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' CIVIL RIGHTS AND LEGAL WRONGS A critical commentary upon the President's pending "Civil Rights" Bill of 1963, prepared and distributed by the Virginia Commission on Constitutional Government.
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CIVIL
RIGHTS
AND
LEGAL
WRONGS
From the moment the President's omnibus
Civil Rights Bill was introduced in June,
the entire resources of the F ederal Government
have b een thrown behind its support.
As a consequence, many Americans
have heard only a case for the bill.
This commentary is an attempt to present
the other side.
VIRGIN IA COMMISSION O
CONSTITUTIO AL GOVER MENT
Travelers Buildi.ng, Richmond, Virginia
�CIVIL RIGHTS AND LEGAL WRONGS
T he logic is said to go something like this: All decent Americans should support good th ings. All decent Americans should oppose bad things. Racial discrimination is a bad thing. Bills to prohibit
racial discr-i mination are good things. The President's pending Civil
Rights Bill is intended to prohibit racial discrimination. Therefore,
his bill is a good th in g, and all decent Americans should support it.
If this were all there were to it-i f the problem were as simple
as A plus B, and therefore C-noth ing could be gained by further
discussion of the Presiden t's proposal. All decent Americans would
be of one mind.
But the problems that have produced this bill are not easy problems, and the bill is not a simple bill. O ne of the great distinctions of
the American system is that we try always to distinguish between
the means and the end- between the goal itself, and the wa y in
,vhich a goal is reached. Such careful distinctions need to be made
in this case.
We bel ie-ye th is bill is a very bad bill. In our vie'-'v, the mean s
here proposed are th e wrong means. T he weapons the President
woul d con trive against race prejudice are the wrong weapons. In
the name of achieving certain "rights" for one group of citizens, this
bill would impose some fa teful compu lsions on another group of
citizens. The bill may be well-inten tioned-we question no man's
motivation in supporting it- but good intentions are not enough. In
th is area, we need good la"· An d the President's bill, in our view, is
plain bad law.
That is perhaps the least that could be sa id of it. In our judgment, this bill violates the Constitution in half a dozen differen t
ways:
It would tend to destroy the States' control of their own voting
requirements.
It would stretch the Commerce C lause beyond recognition .
It wrongly would invoke the 14th Amendment.
It would undermine the most prec ious rights of property.
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�It would raise grave questions of a citizen's right to jury trial.
The bill would open new doors to the forces of government
regimentation.
And in the end, because of the violence that would be done to
fundamental law, Americans of every race would suffer equal harm.
The emotionalism of this turbulent summer is largely responsible for the serious attention now given the bill and for the eminent
voices raised in its behalf. In a calmer climate, the bill's defects
would be readily apparent. But this is not a calm time; it is a passionate time, and dispassionate thought comes hard. What is here
proposed, in this brief pamphlet, is simply that we sit down and
reason together. Those of us who strongly oppose the bill believe our
position is sound. We should like to explain this position to you.
THE BILL ITSELF
Mr. Kennedy's omnibus Civil Rights Bill of 1963 (S. 1731 ) is
divided into seven major titles. Briefly:
• Title I relates to "voting rights." It would place ela~rate
new controls upon the States' constitutional authonty to
fix the qualifications of voters.
• Title II relates to "public accommodations." It ~,ould co~pel the owner of almost every business establishment m
the United States to serve all persons regardless of race.
• Title III, relating to the "desegregation of public education," would vest sweeping new powers in the U. S. Commissioner of Education and the Attorney General to deal
with "racial imbalance" in schools throughout the country.
• Title IV would set up a new Federal agency, the "Community Relations Service."
• T itle V would continue the Commission on Civil Rights
until 1967, and endow it with broad new authority.
• Title VI amends all statutes providin 0o financial •assistance
b)' the United States bv
orant ' contract, loans, msurance,
, b
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�guaranty, or otherwise. It would permit such assistance to
be suspended upon a finding of racial or religious discrimin ation.
• Title VU authorizes the President to create a "Commission
on Equal Employment Opportunity," possessed of "such
povvers as may be conferred upon it by the President" to
prevent discrimination under contracts in programs or activities receiving direct or indirect fin ancial assistance from
the United States government.
