The Civil Rights Act of 1964
At a news conference in 1962, John F. Kennedy coined the phrase, “sound public constitutional policy.” It was an entirely original conception, a hybrid of constitutional law and public policy. Constitutional law is produced by the Supreme Court. Public policy is what the political institutions—the Congress and the President jointly, and often the President on his own—evolve and put into effect. Mr. Kennedy's phrase characterized with precision the civil rights commitment he had undertaken in the campaign of 1960. The broad and pervasive principle of the School Segregation Cases of 1954, he had then promised, would under his administration not only be the judicial policy of the federal government, but also the political policy of its executive branch. The executive department would be committed to “equal protection” as a rule of independent, self-starting political and administrative action, rather than merely as an obligation to uphold the courts.
Mr. Kennedy redeemed his pledge very substantially, making the best civil rights record of any national administration since Reconstruction. But such a statement, although entirely accurate, means less than it says. It means concretely that under Kennedy, whose posture was so very different from that of his predecessor, the pace of school desegregation speeded up, although it remained excruciatingly deliberate; that by litigation and the exertion of other pressures, the desegregation of interstate transportation facilities was about completed; that other problems, including employment and—after November 1962—housing, were freshly attacked by executive action, and were beginning to yield somewhat; and that a massive effort, different in kind from anything that had gone before, was being made through litigation to enforce the Civil Rights Acts of 1957 and 1960, and thus to enfranchise large numbers of Southern Negroes. It should be added that the administration was also trying to improve general economic conditions, and that it was well aware of the bearing of this attempt on the civil rights problem.
But the long-range philosophy that informed the first two-and-a-half years of the Kennedy administration could fairly be stated as follows: the Negro must be helped to gain political power in the South. The right to vote, said Attorney General Robert Kennedy, is basic, “and from it all other rights flow.” Through the concerted efforts of the Department of Justice, the vote ought to be achievable within a decade. The effect would be felt in Congress as well as by state governments, and there could then be major moves on all fronts, by the executive as well as by legislatures; for, obviously, different attitudes in Congress would not only make it possible for the President to obtain legislation, but would also free him to act in areas in which he was now hesitating, even though theoretically he had sufficient independent power.
Accordingly, in the first two-and-a-half years, President Kennedy demanded little from Congress, and nothing very insistently. He asked and was not granted perfecting amendments to the Civil Rights Acts of 1957 and 1960, dealing exclusively with the right to vote. It was February 28, 1963 before he sent his first full-scale civil rights message to Congress. He reported on his past independent initiatives, and promised further ones. He asked again for improvement in the statutes guaranteeing the right to vote, and he added a modest request for authority to extend technical and financial assistance to school districts in the process of desegregation. That was all. Then, two months later—in April and May of 1963—came Birmingham.
Birmingham was not the first instance of violently resisted Negro demonstrations, nor even of mass marching through the center of a city. Albany, Ga., preceded Birmingham, as did the freedom rides of the spring of 1961. Sit-ins had started early in 1960. And before that, there had been the successful bus boycott in Montgomery, Ala., in 1955-56. Yet the marching in Birmingham became one of those events that seem to turn the course of history; or if that sounds insufficiently deterministic, then one of those events for which the course of history seems to wait before turning. Perhaps it was that Birmingham—with the notorious “Bull” Connor in charge (he is gone now)—had become something of a symbol of Southern racism. Perhaps it was that police reaction here was more brutal than elsewhere, and that the marching therefore seized the attention of more people over the country, and affected more consciences. Perhaps the murder from ambush, at about the same time, of Medgar Evers, the NAACP's man in Jackson, Mississippi, heightened the effect. And perhaps the consequences of Birmingham are explained by Aldous Huxley's remark that experience is not what happens to us but what we do with what happens to us. Birmingham, it may be, was a turning point not because it caused President Kennedy to register a sharp change in his policy on civil rights, but because that was what President Kennedy was willing and able to do with Birmingham. In the long run, very probably, broad new federal legislation was inevitable, but in the short run, John Kennedy surely had a choice. He could have stood on a platform of law and order, deploring not only violence, but all attempts, which are ever fraught with violence, to change the legal order without abiding the law's own procedures for advancing beyond itself. And he could have coupled this attitude with a promise to pursue more vigorously the executive program on which he was already launched. Further demonstrations and more violence were as likely to be avoided this way as any other, if they were at all avoidable.
