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ADDITIONAL VIEWS OF HON. GEORGE MEADER
Since the Civil War and the adoption of the 13th, 14th, and 15th amendments to the U.S. Constitution, it has been the official policy of the U.S. Government to treat all citizens alike regardless of race, color, or national origin.
Aside from statutes passed in the aftermath of the Civil War, notably the Civil Rights Acts of 1871, very little was done in this field by the Congress until the adoption of the Civil Rights Act of 1957 under the administration of President Eisenhower. This was the first major civil rights measure enacted in 85 years.
Subsequently, the Civil Rights Act of 1960, also under Eisenhower, was enacted.
We are now considering an omnubus bill, H.R. 7152, to effectuate further by congressional action a longstanding national policy.
It is the position of the undersigned that the Congress has an obligation to carry out national policy with respect to civil rights, utilizing all powers vested in the Federal Government by the U.S. Constitution for that purpose.
But the Congress should not attempt to violate other constitutional provisions.
It should not try to exceed limitations upon the powers of Congress. It should not seek to destroy protections of citizens guaranteed by the Bill of Rights when citizens are proceeded against by their Federal Government.
Clearly, Congress does have power in the following areas:
(1) Protection from denial or abridgment of the right to vote secured by the 15th amendment.
(2) Regulation and protection of the interstate transportation of persons.
(3) Assurance that Federal financial assistance programs will not be employed to perpetuate discrimination by reason of race or color.
(4) Prevention of discrimination on grounds of race or color in employment by the Federal Government or in the execution of contracts let by the Federal Government.
It has been the aim of the undersigned to shape a bill which would meet the criteria above stated and become law as the Civil Rights Act of 1963 or possibly the Civil Rights Act of 1964.
Early in January 1963, after the convening of the 88th Congress, Republican members of the House Judiciary Committee met informally and discussed what legislation in the field of civil rights might appropriately be considered by the Congress. These conversations resulted in the drafting of an omnibus civil rights bill, H.R. 3139, introduced by Mr. McCulloch, the ranking Republican member of
the Judiciary Committee, January 30, 1963. In this legislation, Mr. McCulloch was joined by nine other minority members of the Judiciary Committee and 31 other Republican Members of the House of Representatives.
June 3, 1964, four of the Republican members of the House Judiciary Committee (Lindsay, Cahill, MacGregor, and Mathias) introduced public accommodations bills based on the equal protection clause of the 15th amendment to the Constitution. Twenty-seven other Republicans introduced companion bills.
These members undertook to discuss these measures on the floor of the House on June 4, but were obstructed in a rather spectacular manner by numerous quorum calls and other proceedings undertaken for the purpose of delaying the debate. See Congressional Record, pages 9586 to 9603.
It was not until June 19, 1963, that the President transmitted to the Congress a message on civil rights asking for legislation, which resulted in the introduction of the administration omnibus civil rights bill, H.R. 7152, by Mr. Celler, June 20, 1963.
Previously, members of the Judiciary Committee had discussed informally various drafts of legislation suggested by the Department of Justice.
In the light of this history, it was astonishing that when the Attorney General appeared before Subcommittee No. 5 on Wednesday, June 26, 1963, he testified in response to a question by the undersigned (hearings, p. 1394) that he was not familiar with the bills introduced by Republicans with respect to public accommodations and had not had time to read them even though the Lindsay bill, H.R. 6720, is only four pages long.
Twenty-two days of hearings, from May 8 to August 2, 1963, were held by Subcommittee No. 5, and the testimony of 101 witnesses is contained in 3 volumes of 2,649 printed pages.
Subcommittee No. 5 commenced 17 days of executive hearings on August 14 to consider and mark up the administration bill, H.R. 7152. At the outset of these sessions a question of committee policy was raised (by the undersigned); namely, whether it would be the objective of the subcommittee to produce a well-worded, workable bill which stood a chance of becoming law without major modification or whether it would be our purpose to add to the bill controversial provisions which could be sloughed off as trading material during the legislative
After discussion, the subcommittee agreed it would not load up the bill but would try to write a clearly worded, reasonable, and workable bill which stood a good chance of becoming law.
