FROM THE STACKS AUGUST 25, 2013
Not a word of the President’s proposed Omnibus Civil Rights Rights Act of 1963 is law as yet, of course; not all its words are equally likely to become law, and not all of its provisions, which do get enacted, will be equally important or effective. Yet the proposed Act in its entirety, together with the message to Congress and the address to the country that preceded it, is already an event in American history and one should pause for a moment to view it as a total event, before breaking it up into its component parts for purposes of analysis, as Congress itself will soon enough do. To view it in this fashion, it is necessary to move back a step, though a short one will do. Sufficient perspective can be gained by recalling attitudes that were common, say, two months ago.
School desegregation—albeit with deliberate speed and all that—was an established principle beyond any doubt, as Governor Wallace's shabby little minuet at the door of the University of Alabama demonstrated. This was a major political achievement, dating back to the Presidential campaign of 1960 and no farther. The Kennedy Administration had other achievements to its credit also, notably in desegregating interstate transportation facilities, and it was exerting executive power, though often too hesitatingly, along many lines. It was also trying to improve general, and therefore particularly Negro, economic conditions. But the Administration's long-range philosophy could fairly be stated as follows: The Negro must be put in possession of effective political power in the South. This means the vote, which ought to be achievable through the concerted efforts of the Department of Justice within the decade. Then the logjam will be broken, not only in Congress but also in state governments, and there can be major moves on all fronts, by the executive as well as by legislatures; for as every political realist knows, a different local and Congressional power structure would free the President to act in areas in which he is now inhibited, even though, theoretically, he already has sufficient independent power.
This approach overestimated the potentialities of the franchise, and it underestimated, as everyone did, the possibilities of direct action outside the usual legal and political channels. We have witnessed such action, and it has effected a breakthrough. The Negro, gathering himself together into a cohesive group, has shoved the moral question that inheres in his condition right up under our noses; has dramatized the intensity of his own feelings about it by allowing himself to be dragged, prodded, hosed, bitten and, in the case of Medgar Evers, murdered; has transformed a long-range problem into a present crisis, and thus, without waiting for the vote, has touched the levers of power. The President understood what was happening and saw the possibilities that had been opened. It is greatly to his credit that he called off the old bets without much hedging.
The President's new objective is stated in the proposed Omnibus Act, which declares that discrimination "is incompatible with the concepts of liberty to which the Government of the United States is dedicated." The Act understands discrimination to be not merely deprivation of rights, but also of "privileges accorded to other citizens." And, perhaps most notably, it aims to eradicate not merely deprivations, but also "inconveniences, humiliations, and hardships," to the end that we may achieve "the fullest development of the capabilities of the whole citizenry," and unlimited "participation in the economic, political, and cultural life of the Nation." The rest of the bill goes into detail, with almost no holds barred.
This is the new commitment. In its identification of the federal government with the aspiration of an aggrieved group in our society, this commitment is in itself comparable to Section 7a (the labor section) of the National Recovery Act of 1933, or to the Emancipation Proclamation. How this commitment will translate into law and other social action is perhaps another matter, and in any event a story still to be told. The same could have been said—and was—of the analogous commitments mentioned above. Yet social action is first of all a function of the goals we acknowledge. We move, like armies, by setting objectives.
The President could have said all this for himself and proceeded to implement a great deal of it on his own and in close collaboration with the Negro leader- ship. He elected to put it to Congress. Prospects for passage there of such a program two months ago would have been thought laughable. Now the President has judged otherwise, and at great risk, for should Congress not merely modify detail but wreck the program and this dissociate itself from the new goals, the setback will be much graver than whatever loss the new commitment would have suffered had Congress never been asked to associate itself with it at all. It is now crucial, for negative reasons, as it were, quite aside from any other considerations, that Congress be led to adopt the essence of the President's program; else the President's historic commitment may crash down about him with an exceedingly hollow ring. And so the question becomes what is the essence of the program?
