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thus bypassing the need for a long and costly trial in the district court.

The bill to which I have reference was introduced by Representative JAMES ROOSEVELT, of California. It was reported with amendments on July 22, 1963, and ordered to be printed. Thereafter, on that same date, a committee report was issued under the name of the chairman of the committee, Representative ADAM CLAYTON POWELL, to accompany the bill, H.R. 405.

It is perhaps interesting to note that the report stated that the basic purpose of H.R. 405 was to seek to eliminate arbitrary employment discrimination because of race, religion, color, national origin, or ancestry through the utilization of formal and informal remedial procedures.

The bill would authorize the establishment of a Federal Equal Employment Opportunity Commission, and would delegate to it the primary responsibility for preventing and eliminating unlawful employment practices as defined in the


I point out again that H.R. 405 would vest authority in the first instance in the Federal Equal Employment Opportunity Commission. Only appellate jurisdiction would be given to the various Federal courts of appeals.

The House report contained an interesting recital of some of the basic facts, which, in view of the many speeches made in this body since March 9, suggesting that there is no need for fair employment practices legislation, is well worth referring to. The report states:

The conclusion inescapably to be drawn from 28 witnesses in 10 days of hearings, and from statements filed without oral testimony, is that discrimination in employment because of race, religion, color, national origin, or ancestry is a pervasive practice. The evidence before the committee makes it abundantly clear that job opportunity discrimination permeates the national social fabric-North, South, East, and West. The act is directed at correcting such abuses wherever found and is not focused upon any single section of the country. An unequivocal declaration and implementation of a national policy on equal employment opportunity, predicated upon individual merit, competence, and capability, is of paramount importance at this stage of U.S. history.

The report mentions that it is a hard fact that among male family breadwinners the unemployment rate today among nonwhites is 3 times what it is among whites; that among the younger

workers, from age 14 to age 19, the unemployment rate today for whites is 12 percent, and for nonwhites it is 24 percent; that the total number of nonwhites in the civilian work force is 8 million, which represents 11 percent of the total work force; and that there are in that work force today 600,000 men and women who are looking for work which they cannot find, and who have been out of work for more than 26 weeks. It shows that while the total nonwhite population of the country is about 10 percent, 25 percent of the long-term unemployed are nonwhite.

The report points out that the Negro has steadily and consistently fallen behind in terms of unemployment; that in 1947, the nonwhite unemployment rate was 64 percent higher than the rate of white employment; whereas by 1952 that percentage had grown to 92 percent; by 1957 it was 105 percent higher; and in 1962 it was 124 percent higher.

I cite these figures not because they are new or unusual but because we have listened for so long, since March 9, to the denials of our friends from certain sections of the country that there is any serious problem with respect to fair employment practices or job opportunity.

As we come to the closing days of this debate, shortly before we attempt to invoke cloture, I think it is well to set forth the record in this regard.

Mr. ELLENDER. The substitute is directed at the South-at all States which do not have FEPC laws. It is generally known that the Southern States do not have such laws, for they have never needed them.

I would just like to point to a few provisions of the Dirksen substitute which literally eliminates the Northern States from the operation of this proposed law. In section 101 (c) it is provided:

That the Attorney General may enter into agreements with appropriate State or local authorities that preparation, conduct, and maintenance of such test [literacy] in accordance with the provisions of applicable State or local law including such special provisions as are necessary · • [to] meet the purposes of this subparagraph and constitute compliance therewith.

Again in title II, section 204 (c):

In the case of an alleged act or practice prohibited by this title which occurs in a State, or political subdivision of a State,

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which has a State or local law prohibiting such act or practice ⚫ no civil action may be brought under subsection (a) before the expiration of 30 days ・・・

Under section 206(a) the Attorney General may bring suit in areas where he finds a pattern or practice of resistance to the granting of full use of public accommodations to certain persons. I have no doubt that the Attorney General will find such "patterns" to exist in the South, but will be blind to actual discrimination in the North.

Under the provisions of section 407(2) the Federal courts are prohibited from ordering racial balance by the busing of schoolchildren from one district to another. Everyone knows that this has been one of the chief demands of northern Negroes. De facto school segregation will be preserved in the North by this section.

In section 706(b) States with FEPC laws are given exclusive jurisdiction for 60 days and this can be extended to 120 days. All this time the Federal law will be inoperative. Here again, only the South would be affected.

Section 709 (d) exempts employers in Northern States from keeping Federal employment records simply because there States have FEPC laws which we know are not enforced.

If an honest and careful examination were made, I believe it would be found that there is less discrimination among the Negroes in the South, insofar as employment is concerned, than there is in Pennsylvania or in any of the other Northern States.

Mr. CLARK. Of course the Senator from Louisiana is entitled to his opinion-with which I emphatically disagree.

Mr. CLARK. Or in New Iberia Parish, if you will

Mr. ELLENDER. Yes I do not think they will pass such ordinances, because in our State the Negroes are treated better than the Negroes in the North are treated.

