by Risen, Clay
Seated to Celler’s right on the committee dais was the ranking Republican, William M. McCulloch of Ohio. The two were close friends, but aside from their abiding interest in the law—McCulloch, like Celler, had a healthy legal practice back home—they had almost nothing in common. Celler was the product of New York’s working-class, immigrant cosmopolitanism; McCulloch was born in 1901 on a farm outside the central Ohio hamlet of Holmesville, the descendant of abolitionists who had settled the area in the decades before the Civil War.36
After college, McCulloch moved to Jacksonville, Florida, to practice law. In rural Ohio, he had lived in a monochromatic world where he rarely saw blacks; in Florida he saw the awfulness of racism in its most mundane yet hideously arbitrary forms—one department store might forbid blacks from using a dressing room, while another might bar them from coming in at all. McCulloch had been raised to believe that racism was the product of ignorance and that intelligent, educated people like himself would know better than to traffic in prejudice. Yet here he was, mixing with local lawyers and businessmen who proved often to be the most vicious defenders of Jim Crow racism. “It’s amazing how persons of good education and good business experience are so personally prejudiced,” he told an interviewer years later.37
McCulloch returned to Piqua, Ohio, where he opened a law practice. But he also grew active in local civil rights politics, acting as an adviser to the Piqua branch of the NAACP in its push to desegregate the city’s restaurants. He won election to the House of Representatives as part of the Republican landslide of 1946—even though, as one reporter later wrote, “his personality was so cold many observers classed him as an arrogant stuffed-shirt individual.”38
McCulloch’s early years in the House were defined by the clash between his strict adherence to small-government, balanced-budget conservatism and his quiet, rock-hard commitment to civil rights—all the more surprising given that only 2.7 percent of his voters were black. He continued to support efforts to end government-sponsored segregation, but he was wary of laws that intruded on private property, like FEPCs, a position that drew the ire of the Cleveland Call and Post, the state’s largest black newspaper. Yet in 1956 and 1957, he led the House Republicans in not only supporting Eisenhower’s civil rights bill, but defending it against efforts by Senate Majority Leader Johnson to weaken it—a campaign that led the Call and Post to revise its previous assessment. “Red-haired mustached Bill McCulloch has proved our judgment of him was a gross mistake,” wrote John Combs, one of the paper’s political columnists.39
McCulloch sponsored Eisenhower’s 1959 civil rights bill, which required the retention of voting records, extended the Civil Rights Commission, and gave courts the power to appoint election referees where rights violations were known to occur—a small bill, to be sure, but McCulloch put the best spin he could on it. When House Rules committee chairman Howard Smith claimed that the bill would put manacles on the South, McCulloch retorted, “We have no intention of putting manacles on anyone. On the other hand, I would like to break the chains that have held others in bondage and denied them their constitutional rights.”40
Yet like many Republican civil rights advocates, McCulloch’s relationship with pro-civil-rights Democrats, and the movement, was strained. To him, liberals were either inept idealists or crass opportunists, who saw civil rights as a tool for grandstanding and gaining black votes—but not, in his mind, achieving the sort of incremental results that he felt were the only realistic way forward. He called out the Department of Justice’s 1962 literacy test bill, which would declare anyone with a sixth-grade education as literate enough to vote, as “very limited,” noting that millions of black adults lacked such qualification and even Abraham Lincoln would not have made the cut.41
McCulloch was particularly incensed over the way Johnson and the congressional Democrats had conspired to pare back the 1957 civil rights bill after so many Republicans, under McCulloch’s direction, had risked their political standing at home to support it in the House. That betrayal still grated at him in June 1963, when the administration asked him to cosponsor, with Celler, H.R. 7152—a request that he swiftly rejected, not wanting to tie himself too closely to a piece of legislation that the Democrats might well drop or water down in the future, or, should the two parties manage to get it safely to passage, claim as their own.42
And, after all, the Republicans had their own bills on the table. By mid-June 1963, more than a hundred major civil rights bills sat before the House, many of them Republican-sponsored, and many of them in the Judiciary Committee. Even at this early point, national attention was focused on how the bill would fare before a Senate filibuster. But how the two parties—and these two powerful representatives—navigated the partisan politics in the House would determine whether the bill made it to the Senate in the first place.
