COMMENTS OF WILLIAM REHNQUIST, MADE JUNE 15, 1964, AT THE PUBLIC HEARING ON THE PUBLIC ACCOMMODATIONS ORDINANCE PROPOSED FOR THE CITY OF PHOENIX

Mr. Mayor, members of the City Council, my name is William Rehnquist. I reside at 1817 Palmcroft Drive, N.W., here in Phoenix. I am a lawyer without a client tonight. I am speaking only for myself. I would like to speak in opposition to the proposed ordinance because I believe that the values that it sacrifices are greater than the values which it gives. I take it that we are no less the land of the free than we are the land of the equal and so far as the equality of all races concerned insofar as public governmental bodies, treatment by the Federal, State or the Local government is concerned, I think there is no question. But it is the right of anyone, whatever his race, creed or color to have that sort of treatment and I don't think there is any serious complaint that here in Phoenix today such a person doesn't receive that sort of treatment from the governmental bodies. When it comes to the use of private property, that is the corner drugstore or the boarding house or what have you. There, I think we-and I think this ordinance departs from the area where you are talking about governmental action which is contributed to by every tax payer, regardless of race, creed or color. Here you are talking about a man's private property and you are saying, in effect, that people shall have access to that man's property whether he wants it or not. Now there have been other restrictions on private property. There have been zoning ordinances and that sort of thing but I venture to say that there has never been this sort of an assault on the institution where you are told, not what you can build on your property, but who can come on your property. This, to me, is a matter for the most serious consideration and, to me, would lead to the conclusion that the ordinance ought to be rejected.

What has brought people to Phoenix and to Arizona? My guess is no better than anyone elses but I would say it's the idea of the last frontier here in America. Free enterprise and by that I mean not just free enterprise in the sense of the right to make a buck but the right to manage your own affairs as free as possible from the interference of government. And I think, perhaps, the City of Phoenix is not the common denominator in that respect but that is over on one side, stressing free enterprise. I have in mind, the state of the Housing Ordinance, last year, which a great number of people-you know, the opinion makers, leaders of opinions, community leaders were entirely for it. I happen to favor it myself and yet it was rejected by the people because they said, in effect, "we don't want another government agency looking over our shoulder while we are running our business". Now, I think what you are contemplating here is much more formidable interference with property rights than the Housing Ordinance would have been and I think it's a case where the thousands of small business proprietors have a right to have their own rights preserved since after all, it is their business. Now, I would like to make a second point very briefly, if I might, and that is on the mandate existing to this Council and this again, of course, is a matter of one man's opinion against another. As I recall, the position taken by the preceding Council, of which I know you, Dr. Pisano, Mr. Hyde, Mr. Lindner were all on, was that there would be no compulsory public accommodations ordinance and as I recall, when this Council ran against the Act Ticket, which I would have thought would be the logical ticket, if elected, to bring in an ordinance like this, nothing was said about any sort of change that the voters might guide themselves by in voting in this particular matter. I don't think this Council has any mandate at all for the passing of such a far reaching ordinance and I would submit that if the Council, in its wisdom, does determine that it should be passed, it has a moral obligation to refer it for the vote of the people because something as far reaching as this without any mandate or even discussion on the thing at the time of election for City Council was held is certainly something that should be decided by the people as a whole rather than by their agents, honorable as you ladies and gentlemen are. I have heard the criticism made by the groups which have favored this type of ordinance in other cities that we don't want our rights voted on but of course, it is they who are bringing forward this bill. The question isn't whether or not their rights will be voted upon but instead, it's a question of whether their rights will be voted upon by you ladies and gentlemen who are the agents of the people or the people as a whole.

Thank you very much for your time.

Mr. RAUH. What was the situation on June 15, 1964? The House of Representatives had included a public accommodations section in the civil rights bill it had passed two and a half to one in February, 1964. Five days before the Rehnquist statement, the Senate had adopted cloture on its bill; thus over two-thirds of the Senate had already expressed satisfaction with a public accommodations provision. Even more important the only argument made against public accommodations legislation in the Congress was that it was a violation of the interstate commerce clause and the 14th amendment.

You didn't have that argument in Phoenix. The police power of the city was adequate to cover the ordinance. In other words, the only argument that was ever put up in Congress was not applicable there. Here was a man so far removed from his times that he opposed the unopposable and he was alone in doing so.

Mr. Mitchell quoted Cloves Campbell as hearing Mr. Rehnquist say: "I am against all civil rights laws." But you didn't need Cloves Campbell to tell you that. Any man who would oppose a city ordinance on public accommodations would oppose any civil rights legislation. I challenge him to find any civil rights law that he could be for. If one could be against a city ordinance on this point, it is impossible to find a law such a person could be for. This was the least of interferences, the least drastic, the least everything; and yet he opposed it.

Well, if I may move on, why did he oppose the ordinance-Senator Cook has got my copy, but I think I remember the statement. Senator Cook. You can have it.

