June 2, 1964
PAGE 12613
CIVIL RIGHTS ACT OF 1963
The Senate resumed the consideration of the bill (H.R. 7152) to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.
Mr. MUSKIE. Mr. President, on January 20, 1961, in the course of one of the most stirring inaugural addresses ever made by an American President, the late John F. Kennedy accepted for all Americans the responsibilities of leadership in a time of troubles. He said:
In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from the responsibility -- I welcome it. I do not believe that any of us would exchange places with any other people or any other generation.
Although he could not at that time have foreseen the precise nature of this current civil rights controversy, John Kennedy's words are fully applicable today. To the Members of the U.S. Senate has come the responsibility and the rare opportunity to act decisively for the common good in a time of crisis. Let there be no mistake about it, Mr. President, this bill can be, and will be, a major outpost in our defense of freedom in this, a time of maximum danger.
There is -- in every corner of America, on every continent in the world -- a seething restlessness. It is the impatience of those who for years -- even centuries -- have suffered unfairly under the crushing yoke of poverty, discrimination, and exclusion. That restlessness, that impatience will not be dissipated by words of promise and counsels of yet more patience. It will disappear only when firm action is taken; action which will tear up and cast aside forever the roots from which have sprung this blight on the face and conscience of America.
Mr. President, I find it hard to believe that there is a single American who really believes, deep down in his heart and soul, that another American citizen should not have the right to vote just because he is a Negro; or that he should not have the right to eat in a public place just because he is a Negro; or that he should not have the right to equal job opportunities just because he is a Negro. All the torrent of words, all the legalistic arguments, all the appeals to the Constitution cannot obscure this basic, simple truth: Every American citizen has the right to equal treatment -- not favored treatment, not complete individual equality -- just equal treatment.
This bill has been described by some of its opponents as a mad grab for dictatorial power by the Executive. I have heard it called "Fabian socialism, a hand reached out to grasp the hand of communism." Some have protested that it would "give the President and the Attorney General almost unlimited personal power over the details of our everyday lives," or that it will "take away the personal and property rights of nearly every individual in the United States."
Dictatorship, socialism, total Federal control -- the slogans are catchy, but they do not describe this bill.
The thrust of the opposition to this bill is grounded upon the belief that this bill wantonly extends the power of the Federal Government into every aspect of our lives in an effort to give favored treatment to a small minority.
A careful examination of this bill demonstrates clearly that this is simply not true. No favoritism is asked for the Negro. No Federal police will pry into every American's privacy. No massive Federal force will coerce and regiment every American's life. This bill seeks, in a responsible and moderate way, to assure to all Americans the rights which most of us simply take for granted.
Title I of the bill seeks only to insure to each American, regardless of the color of his skin, that most precious of rights -- the right to vote. We all know that countless thousands of qualified American citizens are denied that right because they happen to be Negroes. The evidence is clear, substantial and persuasive beyond doubt that in many States qualified Negroes are not permitted to vote. This fact has not been seriously disputed even by the opponents of this bill. In fact, it cannot be disputed. For we know that in the State of Mississippi, only 7 percent of the eligible Negroes are registered to vote. We know that in 100 counties across the South, a little over 8 percent of the eligible Negroes are registered -- and so the statistics go, in county after county, State after State.
The pertinent question which we face as we consider the merits of title I is this: Should a qualified American citizen be denied the right to vote just because he is a Negro?
Title II would prohibit discrimination in certain places of public accommodation.
As President Kennedy pointed out in his original message to the Congress -- proposing this legislation:
Negro citizens are being arbitrarily denied equal access to those facilities and accommodations which are otherwise open to the general public. This is a daily insult which has no place in a country proud of its heritage -- the heritage of the melting pot, of equal rights, of one nation and one people.
Mr. President, I suggest to each Member of the Senate to try to place himself in the position of the Negro, daily facing incident after incident of humiliation and insult: Uncertain as to whether or not he should try to get a room in this or that motel or hotel; wondering which restaurant will admit him and which will not. Again we must ask ourselves:
Should an American citizen be denied access to an establishment which holds itself out as dealing with the public, simply because he is a Negro?
Title III would hasten the elimination of segregation in certain truly public facilities -- hospitals, libraries, museums, parks, playgrounds -- owned or operated by a State, city or other governmental unit. Surely no form of segregation is less defensible than that which excludes Negroes from public facilities built, operated and maintained in part with their tax dollars. Should an American citizen be refused admittance to a public hospital, be unable to take a walk in a public park, not be able to go swimming at a public beach, just because he happens to be a Negro?
Title IV of this bill provides for technical and financial assistance to public school officials in preparing and carrying out desegregation plans, and also authorizes the Attorney General to bring desegregation suits in certain cases.
Once again, statistics tell the story: In 11 Southern States, less than 1 percent of all Negro children attend integrated schools. Below college level, in Mississippi, not a single Negro child attends school with white children; in South Carolina, 10; in Alabama, 11. This, 10 years after the U.S. Supreme Court held segregated schools to be unconstitutional.
Should a child be barred from a public school simply because he or she is a Negro?
Title VI would prohibit discrimination in any program or activity receiving Federal financial assistance. Billions of Federal dollars, collected without regard to the color of the taxpayers’ skin, are each year channeled into each of the 50 States in the form of Federal grants-in-aid. In many States, much of this money is diverted into segregated activities. For example, between 1946 and 1962, over $36 million in Federal grants were made to 89 racially segregated medical facilities under the Hill-Burton program. Should the U.S. Government aid and abet racial discrimination by permitting the use of Federal funds to perpetuate discriminatory practices already outlawed by Congress and the courts?