On May 8, while the Birmingham crisis reached its highest pitch, Celler had opened hearings in Subcommittee No. 5 on 89 of those bills—41 from Democrats, 49 from Republicans. The nation, Celler said in his opening statement, was on the brink of disaster. “The deprivation of civil rights to a class of our citizens has, we must admit, led to smoldering resentment by the dispossessed and this smoldering resentment has to explode,” he said. McCulloch endorsed Celler’s statement, and extended the committee’s view from the South to the rest of the country. “What is happening in Little Rock and New Rochelle, in Oxford and Chicago, in Birmingham and Rapid City, is convincing truth that tension exists and resistance remains.” The country, he said in an echo of some of the most liberal commentators on the race crisis, was undergoing a sea change “in the state of minorities from that of master-servant to that of brother-to-brother.”43
The hearings, however, drew almost no public attention, and even the sub-committee members paid only passing notice. Then, shortly before 10:00 a.m. on June 26, Robert Kennedy, with Marshall in tow, marched through the French doors of Room 346 of the Old House Office Building to address Subcommittee 5. Suddenly, the civil rights hearings were the hot ticket on Capitol Hill. The subcommittee had eleven members, and all were present. Another fourteen members from the full committee had been allowed to join the committee behind its horseshoe-shaped dais. There was space for just seventy seats in the audience, and the room was packed to standing room only with reporters.44
Kennedy had a difficult task: he had to defend the administration’s previous efforts, explain why circumstances merited a more robust approach, beat back the liberal Republicans’ own legislation—and yet also portray the bill as a moderate, pragmatic solution that conservative Republicans could endorse.
He did this by inverting the history of the last two and a half years: rather than using the federal government’s circumscribed powers on civil rights as a cover for doing nothing, as his department had done, he claimed that the administration had done the most it could with the limited tools at its disposal. “We have made significant progress in enforcing the Civil Rights Acts of 1957 and 1960,” he said. But the past several months had demonstrated that the federal government needed the power to do more. “The events that have occurred since the President’s first message—in Birmingham, in Jackson, in nearby Cambridge, in Philadelphia and in many other cities—make it clear that the attack upon these problems must be accelerated.”45
Kennedy also defined the core of the bill: Title II, rooted in the Commerce Clause, a discussion that took up a third of his twenty-five-page statement. “Discrimination in public accommodations not only contradicts our basic concepts of liberty and equality, but such discrimination interferes with interstate commerce and the development of unobstructed national markets,” he said. He also tried to preempt what had already become the leading Southern Democrat talking point against the title: that it violated property rights by forcing business owners to serve everyone equally, regardless of race. “Some of those who complain most loudly about interference with private property rights, ironically, are often those who most stoutly defend the laws, enforced
by a number of states, which forbid Negroes to be served,” he said (an echo of Samuel Johnson’s 1775 quip, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”).46
His statement over, the attorney general began to take questions from the committee, and immediately ran into problems in the form of hostile questions from his critics, cold shoulders from his allies, and a surprising ignorance of the bill’s mechanics on his own part. In response to a query about the limits of the title, Kennedy said that the key criterion was how involved a business was in interstate commerce. “As far as the department store, retail shop, market, drugstore, gasoline station, and lunch room are concerned, the establishment must be involved to a substantial degree with interstate commerce,” he said. “So that takes it out of the category of just the very small.”47
“What is meant by substantial?” asked Celler.
“It is more than just minimal.”
“I take it the legal phrase de minimis is used.”
“I translated it, Mr. Chairman,” Kennedy said testily.
None of this was very satisfactory to the rest of the panel, especially the liberal Republicans from the main committee who were sitting in for the day. The bill did, after all, include language connecting it to the Equal Protection Clause of the Fourteenth Amendment, which would ban discrimination by a business licensed in any way by the government, down to the smallest barbershop. But it pointedly did not rely on the Equal Protection Clause, and instead made the Commerce Clause its primary justification. According to the administration, the Fourteenth Amendment had been rendered so narrowly applicable by the Supreme Court in the post-Reconstruction era that even with the changing times, the administration did not want to take an unnecessary constitutional risk. But the other obvious, but unstated, reason was political: the Fourteenth Amendment was a “Republican” tool, passed by a Republican Congress after the Civil War, while Franklin Roosevelt had used the Commerce Clause to greatly expand the power of the federal government during the Depression. This was a slight that many liberal Republicans could not abide.
By midafternoon, the questions still had not moved off Title II. At one point Kennedy let himself get trapped into admitting that “it is very possible that you could have an establishment, for instance, in a city or community that didn’t have anything to do with interstate commerce”—and thus untouchable by the bill. And he agreed that “Mrs. Murphy,” a hypothetical widowed owner of a small boardinghouse, should not be covered. Though this limit was always part of the administration’s plan, the next day newspapers depicted Kennedy’s answer as a major concession, and evidence that the administration planned to jettison much of the bill as it made its way across Capitol Hill.48
As the day drew on, Kennedy grew more testy and dismissive in his answers. George Meader, a Michigan Republican, asked Kennedy if he was familiar with the Republican bills. “I am not,” Kennedy said, with impolitic insouciance. “I think the chairman said, there are 165 bills, or 365. I have not read them all.”49
Meader seemed to find the attorney general’s answer acceptable, but his colleague from the full committee, John Lindsay of New York, did not. As Meader was rambling on about the Fourteenth Amendment, Lindsay interjected, “Would you yield to me?”
Meader gladly gave Lindsay the floor.