Mr. RAUH. You may keep it, sir; it was based on some indescribably high values he places on private property. That was the value, he said, that comes first-the right of the owner of the property against the right of the individual seeking service. Since I cannot state our position as eloquently as Mr. Mitchell, I will simply adopt what he said on this point.

Now, Mr. Rehnquist testified on June 15, 1964, and his was the only substantial testimony against the ordinance. The next day the city council passed it unanimously and you would think Mr. Rehnquist would have dropped the subject then. Oh, no; he had already testified; he had already been licked unanimously. You have got to say that this is a man of his convictions, as wrong as they are. He writes a letter to the Arizona Republic saying it all over again. No humility. When I talk about a judicial activist, I know whereof I speak-no humility that the entire city council had rejected his position—no humility that the House and Senate had rejected his position on a much more drastic proposition. He writes the same thing all over again to the Arizona Republic on what was wrong with what the Phoenix City Council had done.

In this letter, which I would offer for the record at this point, Mr. Chairman, in this letter he says, and I quote:

The ordinance summarily does away with the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers. By a wave of the legislative wand, hitherto private businesses are made public facilities, which are open to all persons regardless of the owner's wishes.

(The letter to the editor of the Arizona Republic referred to follows.)

PUBLIC ACCOMMODATIONS LAW PASSAGE IS CALLED "MISTAKE"

(By William H. Rehnquist)

Editor, The Arizona Republic: I believe that the passage by the Phoenix City Council of the so-called public accommodations ordinance is a mistake.

The ordinance is called a civil rights law, and yet it is quite different from other laws and court decisions which go under the same name. Few would disagree with the principle that federal, state, or local government should treat all of its citizens equally without regard to race or creed. All of us alike pay taxes to support the operation of government, and all should be treated alike by it, whether in the area of voting rights, use of government-owned facilities, or other activities. The public accommodations ordinance, however, is directed not at the conduct of government, but at the conduct of the proprietors of privately owned businesses. The ordinance summarily does away with the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers. By a wave of the legislative wand, hitherto-private businesses are made public facilities, which are open to all persons regardless of the owner's wishes. Such a drastic restriction on the property owner is quite a different matter from orthodox zoning, health, and safety regulations which are also limitations on property rights.

If in fact discrimination against minorities in Phoenix eating-places were well nigh universal, the question would be posed as to whether the freedom of the property owner ought to be sacrificed in order to give these minorities a chance to have access to integrated eating places at all. The arguments of the proponents of such a sacrifice are well known; those of the opponents are less well known.

The founders of this nation thought of it as the "land of the free" just as surely as they thought of it as the "land of the equal." Freedom means the right to manage one's own affairs, not only in a manner that is pleasing to all, but in a manner which may displease the majority. To the extent that we substitute, for the decision of each businessman as to how he shall select his customers, the command of the government telling him how he must select them, we give up a measure of our traditional freedom.

Such would be the issues in a city where discrimination was well nigh universal. But statements to the council during its hearings indicated that only a small minority of public facilities in the city did discriminate. The purpose of the ordinance, then, is not to make available a broad range of integrated facilities, but to whip into line the relatively few recalcitrants. The ordanance, of course, does not and cannot remove the basic indignity to the Negro which results from refusing to serve him; that indignity stems from the state of mind of the proprietor who refuses to treat each potential customer on his own merits.

Abraham Lincoln, speaking of his plan for compensated emancipation, said: "In giving freedom to the slave, we assure freedom to the free-honorable alike in what we give and in what we preserve."

Precisely the reverse may be said of the public accommodations ordinance: Unable to correct the source of the indignity to the Negro, it redresses the situation by placing a separate indignity on the proprietor. It is as barren of accomplishment in what it gives to the Negro as in what it takes from the proprietor. The unwanted customer and the disliked proprietor are left glowering at one another across the lunch counter.

It is, I believe, impossible to justify the sacrifice of even a portion of our historic individual freedom for a purpose such as this.

Mr. RAUH. Mr. Rehnquist calls this a "drastic restriction" on the property owner. He talks about the freedom of the property owner being "sacrificed." He talks about the "indignity" to the proprie tor, and ends

It is, I believe, impossible to justify the sacrifice of even a portion of our historic individual freedom for a purpose such as this.

What was the purpose? To allow Negroes to enter a drug store. What does Mr. Rehnquist say in answer when he was asked about this matter? At page 145 [of the typewritten transcript] of the record,

he said that he had changed his mind. When Senator Bayh gave him a chance at page 255 of the record to say whether he changed it before he was appointed to the Supreme Court, he didn't answer.

Senator BAYH. If I might interrupt there, will you recount why he said he changed his mind?

Mr. RAUH. Yes, Senator Bayh. He said two things: First, the ordinance had worked. That is a wonderful reason to change one's mind; apparently Negroes were so well behaved that no problem arose when they exercised their rights. Probably they were not rich enough to go to the places anyway. But the issue was one of principle, not whether the ordinance worked.

