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EDITORS' NOTE: During the debate in the Senate, Senator Clark (D., Pa.) undertook to rebut the charge that Title VII was intended to rob all Americans of important rights for the benefit of one segment of the population.

Senate 6-9-64

pp. 13079-13080

Mr. CLARK. Mr. President, since this Alibuster began on March 9, some rather extraordinary speeches have been made on the floor of the Senate about the bill in general and about title VII in particular.

As one of the floor managers of ic VII, I undertook to speak at some length in support of the title on April 8. I shall do no more than summarize very briefly the arguments I then made in support of the title. At the same time the able senior Senator from New Jersey [Mr. CASE), who is the floor manager of the bill on the Republican side, made a very distinguished speech in support of the title.

There has been so much oratory, and so many really extravagant statements have been made about what title VII does, that it is perhaps difficult to speak objectively and carefully about what the title is intended to do, without being diverted into an effort to rebut some of what can only be called fantastic misstatements about what the title does, which have been made from time to time, not only on the floor of the Senate but also by a large number of individuals serving in the press corps, without their having taken the trouble to read the title or being quite careless in what they had to say about it.

Let me deal first with the suggestion, made over and over again, that title VII might conceivably be unconstitutional. No lawyer worthy of the name thinks that. The constitutionality of title VII under the commerce clause of the Federal Constitution has been amply demonstrated time after time.

On the 8th of April I put in the RECORD an opinion from 32 of the ablest constitutional lawyers in the United States, stating their clear view that there was not a shadow of doubt about the constitutionality of title VII. That opinion was buttressed by an excellent opinion of the Attorney General of the United States, signed by the Deputy Attorney General, Mr. Katzenbach, and by another excellent opinion provided by the Solicitor of the Department of Labor.

I say again—and I challenge the opponents of title VII to show that I am wrong that there is not a scintilla of doubt about its constitutionality. A lawyer cannot make a tenable argument that title VII is unconstitutional.

I was rather startled to hear my good friend from North Carolina make the statement, which I believe I took down accurately, that this was a title to rob all Americans of important rights for the benefit of one segment of the population.

Mr. President, this title would not deprive anyone of any rights. All it does is to say that no American, individual, labor union, or corporation, has the right to deny any other American the very basic civil right of equal job opportunity.


The bill does not make anyone higher than anyone else. It establishes quotas. It leaves an employer free to select whomever he wishes to employ. It enables a labor union to admit anyone it wishes to take in. It tells an employment agency that it can get a job for anyone for whom it wishes to get a job.

All this is subject to one qualification, and that qualification is to state: "In your activity as an employer, as a labor union, as an employment agency, you must not discriminate because of the color of a man's skin. You may not discriminate on the basis of race, color, religion, national origin, or sex."

That is all this provision does. It would establish a legislative civil right for what has always been a sacred American constitutional right, the right to equal protection of the laws. That phrase does not come from the commerce clause, but the philosophy behind it is the philosophy behind the fair employment practice title.

It merely says, "When you deal in interstate commerce, you must not discriminate on the basis of race, religion, color, national origin, or sex."

Title VII as it presently exists, and as modified-as many of us agreed, reluctantly, including myself, that it should be modified by the Dirksen amendmentis one of the mildest Fair Employment Practices acts ever to be brought before the Congress.

I had the privilege of serving as the chairman of the Subcommittee on Manpower and Employment of the Committee on Labor and Public Welfare. We took a great deal of testimony for a great many days. The details are set forth in my speech of April 8.

We reported a fair employment practice bill to the Senate by a vote of 12 to 3, a bipartisan vote, because among the honored Republicans who voted in support of the bill was the junior Senator from Idaho [Mr. JORDAN], who is now in the Chamber, the Senator from New York [Mr. JAVITS), and the Senator from Vermont [Mr. PROUTY]. Only three Senators voted against reporting the fair employment practice bill to the Senate. It came from the Committee on Labor and Public Welfare by a vote of 12 to 3. That bill was a much stronger bill than the one now before the Senate.

I preferred that bill. It gave teeth to the enforcement of fair employment practices by a Fair Employment Practices Commission, established by law, with an administrator, who had important executive duties, and with the right of appeal, not to the district court, but to the circuit court of appeals.

The relatively mild fair employment practices bill which passed the House was far weaker than the Senate bill. To my way of thinking, the Dirksen amendments have weakened the House bill in several unfortunate respects. I commented on this point on the floor of the Senate several days ago.