Yet this was not the choice the President made. Instead, less than three months after his February message, he called off his old bets and went to the country and to Congress with eloquence and passion, setting radical new objectives. And so it was through John F. Kennedy that the Negro, without waiting for the vote, operating outside the law and also outside the customary political channels, touched the levers of political power. The result, thirteen months later, was the Civil Rights Act of 1964, a fundamentally new departure in federal legislation.
An omnibus civil rights bill, drafted in the Department of Justice, was sent down by President Kennedy on June 19, 1963. It led off with the President's proposals of February to strengthen the voting provisions of the Civil Rights Acts of 1957 and 1960, and it included also the proposals concerning assistance to school districts that were being desegregated. Then came the new matter. The bill prohibited discrimination in public accommodations, meaning privately-owned facilities catering to the general public. It authorized the Attorney General to bring suit to desegregate public schools (instead of letting the burden of such suits continue to fall in each district on private parties). And it authorized the President to exact promises of non-discrimination from recipients of federal financial assistance “in connection with any program or activity by way of grant, contract, loan, insurance, guaranty, or otherwise.”
The bill contained no general fair employment provision, but it did enlarge the jurisdiction of a Presidential commission which had existed by executive authority since the Eisenhower administration, and which was putting pressure on the government's contractors, and its defense contractors in particular, to get them to institute and pursue non-discriminatory employment policies. Finally, with lucid awareness of the limited possibilities of enforcement through litigation, the bill established a Community Relations Service, whose function it would be, “in confidence and without publicity,” by negotiation, persuasion, and other dark arts known also to labor mediators, to induce voluntary compliance with the public accommodations title of the bill, and to attempt to settle other racial disputes as well. The Service put on an institutional looting the function that had been discharged in Birmingham by Assistant Attorney General Marshall.
For the next few months, through the fall of 1963, tripartite negotiations took place, involving the Kennedy administration, the Republican leadership of the House, and a bipartisan group of liberal congressmen. In the wings was the Leadership Conference on Civil Rights, a coalition of over 70 organizations interested in obtaining the broadest possible statute. At this stage, an excellent fair employment title, superseding but not displacing the Presidential commission which had been dealing with the government's contractors, was added to the bill. But at the same time, there were also two significant subtractions from the administration's draft. A section was dropped from the title on voting rights, under which federal courts would have appointed temporary referees to see to the speedy, if provisional, registration of qualified Negro voters in time for an impending election. And the Community Relations Service was killed. Perhaps—there is no other ready explanation—the Community Relations Service fell victim at this point to the most advanced liberals, who wanted, as the headlines called it, the “toughest” possible bill, providing for enforcement, not namby-pamby mediation. To be sure, there was enforcement power in the bill as it stood, but the idea may have been to afford the administration no alternative to the use of that power.
On the floor of the House, where it was passed handsomely on February 10, 1964, the bill suffered some further wounds, thin and quickly administered, but not altogether shallow. The provision, which had been rewritten and improved in committee, authorizing the President to see to it that there was no discrimination in federally financed programs, was amended to apply only to programs receiving federal assistance “by way of grant, loan, or contract other than a contract of insurance or guaranty.” This is and was intended to be an exemption for housing built or purchased on mortgages guaranteed by the Federal Housing Administration or the Veterans' Administration. Such housing was covered by an Executive Order on Equal Opportunity in Housing, issued by President Kennedy on November 20, 1962, in the exercise of his independent executive power. The purpose of the Order was not to coerce an individual homeowner to sell to a Negro. The Order was aimed at developers of real estate, and it was mean to exert pressure on banks to make mortgage loans to Negroes who have found a willing seller on the same terms as to whites, which is far from the prevalent practice. The great problem with the exemption in the House amendment is not so much that Congress has chosen to leave FHA and VA mortgages unaffected by this statute, but that the amendment may well abrogate the Executive Order to the extent that it does cover such mortgages. The managers of the bill disclaimed any intention to do this, and similar disclaimers were later entered in the Senate, but the result may nevertheless follow as a matter of law. For it is quite clear that Congress did not wish to deal with discrimination in FHA and VA housing. As a general legal proposition, the President may have and may enforce an independent policy of his own in matters like this so long as Congress has not legislated a contrary policy. He may fill a policy vacuum, or complement a Congressional policy, but he may not displace a Congressional policy, even a negative one. And so a portion of the Executive Order on Housing was, to say the least, thrown into doubt.