On this basis the committee proceeded to consider the provisions of the administration bill in nonpartisan, largely unanimous action, modifying the language title by title, page by page, line by line, arriving at tentative decisions on phraseology, and agreeing on items which required further information and further study.
In this process legislative findings, referred to by some as "oratory," were deleted from various sections of the original administration bill. For example, all of sections 2 and 201 of title II were stricken. In title IV (desegregation of public education) all references to "racial imbalance" were deleted.
The subcommittee had arrived at tentative decisions on the phraseology on all the titles of H.R. 7152 at the time the tax reduction bill, H.R. 8363, was being debated on the floor of the House.
At that time a curious change in the atmosphere of subcommittee consideration abruptly took place. Nonpartisan harmony evaporated. A rigidity of position based on the possession of an overwhelming majority of votes (seven Democrats to four Republicans) prevailed. Tentative decisions suddenly became permanent and unchangeable. Alternatives to titles and sections were rejected out of hand, and three explosively controversial provisions were added:
(1) H.R. 405, the so-called FEPC bill, reported by the House Education and Labor Committee, then pending before the Rules Committee.
(2) A broad title III vesting sweeping powers in the Attorney General to initiate and to intervene in any case to enforce rights derived from the Constitution or laws of the United States.
(3) A broadening of the public accommodations section of title II to extend its coverage to practically every type of business.
Thus modified the subcommittee reported the bill to the full Judiciary Committee on October 2.
The merits of these new provisions and, indeed, the questions of the remedy of "government by injunction" and the stretching of the "interstate commerce clause" and the "equal protection of the laws" clause to take over all governmental powers in these areas (including State and local) were never debated in the subcommittee.
JUDICIARY COMMITTEE ACTION
October S, 1963, the Judiciary Committee commenced consideration of H.R. 7152 and, after general discussion and before commencing to read the bill, decided to call the Attorney General before the committee in executive session to obtain his comments, particularly upon the modifications made in the administration's bill by the subcom
On Tuesday, October 15, 1963, and Wednesday, October 16, 1963, the Attorney General presented a prepared statement, which was released to the press, and was interrogated by members of the committee.
In the judgment of the undersigned the transcript of the record of this testimony should be made public as a supplement to the committee hearings.
October 10, 1963, title I of the bill (voting) was read and certain amendments were offered. October 22, 1963, they were withdrawn, and action was taken on one amendment which was defeated.
Thereupon a motion was made to report H.R. 7152 as amended by
subcommittee. This motion was pending and a rollcall vote had been ordered but not taken when the session of the committee terminated by reason of the House being in session.
Subsequent scheduled sessions of the committee were postponed until Tuesday, October 29, when a motion to report H.R. 7152 as reported by the subcommittee, was defeated, and a motion to strike all after the enacting clause of H.R. 7152 and insert substitute language was adopted.
The origin of the substitute language is not entirely clear since it was not drafted by the committee. A copy was delivered to the home
of the undersigned at 10:10 p.m. on Monday, only a few hours before the session the following Tuesday at 10:30 a.m., at which the substitute language was read, declared not subject to amendment and then, at a meeting in the afternoon, since the morning meeting was again interrupted by a session of the House, was ordered reported.
STATEMENT OF POSITION
It is the position of the undersigned that Congress can and should take action within its constitutional powers and sphere of authority to carry out our national policy against discrimination by reason of race or color in the four areas noted above, namely, voting, interstate travel, Federal financial assistance and Federal employment and contracts, but for the enforcement of public policy in such legislation tried and established sanctions should be employed.
The undersigned is opposed to extension of the principle of enforcing public policy by injunction because this extraordinary and everexpanding sanction deprives a citizen, when proceeded against by his Federal Government, of the protections guaranteed by the Bill of Rights of the U.S. Constitution designed to protect citizens from tyrannical behavior by government officials.
The undersigned likewise opposes strained interpretations of the interstate commerce clause or the equal protection of the laws clause tending to undermine the vitality and autonomy of State and local governments and to promote the expansion of Federal power beyond constitutional limits.
