legislation. It states in subsection (i) of section 2 that it is founded upon the 14th Amendment and the Commerce clause of the Constitution. Unless this is a sound foundation our labors on this legislation will be for naught and tens of thousands of American citizens will have been the victims of a hope falsely raised by the Administration. So let us ask ourselves, as the Supreme Court did in 1883; Are these sections constitutional?

This bill begins -

"All persons shall be entitled to . . ."

Entitled to what?

"to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of . . ."

". . . hotels, theatres and other public places of amusement, restaurants and retail stores."

And now the important words:

"Without discrimination or segregation on account of race, color or religion . . ."

Now let us see how this compares with the portion of the Civil Rights Act which the Supreme Court has held unconstitutional. That law began -

"All persons within the jurisdiction of the United States shall be entitled to . . ."

Entitled to what?

"to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement . . . "

And the important proviso -

"subject only to the conditions and limitations applicable alike to citizens of every race and color . . ."

So you can see, they are almost word for word alike: And the Supreme Court has already spoken. Oh, we could pass this bill, perhaps, and there may be those who will vote for it with the thought that it will bring them an advantage in the elections in the fall of 1964, but I cannot be a party to such a cruel hoax on the hopes of so many people for political gain, because the day of reckoning will come when such a law would reach the Supreme Court, though its proponents are secure in the thought that this will not be until after the 1964 elections.

There is no reasoning with those who have that motive, but I invite those who seek to learn what has been written to turn the pages of that Supreme Court decision with me.

The Court then said:

" . . . Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. The power is sought, first, in the 14th Amendment, and the views and arguments of distinguished Senators, advanced whilst the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deams itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have.

"The first section of the 14th Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character and is prohibitory upon the States. It declares that:

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

"It is State action of a particular character that is prohibited. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the law.

" . . . [T]he last section of the amendment invests Congress with the power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the affects of such prohibited State laws and State acts. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with the power to legislate upon subjects which are within the domain of State legislation; . . . It does not authorize Congress to create a code of municipal law for the regulation of private rights; . . . [The] power given to Congress to legislate for the purpose of carrying such prohibition into effect . . . must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect."

"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 proceeding under such legislation, can be called into activity; for the prohibitions of the amendment are against State law and acts done under State authority . . . . Such legislation cannot properly cover the whole domain of rights pertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of State legislatures and to supersede them. It is absurd to affirm that . . . because the denial by a State to any persons of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizens, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce and which, by the amendment, they are prohibited from making or enforcing, or such acts or proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking . . ."

That is certainly clear language. The Congress may adopt legislation to correct laws or acts taken by the States or their agents which are contrary to the provisions of the 14th Amendment, but Congress has no authority to adopt legislation providing for protection against private wrongs. Let us see if this bill is directed to the wrongful acts of citizens or of the States. It says that negroes are subject to discrimination and segregation, that they are frequently unable to obtain goods and services available to others, that they may have to stay at hotels of poor and inferior quality or make detailed arrangements for lodging far in advance of their trip, that they are denied the opportunity to see amusements and entertainments. Does the bill say that these are acts by States or their agents? No, it only says that they are "encouraged, fostered, or tolerated" by the States. Let us go back to the facts of the five cases which the Supreme Court had before it 80 years ago. Two involved the denial of the privileges and accommodations of hotels and two involved the denial of the privileges and accommodations of theatres. The hotels were in Kansas and Missouri; the theatres in California and New York.

Yet, the Court reached the same result in each case, and in the opinion it showed it clearly knew the difference between a wrong arising out of the action of State or its agents and a wrong arising out of the action of an individual. It held constitutional the fourth section of the Act which provided that no citizen should be disqualified for service as a grand or petit juror in any court of the United States, or of any State, on account of race, color or previous condition of servitude because, as it said, "disqualifications for service on juries are only created by the law."

"Whether the statute book of the State actually laid down any such rule of disqualification, or not, the State, through its officer, enforced such a rule; and it is against such State action, through its officers and agents, that the last clause of the section as directed."

The Court then went on to distinguish the provisions of the Act which were similar to this bill by stating:

"This aspect of the law was deemed sufficient to divest it of any unconstitutional character and makes it differ widely from the first and second sections of the same act which we are considering."

And it went on to state:

"In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured person, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress."

The Court then distinguished the primary jurisdiction of Congress and stated:

"Of course, these remarks do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the State, as in the regulation of commerce with foreign nations, among the several States, . . . In these cases Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular State legislation or State action in reference to that subject, the power given is limited by its object, and any legislation by Congress on the matter must necessarily be corrective in its character, adapted to counterpart and redress the operation of such prohibited State laws or proceedings of State officers.

" . . . [It] is clear that the law in question cannot be sustained by any grant of legislative power made to Congress by the 14th Amendment . . . The law in question, without any reference to adverse State legislation on the subject, declares that all persons shall be entitled to equal accommodations and privileges of inns, public conveyances, and places of public amusements, and imposes a penalty on the individual who shall deny to any citizens such equal accommodations and privileges. This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement . . . What we have to decide is, whether such plenary power has been conferred upon Congress by the 14th Amendment; and, in our judgment, it has not."

Thus did the Supreme Court distinguish between State action enforcing an unwritten rule, and the action of individuals 80 years ago. Would it be the same today? We need not look far because the Court has just decided such a case.* It arose out of the refusal of a restaurant to serve negroes. The Supreme Court said that -

"the . . . evidence all tended to indicate that the store officials' actions were coerced by the city."