Now, we have a pretty mild fair employment practices proposal. It is intolerable to me that the Senate should fail to retain this title in the bill when it comes to be finally passed. To my way of thinking, the most important civil right for disadvantaged citizens is the right of equal job opportunity.

Of course, that ties in very closely, as the present occupant of the chair, the former distinguished Secretary of Health, Education, and Welfare [Mr. RIBICOFF) knows, with the right to equal educational opportunities, for unless American citizens, regardless of race and color can have equal educational opportunities, there is little likelihood that they can receive equal job opportunity in a free enterprise system.

With respect to the present labor force, to a man or woman whose education has for all practical purposes been completed, the right to equal job opportunity is the most important civil right of all. What good does it do to allow a man to go into a restaurant, to obtain a room in a hotel or a motel, regardless of his race, creed, or color, if he does not have the money with which to pay for such services? How can he have the money if he cannot get a job without discrimination, which will enable him to earn money, which can make the access to public accommodations a real and living thing, as opposed to an empty constitutional right incapable of being enforced?

So when we strike, or speak of striking title VII from the bill in my judgment we strike at the very heart of the bill itself. In my judgment, the adoption of the Ervin amendment would be the gravest catastrophe that could overcome the cause of civil rights since this long and tedious filibuster began so many months ago, back on the 9th of March.

The moral question raised by the bill is particularly applicable to the fair employment practices title. The moral issue is clear, indeed. It is merely a question of right and wrong. We cannot duck it. There is no way we can avoid searching out our own consciences. The bill clearly raises this important moral question.

We had before us, in hearings held by the committee, eloquent and articulate representatives of the churches of the United States. In our record, at page 180, the representatives of the National Catholic Welfare Conference, the Synagogue Council of America, and the National Council of Churches of Christ in America said:

The religious conscience of America condemns racism as blasphemy against God. It recognizes that the racial segregation and discrimination that flow from it are a denial of the worth which God has given to all persons. We hold that God is the Father of all men. Consequently in every person there is an innate dignity which is the basis of human rights. These rights constitute a moral claim which must be honored both by all persons and by the state. Denial of such rights is immoral.

EDITORS' NOTE: Congressman Madden (D., Ind.) pointed out that the courts have upheld the constitutionality of measures designed to insure that private property is used in conformity with the public interest.

House 1-31-64

p 1512

Mr. MADDEN. ***


The enactment of this legislation is clearly consistent with the Constitution and our concepts of both human rights and property rights. The courts have consistently rejected the theory that it is unconstitutional to interfere with the rights of citizens as they pertain to restrictions on voting laws, minimum wages, collective bargaining, air pollution, smoke control, pure food laws, and

countless other measures designed to make certain that the use of private property must be utilized in conformity with the public interest.

Next week, a great number of our Members have set up a program to extoll President Abraham Lincoln on the anniversary of his birth. History reveals that in issuing his Emancipation Proclamation 100 years ago, he was accused by many of violating the property rights of slave owners. It is farfetched to believe that a man engaged in soliciting business from the American public for profit has an inherent right to exclude part of that public on the grounds of his race or color. Both human rights and property rights are basic foundations of our society, and the combination of both is highly essential to our economy.

Constitutionality: Advertising

EDITORS' NOTE: Congressman Harris (D., Ark.) charged that the restric tions on advertising imposed by Section 702(b) of the Act appeared to violate the right of free speech guaranteed by the First Amendment to the Constitution.

House 2-4-64 p. 1923

Mr. HARRIS. ***


Section 702(b) prohibits an employer, labor organization or employment agency from advertising, any indication of "any preference, limitation, specification, or discrimination, based on race, color, religion or national origin."

This appears to be an outright violation of the freedom of speech guaranteed by the first amendment of the Constitution.


Section 701(a) provides that "the Congress hereby declares that the opportunity for employment without discrimination is a right of all persons within the

jurisdiction of the United States, and that it is a national policy to protect the right of the individual to be free from discrimination."

The justification for this section is undoubtedly again the combination of the commerce clause and the 14th amendment. This "unholy alliance" tends to misconstrue the intention of the Constitution. The 14th amendment does not give a right to be free from individual discrimination. It deals only with discrimination by State action. In fact, I know of no section of the Constitution which gives Congress the right to legislate against individual discrimination and the U.S. Government does not have the authority to establish a "national policy to protect the right of the individual to be free from such discrimination."