A number of further changes made on the floor of the House must be noted. The provisions dealing with education were amended so as to render them inapplicable to the Northern problem of racial imbalance. The House extended the fair employment title to prohibit discrimination based on sex as well as race, religion, and national origin. (This amendment, although conceivably a worthy one on its own merits, is concerned with a quite separate problem, which should have been dealt with separately.) The House also saw fit to safeguard an employer's right to refuse to hire an atheist, a pretty clearly unconstitutional proviso, which was later struck in the Senate. Again, the employment title was changed in the House to exclude assorted Communists and subversives of whatever race, religion, or sex from the benefits of the bill—another provision of doubtful constitutionality, which remains in the Act. On the other hand, the bill was repaired in one important respect on the floor of the House. The Community Relations Service, eliminated in committee, was put back in, although in somewhat crippled shape. It was finally restored to full health by the Senate.
The main event in the progress of the bill to triumphant passage in the Senate, under cloture on June 19, 1964, was a series of amendments evolved chiefly by Senator Dirksen of Illinois, the minority leader. Aside from tinkering with the bill here and there, and sometimes improving it, the Dirksen amendments were directed at the enforcement provisions of both the public accommodations and fair employment titles. As these provisions came to the Senate, both private parties and the government, through the Attorney General and a federal Equal Employment Opportunity Commission, were authorized to bring enforcement suits. For these simplicities, the Dirksen amendments substituted a labyrinth of procedures, intended to emphasize private as against government litigating initiative, and to give state authorities, where relevant ones exist, a first crack at settling or litigating any complaint.
Apart from Mr. Dirksen's package, the only other significant change made in the Senate was a provision granting jury trials to defendants charged with criminal contempt of court. The upshot of litigation under the statute will be a judicial decree ordering somebody to do something or desist from doing it—serve Negroes at a lunch counter and stop refusing them service; employ a given applicant for a job and stop excluding others because of their race; and the like. Such orders are made effective by the power of the federal courts to hold violators in contempt. There are two kinds of contempt. A court may put a person in jail or subject him to a fine until he obeys: this is called civil contempt, because it does not purport to punish, but merely to exact obedience. But a court may also, after the fact, punish a person for the crime of having disobeyed a decree in the past: this is called criminal contempt. The amendment in question, proposed by Senator Morton of Kentucky, does not affect the power of federal courts to enforce their orders by civil contempt proceedings. Nor does it affect voting cases, which are governed by a compromise embodied in the Civil Rights Act of 1957. It affects only—as to all titles of the Act save the title dealing with the right to vote—a judge's power, on his own, without a jury, to punish for criminal contempt.
Undoubtedly, for the foreseeable future, it will be difficult to make a charge of criminal contempt stick before a Southern jury in a civil rights case. But the civil contempt power is an ample one. Moreover, in the judgment of many lawyers, it is wrong on principle to dispense with juries in this sort of criminal case, which is not easily distinguishable from the common run of criminal cases, where trial by jury is a defendant's constitutional right.