Mr. CLARK. I think it at least fair to say that in holding that opinion, the Senator from Louisiana is definitely in the minority in this body.

Mr. President, I said that a little after 3 p.m. I would suggest the absence of a quorum; and it is now after 3 p.m.

In conclusion, I point out the following beneficial changes in the Dirksen substitute:

First, the atheist amendment has been stricken out.


Earlier, I said that it would only be necessary to have an ordinance passed in Shreveport or New Orleans Houma, or to have such a law passed for the entire State of Louisiana, purporting to give fair employment opportunities enforcement protection; and then Louisiana would be out of the application of the Federal law, too. I do not encourage the Senator from Louisiana to have that done; but that would be the case.

This is why I favor these amendments. I do not agree as to all of them; but they are better than no legislation in this field; and I fear that without these amendments, it would not be possible for us to have such a bill enacted into law.

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Fifth, some of the changes in the recordkeeping provisions seem beneficial: The provision for making notations on existing records, which is borrowed from the Senate bill; and the provision aimed at relieving persons required to file reports with the President's Committee on Equal Opportunity from having to file the same information twice with the Federal Government-in other words, once with the President's Commission,

Mr. ELLENDER. Well, I do not think and thereafter with the Commission to Houma or New Orleansbe created by means of this bill.

Therefore, Mr. President, I conclude as I began: The inadequate rules, procedures, traditions, and customs under which the Senate operates in dealing with proposed legislation, but primarily the possibility of filibusters and the fact that we are under the constant threat that anything we might do would not be

acceptable to the House of Representatives, and that, therefore, no bill at all could be enacted, require most of us who want the strongest possible civil rights bill enacted to moderate our bill, in the interest of having any civil rights bill at all enacted.


A letter from a number of prominent lawyers defending the constitutionality of Title VII was inserted in the record by Senator Clark (D., Pa.). Senator Clark also inserted in the record an opinion by Deputy Attorney General Nicholas de B. Katzenbach relating to the constitutionality of the proposed legislation and a memorandum from Secretary of Labor W. Willard Wirtz. All three documents follow.

Constitutionality: In General



pp. 7207-7212

Mr. CLARK. Mr. President, I turn now, but only briefly, to the averment which has been made by some opponents of the bill that title VII-and, for that matter, any of the other 10 titles of the bill-is unconstitutional. This contention, in my opinion, is entirely erroneous.

I ask unanimous consent that there may be printed in full in the RECORD at this point in my remarks so much of a legal opinion, written under date of March 30, 1964, sent jointly to the Senator from Minnesota [Mr. HUMPHREY] and the Senator from California [Mr. KUCHEL], and signed by a number of eminent lawyers, as pertains to title VII. I may say parenthetically that I have stricken out the irrelevant parts, which do not pertain to title VII.

There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:

March 30, 1964.

U.S. Senate, Washington, D.C.

DEAR SENATORS HUMPHREY AND KUCHEL: We have received your letter addressed separately to each of us, in which you request our views regarding the constitutionality of two parts of H.R. 7152, the proposed Civil Rights Act of 1963, now pending in the Congress, specifically title II, prohibiting discrimination in places of public accommodation, and title VII. providing for equal employment practices by certain employers, employment agencies and labor unions.

Your inquiry requests our opinion either as cochairmen of the Lawyers' Committee for Civil Rights Under Law or in our individual capacities. We are replying in the latter role, and, in accordance with one of the

suggestions in your letter, we have asked a number of other lawyers to consider the questions which you have raised and to join with us in formulating this statement. We want to make it clear that we are expressing our views solely on the constitutional issues raised in your letters and not on the merits of the bill.

Upon careful consideration of the established judicial precedents in this area of constitutional law, and in full recognition of the vital importance of the legal issues which are the subject of this letter, we conclude that title II and title VII are within the framework of the powers granted to Congress under the Constitution.

With respect to title II, the congressional authority for its enactment is expressly stated in the bill to rest on the commerce clause of the Constitution and on the 14th amendment. The reliance upon both of these powers to accomplish the stated purpose of title II is sound. Discriminatory practices, though free from any State compulsion, support, or encouragement, may so burden the channels of interstate commerce as to justify, legally, congressional regulation under the commerce clause. On the other hand, conduct having an insufficient bearing on interstate commerce to warrant action under the commerce clause may be regulated by the Congress where the conduct is so attributable to the State as to come within the concept of State action under the 14th amendment.

The grounding of the public accommodations title on the commerce clause is in keeping with a long tradition of Federal legislation, validated in many judicial decisions, and is not today open to substantial legal dispute. In exercising its power to regulate commerce among the States, Congress has enacted laws, encompassing the widest range of commercial transactions, similar to the regulatory scheme of title II of H.R. 7152.

It is also clear that the discrimination or segregation prohibited by title II is subject to regulation by the Congress under its power to enact laws to enforce the equal protection clause of the 14th amendment where there is participation and involvement by State or local public agencies in the unlawful conduct. The decision of the Supreme Court in the Civil Rights Cases, 109 U.S. 3 (1883), in no way prevents the Congress from barring dis

crimination in those factual circumstances constituting State action under the 14th amendment.