This is what the bill is all about. At first glance, p erh aps, man y
persons may see n othing \Hong in the several p roposals. In this
emotion al hou r, one is tempted to leap from a sincere conviction
that discrimination is wrong, to a fa lse conclusion that a Federal
law is the proper way to prevent it. \ Ale do not believe th e intensely
person al problems of racial feeling ca n be solved by a ny Federal law ;
the roots go deeper than Congress can reach. In an y event, we believe that whatever might be ga ined by this particular Fede ral lavv,
if an ything, the positive harm tha t would be done to constitutional
government would far outweigh the hypothetical good .
TITLE I-VOTING RIGHTS
In the United States, beyond :;ill question, the right to vote is
just that-a right to vote. For most Americans, p robabl y the ancient
right of property ranks l-irst in their dail y lives; it is the oldest right
of all. But as political beings, they view the right to vote as basic.
As the Presiden t has said, it is ultimately the -right on which the
security of all other rights depends.
A moment's reflection, however, reminds us that the right to
vote is not an absolute right. C h ild ren cannot vote. L unatics cannot
vote. C ertain con victs cannot vote. Bevond these obvious limitations,
it is evident that persons in Virgin ia ~annot vote for a Senator from
New York. Residents of Alban v cannot vote fo r the ·C ity Council of
Schenectad~,. And the man who moves to Ma nhattan on a Monday
cannot vote for the M ayor on Tuesday. T hese a re elementary considerations, of course, but it does no harm to spell them out .
Wh y is all this so? It is because the right to vote, though it is
described in the 15th Amendment as a right accrui ng to "citizens of
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�the United States," is in its exercise a right accruing to citizens of
the several separate States. It never should be forgotten that whenever we vote, we vote as citizens of our States. We never vote
nationally. W e are always, at the polls, Virginians, New Yorkers,
Texans, Missourians. As voters, we are never "Americans." The
idea is hard to get accustomed to; but it is so. The Constitution makes
it so.
Three provisions of the Constitution merit attention . First, the
I 5th Amendment. It is very short:
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.
[Emphasis added} .
The Congress shall have power to enforce this article by appropriate legislation.
The briefest perusal of M r. Kennedy's pending Civil Rights
Bill will disclose that some of its most important provisions are not
related to the denial or abridgment ,of the right to vote "on account
of race, color, or previous condition of servitude." T he 15th Amendment is not relied upon at all . If the bill were based clearly upon the
Fifteenth, the position of th e Virginia Commission would be wholly
different. W e might obj ect that a bill along these lines were u nwise,
or unwarranted; but we would not oppose it as unconstitutional. N o.
In its provisions relating to a standard literacy test, and in other
provisions, the administration's bill has nothing to do with State
deprivals in the area of "race, color, or previous condition of servitude." This bill applies to all citizens, everywhere.
Therefo re, other provisions of the Constitution come into play.
The first of these provisions appears in the second paragraph of
Article I. It tells us who sh all be qualified to vote in what often are
termed Federal elections-that is, who shall be qualified to vote for
members of the Congress. It reads :
The H ouse of Representatives shall be composed of members chosen every second year by the people of the several
States, and the electors in each State shall have the qualifocations requisite for electors of the m ost numeroiis branch of
the State legislature. [Emphasis supplied}.
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�v1s10ns quoted. The bill would prohibit the use by any State of a
literacy test unless such tests met Federal requirements-unless the
tests were "wholly in writing" and unless a copy of such test were
furni shed th e individu al registrant "within 25 days of the submission
of his vvritten request. " Beyond this, the bill would provide that
State literacy tests were of no consequence anyhow: Any person who
had completed the sixth grade in a public school or an accredited
private school would arbitrarily be deemed to possess "sufficient literacy, comprehension , and intelligence to vote in any Federal election ."
W e take no position here on the merits of th ese proposals as
such. They are as may be. Our contention is th at such proposals
plainly deal with the qu alifications of electors in the several States.
These proposals have nothing whatever to do with the "times, places,
and manner of holdin g elections." In our view, they are simply beyond the authority of the Congress to enact. They pl ainly encroach
upon the power of each State to fix "qualifications requisite for
electors of the most numerous branch of the State legislature."