Then it said:

"As we interpret the New Orleans city officials' statements, they have determined that the city would not permit Negroes to seek desegregated service in restaurants. Consequently, the city must be treated exactly as if it had an ordinance prohibiting such conduct . . . The official command here was to direct continuance of segregated service in restaurants . . . Therefore . . . these convictions, commanded as they were by the voice of the State directing segregated service at the restaurant, cannot stand."

So it is as true today as it was 80 years ago that for federal legislation to be supported by the 14th Amendment it must be directed against prohibited State action or command, not action, however wrongful, done by individuals on their own initiative. It must be more than "encouraged, fostered, or tolerated" by the State. It must be an "official command." Otherwise it will step, as the Court said of the Civil Rights Act 80 years ago "into the domain of Local jurisprudence, lay[ing] down rules for the conduct of individuals in society toward each other".

Would the result be any different because of the invocation of the Commerce Clause of the Constitution? That Clause has been stretched to mean many things as they relate to commerce between the States. But does it apply to Civil Rights within a State? Are we to say that the segregation of audiences in a theatre is a burden on interstate commerce? It may well be unjustified and it is indeed prohibited in many places, but it is one of the powers which the Constitution reserves to the States or to the people. The people can amend the Constitution to permit this, but they have not.

I also have a great fear that this bill may be moving us backward to the "separate but equal" doctrine of racial treatment. For example, subsection (b) of Section 2 would be satisfied if Negroes were able to obtain adequate lodging accommodations instead of those of poor and inferior quality. If they had equal access to goods moving in interstate commerce there would be no burden on that commerce because of segregation by retail stores. And if the number of Negroes who can see interstate amusement and entertainment is not restricted, there is no burden on that interstate commerce. This is oh so very different from discrimination by regulated "monopolies", such as railroads, which move across State lines. Anyone can open a store, a theatre or a hotel in a State. Any elderly couple can turn their home into a guest house if it meets with local zoning regulations. But we restrict, by Federal Government action, to prevent too many services or too much competition, the starting of railroads, bus or airlines which cross State lines. Everyone who wishes to travel by such means has his choice restricted, too, by this Federal Government action.

Now, if we are to bring the operation of theatres, motels and stores within the perview of the Interstate Commerce Clause in this regard, presumably the Federal Government will also have the power to regulate the creation of such business enterprises and to deny the opportunity to engage in them in its discretion. And if the rationale applies to retail stores, it applies to wholesale stores and business organizations of every type and size. And it would apply as well to fraternal, religious and other organizations which have interstate operations. If we adopt this reasoning, shall Congress say that no such fraternal organization can denu its facilities and advantages to others and no such religious organization can discriminate in the use of its facilities against those who are not members.

Certainly the Commerce Clause was not meant to go so far, and yet it must if we are to use it as the basis of this broad legislation to prohibit discrimination because of race, color or creed.

But let us assume for a moment that some constitutional basis, other than that set out in the legislation, can be found to substantiate the provisions relating to non-discrimination in public accommodations. Would it meet the need which the Administration has proclaimed or would it be an illusory benefit which would help but one out of a hundred or more. It applies first of all only to hotels, or other places which furnish lodging to transient guest. Therefore, it would offer no advantage and no protection against discrimination by any place catering to permanent guests. In short, it would help the Negro only when he was traveling or living as a traveler would. Secondly, it would not change the rule with respect to local amusement parks if they did not show motion pictures or have performing groups which moved in interstate commerce. It would not apply to the rides in Glen Echo. It would not apply to the baseball fields where the local teams played in some sort of an intra-state circuit. It would not apply to the local stadium if only teams from within the State played there. It might not even apply to the audience of a New York stage play with a resident, as distinguished from a road, cast.

According to the language of the bill it would not apply to restaurants, rest rooms, lunch counters and such places if a substantial portion of the food sold had not moved in interstate commerce and if it was not patronized to a substantial degree by interstate travelers and the activities did not otherwise substantially affect interstate travel or the interstate movement of goods in commerce, and lastly, that it was not an integral part of a hotel or place of amusement which fell within the language concerning interstate commerce.

So how does the bill help the negro in his daily life to avoid the onerous burden of segregation and discrimination. In fact, it does very little for him. It does not solve the "explosive national problem" to which the/ late President referred in his message on June 19th, to the Congress. If it is put forward as a "provision which will open doors in every part of the country which never should have been closed", which "will hasten the end of practices which have no place in a free and unified nation", it is a cruel deception on those who are afflicted with this problem.

Therefore, let us not delude ourselves or let others delude us that this type of legislation will meet the problem. It cannot under our Constitution. Rightly or wrongly, this is a matter reserved by the Constitution to the States. I will not play fast and loose either with the Constitution or with the people of this country. I will not perpetrate a fraud upon either the people or the Constitution. I will not deceive nor raise false hopes. I will do my best to do what can be done. I have supported and I will support legislation within the power of the Federal Government to make it possible for every citizen to vote who wishes to. Through the exercise of this franchise together with all other citizens who vote they can exercise the powers reserved to the people under the Constitution and can exert their will upon the powers reserved to the States. We are committed, in this country, to a constitutional form of government and to action under law. We achieve nothing if we violate those principles. We must proceed in an orderly manner to make such changes as can properly be made in the structure of laws by which we govern ourselves.

The Court in the Civil Rights Cases 109 U.S. 3 (1883), concluded its opinion with words which deserved a more prominent place in the declaration of the principles upon which this country was founded:

"When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that State, there must be some state in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the ;aws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected."

* Lombard v. Louisiana ,-- U.S. --, May 20, 1963