From the first, most attention has centered on the provisions dealing with discrimination in privately owned facilities and stores catering to the general public. The bill would declare everyone to be entitled equally and in the same way, without distinctions based on color or other invidious criteria, to everything such places offer to the general public. Such places would include all hotels, motels and other transient lodgings that hold themselves open to travelers from other states as well as their own - which means, indeed, all; and places of amusement or entertainment presenting shows, teams or what have you that travel in more than one state, which again means practically all. Finally, the bill would apply to stores, gas stations, eating places, in short, all establishments selling goods or services to the public, so long as they sell to interstate travelers, or sell goods that came from other states, or otherwise affect the movement of people or goods among the states, or are part of the premises of, or are owned by, another establishment that itself falls in these categories.
There is a qualifying word running through all this—the various forms of connection with the interstate movement of goods and persons must be substantial. Ultimately, as a matter of power, this adjective does not represent much of a qualification. We have a national economy, and the corner grocery or drugstore is a part of it. The day of the country store dealing in local goods except for the occasional gala shipment of a bale of gingham from St. Louis is behind us. Nor, outside of marathon Senate oratory, is there any real question of constitutional power. It is precisely the fact of the national economy that is the measure of Congressional power, in the constitutional language, "To regulate Commerce with foreign Nations, and among the several States." If it is interstate commerce that feels the pinch, the late Justice Jackson once exclaimed, it does not matter who applies the squeeze, and that is really the last word on the question of power.
But even if enacted, exactly as is, this proposal has built-in limitations, as a matter not of power, but of practical possibilities. To begin with, the qualifying adjective "substantial" might mean little in the end to the Supreme Court, but a great deal of obstruction and delay could be extracted from it by unsympathetic federal judges in the South, of whom there are a few. Secondly, even at the hands of sympathetic courts, the proposal will suffer from the limitations that necessarily attach to all judicially-enforced law. For enforcement is to be by private suit, with the useful proviso that the winning party is to be awarded a reasonable attorney's fee, and failing that, by suit by the Attorney General. Now it would take some years before the Supreme Court had made everything sufficiently clear for litigation in the lower courts to proceed expeditiously without hitch, and even then enforcement must necessarily remain relatively episodic. Such, ineluctably, is the process of judicial law, as, for example, the history of our antitrust statutes demonstrates.
A full-scale administrative agency, like the National Labor Relations Board, say, or the Securities and Exchange Commission, might be capable of having a more immediate, wider and more uniform impact. But even such an agency would have its problems. Heavy emphasis must continue to be placed, therefore, on private action—shall one say, collective bargaining—on the pressure of public opinion and of further Presidential leadership, and on the prodding and mediating activities of the Community Relations Service that the Act would establish and expect to operate before judicial machinery is set in motion. This is an admirable proposal, from which the most immediate and palpable results may be expected, although it is difficult to understand why the Administration thought it necessary to place the same statutory limits, very broad as they may be, on mediating activities as on the power to litigate. The bill would limit interventions by the Service to cases where constitutional rights are involved or interstate commerce is affected. Ultimate enforcement power must—constitutionally—be so limited, but mediating or conciliating services need not be any more than are similar Presidential efforts.
However, to say that the Community Relations Service is really the heart of the bill is not to say that the litigating club will not have its uses, even if it stays mostly in the closet; nor is it to say that having proposed much more, the Administration can safely accept only the mediating Service. For one thing, it is extremely important that the proposed litigating power extends not only to enjoining discrimination on the part of the establishments covered, but also to protecting from outside threats or harassments those which comply. This assurance of protection may aid as much as anything in efforts to obtain voluntary compliance. For another thing, independent creation by the Supreme Court, under the Constitution and without statutory provision, of a private right to sue in such cases, analogous to the right to sue in school or voting cases, while not inconceivable, is not to be looked-for tomorrow. But this attempt at a realistic analysis would indicate that some restriction or enforcement authority might be acceptable—limiting it, say, to enterprises doing a certain significant amount of gross annual business. For the Community Relations Service will in any event have several years' work cut out for it before it reaches the crossroads store or, in a phrase already current in Washington, Mrs. Murphy's boarding-house. Extending enforcement coverage, or perhaps shifting over entirely to an administrative-agency set-up ought to be less difficult later.
Coming to other parts of the proposed Omnibus Act, one may pass over, as useful, but of a different order of importance, proposals made earlier as well for strengthening the voting provisions of the Civil Rights Act of 1957 and i960, and for extending the life of the Civil Rights Commission. On schools, the Administration proposes, at long last, reaffirmation and exercise of authority that exists already, although it has not been exercised, for the Office of Education to extend technical aid in the framing and implementation of desegregation plans. There is provision also for loans and grants. The big news here is the proposal to authorize the Attorney General to sue in school cases. This is a proposal that is perhaps not without some arguable value, but it has serious disadvantages, and is at any rate expendable. It might be otherwise if this provision were the only vehicle for committing Congress to the principle of school desegregation. But the other proposals do that.
School suits are class suits against the local authorities. Not every pupil has to sue, and not every school has to be sued. The law is now well settled, and the process of proof is not overly cumbersome, though eventually, as litigation turns more on pupil assignment laws and on de facto Northern segregation, that may change. But at present school suits are quite different from voting suits, which the Attorney General con- ducts, and from prospective suits in hotel and store case's. The future may complicate school suits, but then the activities of the Office of Education may also simplify them. Organized private litigation is an established and going fact. If the Attorney General is to enter this field under present circumstances, it is fair to ask what field of private litigation he ought not to enter. And it is fair to ask how much one can expect a single, centralized Department of Justice to accomplish and still remain an administratively manageable law office, and how much drying-up of private litigating initiatives (and of private efforts to find alternative courses of action, which the burdens of litigation in- duce) we are willing to undertake. Without blanket authority, the Attorney General can, and has begun to, initiate school suits against federally-supported districts in impacted areas, where the government does have a special responsibility. One doubts very much that the Supreme Court will hold that the Attorney General lacks inherent power to sue in such cases, al- though a lower federal court has so held. Let this work be carried forward more energetically, and however debatable the points made above may be, we can surely get along a while longer without blanket authority.
There remain two major provisions of the proposed Omnibus Act. One would establish by statute, and substantially enlarge the jurisdiction of, the existing Commission on Equal Employment Opportunities under the direction of the Vice President. The writ of the commission is to run to activities getting any federal financial assistance, however indirect, "by way of grant, contract, loan, insurance, guaranty, or other- wise.'' The high priests of states' rights and private property may be surprised to learn how far that runs. Yet it is notable that, even without conferring enforcement power on the Attorney General, the proposal does not make the Commission's jurisdiction coextensive with the coverage of the hotel and store provisions. The Commission is not authorized to operate throughout interstate commerce. But it is equally notable that the jurisdiction of the Community Relations Service is, in turn, not restricted to hotels, stores and the like and their customers. The mediating Service may concern itself with all "disputes, disagreements, or difficulties relating to discriminatory practices based on race, etc." This can easily include employment practices anywhere in interstate commerce. We are, thus, well on the way toward full federal employment practices jurisdiction.
The other remaining major provision is short and dangerous. It says that the President may tie a no- discrimination string to any activity that gets any federal money at all. Many lawyers think that he has the power to do this anyway, and many people also agree with him that the word "may" is important, and that in some cases an absolute denial of funds because of persistent discrimination would amount to cutting off one's nose to spite one's face. The danger in putting this proposal to Congress is that the effect of any modification in it will be to give away gratuitously a portion of the power the President now has. And a complete refusal by Congress to accept this proposal may, de- pending somewhat on the course of debate, not only impair, but even perhaps be held to have withdrawn altogether, existing Presidential power. All possible steam must, therefore, be put behind this proposal, and it is something of a pity that the risk of placing it before Congress was taken.