The act that emerged, from these origins and along this legislative path is a statutory booklet some 18,000 words long. It is divided into eleven titles or chapters. Title I, on voting, which is in the form of amendments to the Civil Rights Acts of 1957 and 1960, plugs loopholes that have turned up in the course of litigation under those statutes. It applies only to federal elections, and orders state registrars to use the same standards in qualifying Negro voters as in qualifying whites; it also forbids them to disqualify an individual for minor errors (those which are not really material to his qualifications) in an application to register. The title then deals in some detail with literacy tests. It provides that they may not be administered to any applicant for registration unless they are administered to all applicants, and that they may be administered only in writing, with a certified copy of the test to be furnished to the individual upon request. Thus the disqualification of Negro Ph.D.'s on grounds of illiteracy becomes more difficult. But the Attorney General may certify that these provisions shall have no effect in states in which he is satisfied that literacy tests are fairly used, so that the kind of quick oral test given in many Northern states is likely to be unaffected. As an additional safeguard, it is then provided that anyone with a sixth-grade education, obtained in any school in which instruction is carried on predominantly in English, is presumed to be sufficiently literate to vote in federal elections; if a state wishes to disqualify him, it must prove him to be illiterate—which is to say, it must prove to the satisfaction of the federal courts that its standards of literacy, as applied to such an individual, make sense. Heretofore, standards of literacy could be attacked only on the ground that they were unequally administered, even if they required the applicant to do such preposterous things as to render a legal opinion on the meaning of any provision of the Mississippi Constitution. (It is noteworthy that this new statutory presumption does not touch requirements that literacy be in English, under which Puerto Rican voters, literate in Spanish only, may be disqualified in New York, for example.) Finally, this and other titles—by enabling the Attorney General to get voting and other civil rights cases heard by three-judge courts, rather than by single federal judges—give him the means to circumvent delays and other obstructionist tactics to which he has been subjected by a few segregationist federal judges in the South. It is unfortunate that such a cumbersome procedure should have had to be imposed on a busy and over-burdened federal judiciary, and the necessity for it emphasizes the importance of care in the selection of federal judges in the South.
Title II is the public accommodations title. It defines a public accommodation as any inn, hotel, motel, or other establishment providing lodging to transient guests, excepting only what came to be known in Washington as Mrs. Murphy's boarding house (meaning an establishment which offers no more than five rooms for rent, and in which the owner also lives); any restaurant or other place that sells food for consumption on the premises, including lunch counters in retail stores; any gasoline station; any place of entertainment, including theaters and sports arenas; and any other establishment which is physically located within the premises of one of the places just listed, and which holds itself out as serving the patrons of such a place (this being the provision under which some barber shops, for example, may be included, and some not). A public accommodation, so defined, is subject to this title if “its operations affect commerce, or if discrimination or segregation by it is supported by state action.”
Commerce is said to be automatically affected by all the establishments in the hotel category, on the theory that hotels serve transients, most of whom cross a state line or two, and that the movement of persons across state lines is commerce within the sense of the constitutional provision defining the powers of Congress. Establishments in the restaurant category and gasoline stations affect commerce if they serve interstate travelers, or if a substantial portion of the food or gasoline or other products they sell has moved across state lines. Places of entertainment affect commerce if the thing or performers they exhibit have moved across state lines. Discrimination or segregation is “supported by state action,” and thus prohibited whether or not the establishment affects commerce, if it is required by a state, formally by statute or informally by official action or pressure.
All these definitions, however, are expressly made inapplicable to a bona fide private club or other establishment not open to the public, except as a club or the like may open some of its facilities to the general public, in which event the title is applicable to those facilities. In establishments covered, the Act declares all persons to be entitled to full and equal enjoyment of everything that an establishment offers, without discrimination or segregation on account of race, religion, or national origin. It is unlawful also for any third party to attempt to prevent an establishment from extending the privileges secured by this title to an individual, or to attempt to prevent an individual from claiming his privileges.