The President's bill continues with a provision aimed at certain
of the Southern States, in which- in a scattering of counties- fewe r
than 15 percent of the adult Negroes have registered to vote. The
Virginia C ommission would make its own position clear : We h ave
no patience with conspi racie~ or chica nery or acts of in timidation
intended to deny genuinely quali fied Negroes th e right to vote. We
have no patience with acts of bland partisanship that may give the
vote to certain white persons and prohibit the vote to Negroes of
equal stature. W herever such acts have occurred, they are to be
emph atically condemned. We do say this: T here is abunda nt law
on the books-there was abundant law on the books even prior to
enactment of the C ivil Rights Acts of 1957 and 1960-to prohibit
and to punish such willful acts by local registrars. All that is required is th at the existing laws be enforced . If the Congress somehow is persuaded th at still further law is required to enforce the
15th Amendment, the Virginia Commission will raise no constitutional
objection . In the area of "race, color, or previous condition of servitude," the Amendment pl ainl y vests in Congress the power to
adopt appropriate legislation .
We come back to the larger point. T he key provisions of Title
I, as a whole, have nothing to do with "race, color, or previous condition of servitude." T hese prov isions assert, on the part of the
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�There are two other such provisions, but it is needless to quote
them. The second proviso impales the smallest hotdog stand upon
the transportation of its mustard. There is not a neighborhood soda
fountain in American , not a dress shop, not a hat shop, not a beauty
parlor, not a single place or establishment beyond the tiniest roadside
stand of which it may be said that a substantial portion of its goods,
held out for sale or use, has not moved in interstate commerce.
We would urge thoughtful Americans, wherever they may live,
whatever their views may be on questions of race relations, to ponder
the twisted construction here placed upon the Commerce Clause.
When the Congress first began to regulate ·'commerce among the
several States," the object was to regulate the carriers i~ which the
goods were hauled. In time, a second area of regulation developed, as
the nature of the goods themselves came into the congressional povver.
Then a third area developed, as Congress sought to regulate the
conditions under which the goods themselves were manufac tured.
In this bill, a fourth area is opened up. It is as wide as the
world. Here the Congress proposes to impose a requirement to serve.
Heretofore, such a requirement has been imposed solely in the area
of public service corporations-the telephone companies, electric
power companies, gas and water companies-the companies that operate as regulated public utilities. Now the restricted class of public
service corporations is to be svvept aside. H ere Clancy's Grill and
Mrs. Murph y's Hat Shoppe are equated with AT&T. The n eighborhood drug store is treated as the gas company : It niust serve. v\lithin
the realm of Section 202, the owner has no option ,, no right of
choice. Yes, he may reject drunks, rowdies, deadbeats. But his right
to discriminate by reason of race or religion- or any other related
personal reason-is denied him under the pain of Federal injunction
and the threat of prison sentence for contempt of court.
At this point in our argument the Virginia Commission would
beg the closest atten tion: We do not propose to defend racial discrimination. We do defend, with all the power at our command, the
citizen's right to discriminate. However shocking the proposition may
sound at first impression, we submit that under one name or another,
this is what the Constitution, in part at least, is all abou t. This
right is vital to the American systel'n. If this be destroyed, the vvhole
basis of individual liberty is destroyed. T he American system does
not rest upon some "right to be right," as some legislative majority
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�may defin e \.vhat is "right." It rests solidly upon the individual's right
to be wrong-upon his right in his personal life to be capricious, arbitrary, prejudiced, biased, opinionated, unreasonable-upon his right
to act as a free man in a free society.
W e plead your indulgence. Wheth er this right be called the
right of free choice, or th e right of free association, or the right to be
let alone, or the right of a free market place, this right is essential. Its
spirit permeates th e Constitution . Its exercise colors our entire life.
When a man buys union-made produ cts, for that reason alone, as opposed to non-union products, he discriminates. W hen a Virginian bu ys
cigarettes made in Vi rginia, for that reason alone, as opposed to cigarettes made in Kentucky or N orth Ca rolina, he discriminates. W hen
a housewife bu ys a na-tionall y advertised lipstick , for that reaso~
alone, as opposed to an unknown brand, she discrimin ates. \ iVhen her
husband bu ys an American automobile, for that reason alone, as
opposed to a European automobile, he discriminates. Every one of
these acts of "discrimination" imposes some burden upon interstate
co111.merce.