Title VII would prohibit employers, labor unions, and employment agencies whose activities affect interstate commerce from discriminating in employment policies and practices. The foundation upon which other necessary freedoms for the Negro must be built is economic freedom. The chance to hope; the chance to dream of a fair chance at a good job, to have the things so many Americans now take for granted.
Again, the facts are shocking. Here are but a few:
First. The unemployment rate among nonwhites is double the rate among whites.
Second. 47 percent of all white workers hold white-collar jobs; for nonwhites the figure is 17 percent.
Third. 20 percent of all Negro women who graduate from high school can find only domestic work. For whites the figure is 2 percent;
Fourth. Finally, the average Negro with 4 years of college will earn less in his lifetime than a white man who quit school after the eighth grade.
Mr. ERVIN. Mr. President, will the Senator yield?
Mr. MUSKIE. I am happy to yield.
Mr. ERVIN. Did I correctly understand my friend from Maine to say that the unemployment rate among Negroes is twice that among white people?
Mr. MUSKIE. The unemployment rate among nonwhites is double the rate among whites.
Mr. ERVIN. I ask the Senator upon what information he bases that statement?
Mr. MUSKIE. It is based on information which has been supplied to me by the Department of Justice.
Mr. ERVIN. I say to the Senator that it is contrary to the information which was supplied to me by the Department of Labor. The Department of Labor informed me a few weeks ago that, on the basis of the figures for February of this year, the number of unemployed Negroes was 895,000, and that the number of unemployed whites was 3,629,000. Instead of being 2 to 1, that is a little more than 4 to 1, 1 should say.
Mr. MUSKIE. I am talking about the unemployment rate among Negroes related to the Negro population, as compared with the rate of unemployment of whites compared with the white population.
Mr. ERVIN. The figures I cited show that slightly more than four white people are out of jobs for every Negro who is out of a job.
Mr. MUSKIE. The Senator gives me the figure of 895,000 unemployed Negroes and 3,629,000 unemployed whites. I submit to the Senator that, related to the population figures of whites and nonwhites, my figures, supplied me by the Department of Justice, are not erroneous.
Mr. ERVIN. I should say, so far as numbers are concerned, that slightly more than four white persons are out of employment, as of February, for every nonwhite person.
Mr. MUSKIE. As I understand -- and the Senator will correct me if I am in error -- there are approximately 20 million Negroes in this country. The Senator has said that 895,000 Negroes are unemployed. He gives me a figure of 3,629,000 as the number of white unemployed. The white population is 160-odd million. I arrive at that figure by subtracting the 20 million Negroes. The figures which the Senator has supplied me give an even more startling result than the ones I have suggested.
Mr. ERVIN. My point is that there are more than four white people out of employment for every Negro that is out of employment. That is according to the figures given me by the Department of Labor. Will not the Senator from Maine concede that there is no basis for the claim that the 3,629,000 white people who were out of employment in February were out of employment because of discrimination?
Mr. MUSKIE. The point I undertook to make was that the unemployment rate among Negroes was related to the total number of Negroes in the country, and the unemployment rate among the whites was related to the total number of whites in the country. I said that the unemployment rate among nonwhites is double the rate among whites.
That suggests two things. First, It suggests that the Negroes are unemployed in many cases because of discriminatory practices; second, perhaps because of lesser opportunities from an educational and training standpoint, they are less qualified for some job opportunities that may be available.
Mr. ERVIN. Does the Senator from Maine contend that any of the 3,629,000 whites who were out of employment in February were out of employment because of discrimination?
Mr. MUSKIE. I have made no such contention.
Mr. ERVIN. Would not the Senator from Maine concede that a great many of the whites who were out of employment in February were out of employment because of automation?
Mr. MUSKIE. That might be true.
Mr. ERVIN. Would not the Senator also concede that many of the whites who were out of employment were out of employment because of economic conditions in the localities in which they live?
Mr. MUSKIE. That may be true.
Mr. ERVIN. Would not the Senator from Maine also concede that a great many of the whites, of the 3,629,000 that were unemployed, were out of employment because they lacked necessary skills and necessary training?
Mr. MUSKIE. That is undoubtedly so.
Mr. ERVIN. Would not the Senator also concede that a great many of those observations apply to a substantial number of the 895,000 Negroes who were out of employment at the same time?
Mr. MUSKIE. No doubt.
Mr. ERVIN. Does not the Senator from Maine concede that in all probability, on the average, whites possess skills superior to those possessed by Negroes, because of their previous training?
Mr. MUSKIE. That may or may not be true in particular cases. I agree that Negroes have had lesser opportunity, educationally and vocationally and trainingwise, to equip themselves for better jobs.
Mr. ERVIN. Is not the Senator led to conclude that many of the Negroes who were out of employment in February were out of employment for the same reason that white people were out of employment?
Mr. MUSKIE. I agree with the Senator that Negroes and whites are subject to the same economic factors that dictate the unemployment picture in any section of the country; but I also emphasize and invite the Senator's attention to a point which he conveniently disregards: that in the face of these economic factors which bear upon unemployment, the rate among Negroes is still double that among whites, indicating that, in addition to the economic factors which may produce unemployment, the Negro must face the factor of discrimination, which reduces his possibility for getting unemployment opportunities.