Persons aggrieved by a violation of this title may obtain from a federal court a decree directing that the violation cease. And there is a valuable provision authorizing the courts to appoint an attorney for a complainant in a suit under this title, and to allow him a reasonable attorney's fee as part of the costs awarded to him if he wins. However, if the violation occurred in a state which prohibits discrimination in public accommodations under its own law, complaint must first be made to the state authorities, and there can be no suit in the federal court until the state authorities have had thirty days to deal with the complaint. Subsequently, the federal court may stay its own proceedings until the termination of any local proceedings that may have been undertaken. But ultimately, if the complainant is unsatisfied with what the state has been able to do, he retains his essential federal right to redress. In a state which has no public accommodations law of its own, the federal court in which suit has been brought may refer the matter to the Community Relations Service for a total of no more than 120 days, if the court believes that a reasonable possibility exists of securing voluntary compliance. The Service may investigate and hold private hearings. Suits by the Attorney General on behalf of the government are possible only when he “has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance.”
Title III authorizes the Attorney General to bring suit to desegregate public facilities, other than public schools or colleges, which are owned or operated by or on behalf of any state—parks, golf courses, municipal auditoriums, and the like. Judicial decisions have long since made clear the law as to such facilities, which turns on a constitutional right to equal access, as part of the general right to equal treatment at the hands of all units of government. Hence, the point of this title is merely that the Attorney General is now enabled to bring suit, rather than private parties only.
Title IV is the education title. It requires the Commissioner of Education, who heads the hundred-year-old Office of Education in the Department of Health, Education and Welfare, to make a survey and report, within two years, on the availability of equal educational opportunities to individuals of all races and religions in public institutions at all levels throughout the country, North and South. It then empowers him to render technical assistance to local authorities in the preparation and implementation of desegregation plans. A national professional agency will thus be in a position to work out and validate methods for dealing with special educational problems arising from desegregation. The Commissioner is also authorized to arrange and finance institutes for special training for teachers and administrative personnel who have to deal with problems of desegregation. But desegregation is so defined that the Commissioner will be unable to concern himself with what are commonly called problems of racial imbalance; aside from the survey and report, the effect of these provisions will thus be felt mainly in the South, and only, if at all, in such school districts in the North as may be found to have intentionally gerrymandered school attendance areas for purposes of separating the races. The Attorney General's new authority to litigate school cases is similarly limited. One of the Dirksen amendments, moreover, was careful to provide that nothing in the title should be constructed to empower any court to order the achievement of racial balance through the transportation of pupils from one school to another.
Title V extends for four years the life of the Civil Rights Commission, an investigative body established by the Act of 1957, which has done some valuable fact-gathering in the past.
Title VI embodies the requirement that there be no discrimination in federally assisted programs (other than those assisted by way of contracts of insurance or guaranty), and empowers the President ultimately to withhold funds as a penalty for non-compliance. The title carries certain procedural safeguards, as it ought.
Title VII is headed “Equal Employment Opportunity.” It applies to any individual or corporate or other legal entity regularly employing 25 or more persons; to employment agencies, including the United States Employment Service and the system of state and local employment services which receive federal assistance; and to labor unions. Employers and labor unions are covered only if their activities affect interstate commerce. Unlike the public accommodations provisions, this title does not spell out the meaning of the technical phrase, “affect commerce,” for its own purposes, but adopts the well-established definition that has been evolved under the federal labor law, and that covers a very great deal, indeed. This title makes it unlawful for any employer to fail to hire or to discharge, or otherwise to discriminate, in compensation or other terms of employment, against any individual because of his color, religion, sex, or national origin. Similar prohibitions apply to employment agencies and to labor unions. The latter are also forbidden to cause an employer to discriminate, and apprenticeship and other training programs must be open to all without discrimination. Exemptions are provided for the case where religion, sex, or national origin may be a legitimate occupational qualification. With a view to demands recently voiced by Negro organizations in the North, the title specifically forswears any requirement of preferential treatment for the purpose of curing an imbalance in the racial composition of a given body of employees or apprentices.
