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Fourth, this title establishes the procedure to be followed. An individual claiming to be discriminated against can deliver to the Commission a verified written complaint that an employer has committed an "unlawful employment practice"; or such charge can be made "on behalf" of such person by another person or organization. The Commission furnishes the employer with a copy of the complaint and proceeds to make an investigation, in pursuance of which, the Commission may "enter and inspect" the employer's place of business, examine and copy his records, question his employees and "investigate such facts, conditions, practices, or matters as may be appropriate * If as many as two members of the Commission (less than a majority) decide that "reasonable cause exists," the Commission attempts through "conciliation and persuasion" to eliminate the unlawful employment practice. If it fails, the Commission is requred to bring a civil suit in the Federal district court against the employer. If the Commission prevails, the court will issue an injunction preventing the employer from engaging in the practice with which he is charged and compelling him to take such affirmative action "as may be appropriate," including hiring of the job applicant or reinstatement of the employee, with or without back pay.
1. Interstate commerce clause
The first constitutional ground in which this title is sought to be predicated is the interstate commerce clause. For the same reasons assigned in the discussion of the public accommodations section of this bill, this clause is not a proper constitutional foundation, and even if it could be remotely considered such, Congress should not attempt to pitch a new Federal tent on this tortured ground.
The bill proceeds upon a theory similar to the "quantum of income" theory. This theory is that the quantum of employees is a rational yardstick by which the interstate commerce concept can be measured. Out of thin air, the bill pulls a figure and determines that 25 employees is the magic number-not 26 or 24 but 25.
In an effort to strengthen this flimsy yardstick the bill defines an employer as "a person engaged in any industry affecting commerce." What does the word "affecting" mean? The Supreme Court has defined it to mean anything that "asserts a substantial effect on interstate commerce *** irrespective of whether such effect at some earlier time has been defined as 'direct' or 'indirect.'" Wickard v. Filburn, 317 U.S. 111, 215 (1942). The Wickard case, a farmer who had produced only 239 bushels of wheat and consumed the same on his own farm was declared to be "affecting" interstate commerce. In a similar vein activities of local bakeries and the sales of medicines by local retail drugstores were held to "affect" interstate commerce. Moore v. Mead's Fine Bread Company, 348 U.S. 115 (1954). U.S. v. Sulliran, 332 U.S. 689 (1947).
Under these decisions, and impelled by the broad, vague powers conferred by title VII, it is safe to predict that the Federal Equal Opportunities Employment Commission would assert plenary jurisdiction over the employment, promotion, discharge, and working conditions policies of every restaurant, hotel, gas station, manufacturer, bank, law firm, hospital, small loan company, barber shop,
funeral parlor, beauty salon, night club, and other local retail service, trade, and professional establishment which employs 25 or more full- or part-time employees. Again, we must say that if the interstate commerce clause can be broadened and deepened to this extent, then the concept of intrastate commerce is obsolete.
2. Privileges and immunities
The second constitutional ground on which this title is sought to be predicated is the "privileges and immunities" clause.
While it is unclear precisely what is intended, it would appear certain that the language of the bill does not refer to the comity clause, article IV, section 2, which concerns "privileges and immunities of citizens in the several States." Reference undoubtedly is intended to the 14th amendment which reads in part, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ***
The latter clause, of course, applies only when action by a State or by a State official under color of law is involved, and not to action by a private citizen. So far as we are aware, no State has any statute on its books which discriminates against any citizen's right to a job on account of race. If such a statute existed, it would fall under the prohibition of the "equal protection" clause of the 14th amendment rather than the "privileges and immunities" clause.