T he exa mpl es could be endl essly multiplied. Every reader of
this discussion will think up his own examples fro m the oranges of
Florida to the potatoes of Idaho. And the right to discriminate obviously does not end with questions of commerce. T he man who
blindly votes a stra ight D emocra tic ticket, or a straight Republican
ticket, is engaged in discrimin ation . H e is not concerned with the
color of an opponent's skin ; he is concerned with the color of
his party. Merit has nothing to do with it. T he man who
habitu all y bu ys the Times instead of the H erald Tribune, or Life
in stead of Look, or listens to M r. Bern stein instead of to Mr. Presley,
is engaged in discrimination. W ithout pausing to chop logic, he is
bringin g to bear th e accumulated experience.:_the prejudice, if you
please-of a lifetime. Some non-union goods may be better than some
union goods; some Democra ts may be better than some Republicans;
some issues of Loole may be better than some issues of Life. None of
this matters. In a free society, these choices-these acts of prejudice,
or discrimination , or arbit ra ry judgment- u niversally have been rega rded as a man's right to make on h is own .
T he vice of Mr. Kennedv's Ti tl e II is that it tends to destroy
this concept by crea tin g a pattern for Federal intervention. For the
firs t time, outside the fu ll y accepted area of public utilities, this bill
undertakes to lay down a compul sion to sell.
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�W e raise the point : If there can constitutionally be a compulsion to sell, vvh y cannot there be, with equal justification, a compulsion to bu y? In theory, the bill is concerned with "burdens on and
obstructions to" commerce. In theory, the owner of the neighborhood restaura nt imposes an intolerable burden upon interstate commerce if he refuses to serve a white or N egro customer, as the case
may be. But let u s suppose that by obeying some injunction to serve
a Negro pa tron , the proprietor of Clancy's Grill thereby loses the
trade of ten white patrons. In the South, such a consequence is entirel y likely; it has been demonstra ted in th e case of South ern movie
houses. Ca n it be said th at the refusal of the ten whites imposes no
burden on intersta te commerce? Plainly, these ten intransigent
customers, u nder the theory of this bill, have imposed ten times
as great a burden on commerce among the several States. Shall they,
then , be compelled to return to C lancy's for their meals? Where .
does this line of reasoning lead us?
How would all this be enfo rced? Under Title II , the Attorney G enera l woul d be req uired to in vestiga te complaints of denial
of service. Persistent acts of discrimi nation would be prohibited by
Federal inj unction s, obtained in the name of the United States. Any
person who attempted to interfere with Clancy's decision would be
subject to individu al injunction. And at the end of every such proceeding lies the th rea t of fin e or imprisonment fo r contempt of court.
There would be no jury trials.
This has been a very abbreviated summary of the "public accommodations" fea tu res of the Presiden t's bill. A definiti ve analysis
could be much extended. Not only is the Commerce C lause di storted
beyond recognition, th e provisions of the Fourteenth Amendment
also are warped to cover individual action as opposed to State action.
O ur hypothetical C lancy could not call upon the police to eject an ,
unwan ted customer, trespassin g upon his booths an d tables. Reliance
upan local police to en force old laws of trespass, under this bill , would
be regarded as an exercise of "State action." C lancy has become th e
State. Like Louis of old , he too may say, "L'etat, c'est moi."
TITLE III-DESEGREGATION OF
PUBLIC EDUCATION
Titl e III of the P resident's bill goes far beyond all decisions of
the Supreme Court in the field of school desegregation , for it im-
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plicitly couples the formal desegregation of public schools in the
South with the elimination of racial imbalance" in schools throughout the land . Th e bill proposes to achieve these aim s by vesting
broad new po,vers in th e Commissioner of Education and the Attorney General. Even private schools, if th eir pupils received tuition
grants from a governmental source, would be brought into line.
The opening prov isions of Title III authorize the C ommissioner,
upon application from local school offici als, to engage in a wide variety of programs of advice, technical assistance, grants, loans, contracts,
and training institutes. The Commissioner would con trol the
amounts, terms, and conditions of such grants. They would be paid
on the terms he prescribed. H e alone would fi x all "rules and
regul ations" for carrying out these programs to promote desegregation
and to relieve "racial imbalance."