Mr. ERVIN. Has the Senator studied the figures which show that there is less unemployment among nonwhites in States which have no FEPC laws than in States which have such laws?
Mr. MUSKIE. I had the pleasure and the privilege, not too long ago, of listening to the Senator from North Carolina discuss those figures. All they proved to me was that discrimination of this kind exists in almost every State of the Union.
Mr. ERVIN. Did they not also prove to the Senator from Maine that the lack of employment was greater, percentagewise, in the Northern States which had FEPC laws?
Mr. MUSKIE. No; I did not draw that conclusion.
Mr. ERVIN. Did not those figures show, for example, that in North Carolina the unemployment among Negroes was 7.4 percent, and that among Negroes in New Jersey it was 9.5 percent?
Mr. MUSKIE. I would not dispute those figures, if the Senator from North Carolina says they are correct.
Mr. ERVIN. That is what the figures showed; and they further showed, in every case, that the unemployment percentage among Negroes was lower in States having no FEPC laws than in States that have them.
I thank the Senator for yielding.
Mr. MUSKIE. I thank the Senator from North Carolina. I make only the further comment that the Senator from North Carolina, himself, in our colloquy has pointed out that there are other factors which bear upon unemployment among nonwhites in any State, which tend to qualify the statistics to which he has just referred.
Mr. President, again, as we consider the merits of the bill, we must ask ourselves whether a person, otherwise qualified, should be refused a job simply because he happens to be a Negro.
There can be but one answer, to this and to the similar questions I have raised concerning each of the substantive titles of this bill. That answer must be "No."
No, a qualified American citizen should not be denied the right to vote, just because he is a Negro.
No, an American citizen should not be denied access to an establishment which holds itself out as dealing with the public, just because he is a Negro.
No, an American citizen should not be denied admittance to a public hospital, a public park, a public beach, just because he is a Negro.
No, a child should not be barred from a public school, just because he is a Negro.
No, Federal funds should not be used to discriminate against some citizens, just because they happen to be Negroes.
Can reasonable, responsible men disagree with this conclusion?
Can any Member of the Senate seriously argue that 10 percent of all Americans would be permanently classified as second-class citizens? I think not.
If not, if we can at least agree that all men are truly entitled to equal treatment, then this controversy is over methods, not goals. It is over how best to guarantee to each American his birthright, not whether he is entitled to it.
If that is the true meaning of this debate -- and I believe that it is -- then we should address ourselves to the real question: How can this society best provide a framework within which each and every American is free to engage in the pursuit of happiness to the fullest extent that his talents make possible? And is this civil rights bill the very best method for achieving that objective? Obviously, it is not.
The very best method would be for each of us voluntarily to accept our fellow citizens for their worth -- without regard for their race, creed, or national origin. The very best method would make unnecessary this bill, or any other legislation which seeks to compensate for man’s innate failings. The very best method would mean the universal application of the Golden Rule, in every aspect of our daily lives.
But, Mr. President, we do not yet live in a perfect country, or a perfect world. As long as this Nation is made up of human beings, human failings will be with us. We know that in the harsh realities of the here and now America in the spring of 1964 -- the very best method is not practical, because it is not possible,
Discrimination will not just disappear in time. It must be actively erased. How best to do so?
The opponents of this bill contend that it will not solve the problem; that it will greatly increase the power of the Central Government without any meaningful benefit to anyone; that it will infringe upon the personal liberty of every American. "So," they say, "Strike this bill down." As an alternative, they argue for States’ rights.
Surely this argument, as a solution to this problem, is meaningless. For it is painfully evident that the actions of too many States have been directed toward preventing Negroes from enjoying their constitutional rights. Not only has there been a lack of official action to affirmatively meet this problem, there has been a deliberate effort to prevent a meaningful approach to the problem. Thousands of dollars, thousands of man-hours have been poured into the everwidening breach by those who refuse to face the truth, who refuse to face the future. And the result has been thousands of heartbreaks, thousands of children poorly trained, thousands of Americans unable to vote.
We must act, here and now, for those who should be acting elsewhere are simply not doing so. Too many of those who proclaim States’ rights are unwilling to insist upon the responsibility of the States to deal with the problem. The Constitution is not and should not become a warped shield behind which any State may acquiesce in any indignity upon its citizens, safely sheltered from the Central Government.
Mr. President, the surest way to defeat the bill would have been for its opponents to have rendered it unnecessary by meaningful, effective action on the local level and the State level to eradicate discrimination. But that has not happened. And we all know that it will not happen. So we must act.
If we must act, is the bill a reasonable, responsible way to do so -- not a perfect way, not the very best way, but a reasonable way, designed to provide effective legal guidelines without sacrificing any citizen's personal liberty?
I submit that it is. The bill is constitutional. This bill is responsible. The bill is reasonable.
Title I finds its constitutional basis in the 15th amendment to the Constitution. The 15th amendment comprises but 46 words. It seems to me to be as plain as the English language can be. It reads:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation.
This amendment, which is just as much a part of the Constitution as the first word of the first article, provides that no American citizen shall be prohibited from voting because of his race or color, and authorizes Congress to enact enforcing legislation. We have documented, unchallengeable proof that many Americans are in fact prohibited from voting because of their race or color, and the bill is an appropriate legislative remedy. It is as simple as that.