Within 5 years after the ratification of the 14th amendment, the Supreme Court handed down a decision which had the effect of rendering the effect of the privileges and immunities clause a "practical nullity." Slaughter-House Cases, 16 Wall. 36 (1873). In that case, a statute of the State of Louisiana granted a corporation a monopoly in the business of slaughtering cattle. The plaintiffs brought a suit based on the theory that the right to engage in the butcher business was a "privilege and immunity" within the meaning of those words in the 14th amendment. Plaintiffs contended that these words had the effect of converting all rights enjoyed by citizens of each State into privileges and immunities of the U.S. citizenship, and that any State statute which abridged a privilege such as the right to engage in the butcher business constituted a violation of the clause. The court rejected this contention and held that the privileges protected under the 14th amendment were only those "which owe their existence to the Federal Government, its national character, its Constitution or its laws" which meant simply privileges which had been available to U.S. citizens prior to the adoption of the 14th amendment. The court specifically found that the right to engage in the butcher business was a privilege "left to the State governments for security and protection" and had not been committed to the "special care of the Federal Government" by the privileges and immunities clause of the 14th amendment.
It would seem beyond cavil that the right to employment cannot be distinguished in this context from the right to engage in the butcher business. To contend otherwise would be, as the Court said,
to transfer the security and protection of all the civil rights
Accordingly, for two reasons, the privileges and immunities clause of the 14th amendment cannot be a proper constitutional base for title VII:
(1) no State statute or other State action is involved; and
(2) the right to employment is not a privilege or immunity protected by the privileges and immunities clause of the 14th amendment.
Test of discrimination
With all of its concern for inequality in employment opportunities, the equal employment opportunity title of this bill wholly fails to define "equality." Nowhere in the title can be found language to guide the Commission in its investigation of charges of racial discrimination. All the Commission is required to find is "reasonable cause" for the charge. In searching out evidence of "inequality" or "discrimination" in employment practices, what will the Commission find to be "reasonable cause"? If the Negro labor force in a particular community constitutes 10 percent of the total labor force, will a company whose Negro employees constitute only 5 percent of the company payroll be considered guilty of discrimination? If the company has 100 executives and only 4 are Negro, would this constitute discrimination in promotions to executive pay levels if the Negro work force in the rest of the company constitutes 10 percent of the total company work force? Suppose only 5 percent of the total company work force was Negro while the Negro work force of a competitor company in the same community was 15 percent of its total. Would that constitute evidence of discrimination? If the seniority list maintained by a company or a labor union had more white workers than Negro workers in the upper echelons, would this be evidence of discrimination in the discharge of employees? Even if these few examples are farfetched (which we believe they are not), still they illustrate the variety of charges which could be made and the complexity of the Commission's chore in finding or failing to find "reasonable cause" for the charges.
Once the Commission finds reasonable cause, no matter how unreasonable the evidence might appear to an impartial observer, the Commission, in order to save its own face and in compliance with the mandatory word "shall" in section 707(b) is bound to proceed with a lawsuit against the employer, and if for any reason, such as failure to find "reasonable cause," the Commission does not bring the suit, the complainant himself can bring the suit with the permission of only one member of the Commission.
At the "trial," the Commission presents whatever evidence it has compiled concerning racial disparity. At that point, the employer who has been charged with committing an "unlawful employment practice" must assume the burden of producing evidence to show, either that the conduct complained of did not, in fact, constitute discrimination, or that he did not intend by such conduct to discriminate against the complainant on account of his race. In a word, it becomes the burden of the employer to prove his own innocence. In the process of attempting to do so, he will enjoy no right of trial by jury. Rather, the entire proceeding can be conducted, not only in the absence of the jury but in the absence of a judge before a master acting as a referee for the judge. And if the decision of the court goes against the employer, he must abide strictly by the court's
order or be subject to a fine or jail sentence for contempt of court, imposed by the judge in the absence of a jury.
We do not believe that the American people as a whole, whether employers or employees, want to embark upon this new adventure. We do not believe that they want to make this departure in the functional aspects of the American free enterprise system. We do not believe that they want the Federal Government, through its administrators, commissioners, investigators, lawyers, and judges, to assume this quality and quantity of control over their property and personal freedom to manage their own affairs. If this title of this legislation becomes a statute, we predict that it will be as bitterly resented and equally as abortive as was the 18th amendment, and what it will do to the political equilibrium, the social tranquillity, and the economic stability of the American society, no one can predict.