“I am quite deeply disturbed, Mr. Attorney General,” Lindsay began, “that you have never bothered to read this very important legislation that was carefully drafted and introduced by four of us on the minority side of this committee and many additional Republican members, long before the administration saw fit to take any position on this subject at all.” Lindsay had recently introduced his own public accommodations law, to complement the raft of bills introduced by Republicans introduced since the first of the year. What is more, Lindsay said, his bill relied on the Equal Protection Clause, which would sidestep the need to analyze the size of each business to see if it met the interstate commerce test. And, he said, this being 1963, eighty years after the Supreme Court’s disastrous ruling on the Equal Protection Clause, there was little chance the title would be found unconstitutional.50
“Congressman, I am sorry I have not read all of these bills and I am sorry I have not read your bill,” Kennedy snapped. “I personally think, I join with you, that the Supreme Court probably would uphold it. But the fact is that there is a Supreme Court decision on the books at the present time which declares it unconstitutional. That is the law of the land at the present time.”
That set Lindsay off. “In view of the fact that you apparently did not consider these bills at all I can’t help but ask the question as to whether or not you really want public accommodations legislation or not.” Then he turned up the heat a little more. “Let us be frank about it. The rumor is all over the cloakrooms and corridors of Capitol Hill that the administration has made a deal with the leadership to scuttle the accommodations” title.
Celler jolted up. “If I am part of the leadership I have not heard of it.”
“I am not referring to the chairman,” Lindsay said.
“Let us confine ourselves to specifics and withdraw all rumors,” Celler said. But he had lost hold of the reins.
“My question is,” continued Lindsay, “is the administration prepared to press for public accommodations legislation even though the Congress has to stay here until New Years to get it through? Will you settle, if necessary, for the Fourteenth Amendment approach, the Lindsay approach, in order to get a maximum number of votes to get a bill through? I am not sure that you can get a bill through which is based on the Interstate Commerce Clause.”
Kennedy struggled to contain himself. “There were an awful lot of statements made, Congressman. I am surprised by this, but maybe I shouldn’t be, that you would come out here in this open hearing and say that you heard these rumors and have nothing more to substantiate them than the fact that you have heard rumors in the cloakroom. I think it has been made clear, and I don’t think that the President nor I have to defend our good faith in our efforts here to you or to really anyone else.”
Lindsay pulled back. “I think we can agree on one thing which is that we want a bill,” he said. “I am not sure that you have the votes or can get the votes if you insist on just the one method and this is what troubles me.”
A few minutes later, he leaned back to his aide Robert Kimball, his point person on civil rights and the author of several of the Republican bills. “Do you think I was too hard on him?” Lindsay asked.
“Well maybe a little,” Kimball said. “But I can understand why you were.” Lindsay was serious about civil rights as a Republican issue and had been working hard on his own bill for months—only to see the attorney general ignore it. “I thought somebody should say something,” Lindsay said. But there was a personal element to the attack: Katzenbach later recalled that the two men had once had a shouting match during a party at the Manhattan home of George C. Lodge, the son the Massachusetts Republican senator Henry Cabot Lodge Jr., and had carried a mutual grudge ever since; it is also possible that Lindsay foresaw the day when Kennedy would decide to run for office himself and turn to New York City—Lindsay’s territory—to establish his base.51
Personal politics aside, Kennedy had clearly made a gaffe by dismissing Lindsay’s proposal so summarily. It insulted not only a leading liberal Republican, but by extension the entire Republican Party, the support of which the White House desperately needed. But there was good reason to be wary of the Fourteenth Amendment, aside from the constitutional question. If enforcement relied on licensure, then all a recalcitrant state needed to do to get out from under the law was to amend or even dissolve its licensing system. That might be a bad thing for public health—without it, anyone could be a barber, or a doctor—but it would keep the federal government from enforcing desegregation.
There was another significant exchange that day. At one point William Miller, a Republican from western New York who was serving as the chairman
of the Republican National Committee (and would be Barry Goldwater’s running mate in 1964), asked whether Title III, which dealt with school desegregation, also mandated school integration—in other words, whether districts with schools that were legally open to all, but were overwhelmingly white or black thanks to housing patterns, were required to take active steps to achieve racial balance. In New York, he said, “it would necessitate the cost of hundreds of thousands of dollars just to create a racial balance and would possibly require white students to spend two or three hours on a bus just to get to another school to comply with racial balance.” Miller’s was not an idle question—on June 18, James Allen Jr., New York’s state education commissioner, said that it was not enough to ban segregation, but that the state also had to eliminate “racial imbalance.” De facto school segregation was, beside fair housing, the hottest racial topic in Northern communities; just a few weeks earlier, nearly a hundred people had crammed into a school board meeting in Boston to demand that the city begin bussing students to achieve racial balance.52
The question caught Kennedy off guard; he was so focused on addressing Southern civil rights issues that he had given scant thought to the concerns of the rest of the country. “It is not our objective to try to get balance because perhaps that is not the best way to proceed,” he said. “But at least we felt it should start to be explored and communities which are dealing with this problem should have the benefit of expert advice and perhaps some economic incentive to try to deal with it.” Still, Miller’s question hinted at a whole new front of opposition to the bill, and another area where it failed to address the concerns of blacks living outside the South.53