If more support is sought, we can look to article I, section 4 of the Constitution which provides:
The times, places and manner of holding elections for or Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of chusing Senators.
I repeat:
The Congress may at any time by law make or alter such regulations
Finally, the 14th amendment provides that:
No State shall deny to any person within its jurisdiction the equal protection of the laws.
Certainly, official acquiescence in the denial of the right to vote is denial of equal protection of the law.
In addition to being constitutional, this title is reasonable.
It prohibits the application of different standards or tests for different voters; it prohibits the denial of the right to vote for immaterial errors in application; it requires all literacy tests to be in writing or transcribed, except where an oral test is requested by the applicant; it creates a rebuttable presumption of literacy for those who have completed the sixth grade; and it prescribes a procedure for expediting voting suits.
It does not set Federal standards for voting.
It does not give the Attorney General any vast new powers.
It does not take any State’s rights, except the dubious right to prohibit qualified colored citizens from voting.
Title II would establish the right of all persons to equal access to certain places of public accommodation without racial discrimination, and would provide a remedy by suit for injunction against such discrimination. These provisions are applicable to the designated establishments if, first, their operations affect commerce within the meaning of the commerce clause, or, second, discrimination or segregation therein is supported by State action within the meaning of the 14th amendment. In addition, title II is applicable to any place of public accommodation at which segregation or discrimination, contrary to the 14th amendment, is or purports to be required by State or local law.
The power of Congress over interstate commerce and activities affecting it is broad. Business in or affecting interstate commerce is already legitimately subject to a wide range of Federal regulation, from the Fair Labor Standards Act to the antitrust laws; from the Food, Drug, and Cosmetic Act to the Water Pollution Control Act. The argument that there is no constitutional basis for Federal legislation in this area is, to me, clearly erroneous, and is based in part upon the spurious theory that property rights are somehow more important and more deserving than personal liberties. For myself, I reject this theory. It is defensible neither morally nor from a purely logical standpoint.
Personal and economic freedoms are, of course, interwoven; but our primary concern must ever be for personal liberty and human dignity. In general, the authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the States over intrastate commerce (United States v. Rock Royal Cooperative, 307 U.S. 533, 569).
Among other things, the commerce clause gives Congress authority to deal with conditions adversely affecting the allocation of resources. Experience shows that discrimination and segregation, when widely practiced in a particular section of the country, have an adverse effect on the amount of capital and the numbers of skilled persons coming into that area.
There is a parallel legislative power to eliminate the causes of disputes that may curtail the flow of interstate commerce. The exercise of that power, recognized and sustained in the courts in decisions under the National Labor Relations Act, is appropriate with respect to racial discrimination in places of public accommodation, since it frequently gives rise to demonstrations and other activities interfering with interstate travel and the sale of goods and services moving in commerce.
The 14th amendment is directed toward State action. Thus, to the extent that title II relies on the 14th amendment, it is limited to situations in which there is the requisite State action. There can be no question but that this is a valid exercise of existing authority to prevent the States from violating the constitutional rights of some of their citizens.
But the 14th amendment does not reach actions by individuals; and the constitutionality of this vital area of title II is supported by the commerce clause.
Businesses affected by title II are engaged in dealing with and serving the public. This is their purpose and their livelihood. As a result, they already are subjected to a variety of Federal, State, and local regulations designed to protect the health, safety, welfare, and rights of the public -- not part of the public, but all of the public. Included among these are public accommodations laws, similar to title II, which are in force in 30 States.
My own State of Maine is 1 of those 30 States. Its law is broader and more stringent than that proposed in title II.
Title II is also carefully drawn to include only establishments truly public in nature. Its moderate tone is also reflected in its reliance upon injunctive relief. It will, in reality, provide a legal framework within which those who wish to desegregate may do so without fear of economic loss to more rigid competitors.
The 14th amendment also serves as an ample constitutional basis for title III. Nothing could fall further short of equal treatment than for a taxpaying citizen to be prohibited from using a publicly supported facility. By permitting the Attorney General to institute desegregation suits concerning public facilities, we would merely hasten the day when such facilities would be truly public; and we would, in certain cases, remove the immense burden of litigation from private citizens unable to bear such a burden. There is nothing startling, earth shaking, or particularly new about title III. It is sound in theory, and will, I am confident, bring about long overdue reforms in public facilities.
The same can be said about title IV. Technical and financial assistance by the Commissioner of Education in the preparation and implementation of school desegregation plans is authorized; but it will be available only if desired by local authorities. Nobody will be forced to accept any Federal plan. In addition, this title would authorize the Attorney General to institute desegregation cases where the parties injured by segregation are unable to do so, and where the Attorney General determines that such an action would further the orderly achievement of desegregation in public education.
Again, this title is not open to serious challenge with respect to its constitutionality. Again, it creates no new rights, grants no vast new powers. It is a reasonable method of implementing the established public policy of this Government.
There can also be little challenge to title VI on constitutional grounds. The U.S. Government has the clear right to condition its assistance to the States upon a nondiscriminatory use of that assistance by the States.
Indeed, title VI would merely confirm an existing right and would prescribe a uniform policy and procedure to be followed by all Federal agencies.