With respect to the equal employment opportunity provisions of title VII, there are many decisions of the Federal courts upholding under the commerce clause similar laws regulating employment relationships which in some fashion impinge on interstate com


Powers whic. Congress can exercise under one part of the Constitution may be limited by guarantees found elsewhere in the Constitution. In our opinion, neither title II nor title VII imposes such arbitrary restrictions upon private property or on the operation of private business as to conflict with due process requirements. In the development of congressional authority under the commerce clause and other express grants of power, statutes designed to enhance individual rights and to ameliorate working conditions have been regularly upheld by the courts even though they have in some measure affected property or contract rights.

For your convenience, we are attaching & brief legal memorandum reviewing the applicable authorities.

The lawyers who join in this reply to your request for an opinion, are listed below. Sincerely,





Other lawyers joining in this opinion: Joseph A. Ball, Long Beach, Calif.; Francis Biddle, Washington, DC.; Herbert Brownell, New York City; Homer D. Grotty, Los Angeles, Calif.; Lloyd N. Cutler, Washington, D.C.; Norris Darrell, New York City; James C. Dezendorf, Portland, Oreg.; Erwin N. Griswold, Cambridge, Mass.; Albert E. Jenner, Jr., Chicago, Ill.; William B. Lockhart, Minneapolis, Minn.; William L. Marbury, Baltimore, Md.; David F. Maxwell, Philadelphia, Pa.; John D. Randall, Cedar Rapids, Iowa; Charles S. Rhyne, Washington, D.C.; William P. Rogers, Washington, D.C.; Samuel I. Rosenman, New York City; Eugene V. Rostow, New Haven, Conn.; Whitney North Seymour, New York City; Charles P. Taft, Cincinnati, Ohio; John W. Wade, Nashville, Tenn.


Joseph A. Ball: Ball, Hunt & Hart, Long Beach, Calif.; past president, State Bar of California.

Francis Biddle: Washington, D.C.; former Attorney General of the United States.

Herbert Brownell: Lord, Day & Lord, New York City; former Attorney General of the United States; president, Association of the Bar of the City of New York.

Homer D. Crotty: Gibson, Dunn & Crutcher. Los Angeles, Calif.; past president, State Bar of California; member of council, American Law Institute.

Lloyd N. Cutler: Wilmer, Cutler & Pickering. Washington, D.C.; president, Yale Law School Association.

Norris Darrell: Sullivan & Cromwell, New York City; president, American Law Institute.

James C. Dezendorf: Koerner, Young, McColloch & Dezendorf, Portland, Oreg.; past president, National Conference of Commissioners on Uniform State Laws; vice president, American Judicature Society.

Erwin N. Griswold: Cambridge, Mass.; dean, Harvard Law School.

Albert E. Jenner, Jr.: Thompson, Raymond, Mayer & Jenner, Chicago, Ill.; past president, American Judicature Society; past president, American College of Trial Lawyers.

William B. Lockhart, Minneapolis, Minn.; dean, University of Minnesota School of Law.

William L. Marbury: Piper & Marbury, Baltimore, Md.; member of council, American Law Institute.

David F. Maxwell: Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa.; past 1 president, American Bar Association; former chairman of house of delegates, American Bar Association.

John D. Randall, Cedar Rapids, Iowa: past president, American Bar Association, former chairman of house of delegates, American Bar Association.

Charles S. Rhyne: Rhyne & Rhyne, Washington, D.C.; past president, American Bar Association; former chairman of house of delegates, American Bar Association.

William P. Rogers: Royall, Koegal & Rogers, Washington, D.C., and New York City; former Attorney General of the United States.

Samuel I. Rosenman: Rosenman, Colin, Kaye, Petchek & Freund, New York City; former Special Counsel to President Franklin D. Roosevelt and President Harry S. Truman.

Eugene V. Rostow, New Haven, Conn.; dean, Yale University Law School.

Bernard G. Segal: Schnader, Harrison, Segal & Lewis, Philadelphia, Pa.; presidentelect. American College of Trial Lawyers; former chairman of the board, American Judicature Society.

Whitney North Seymour: Simpson, Thacher & Bartlett, New York City; president, American College of Trial Lawyers; past president, American Bar Association.

Charles P. Taft: Taft, Lavercome & Fox, Cincinnati, Ohio; former mayor of Cincinnati.

Harrison Tweed: Milbank, Tweed, Hadley & McGloy. New York City; chairman of council and past president, American Law Institute; chairman, Joint Committee on Continuing Legal Education (ALI and ABA). John W. Wade, Nashville, Tenn.; dean, Vanderbilt University School of Law.


Title VII of the proposed Civil Rights Act of 1963 enunciates a national policy of equal opportunity for employment free from discrimination. The equal employment title is based expressly upon the commerce clause.

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