Presumabl y, the authority of Congress to promote th is bu sywork
for the Commissioner is to be found in the fifth section of th e 14th
Amendment. This is the section th at empowers Congress to adopt
"appropriate legislation" in support of the Equal Protection Clause.
If th e Equ al Protection C lause trul y vvere intended to p rohibit a
State from maintainin g raciall y separa te public schools, such legislation perhaps would be "appropriate." The history of public education in th e United States, in the yea rs immediately following the
purported ra tification of the 14th Amendment in 1868, utterly denies
an y such intent ion. To this day, no law of the United States requi res desegrega tion . T hese programs of the Commissioner of Education are cart before horse; th ey are th e sort of programs that would
implement a law if th ere were a lavv; but there is no law. There is
the Supreme Court's opin ion of 1954 in Brown v . Board of Education,
and there are oth er high court opinions emana ting from it, bu t impressive and historic as these decisions may be, they are still no more
than judgments bindin g named defendan ts in particu lar lawsuits.
It should be emph asized, aga in , th at th ese decisions have nothin g to do with "racial imbalance" in public schools. T hey are limited
to judgments req uiring th at the States shall not den y to any person
on account
of race th e rioht
to attend an v. school it maintains. The
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shi ftin 0o of studen ts from school to school in order to "remove . racial
imbalance," w ith or wi thou t Federa l aid and regulation, 1s not
w ithin th e ambit of the deseo0 reoa
tion decisions. U nder th is gross
0
distortion of the I 4th Amendment , school children th roughout the
country w~uld become pawns in a game of power politics.
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�It seems to us desirable to keep this distinction in mind , bet,,, ,een
laws en acted by the C ongress, and judgments imposed by the court.
T he C onstitution is the supreme lavv of the land, but when the
court acts in a suit arising under the Con stitution it acts judicially,
not legislatively. If local school boards throughout th e South are to
be prohibited by law from maintaining separate school systems, a law
mu st be passed "pursu ant to the Constitution" to impose such a proh ibition. Until then , an y such grants and loans and trainin g programs as th ese vvould appea r premature. And we would take the
position , in the light of th e history of th e 14th Amendment, that such
a law would n ot be "pu rsu ant to th e C onstitution." It would violate
the plain intention both of those who framed the amendment and
also of the States that ratified it. Such legislation would not be "appropriate" legislation .
Mean while, we do n ot intend to be captious or legalistic . The
Brow n decision h as been treated as if it were indeed legislation. For
good or ill , the desegrega tion of public schools proceeds. Th ese particular p rovisions of T itle Ill are better subject to criticism simpl y as
manifestation s of the burea ucratic Federal sprawl.
M.ore serious, in our view, are the provisions of Titl e Ill th at
would vest elabora te new powers in the Attorney General. Th e effect of these pro visions woul d be to th row the enti re massive weight
of the D epartment of J ustice, with its unlimited resources, into th e
scales of almost an y paren t in search of a free laws uit. The basic
complaint would be th at some local school board "had failed to
achieve desegrega tion ." But as we h ave tr ied to point out, in th e
overwh elming majority of school districts in the South, th ere is now
n o legal requirement that local school boards even attempt to
achieve desegregation. Before there ca n be a fa ilure of a dut y, th e re
mu st firs t be a dut y. These p rovisions of the bill simply ass ume th e
duty, and leap to its fa il ure.
Ou r appreh ension is that the awesome power here proposed, for
a proli fera tion of suits "in the name of the United States," would
create more tu rmoil th an it would settle. T he "orderl y progress of
desegrega tion in publ ic educa tion" would not be enh anced , but impaired, as rese ntments were stirred up that otherwise might be peacefu ll y resolved. And we cannot see _the,. .en d to the burea ucracy ~hat
could be req ui red to prosecu te suits m th e name of the Umted
States," once thi s precedent were set in the sin gle area of school desegregation.