VI. APPEALS OF REMAND ORDERS
Section 1443 of title 28 of the United States Code provides that any civil action or criminal prosecution brought in a State court against a defendant who alleges that he has been denied or cannot enforce his civil rights in the State court can, upon the motion of the defendant, be removed to the Federal district court of the district in which the State court is located.
Under section 1447 of title 28, the Federal court can remand the case to the State court if it decides that there were no proper grounds for the removal. Under subsection (d) of that section, the order remanding the case is not subject to appeal to a higher Federal court. Prohibition against appeal of such remand orders, reflecting congressional policy against undue disruption of State court proceedings, has been the law of the land for many years. It is a wise policy, one that promotes the prompt and orderly dispatch of litigation, one that recognizes and preserves the authority and dignity of State courts, and one that maintains the constitutional distinction between State judicial systems and the Federal judicial system.
One of the fundamental principles of American jurisprudence is that, in the interests of an orderly society, legal controversies should be resolved and litigation should be terminated with the least possible delay. Initially, the removal process consumes a period of 10 days. If a remand order is appealable, a great deal more time is consumed, even if upon appeal the remand order is affirmed and the case is returned to the State court. During this period of delay, the hands of the State court are tied and the State remains utterly without any power to resolve the civil controversy or to enforce the criminal law involved. Such a period of delay invites agitators to organize mass demonstrations which often provoke other violations of State laws, including perhaps the same laws involved in the case which has been removed, remanded, and appealed. During the entire period of delay, the Federal courts retain jurisdiction and the laws of the state which may have been challenged hang sterile in a state of suspended animation.
The catalog of lawsuits which title IX would affect incorporates, among others, all suits in which the defendant might invoke the equal protection clause of the 14th amendment. The list is too long to itemize.
A sufficient argument against the inclusion of title IX in this legislation is that the majority report fails to justify any reason for changing with respect to civil rights cases only what has been a timehonored and time-proven policy of judicial procedure.
VII. JURY TRIAL
It is true, as the majority says, that this legislation authorizes no civil damages and imposes no criminal sanctions except that in title VII. It must not be thought, however, that punishment is not potentially involved in most if not all titles of the bill. As our distinguished colleague, the gentleman from Michigan, Mr. Meader, has so well dramatized in his views, this legislation further promotes the "government by injunction" process. Through that process, the executive branch of the Government either forbids or compels citizen action by judicial order. If the citizen violates or fails to comply with the order, then he becomes subject to punishment for contempt of the court which issued the order. It matters not whether the citation is for criminal contempt or civil contempt, upon conviction, compliance is compelled by punishment administered in the form of fines or jail
If the citation is for civil contempt, the defendant is not entitled to a trial by jury. He is cited, tried, convicted and sentenced by the same judge he is accused of offending. If he is cited for criminal contempt in connection with court orders issued under the voting section and the public accommodations section of this bill, he may possibly get a jury trial under section 151 of Public Law 85-315. Not necessarily. Indeed, under section 151, a jury trial is discretionary with the judge; only if the judge convicts the accused in the absence of a jury and assesses a penalty in excess of $300 fine or 45 days in jail, may the accused demand and receive a jury trial de novo.
If a person is cited for contempt in a proceeding under other titles of this bill, he would not be entitled to a jury trial, whether the citation was civil or criminal. Why this distinction between the public accommodations title and the FEPC title was made, the majority report does not undertake to explain.
Without attempting to recapitulate all of the specific objections to the several titles of this legislation, it is appropriate in summary to say that as a matter of legal craftsmanship, this bill is inexpertly drafted, imprecisely worded and imperfectly oriented to the very problems it professes to solve. The ambiguity of its language creates a cloud of obscurity which conceals its potential consequences. While we are unprepared to say that the ambiguity is deliberate and calculated, it is difficult to believe that it is altogether accidental. Statutory ambiguities require judicial interpretation. In light of the trend court decisions have taken in recent years, it is not unrealistic to predict that the interpretations the courts would make would be of the broadest possible scope. What the courts interpret tomorrow may be altogether different from what a majority of the Members of Congress intended, and with the rule of stare decisis all but abandoned, what the court interprets tomorrow will not necessarily be what the