The reasonableness of title VI is reflected in its limited application and in the cautious procedure which must be followed in its implementation. In the first place, it is limited to programs which involve Federal financial assistance by way of grant, loan, or contract; insurance and guarantee programs are specifically excluded. Second, the procedural safeguards will insure against hasty or indiscriminate use of this title:
First. Each agency will have to issue general rules or regulations, each of which will have to be specifically approved by the President before becoming effective.
Second. If a violation occurs, the agency must notify the recipient of assistance and seek to obtain voluntary compliance.
Third. If formal compliance action is necessary, it can be taken only after a hearing is held, and the agency must make an express finding that the particular person from whom funds are to be withheld has not complied with the policy of nondiscrimination.
Fourth. A full written report must be filed by the Federal agency involved with the appropriate congressional committees, and 30 days must elapse after the filing of that report before the cutoff can become effective.
Fifth. The recipient from whom funds are to be withheld may obtain judicial review, and may even apply for a stay of the cutoff pending that review.
Sixth. Finally, the cutoff is to be made only in the specific Federal program within the particular political entity involved. Discrimination in one Federal program cannot be used as a basis for wholesale cutoff of all Federal assistance to a given State.
In reality, Mr. President, this is effective legislation, because it is the minimal legislation needed to effect the basic purpose of this title, and its careful procedural safeguards reflect the hope of this bill's supporters that no cutoff ever actually need occur.
Mr. President, I would like to turn now to what I consider to be one of the most important sections of this bill.
Certainly, it is one of the most controversial.
As I said earlier, if the Negro is really to achieve equal treatment as a member of American society, economic advancement is the foundation upon which all other forms of progress will have to be based. For without it, all other forms of progress are intangible; and, although important in and of themselves, they become really meaningful only when combined with adequate economic development.
Earlier in my remarks, and repeatedly over the many weeks of this debate, we have heard the depressing statistics which delineate the Negro's station at the bottom of the economic ladder. I will not repeat those statistics, for it is not necessary to do so.
Title VII seeks to afford to all Americans equal opportunity in employment without discrimination. Not equal pay. Not "racial balance." Only equal opportunity.
It is beyond doubt that this title represents a legitimate use of Congress' authority to regulate interstate commerce, and is, therefore, constitutional. In order to protect the free flow of commerce, Congress has previously legislated with respect to the practices of employers and labor unions in industries affecting such commerce. The power of Congress to legislate in this area is no longer subject to question and the amount of commerce affected in any particular case is not a material consideration in determining Congress' constitutional power.
The term "affecting commerce" has a long history of judicial application under the National Labor Relations Act, and thus there should be little difficulty as to its meaning. As the Supreme Court said in the Polish National Alliance, etc. v. National Labor Relations Board, 322 U.S. 643,648 (1944) :
Whether or not practices may be deemed by Congress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far reaching in its harm to commerce.
Title VII would make it an unlawful employment practice, in industries affecting interstate commerce, for employers, employment agencies, or labor organizations covered by the act to discriminate on account of race, color, religion, sex, or national origin in connection with employment, referral for employment, membership in labor organizations, or participation in apprenticeship or other training programs.
The Equal Opportunity Employment Commission created by the bill would be empowered to receive and investigate charges of discrimination, and to attempt through conciliation and persuasion to resolve disputes involving such charges. The Commission will have no power to issue enforcement orders. Enforcement will be left to the courts.
The experience of the State and local commissions indicates that much may be accomplished in achieving fair employment opportunities through the wise and imaginative exercise of persuasion, mediation and conciliation.
If efforts to secure voluntary compliance fail, the person complaining of discrimination may seek relief in a Federal district court. The Commission itself is not authorized to bring suit, although where a pattern of discrimination exists,
the Attorney General is authorized to bring suit in behalf of the United States.
Ample provision has been made in title VII for the utilization of existing State fair employment laws and procedures to the maximum extent possible. Present State laws would remain in effect except to the extent that they conflict directly with Federal law. The bill creates the framework for broad Federal-State cooperation, and its intention is to permit maximum State jurisdiction in those States that are seriously attempting to solve this problem.
In order to enable employers, employment agencies, and labor organizations to bring their policies and procedures into line with the requirements of the title, and to avoid a multitude of claims arising while such adjustments are being made, the provisions prohibiting unlawful employment practices and providing relief therefrom are not to take effect until 1 year after the date of enactment of the title, and then will apply initially only to employers of 100 or more employees and labor organizations of 100 or more members. With respect to employers of 75 to 99 employees and labor organizations of 75 to 99 members, title VII would become applicable 2 years after enactment. With respect to employers of 50 to 74 employees and labor organizations of 50 to 74 members, 3 years after enactment, and with respect to employers of 25 to 49 employees and labor organizations of 25 to 49 members, 4 years after enactment.
Mr. President, some of the opposition to this title has been based upon its alleged vagueness, its failure to define just what is meant by discrimination and its lack of guidelines for those who will be called upon to administer its provisions and those who will be subject to them. I submit that, on either count, the opposition is not well taken. Discrimination in this bill means just what it means anywhere: a distinction in treatment given to different individuals because of their race, religion, or national origin. The term is used in a number of Federal statutes without definition -- that is, Interstate Commerce Act -- 210 U.S.C. 316d -- Federal Aviation Act-49 U.S.C. 1375b. And, as a practical matter, we all know what constitutes racial discrimination.
Mr. ELLENDER. Mr. President, will the Senator yield for a question?