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�TITLE IV-ESTABLISHMENT OF
COMMUNITY RELATIONS SERVICE
This title \.vould create a new Federal agency, the "C ommunity
Relations Service," headed by a director at $20,000 a year. P resumably, it would ful fi ll some functions not now ful fi lled by the Civil
Rights C ommission, the P resident's Fair Employment Practices C ommittee, th e established churches and va rious civic bodies, the countless racial commissions around the country, and the civ~l rights division of th e D epartment of Justice. The duties of this Service would
be "to prov ide assistance to communities and persons therein in
resolving disputes, disagreements, or difficulties relatin g to discriminatory practices." [Emph asis supplied} .
\ Ve are not inclined to haggle over the amount of time, energy
and money th at might be wasted by one more Federal agency in the
civil rights fi eld. \A.Te do ca ll attention to the italicized lan guage. In
our own view, it simply is not the fun ction of Congress, under anv
provisions of the United States Constitution, to dispa tch Feder;!
agents to countless commu nities in order to resolve racial disagreements among "persons therein."
TITLE V-COMMISSION ON CIVIL RIGHTS
The Virginia Commi ssion on Constitutional Government expresses neith er opposition to nor support of Title V of the President's
bill. This portion of the bill would extend the life of the Commission
on C ivil Rights to N ovember 30, 1967, and would lay down certain
standardized rules for its fu rther hearin gs and investigations.
In our own view, th e Commi ssion on Civil Rights has contributed little or nothin t:,o toward the unravel ino0 of the knottv• tangles of
·race relations in the United States. Its recommendations in the spring
of 1963, proposin g the withd ravval of gra n ts, loans, and even contracts fro m South ern States th at did not meet its own notions of right
condu ct, amounted to an outrageous proposal for denial of the v~ry
equal p rotection s it professes to su pport. We perceive no useful
achievements of thi s Comm ission, bu t we raise no constitutional objections to its con tinu ance.
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�TITLE VI-NONDISCRIMINATION IN
FEDERALLY ASSISTED PROGRAMS
T itle VI of the P resident's bill is not long. It had perhaps best
be quoted in full:
Sec. 601. Notwith standing an y provisions to the contrarv in
an y law of th e United States providing or authorizin g dire;t or
indirect fi nancial assistance fo r or in connection with any
program or activity by \,vay of grant, contract, loan , insurance,
guara nty, or oth erwise, no such law shall be interpreted as requiring that such fi nancial assistance shall be furni shed in circumstances under which individu als participating in or benefi tting from the program or acti vity are discrimin ated against
on the ground of race, color, rel igion, or national origin or
are denied p3rticipation or benefi ts therein on th e ground of
race, color, religion , or national origin . All contracts made in
con nection with an y such program or activity shall contain
such con ditions as the President may prescribe for the purpose of assuring th at th ere shall be no discrimin ation in employmen t by ar. y contractor or subcontractor on ' the ground
of race, color, religion , or national origin. [Emphasis supplied}.
T he thinly veiled intimidation of T itle VI goes back to a statement made by Attorney General Robert Kennedy in London in
October of 1962. A t th at time, he speculated publicly that a threat
to withdraw federal su bsidies, gra nts, loans, and contracts might be
used as a club over the Southern States. Mr. Kennedy was quick to
point out that such a threat woul d have to be used with great delicacy .
He seemed un sure of its desira bi lity. He did not defend its constitutionality. H e wa s just thinki ng aloud.
· In April of 1963, the Civil R ights Commission evidenced no
such fin esse. T he C ommission recommended Had y to the President
tha t he seek power to suspend or cancel eith er all , or selected parts of,
the Federal fi nancial aid that now Hows to such Sta tes as M ississippi,
"until [su ch States} compl y with th e Constitu tion and la..,vs of th e
United States." It was unclea r precisely how a judicial determination wou ld be reached that entire States had fa iled to com ply with
the Constitution and laws of the United States, but this small question of due process apparentl y troubled the Commission not at all.
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�Th e question troubl ed Mr. Kennedy. !n his press conference of
Ap ril 17, th e President blinked at this startling proposal and turned
away from it:
I don't have th e power to cut off aid in a general way as vva~
p roposed by the Civil Rights C ommission, and I would think
it would probabl y be unwise to give the President of the
United States that kind of power beca use it could start in one
State and fo r one reason or another might be moved to
another State w hich has not measured up as the P resident
would like to see it measure up in one way or another.