This title specifically exempts from its application employers with less than 25 employees. Do the proponents of this legislation mean by this the employees of an employer having less than 25 em

ployees have no such right to be free from discrimination? If not, why? The Constitution makes no such arbitrary distinction. If the Constitution guarantees an individual the right to be free from individual discrimination then it must guarantee him the right to be free from all individual discrimination. The simple answer is that the Constitution does not go this far and it most certainly does not empower Congress to go this far.

I have several questions in my mind concerning this section which needs to be clarified.

First. What will become of the seniority system under this title?

Second. What will become of the apprenticeship training program?

Third. Can an employer ever fire a Negro "for cause" without projecting himself to a large court procedure over the question of discrimination?

Section 706 creates an Equal Employment Opportunity Commission. Among this Commission's many powers is the power "to cooperate with and utilize National, State, local, and other agencies, both public and private, and individuals." Does this mean that the Commission will have the power to commandeer State and local agencies and even private organizations and private individuals in its relentless search for discrimination?

Constitutionality: Atheist Exemption


Senator Case (R., N.J.) charged that a House-passed provision permitting employers to refuse to hire atheists was unconstitutional. The provision was deleted from the final bill.

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EDITORS' NOTE: Senator Muskie (D., Me.) and Senator Ellender (D., La.) debated the charge that the anti-discrimination provisions of the bill violate the 10th Amendment to the Constitution

Senate 6-3-64

pp. 12618-12619

Mr. MUSKIE. ***

Returning again to the question of guidelines that are used in the fair employment title, this title provides a series of guidelines which give clear indication

of the type of practice that will be eonsidered unlawful. For example, section 703 (a) says that:

It shall be an unlawful employment practice for an employer:

1. To fall or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of: such individual's race, color, religion, sex, or national origin; or

2. To limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

I repeat.

1. To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.

What more could be asked for in the way of guidelines, short of a complete itemization of every practice which could conceivably be a violation?

Section 703 (c) declares that:

It shall be an unlawful employment practice for a labor organization:

1. To exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

2. To limit, segregate, or classify its membership in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or

3. To cause or attempt to cause an employer to discriminate against an individual in violation of this section.

Section 703 (d) says that:


It shall be an unlawful employment practice for any employer, labor organization, or Joint labor-management committee trolling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

In addition sections 703 (g) through (j) limit the term "unlawful employment practice" by spelling out a number of situations that could not be considered unlawful.

I submit that, read in their entirety, these provisions provide a clear and definitive indication of the type of practice which this title seeks to eliminate. Any serious doubts concerning its application would, it seems to me, stem at least partially from the predisposition of the person expressing such doubt. For

my part, I believe this title to be reasonable in objective and method, and clearly and carefully drawn. It has my full support.

In the course of this debate I have heard this bill attacked on the ground that it violates the 10th amendment to the Constitution. In this view the powers conferred upon the Federal Government by this measure would infringe the powers "reserved to the States respectively." That interpretation is held by constitutional lawyers far more imposing than I. It is an interpretation, however, with which other constitutional lawyers do not agree, and with which I cannot agree.

First, it should be remembered that the 10th amendment covers more than the question of Federal and State powers. It should be read in its entirety. I quote:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The first 10 amendments to the Constitution form an arch of protection over individual citizens, to preserve for them their essential rights. The 10th amendment is the capstone of that arch, protecting the people against central tyranny. It was not intended to establish privileged enclaves in the several States behind which the rights of citizens could be violated with impunity.

The Bill of Rights was added to the Constitution because of the fear that the new Central Government, established to replace the less effective confederation, would be in a position to deprive individual citizens of rights considered to be theirs under natural law. The Articles of Confederation had contained no "bill of rights" because each State was to retain its "sovereignty, freedom, and independence." The States would be the repository of the protection of the rights of individuals.

At the time of the adoption of the new Federal Constitution, 8 of the 13 States had bills of rights. The drafters of the Constitution saw no need to specify protection to individuals under the Federal Constitution because, in the words of Rufus King, "The fundamental rights of individuals are secured by express provisions in the State constitutions."

Those rights were very precious to the Founders of the Nation, however. After their experience with the British Empire, they were not about to leave to chance or custom the protection of individual liberties. They wanted their guarantees writ large.

In the Northwest Ordinance of 1787, enacted under the Articles of Confederation, the first Federal "Bill of Rights"

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