GOVERNMENT BY INJUNCTION
There is a growing and, to me, an alarming tendency in adopting new Federal programs to utilize the sanction of what may be called government by injunction.
Such statutes authorize the U.S. Government, for the enforcement of the public policy promulgated, to institute in the U.S. district court a civil action for preventive relief including an application for a permanent or temporary injunction, restraining order or other order.
These actions are commonly known as suits in equity, or in chancery, to be heard by the judge without a jury (except in rare cases.) Instead of resulting in a money judgment against the defendant such equity suits result in a decree in which the defendant is ordered to refrain from committing certain acts or, by the use of a double negative, is commanded to perform certain acts.
Such a decree is enforced by contempt proceedings in which there is no right to jury trial, and in case the defendant is found to be in contempt, he is punished by imprisonment at the discretion of the judge.
The effect of the employment of this sanction of injunction rather than a civil action at law for the recovery of damages or the institution of criminal proceedings by indictment or information is that the defendant is shorn of most of the protections set forth in the Bill of Rights of our Constitution.
In a criminal proceeding; for example, the defendant has all of the protections written into our body of criminal law such as (1) the presumption of innocence, (2) the right to be confronted by accusers, (3) the right of cross-examination, (4) the requirement that proof of
guilt be beyond a reasonable doubt according to a body of welldeveloped rules of evidence, and (5) the right to trial by a jury of his peers.
These protections either do not exist at all when the citizen is proceeded against by his government by the injunctive process, or they exist in a less adequate form.
It was precisely because of the tyrannical behavior of the British monarchy and the British courts when proceeding against freemen that our Founding Fathers were led to incorporate protections and due process of law in the first 10 amendments to our U.S. Constitution commonly known as the Bill of Rights.
There follows a list of Federal statutes in which the Federal Government is authorized to proceed against citizens by injunction:
Antitrust laws, restraining violation-by U.S. attorney under direction Attorney General-15 U.S.C. 4, July 3, 1890.
Associations engaged in catching and marketing aquatic products restrained from violating order to cease and desist monopolizing trade-by Department of Justice-15 U.S.C. 522, June 25, 1934.
Association of producers of agricultural products from restraining trade by Department of Justice-7 U.S.C. 292, February 18,
Atomic Energy Act, enjoining violation of act or regulationby Atomic Energy Commission-by Attorney General-42 U.S.C. 1816, August 1, 1946.
Bridges over navigable waters, injunction to enforce removal of bridges violating act as to alteration of bridges-by Attorney General-33 U.S.C. 519, June 21, 1950.
Clayton Act, violation of enjoined-U.S. attorney under direction of Attorney General-15 U.S.C. 25, October 15, 1914.
Electric utility companies, compliance with law enforced by injunctions-by Federal Power Commission-16 U.S.C. 825m, August 26, 1935.
False advertisements, dissemination enjoined by Federal Trade Commission-15 U.S.C. 53, March 21, 1938.
Freight forwarders, enforcement of laws, orders, rules, and so forth, by injunctions-by Interstate Commerce Commission or Attorney General-49 U.S.C. 1017, May 16, 1942.
Fur Products Labeling Act, to enjoin violation-by Federal Trade Commission-15 U.S.C. 69g, August 8, 1951.
Enclosure of public lands, enjoining violation-by U.S. attorney-43 U.S.C. 1062, February 25, 1885.
Investment advisers, violations of statute, rules and regulations governing, enjoined by Securities and Exchange Commission15 U.S.C. 80b-9, August 22, 1940.
Gross misconduct or gross abuse of trust by investment companies, enjoined by Securities and Exchange Commission15 U.S.C. 80a-35, August 22, 1940.
Use of misleading name or title by investment company, enjoined by Securities and Exchange Commission-15 U.S.Č. 80a-34, August 22, 1940.
Violation of statute governing, or rules, regulation, or orders of SEC by investment companies, enjoined-by Securities and Exchange Commission-15 U.S.C. 80a-41, August 22, 1940.