It is a fair question to ask what happened. W hat happened between April 17, when the President voiced these comments at his
press conference, and June 19, when his majority leader . intreduced
his Civil Rights Bill? H ow did a power that was "probabl y umvise"
in April become a power th at was "essential" in June? T he obvious
answer is th at the interim was marked by widespread racial demonstra tions. But 1t is not pl easa nt to conclude that the P resident of the
Un ited States may be coerced , intimidated, or black jacked into
changing his mind so swiftly on a legislative proposal of fatef ul importance. W hat h'lppened?
W e ea rnestl y submit that the pun itive terms of Title VI of this
bill threa ten gross violation of every p rinciple of due process of lavv.
N o provision whatever is made fo r determin ing when individuals
"participating in or benefittin g from" various programs are "discriminated agai nst." The two sentences of this Ti tl e define no terms. T hey
propose no judicial in qui ry. T hey leave hu ndreds of mill ions of dollars in "Federal fu nds," pa id fo r b y all of the people- black, white,
Liberal, C onserva tive-at the uncontrolled discretion of the President
or someone else who may determin e this "discrimination."
These p rograms include aid to dependen t children, aid to the
blind, aid to the permanentl y disa bled. T hey include funds for voca tional educa tion , hospital co nstruction, pu blic housing, the insu,rance of bank deposits. Federal personnel would be au thorized to supervise loans by banks an d building and loa n associations, farm financing of all kinds, govern men t su bsid ies, conservation programs, small
business loa~s an d contracts in an y activity affected by government
loans' in surance ' 0ouara nties ' or bora nts. If a Federa l aoencv
made an
0
·
administrative fi ndin t,o th at discrimination exists, Federal support
18
�could be withdrawn and the institution or program wrecked.
To perm it a P resident-any President-to suspend such programs
on his own unchecked conclusion that certain beneficiaries are "discriminated again st" wou ld violate the whole spirit of uniformity
that pervades th e Constitution . T he supreme law of otir land provides
that "direct taxes shall be apportioned among the several States according to their respective numbers." Duties, imposts and excises
"shall be uniform throughout the United States." There must be a
"uniform rule of n atu ralization" and "unifo rm Ja,.,vs on the subject of
bankru ptcies." Many other provisions attest this same concept of
equal treatmen t among the States.
Only by a fa ntastic distortion of the congressional power under
the 14th and I 5th Amendments could thi s Title VI be justified. Its
effect would be to penalize th e many for the occasion~! unlawful
conduct of the fe w. Its potential application would jeopardize the
very lives and well-bein g of thousands of innocent and law-abiding
persons, including veterans, blind persons, and disabled persons, in
order to bludgeon a h andful of State officials into line with a President's desires.
It seems to us sufficient merel y to quote the language of this
tyrannical Title of the Presiden t's bil l. The language speaks most
eloquently for itself.
TITLE VII- COMMISSION ON EQUAL
EMPLOYME NT OPPORTUNITY
T his fin al substantive section of the bill authorizes the President to establish a "Commission on Equal Employmen t O pportun ity." This permanen t agency of the government would be headed by
the Vice P resident; the Secretary of Labor would serve as vice chairman. There would be up to 15 members in all. An executive vice
chairman would run the opera tion . T he C ommission would be empawered to employ "~u~h ~ther ? ersonnel as may be necessary." Th e
bill defines the comm1ss10n s duties:
It shall be the function of the Commission to prevent discrimination against employees or applicants for employment because of race, color, religion, or na tional origin by Government contractors and sub contractors, and by contractors and
sub contractors participating in programs or acti vities in which
19
�direct or indirect fin / ncial assistance bv the United States
Government is provided by way of gra~t, contract, loan, insurance, guaranty, or otherwise. The Commission shall h ave
such powers to e ffectuate the purposes of this title as may be
conferred upon it by the President. The President may also
confer upon the Commission su ch powers as he deem s appropriate to prevent discrimination on the ground of race, color,
religion , or national origin in Government employment. [Emphasis supplied} .