Complaints of a violation of this title may be made either by a person aggrieved or by a member of the federal Equal Employment Opportunity Commission, which the statute establishes. The initial federal addressee of such complaints is the Commission. The Commission is to investigate and, without undue publicity, make every attempt to secure compliance with the law. Its visitatorial powers are considerable. It is authorized to examine witnesses under oath and require the production of documentary evidence, and it may seek the aid of federal courts when it runs up against a recalcitrant witness. It may require employers, labor unions, and employment agencies to keep relevant records and to make periodic reports, and it may cause them to post conspicuous notices on their premises informing all concerned of their rights and privileges under this title. In a state which has a fair employment practices law of its own, the local authorities are given a period of up to 120 days to deal with any complaint, and before that period is up, the federal Commission may not intervene. Elsewhere, federal jurisdiction attaches immediately.
In either case, if the federal Commission, having investigated and tried persuasion, fails to achieve compliance, an aggrieved individual may bring suit in a federal court, which is again empowered to appoint a lawyer for him and to award him a lawyer's fee if he wins. The court may not only order the defendant to stop discriminating on pain of contempt of court, but may also give special remedies, such as an order of reinstatement of an employee with back pay. The Commission itself has no litigating authority, except that it may initiate civil contempt proceedings when a decree handed down in a private suit has been disobeyed. As under the public accommodations title, the Attorney General is authorized to sue to enforce this title only When he finds that there is “a pattern or practice of resistance.”
Those portions of this title which establish the Commission and give it its investigatory powers went into effect, like the rest of the Act, when the President signed it. But the provisions defining and prohibiting discriminatory practices do not go into effect until a year later. There is that much of a period of grace and adjustment. Moreover, these provisions will become effective in 1965 only for employers of 100 or more. Another year will pass before they are applicable to employers of 75 or more, and they will be fully applicable to all employers covered after yet another year (that is, in 1967).
Of the remaining four titles, one (X) sets up the Community Relations Service; another orders a special census of voters, with a view to the highly remote and, on its merits, highly dubious possibility of applying Section 2 of the Fourteenth Amendment, which would cut down the representation in the federal House of states that deny the vote to some of their citizens. For the rest, there are some technical provisions, the most important of which, mentioned earlier, deals with jury trials.
Without question, this Civil Rights Act is a momentous statute, comparable in importance to the Interstate Commerce Act of 1887 and the reforms of the first Wilson administration and of the first two administrations of Franklin Roosevelt. In the long view, the significance of such a statute rises quite above this or that inadequacy in its provisions. The point is that it commits the federal government, and particularly Congress—which can do things neither the President nor the judiciary, despite their prior commitment, could do alone—to a set of national goals that reach beyond minimal constitutional requirements. The commitment is not likely to be revoked, and the goals are not likely to be reduced. Over the years, an organic enactment like this trails further judicial and legislative law in its wake. There will be interpretations and amendments, all striving to make it, like the federal union itself, “more perfect.” And they will be achieved, despite occasional setbacks, more easily than the initial step. Such a statute affects the expectations and aspirations of the people, and the sense of duty and function of the institutions of government. For everyone concerned, it changes the universe of discourse.
But that is the long view. More immediately, how will the Act be translated into everyday life, North and South? Its address is largely to the South. In its education and employment titles, and in some measure even in the voting and federal assistance titles, it explicitly excludes application to problems that are typically Northern. To be sure, grievances in the North are, by and large, difficult and in the short run often impossible to redress by legislation. They are rooted, on the whole, not in deficiencies in the legal order, or in blatant discriminations that can be stopped with immediately visible results, but in deeply intricate features of the society which can be reorganized only over time. For all that, however, it is regrettable that the Act on its face looks in many places like a regional measure, for this lays it open to the deadly charge that Northerners are mostly interested in dealing with the racial difficulties of others, but not with their own. Even so, the Act will not be entirely without effect in the North: it will have some supportive effect on extra-legal pressure applied by the Negroes themselves; the public accommodations and employment titles will activate similar laws that have lain in some disuse in many states; and these titles will be widely obeyed in the North, even by people who in the past chose to shut their eyes to the state statutes. Moreover, the Community Relations Service, which is not confined merely to seeking compliance with the mandatory provisions of the Act, may prove to be a useful presence in the North, too.
In the South, provided only that the Justice Department is given enough money to double or triple its staff of civil rights lawyers, registration of Negro voters and public school desegregation ought to pick up quite noticeably, even if there is no great movement toward voluntary compliance. Results should be forthcoming within a reasonably short time with respect also to federally financed programs, of which there are a great many, including hospitals, libraries, vocational training, aid to higher education, and more. The public accommodations and employment titles, affecting as they do the actions not only of officials but of many thousands of private persons and institutions, must, like all such pervasive regulatory measures, gain general acceptance, however grudging, in order to be effective. It will take, said Senator Goldwater, a police state to enforce this law, and he was almost right; it would take. Absolute enforcement of any statute that is resisted consistently and on principle by substantial numbers of people would require a police state. But we do not expect absolute enforcement in such circumstances. By means of occasional enforcement, pour encourager les autres, and by other means of inducement and persuasion, we undertake rather to reduce the number of those who resist. That is what is in prospect in the South for the public accommodations and equal employment titles, and that is why the Equal Employment Opportunity Commission and the Community Relations Service, which are inducing rather than enforcing agencies, are so important. Of course, inducement, persuasion, and mediation would not be very effective if the law did not declare in mandatory fashion some standard of behavior to which the mediators can urge people to measure up. And persuasion is not unnaturally hampered if an adamant refusal to be moved by it is known to be an alternative that never costs anything. Yet, while enforcement is a sword that is sometimes wielded, its chief uses are Damoclean.
At the beginning, however, litigation will play a role out of proportion to its eventual significance in rendering the public accommodations and equal employment titles effective. For although there will be some voluntary compliance almost immediately, some of it will await the outcome of the first round of litigation. As with all new statutes, there are issues of meaning and application about which doubt is legitimately possible, and which only litgation can authoritatively resolve. We may expect that the constitutionality of the titles dealing with public accommodations, employment, and federal financial assistance will be attacked at wholesale—the constitutionality of other provisions being for the most part quite specifically settled by existing decisions. Despite assertions to the contrary, there is no doubt that the public accommodations and employment titles are constitutional on their face and in general application, and that they will be so held by the Supreme Court in very short order. They rest on the power of Congress to regulate interstate commerce, a concept broadly defined in many contexts in the past, some of which—for example, wages-and-hour and child-labor legislation, the Pure Food and Drug Act, labor legislation in general, and the Mann Act—are quite analogous. Nor is there any doubt of the power of the federal government to set conditions on the disbursement of federal funds; indeed, under decided cases, there is considerable doubt whether the federal government may constitutionally allow its funds to be used in discriminatory fashion.
Beyond the constitutional issue, there will be questions of construction. Such questions, becoming increasingly marginal, will continue to arise throughout the life of the statute. A number of initial ones can be foreseen. There are sure to crop up in the South things like “intrastate hotels” accepting no interstate travelers, “intrastate theaters” offering only local entertainment, and all varieties of private clubs. Their bona fides will be subject to litigation, as will the question, assuming bona fides, whether the statute was intended to cover them. In one instance—in the case of restaurants—the statute speaks of a “substantial” connection with interstate commerce. It remains for litigation to determine just exactly what that means, and the concept of a substantial connection may be read into other portions of the statute as well. Again, the Attorney General's authority to sue is limited to cases where he finds a practice or pattern of resistance, under both the public accommodations and the employment titles. What does this phrase mean? What is its geographic coverage? Are statistics a sufficient proof of a pattern of resistance?
Before as well as after the first round of litigation, but particularly after, much will depend on the amount of pressure exerted by Negro communities, and on the effectiveness of the Community Relations Service and the Equal Employment Opportunity Commission. The quality of the President's appointments to those bodies, and the kind of public support he gives them, will be extremely important. The President's first appointment—that of former Governor LeRoy Collins of Florida as head of the Service—and the prominence he gave it, augur well for the future. But in any event, the goals are set and they are set high. They will be attained, sooner or later. This statute was the point of no return.