Mr. MUSKIE. I am happy to yield.
Mr. ELLENDER. I wonder if the Senator could tell us why it is that, according to a table which I had printed in the RECORD some time ago, the total unemployment rate in the State of Maine was 6.5 percent. and the components of that percentage consisted of 6.4 percent of whites and 17.18 percent of Negroes or nonwhite? Why is that?
Mr. MUSKIE. I submit that there may be a number of reasons which obviously must occur to the Senator from Louisiana. In the first place, I wish to make clear that of a total population in Maine of one million people, less than 3,500 are Negroes. It is possible that such a small enclave of Negroes may be located in an area of the State that is particularly sensitive to unfortunate economic conditions. That I cannot say.
I know that there are Negroes in areas of the State that are particularly sensitive to economic conditions. So I suggest to the Senator that that is a partial answer to the question.
Without reviewing all of the economic possibilities, I suggest that it is also possible that the difference in the rates of employment to which the Senator referred result in part from discrimination in my own State, too.
Mr. ELLENDER. In other words, the Senator is telling us that Maine needs a law such as the one proposed.
Mr. MUSKIE. I think the entire country needs such a law.
Mr. ELLENDER. I cannot understand why the Southern States have a smaller percentage of nonwhite unemployment than the Northern States where FEPC laws are now in force. Apparently FEPC laws do not help the Negro get employment or they are not enforced.
Mr. MUSKIE. I suggest to the Senator that other factors must be examined if one really wishes a full answer to the question.
Mr. ELLENDER. The total rate of unemployment in Mississippi was 5.4 percent, 4½ percent of whom were whites and 7.1 percent nonwhites, which, as I see it, indicates that the South is probably doing a better job in that direction than is the North.
Mr. MUSKIE. If that is so -- and I shall not concede that it is so on the basis of those statistics -- the South is to be congratulated. Nevertheless, I refer again to statistics to which I referred earlier in my speech before the Senator arrived in the Chamber, which indicate that the national unemployment rate among Negroes is double that among whites. They clearly indicate, it seems to me, the existence of discrimination in employment practices.
Mr. ELLENDER. The unemployment rate among Negroes in Michigan is 16 percent, compared with 6 percent for whites. In Minnesota the unemployment rate for Negroes is 12.8 percent. I presume the statistics to which the Senator referred largely result from the unemployment of nonwhites in the North and not in the South.
Mr. MUSKIE. I am not happy about discrimination, whether it exists in Michigan, Maine, or Louisiana. I should like to see it eliminated everywhere.
Before we leave the subject of comparison between unemployment rates in the South and North, I want to make one observation. Poor, unskilled southern Negroes come out of a basically rural area where the possession of skills is not critical. They bring few skills with them to the more highly urban, industrialized, technical North. Naturally their rate of unemployment will skyrocket -- there simply are less nontechnical jobs in the North.
This suggests that a first step toward lessening Negro unemployment is the expansion of educational opportunities. This bill -- H.R.7152 -- seeks to do Just that. I have already pointed out that one of its most important titles -- title IV -- would guarantee the right of all students to enjoy the same level of education in public schools.
I agree with the Senator from Louisiana that no State or region can point the finger of self-righteousness at any other area. Rather we should seek to eradicate discrimination wherever it exists. We can help achieve this objective by supporting wholeheartedly the pending bill -- a bill which attacks the problem on several fronts.
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 considered unlawful. For example, section 703(a) says that:
It shall be an unlawful employment practice for an employer:
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, 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 controlling 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 on 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" was adopted. The ordinance provided a compact between the States and the new territory; it established an orderly procedure for the States to be formed from the territory and to be admitted to the Union on a par with the original States. Under the Northwest Ordinance the "Bill of Rights" was treated as fundamental law, not subject to ordinary change as in the course of normal legislation.
Thus, in the first set of States created by the Confederation --later the United States -- there was a clear recognition that the whole Nation, including the separate States, had an obligation to protect the rights of the citizens.
Those who fought for the Bill of Rights made no distinction between the rights of the citizen at the State level and the Federal level. They wanted the individual protected from all tyranny. Jefferson wrote to Madison:
A Bill of Rights is what the people axe entitled to against every power on earth, general or particular.
Madison analyzed the arguments of those who opposed the Constitution without the Bill of Rights. He said:
The people who opposed it disliked it because it did not contain effectual provisions against the encroachment on particular rights and those safeguards which they have long been accustomed to have interposed between them and the magistrate who exercises the sovereign power.
George Mason of Virginia , one of the leaders in the fight against ratification, was quite clear in wanting the same rights guaranteed under State and Federal constitutions. He said:
There is no declaration of rights (in the proposed Constitution), and the laws of the general government being paramount to the laws and Constitution of the several States, the Declaration of Rights in the separate States are no security.
All of these efforts sprang from a deep sense of man's capacity to wrong his fellow man. As Rev. Mr. Allen of Pittsfield, Mass., wrote at the time:
Every man by nature has the seeds of tyranny deeply implanted within him. Let it not be said by future posterity that in this great, this noble, this glorious Constitution we made no provision against tyranny among ourselves.
Tyranny and governmental wrong are not the exclusive province of the Central Government. They are not even found primarily at that level. The sins of commission and omission will be found in every level of government from the smallest hamlet to the mightiest cities and States, as well as in the great bulk of the Federal Government.
On those basic rights which we all hold as citizens of the United States there cannot be shades of difference according to our State of residence or the color of our skin or the country of our ancestors' origin. When, in the years following the Civil War, the Nation found that added protection was needed at the State level, it adopted the 14th and 15th amendments. I realize that for many years the Supreme Court narrowed the interpretation of those amendments, but I urge that my colleagues reread them, and reconsider them in the light of the original Bill of Rights and the determination of the Founding Fathers to insure the blessings of liberty to themselves and their posterity.
What does the 1st section of the 14th amendment say? It says that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Mr. ELLENDER. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. ELLENDER. Is the Senator aware of the reason why it was necessary to adopt the first part of the 14th amendment?
Mr. MUSKIE. I am interested in the Senator's reason.
Mr. ELLENDER. I stated it two or three times. I think it was in 1857 that the Dred Scott decision, with which I am sure the Senator is familiar, declared Negroes to be chattels and not citizens, that they could be sold the same as any other article that a farmer owned -- land and other real property. Since the Negroes had no citizenship, it was necessary to adopt the first part of the 14th amendment.
Mr. MUSKIE. I agree with the Senator.
Mr. ELLENDER. The Senator knows that before the adoption of that amendment some legislation was submitted which really gave to the Negro what the Senator and I would term civil rights -- this included civil or legal capacity to sue and be sued, to conclude contracts and do all things that any sui juris person could. This is the real meaning of civil rights. The pending bill does not concern civil rights, but social relations.
That is the right to own property, the right to inherit it, the right to sell it, the right to lease it, the right to do anything one desires to do with it, provided it is not against the local laws. But lately we have added to the civil rights structure all the various titles which are contained in the bill; and we dub them civil rights, when they are not.
I am sure that the State of Maine will not be affected by this bill if it becomes law because, as I pointed out earlier in my colloquy with the Senator from Pennsylvania [Mr. CLARK], the drafters have seen fit to exempt the Northern States from its operation.
Mr. MUSKIE. Does the Senator from Louisiana agree with the objectives of the 14th and 15th amendments?
Mr. ELLENDER. I do, most certainly.
Mr. MUSKIE. Then what we are talking about is means, not goals?
Mr. ELLENDER. No; we have a different interpretation. The latter part of the 14th amendment applies to whatever a State might do to deny a right, not what the individual would do. That has been the interpretation by the courts on many occasions.
Mr. MUSKIE. The language of the 14th amendment is quite clear on that subject.
Mr. ELLENDER. The Senator is correct. As to State action, yes; but not as to individual action.
Mr. MUSKIE. Mr. President, what does the 15th amendment provide? It reads:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Congress is given the power to enforce both articles by appropriate legislation.
I believe in the importance of strong State Government. I believe in diffusing the base of power as broadly as possible in a democracy. I believe that the States should assume maximum responsibility in the protection of the rights of their citizens.
But I do not believe that the Constitution of the United States was designed or intended to protect those who would block the doors of public educational institutions against the admission of qualified students because of race or color.
I do not believe the Constitution of the United States was designed or intended to protect those who would set different standards of qualifications for voters according to their race or color.
I do not believe that the Constitution of the United States was designed or intended to protect those who would deny equal protection of the laws to individual citizens because of race or color.
I do not believe that the Constitution of the United States was designed or intended to protect those who would discriminate against individuals in places of public accommodation because of race or color.
In words that will live as long as man cherishes freedom, the preamble to the Constitution declares that
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity do ordain and establish this Constitution for the United States of America.
With these words our Founding Fathers formulated for us a standard by which our actions must be judged for all time. These men dreamed of creating a society which would provide its members with the basis for living their lives to the fullest. We now face a major challenge to this society to determine whether it is at long last ready to give to a significant segment the rights they were told were theirs 100 years ago.
If we are to make our Union more perfect, we must eliminate all obstacles to equal opportunity. If we are to establish justice, we must eradicate all injustices that deny men their dignity and human worth. If we are to insure domestic tranquillity, we must put an end to those practices which drive men into the streets in search of their rights. If we are to provide for the common defense, we must make all Americans proud to serve their country. If we are to promote the general welfare, we must make it possible for all Americans to gain the education and training necessary for them to find and obtain Jobs utilizing their full potential.
And, finally, if we are to secure the blessings of liberty to ourselves and our posterity, we must take steps to guarantee the equality of all Americans, regardless of race, creed, or color.
Mr. JAVITS. Mr. President, will the Senator from Maine yield?
Mr. MUSKIE. I am glad to yield to the Senator from New York.
Mr. JAVITS. I have heard parts of the magnificent address just delivered by the distinguished Senator from Maine. I wish to state to him that he echoes the thoughts and feelings of millions of American citizens in the way he has elucidated this vast subject with such deep, constitutional as well as moral concern. The Senator has emphasized constitutional guarantees and has underlined the fact that enactment of the pending civil rights bill would not, by any means, automatically assure maximum guarantees under the Constitution or the morality of the American people, but would represent only the minimum which the vast crisis which faces the country today calls for.
Other Senators will make counterparts of this speech shortly. We shall all be enlightened by and vastly assisted by the thoroughly informed, well-documented, and eloquent views which have just been expressed by the Senator from Maine.
Mr. MUSKIE. I thank my good friend the Senator from New York for his comments.
Mr. JAVITS. Mr. President, as the crucial showdown cloture vote approaches, it should be made clear that the package of amendments, which is now the basic Senate version of the bill, is already a compromise of a compromise and therefore must -- at the very least -- be passed as is. The bill which the House of Representatives passed on February 10, 1964 by more than a two-thirds majority was itself the result of compromise. The bill for which the Senate must now produce a two-thirds majority is a further compromise.
In a number of respects the bill as passed by the House could have been considerably stronger, matched against the 1960 platforms of both parties as well as against the package of bills introduced by Republican Senators in March 1963. It could have authorized the Attorney General to initiate suits to enforce the equal protection clause of the 14th amendment -- as did the House-passed version of the 1957 Civil Rights Act -- instead of only permitting him to intervene in already-commenced, privately brought suits. It could have extended the provisions of title 1, relating to the right to vote, to State as well as Federal elections, which would have been consistent with the 1957 and 1960 Civil Rights Acts being amended by title I.
Similarly, even the new package of amendments submitted by the Senator from Illinois [Mr. DIRKSEN], could have been considerably stronger. Principally it cuts back on the Attorney General's enforcement powers in titles II -- public accommodations -- and VII -- equal employment opportunity -- by delaying Federal jurisdiction in each case until the States have been afforded a relatively full time for enforcement and even more importantly, by depriving the Equal Employment Opportunity Commission of power to bring suits to enforce title VII. It also limits the Attorney General, when he finally is authorized to bring enforcement suits, to obtaining relief only when he can prove a "pattern or practice" of resistance to desegregation. In one instance, title II, the courts may stay Federal enforcement indefinitely if they believe voluntary compliance may be achieved under State law.
But as legislators we must be realistic and pragmatic. The hurdle of a two-thirds cloture vote is too high for any other attitude. And in fairness it must be said that the House-passed bill, as proposed to be amended by the package substitute, is still an effective civil rights measure suited to the national needs. In some few respects the package would even strengthen the bill. In this category I would list the extension of the three-judge court provisions from title I to titles II and VII as well, and the elimination of the "atheist" provision from title VII.
In one respect, however, I believe the bill could be strengthened without raising any new and controversial issues. As one of the captains of the bill on the Republican side, I should not seek to raise any new or controversial issues. This is in the area of the administration of justice, in which two statutes are presently on the books but are largely ineffective. I am now submitting two amendments which would carry out the recommendations of the U.S. Commission on Civil Rights on making effective these now virtually crippled remedies, one criminal and the other civil.
JAVITS AMENDMENT NO. I TO TITLE IX
This amendment would add a new section 903 to title IX designed to make meaningful the now virtually useless, existing criminal civil rights statute. Section 242 of title 18, United States Code, makes it a Federal crime for a governmental officer willfully to deprive any person of any right secured by the Constitution and laws of the United States because of race or color.
In Screws v. United States, 325 U.S. 91 (1945), the Supreme Court interpreted "willfully" as requiring proof of specific intent to deprive the victim of a constitutional right. The U.S. Commission on Civil Rights has recommended that this onerous requirement be alleviated by amending section 242 to make the penalties of the statute applicable to those who maliciously perform, under color of law, certain described acts. The proposed amendment would add a new subsection to section 242 specifying the six described acts in accordance with the Commission's recommendation.
These include:
First, subjecting any person to physical injury for an unlawful purpose;
Second, subjecting any person to unnecessary force during the course of an arrest or while the person is being held in custody;
Third, subjecting any person to violence or maliciously subjecting such person to unlawful restraint in the course of eliciting a confession to a crime or any other information;
Fourth, subjecting any person to violence or unlawful restraint for the purpose of obtaining anything of value;
Fifth, refusing to provide protection to any person from unlawful violence at the hands of private persons, knowing that such violence was planned or was then taking place; or
Sixth, aiding or assisting private persons in any way to carry out acts of unlawful violence.
JAVITS AMENDMENT NO. 2 TO TITLE IX
The second amendment would add a new section 904 to title IX designed to make meaningful the now little-used existing civil remedy for unlawful official violence. Section 1983 of title 42, United States Code, allows suits by the victims of police brutality against officers for monetary damages. The U.S. Commission on Civil Rights has found that few suits are filed and that successful suits are rare. One reason for this, the Commission found, is that, even if such a suit is successful, few police officers are able to satisfy a substantial money judgment. The amendment would add a new subsection to section 1983 which would, in accordance with the Commission's recommendation, render counties, cities, and other local governmental entities liable for the misconduct of their policemen.
The need for such strengthened law was all too vividly demonstrated by the news of the arrest last Friday of 2 men representing the National Council of Churches and 50 Negroes during a voter registration demonstration in Canton, Miss. Two other ministers said that they had been pushed roughly with rifle butts by officers and arrested along with the demonstrators although they were only standing on the street as observers. The latter 2 were released 2 hours later without charges, but the remaining 52 have been held since then without being allowed legal counsel.
Under the amendments I am now submitting, as I stated I would when I first addressed myself at some length on the bill, the existing Federal criminal statute would be made clearly enforcible against local law enforcement officers who flagrantly deny the basic elements of due process of law under the Constitution, and the municipality would be made liable in damages, just like any employer, for the illegal act of its officers.
I shall speak at considerable length on the bill tomorrow. Therefore, I shall save my remarks on the bill, and its purport, and on what is going on in the country related to it, until then.