Again , it seems to us necessary merely to quote the provisions
of the bill in order to make their autocratic nature evident to everv
thoughtful observer. The power here proposed to be conferred upo~
the President is virtually unlimited. N o legislative limitations of an y
sort a1e suggested. The President may confer upon the Commission
"such powers as he deems appropriate." And whether these include
the power to impose criminal sanctions, or to seek civil injunctions,
or to abrogate contracts awarded u nder sealed bid, no man can
say. The Commission's powers would be whatever the President regarded as appropriate; and the defin ition of "government employment" is as wide as the Federal budget itself. T he administration's
bill proposes, in effect, that the Congress abdicate, and turn its legislative powers over to the \ i\lhite H ouse. T he powers here demanded
i.l rc not the powers rightfull y to be exercised by a President in a free
country. T hese are the powers of a despot.
There is a fi nal T itle VIII in the bill, authorizing the appropriation of "such sums as are necess~ ry to carry out the provisions of this
Act." What these sums might amount to, aga in, no man can say.
This is the package Mr. Kennedy has asked of the Congress.
H e has asked it in an emotional hour, under the pressures of demonstrators who h ave taken violentl y to the streets, torch in hand.
W e of the Viroinia
C ommission ask ;vour quiet consideration of
b
the bill. And we ask you to communicate you r wishes to the members
of the C ongress who represent you in the H ouse and Senate.
Richmond,
August, 1963.
20
• I
�Members of the Virginia Commission on
Constitutional Government:
DAVID J. M AYS, Chairman, Richmond, Va.
A ttorney ; Pulitzer Prize w inner for historical biography.
J AMES J. KILPATRICK, JTiu Chairman, Richmond, Va.
E ditor, Th e Richmond News Leader; author.
ALBERTIS s. H ARRISON, JR., Richmond, Va.
Ex-officio member of Commission; Governor, Commonwealth of Virginia.
E. ALMER AMES, JJ!.., Onancock, Va.
Attorney; member Virg inia Senate; Vice-President and
Director, First Nationa l Bank, Onancock, Va.
HALI! COLLINS, Covington, Va.
Attorney; member Virginia Senate.
W. C. (DAN ) DANIEL, Danville, Va.
Business executive; member Virginia House of Delegates;
p ast N ationa l Commander, American Legion.
JOHN A. K . DONOVAN, Fa lls Church, Va.
A ttorney ; member Virginia Senate; General Counsel and
D irector, Security N ational Bank, Fa irfax County, Va.
J. SEGAR GRAVATT, Blackstone, Va.
A ttorney; T rial Justice for Nottoway County, Va.
FREDERICK T . G RAY, Richmond, V a.
Attorney ; fo rmer A ttorney General of Virginia.
B u RR P. HARRISON, W inchester, Va.
Attorney; former m ember of the United States Cong ress.
EDGAR R. LAFFERTY, JR., King W illiam, Va.
Business executive; farmer.
GARNETT S. MOOR!!, Pulaski, Va.
Attorney; member Virginia H ouse of D elegates.
WILLIAM T. Musi!, Richmond, Va.
Dean, T. C. W illiams School of Law, University of
Richmond; author.
W . ROY SMITH, Petersburg, Va.
Business executive; member Virg inia House of Delegates.
w . CARRINGTON
THOMPSON, Chatham, Va.
Attorney; member Virginia House of Delegates.
WILLIAM L. WINSTON, Arlington, Va.
Attorney ; member Virginia House of Delegates.
�,\
\
\
0.-( From May Craig, the Portland Press Herald) M r. P resident, do
you think that M rs. M urphy should
have to take into h er home a lodger
whom she does not want, regardless
of her reason, or would you accept
a change in the civil riohts b ill to
except small boarding houses like
M rs. M urphy?
A.-The question would be, it
seems to me, M rs. Craig, wh ether
Mrs. Murph y h ad a substantial
impact on interstate commerce .
[Laughterl . Than k you .
- T he Press Conference,
Ju ly 17, 1963 .
Additional copies of this commentary may be obtained on request _to _the V! rginia Com~issi_on on Consti tution al Government, Travelers Bmldmg, Richmond, V1rgm ia. The Commission is an official agency of t~e Commonwealth of Virginia, created by act of the General Assembly m 19 56. Up to lO copies no charge; 50 copies $5. 00; 100 copies $9.00; 1,000 copies $75.00. �
