Better at Moralizing Than Legalizing

Attorney General Robert Kennedy returned to Capitol Hill to continue his explanation of the Administration's civil rights package. Appearing before the Senate Commerce Committee, with specific references to the package's controversial Title II, which would guarantee equal rights in public accommodations throughout the land, Bobby delivered an eloquent moral argument. But under subsequent questioning he showed himself better at moralizing than at legalizing.

He began with a prepared statement. "For generations," he said, "Americans have prided themselves on being a people with democratic ideals, a people who pay no attention to a man's race, creed or color. That very phrase has become a truism. But it is a truism with a fundamental defect; it has not been true . . . White people of whatever kind--even prostitutes, narcotics pushers, Communists or bank robbers--are welcome at establishments which will not admit certain of our federal judges, ambassadors and countless members of our armed forces." "You Tell Me." Then the Commerce Committee members began asking questions about the legal meaning, implications and effects of Title II. Bobby was somewhat peevish, vague--and seemed uninterested in details. Administration emphasis presently justifies Title II under the interstate commerce clause of the U.S. Constitution (see box); thus, the measure would apply only to accommodations involved to a "substantial" degree in interstate commerce. Just what, the Senators wanted to know, did that language mean? Ohio Democrat Frank Lausche tried to start at the very beginning.

Lausche: What is your definition of interstate commerce? Kennedy: Commerce between the states.

Lausche: There must be more to it than that.

Kennedy: You're a lawyer, Senator.

You tell me.

Lausche: Wouldn't you have to show that [a business] served a majority [of interstate travelers]? Kennedy: No, you would just have to show it had a substantial effect on interstate commerce.

Lausche was not finished. Later he goadingly asked Kennedy: "Just how far do you contend Congress can ultimately go in bringing the businessmen of the country" under sweeping new regulations by broadening the scope of the Interstate Commerce Act? The Administration, charged Lausche, was trying to "put a collar around business . . .

threatening to prosecute it ... attempting to shackle it." Bobby's voice sharpened as he retorted that Congress had already passed laws "telling restaurants how they should shape their piece of oleomargarine . . .

what they should put on their menus." It All Depends. Other Senators tried to pin Bobby down about just what sort and size of public facility Title II would apply to. New Hampshire's Norris Cotton, the Commerce Committee's ranking Republican, wanted to know if the bill would apply to laundries and dry-cleaning establishments. Said Bobby: "I don't think they'd be covered except in very unusual circumstances --maybe if they are part of a hotel or a terminal." How about bowling alleys, pool parlors and funeral homes? He judged they would not be covered, could go on discriminating if they liked.

What about stadiums where out-of-state athletes perform? Kennedy figured they would have to desegregate. Well, would the traveling teams themselves be forced to integrate? He thought they would not--though a few days earlier a Justice Department lawyer who helped draft the legislation had said they probably would.

South Carolina's Democratic Senator Strom Thurmond wanted to know if a little barbershop on the South Carolina border would be in interstate commerce if some fellows from North Carolina came across the line to get their haircuts. That, said Bobby, would depend on how many came. Seventy percent? asked Thurmond. It would be covered.

Fifty percent? Covered. In fact, said the Attorney General, a place might fall under the law if only 10% of its customers were from out of state, depending on "other circumstances." Snapped Thurmond: "You're kind of vague on that, aren't you?" So Change It. The Administration, said the Attorney General, would be happy to leave the definitions of "substantial" to the courts in case after individual case after Congress passed the Administration's bill; a good many Senators obviously thought that was not a very good way to legislate. The Administration had considered, but decided against, limiting the law to establishments above a certain size--with, say, annual sales of $150,000--because, said Bobby, that would mean "if you run a small establishment you can discriminate, and if you run a large one you can't." But if Congress wanted to put such a floor under the bill to let small neighborhood establishments run their own private business in their own private way, Bobby did not care.

As a matter of fact, Bobby made it clear that if Congress wanted to change the whole structure of the bill, base it on the 14th Amendment instead of the commerce clause and thereby outlaw discrimination in any business licensed by any state, he did not care about that either.

All of which left many legislators, including some who are otherwise perfectly willing to go along with the Administration, considerably perplexed.

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