assistance to any program or activity by way of grant, contract, or loan," required to be used for these purposes by the mandatory provisions of section 602. (4) There is nothing moderate or "watered down" in this bill as compared to the subcommittee proposal concerning "equal employment opportunity" and the establishment of a commission thereunder. In fact, the broad and unlimited power given the President under section 711(b), inserted for the first time in the pending bill, more than offsets the procedural change substituting a master to hear matters of fact in lieu of the "Board." TITLE VIII. REGISTRATION AND VOTING STATISTICS This title is substantially the same in both versions of the bill. The full committee substitute provides that the survey and compilation by the Secretary of Commerce shall be "to the extent recommended by the Commission on Civil Rights," whereas the subcommittee proposal is not so limited. The full committee "limitation" is, of course, no limitation at all. TITLE IX. PROCEDURE AFTER REMOVAL IN CIVIL RIGHTS CASES (1) This title is identical with the same title which appeared in the subcommittee proposal. (2) It constitutes a radical departure from accepted statutory procedure concerning cases removed from State courts to Federal courts. It places civil rights cases in a special category under which the jurisdiction and right of State courts to proceed may be destroyed indefinitely by a simple filing of a petition to remove, followed by an appeal from an adverse order of the U.S. district court. The full effect of this provision is discussed on page 59 of this report. BRIEF STATEMENT CONCERNING UNCONSTITUTIONALITY PROPOSED CIVIL RIGHTS ACT OF 1963 OF THE Space will not permit the full presentation of authorities demonstrating the unconstitutionality of the provisions of H.R. 7152 as reported to the House. There are certain portions of this legislation so clearly unconstitutional that we give a brief summary below: Title I of the bill, by which the Congress of the United States attempts to fix the qualifications of the electors in Federal elections held for the purpose of choosing "President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives," directly contravenes the following provisions of the Constitution of the United States: Article I, section 2, paragraph 1: "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." Article II, section 1, paragraph 2: "Each State shall appoint, in such Manner as the Legislatures thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person The 17th amendment: "The Senate of the United States It can hardly be contended that the 17th amendment, which became effective in 1913, was amended by the 14th amendment which became effective in 1868. That neither the 14th amendinent nor the 15th amendment, which became effective in 1870, confer any right upon Congress to fix the qualifications of voters in Federal elections or State elections has been repeatedly held by the Supreme Court of the United States both prior to and subsequent to the adoption of the 17th amendment. In Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) the Supreme Court of the United States rejected the contention of a woman who claimed that as a citizen of the United States she was entitled to vote for presidential electors and that the denial to her of the right to vote was prohibited by the privilege and immunities clause of section 1 of the 14th amendment. Following the construction of the Slaughter House cases, 83 U.S. (16 Wall.) 36 (1873), the Supreme Court held that the 14th amendment did not confer a right of suffrage upon anyone and that if the 14th amendment had done so, the 15th amendment would have been unnecessary. The 15th amendment was the subject of construction by the Supreme Court in United States v. Reese, 92 U.S. 214 (1876), in which the Court said: The 15th amendment does not confer the right of suffrage upon anyone. It prevents the States, or the United States, however, from giving preference in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property, or education. Now it is not. The Supreme Court recognized the power of the States to determine voter qualifications through the use of literacy tests in the cases of Guinn v. United States, 238 U.S. 347 (1915); Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959). The imposition of poll taxes and the payment thereof as a condition precedent to voting was also upheld by the Supreme Court in the cases of Breedlove v. Suttles, 302 U.S. 277 (1937). See also Pirtle v. Brown, 118 F. 2d 218 (6th Cir. 1941), certiorari denied, 314 U.S. 621 (1941); Butler v. Thompson, 341 U.S. 937 (1951), affirming 97 F. Supp. 17 (E.D. Va. 1951). The rule as it now exists under the Constitution of the United States was set forth in ex parte Yarbrough, 110 U.S. 651 (1884) by the Supreme Court as follows: The States in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for Members of Congress. Nor can they prescribe the qualifications for voters for these eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall vote for Members of Congress in that State. It adopts the qualifications thus furnished as the qualifications of its own electors for Members of Congress. Under the present Civil Rights Acts more than ample authority is granted for all reasonable purposes in the enforcement of the rights of those who wish to vote in Federal elections. The authority of the Civil Rights Commission in this field has been recognized by the U.S. Supreme Court in the case of Hannah v. Larche, 363 U.S. 420 (1960). Numerous powers have been given by Congress to the Attorney General to inspect election records and to bring suits in connection the with including provisions for expediting such cases. Construction of these powers is illustrated by the cases of Kennedy v. Lynd, 306 F. 2d 222 (5th Cir. 1962); Kennedy v. Bruce, 298 F. 2d 860 (5th Cir. 1962); Dinkens v. Attorney General, 285 F. 2d 430 (5th Cir. 1961); In re Coleman, 208 F. Supp. 199 (S.D. Miss. 1962). There is no need for this legislation as proposed. It is improper as a matter of Federal policy. It is unconstitutional. The necessity of constitutional amendment to permit Federal action is demonstrated by the fact that voting and elections have been the subject of six amendments to the Constitution of the United States. The 12th amendment, which became effective in 1804, changed the method of electing the President and Vice President. The 14th amendment, which became effective in 1868, has to do with reduction of representation in the House of Representatives whenever the right to vote of male citizens 21 years of age and over is abridged by a State under circumstances therein stated and disqualifies any officeholder who engages in insurrection or rebellion. The 15th amendment, which became effective in 1870, prohibits denial or abridgment of the right to vote on account of race, color, or previous condition of servitude. The 17th amendment, which became effective in 1913, provides for the election of Senators and that the electors in each State shall have the qualifications requisite for the electors of the most numerous branch of the State legislatures. The 19th amendment, which became effective in 1920, prohibits denial of the right to vote on account of sex, and the 20th amendment, which became effective in 1933, revised the method of election of the President in certain circumstances. The 17th amendment, ratified long after the 14th amendment and after many of the decisions of the Supreme Court herein mentioned, is phrased in mandatory terms as is the article concerning qualifications of electors who shall choose Members of the House of Representatives. The 15th and 19th amendments place restrictions upon the qualifications which the States may set up for electors therein. The presently pending constitutional amendment prohibits denial of a right to vote for President, Vice President, Senator, or Representative because of a failure to pay any poll tax or other tax. All of these amendments recognize that the Congress has no right or power to fix or determine the qualifications of electors in Federal elections. No such authority has ever existed or been judicially approved as to either Federal or State elections. Title II of the bill concerning "discrimination in places of public accommodation" violates both the 5th amendment and the 10th amendment and cannot be justified under either the 13th amendment or the 14th amendment. Space will not permit a detailed discussion of these amendments of the Constitution and the decisions of the Supreme Court and the Federal courts of appeal thereunder. In 1875, after the adoption of the 13th amendment and the 14th amendment, Congress enacted a statute entitled "An Act To Protect All Citizens in their Civil and Legal Rights." This act is so similar to title II of the bill that we quote therefrom as follows: *** 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, theaters, and other places of public amusement; *** applicable alike to citizens of every race and color, regardless of any previous condition of servitude. In 1883, the Supreme Court of the United States, in the Civil Rights Cases, 109 U.S. 3, held such statute to be unconstitutional. The holding by the Court that the 14th amendment is a prohibition against State action and only State action was unequivocal. Mr. Justice Bradley delivered the opinion of the Court, which is, in part, as follows: It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. 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 laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the funda- One of the recent decisions of the Supreme Court of the United States reaffirming the principles announced in the Civil Rights Cases is that of Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45 (1961), in which the Court said: The Civil Rights Cases, 109 U.S. 3 (1833), "embedded in our constitutional law" the principle "that the action inhibited by the first section (equal protection clause) of the 14th amendment is only such action as may fairly be said to be that of the States. That amendment erects no shield against merely private conduct, however discriminatory or wrongful." As late as May 20, 1963, in Peterson v. City of Greenville, 373 U.S. 244, the Supreme Court stated: "Individual invasion of individual rights" is not within the purview of the 14th amendment, and "private conduct abridging individual rights does no violence to the equal protection clause * In his concurring opinion in the Peterson case, Mr. Justice Harlan said: Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of protection from governmental interference. In 1959 the Fourth Circuit Court of Appeals in the case of Williams v. Howard Johnson, 268 Fed. 2d 845, 847, stated clearly this wellrecognized rule when it said: This argument fails to observe the important distinction between activities that are required by the State and those which are carried out by voluntary choice and without compulsion by the people of the State in accordance with their own desires and social practices. Unless these actions are performed in obedience to some positive provision of State law they do not furnish a basis for the pending complaint. The license laws of Virginia do not fill the void. It is clearly unconstitutional to bottom any claim of Federal control of State action upon "custom or usage" involving acts which constitute merely private conduct. The attempt to base Federal regulation of public accommodations upon the interstate commerce clause is equally unconstitutional. The inclusion of inns, hotels, motels, or other establishments which provide lodging, is based upon lodging being provided to "transient guests"; the inclusion of restaurants and other facilities engaged in selling food is upon the basis that "it sells or offers to serve interstate travelers or a substantial portion of the food which it serves has moved in interstate commerce." The claim of the right of Federal regulation on such bases is directly in the teeth of the decisions of the Supreme Court and the courts of appeal delineating the bounds. of interstate commerce. |