Then he said a remarkable thing. He said that he hadn't realized that minorities really cared about this. That is one of the strangest statements-that anybody would not realize in 1964 that minorities cared about their rights. One might have said that 25 years earlier. But how could he say he had not known that minorities cared after the NAACP had been fighting for these things since the early 1900's, after Dr. King had dramatized these things, after people had died for these rights-and he said that he didn't know they cared.

Finally, I would respectfully suggest that Mr. Rehnquist should be cast with King Henry IV of France who said, "Paris is worth a mass.” On that principle he was apparently prepared to change what he had said before-that he was against all civil rights legislation.

Senator HART. Mr. Rauh, I know you are paraphrasing, but if I am looking at the correct page of the transcript, what Mr. Rehnquist said to Senator Bayh was:

I think the ordinance really worked very well in Phoenix. It was readily accepted and I think I have come to realize since more than I did at the time the strong concern that minorities have for the recognition of these rights.

Mr. RAUH. Thank you, sir; that is the exact language I was referring to. I paraphrased it, I think, accurately, sir.

Senator HART. I don't quarrel with your paraphrase, but I thought it was appropriate that we put it in the exact language, too. Mr. RAUH. Thank you, sir.

The third point on civil rights is the Arizona legislation.

Mr. Tunney said at page 161 of the transcript, "There was no State legislation?" Mr. Rehnquist said, "Right."

Well, I happen to have the statute here. For anybody who wants to look it up, the State legislation was passed on-in 1964 and signed in 1965; it is in Arizona Revised Statutes Annotated. I cannot understand how Mr. Rehnquist would have suggested that there was no such legislation. All the press reported that he had opposed it. Indeed, the statement that Mr. Mitchell has on the confrontation was at the time the legislation was being passed in the State legislature. Now,

Senator Cook. Do you have the dates of the Arizona statute as to when it was passed and when it was signed into law?

Mr. RAUH. Adopted by laws 1965, chapter 27, section 3, Senator Cook. What I have here, of course, is the Arizona Revised Statutes, but, as I see here, it says, "Article 1 consisting of sections 41-1401 to 41-1403 added by laws 1965, chapter 27, section 3." It sets up an Arizona Civil Rights Commission and provides an Arizona public accommodations statute and an Arizona voting rights statute. Senator Cook. 1965, not 1964?

Mr. RAUH. It is my understanding, sir, it was adopted in 1964 and signed in 1965. It was at the end of the year, sir, is my understanding, but it is easy enough to get it. I can supply it. What I have to do is get the original yearly statute book, rather than the compilation I have.

Senator Cook. I just was not aware of any State legislature that met through the fall and through Christmas and New Year's into the new year.

Mr. RAUH. I would like the privilege of getting the exact dates from the statute book, whereas what I have here is the compilation which indicates it was added by laws 1965.

Now, certainly this matter should be cleared up. We have now an affidavit that there was quite an altercation on the steps of the Capitol on this statute which Mr. Rehnquist said didn't ever occur. So that ought to be cleared up.

Fourth, the issue of desegregation. Here again we have a letter to the Arizona Republic, a voluntary intervention against desegregation of de facto school segregation.

To me, the most shocking quote is this:

We are no more dedicatd to an "integrated" society than we are to a "segregated" society.

How could a man 13 years after Brown-for this letter was written in 1967 and I would like to offer it for the record

Senator Hart. It will be received.

(The letter referred to follows.)

'DE FACTO' SCHOOLS SEEN SERVING WELL

(By William H. REHNQUIST)

The combined effect of Harold Cousland's series of articles decrying "de facto segregation" in Phoenix schools, and The Republic's account of Superintendent Seymour's "integration program" for Phoenix high schools, is distressing to me. As Mr. Cousland states in his concluding article, "whether school board members take these steps is up to them, and the people who elect them." My own guess is that the great majority of our citizens are well satisfied with the traditional neighborhood school system, and would not care to see it tinkered with at the behest of the authors of a report made to the federal Civil Rights Commission. My further guess is that a similar majority would prefer to see Superintendent Seymour confine his activities to the carrying out of policy made by the Phoenix Union High School board, rather than taking the bit in his own teeth.

Mr. Seymour declares that we "are and must be concerned with achieving an integrated society." Once more, it would seem more appropriate for any such broad declarations to come from policy-making bodies who are directly responsible to the electorate, rather than from an appointed administrator. But I think many would take issue with his statement on the merits, and would feel that we are no more dedicated to an "integrated" society than we are to a "segregated" society; that we are instead dedicated to a free society, in which each man is equal before the law, but in which each man is accorded a maximum amount of freedom of choice in his individual activities.

The neighborhood school concept, which has served us well for countless years, is quite consistent with this principle. Those who would abandon it concern themselves not with the great majority, for whom it has worked very well, but with a small majority for whom they claim it has not worked well. They assert a claim for special privileges for this minority, the members of which in many cases may not even want the privileges which the social theorists urge be extended to them. The schools' job is to educate children. They should not be saddled with a task of fostering social change which may well lessen their ability to perform their primary job. The voters of Phoenix will do well to take a long second look at the sort of proposals urged by Messrs. Cousland and Seymour.