Foreign Relations of the United States, 1955–1957, Foreign Economic Policy; Foreign Information Program, Volume IX

101. Memorandum of a Conversation, Department of State, Washington, August 2, 1957¹

Washington, August 2, 1957

SUBJECT

• Alabama and South Carolina State Textile Laws

PARTICIPANTS

• Mr. Christian A. Herter, Acting Secretary of State
• Mr. Henry Kearns, Assistant Secretary for International Affairs, Department of Commerce
• Mr. William S. Kilborne, Special Assistant to the Secretary of Commerce
• Mr. Leonard S. Tyson, Acting Deputy Assistant Secretary for Far Eastern Economic Affairs
• Mr. Stanley D. Metzger, Assistant Legal Adviser for Economic Affairs (L/E)
• Mr. Thomas C.M. Robinson, Assistant Chief, Commodities Division (CSD)
• Miss Thelma E. Vettel, Assistant Officer in Charge, Economic Affairs

Assistant Secretary Kearns reviewed briefly the efforts which have been made by the Department of Commerce to obtain voluntary repeal of the laws in those two States which require the posting of signs by establishments which sell Japanese textiles. These efforts have been made by Secretary Weeks, former Assistant Secretary McClellan and Mr. Kilborne, working through representatives of the textile and other industries in Alabama and South Carolina. Mr. Kearns said that these efforts had not been successful. He said that although the interested people in those States were willing to permit the laws to remain unenforced, it would be impossible to get the proponents of the laws to reverse themselves so soon after their enactment (1956). It was his and Mr. Kilborne’s opinion that repeal would probably be unobtainable for two or three years. Mr. Kilborne believed that if we were patient the laws would be repealed in time. He added that it was the opinion of Mr. Jackson of the American Cotton Manufacturers Institute that it would be a matter of several years before repeal could be obtained. Mr. Kearns said he believed legal action by the Federal Government at this time would have unfortunate effects domestically and might adversely affect current negotiations on Federal–State relations. He wondered if the Japanese Ambassador understood that these laws were, in fact, not enforced.

Mr. Kearns was informed that the Ambassador, as well as the Prime Minister and other Japanese officials and members of the Japanese textile industry had been informed of this fact.

The Acting Secretary said that he believed the existence of these laws was disturbing to the Japanese regardless of their enforcement. He pointed out that foreign governments consider the mere existence of such laws to be a threat since they can be enforced at any time. He anticipated that we would hear more from the Japanese early next year if no progress had been made toward securing elimination of the laws. The Acting Secretary noted that the legislatures of some of the States meet only biennially and asked whether the legislatures of Alabama and South Carolina would meet in 1958. It was agreed that this information should be promptly ascertained.

The Acting Secretary requested that the Department of Commerce further explore the possibility of obtaining repeal of these laws and that the matter be reviewed again by the two Departments in the Fall. If efforts to obtain voluntary repeal of these laws are unsuccessful the Acting Secretary believed that it would be necessary to request the Attorney General to take legal action seeking their invalidation, but he agreed with Mr. Kearns that it would be desirable if this could be avoided. He emphasized the serious problem presented by the continued existence of these laws, regardless of their enforcement, pointing out that permitting these laws to remain on the books in violation of our Treaty of Friendship, Commerce and Navigation with Japan² constituted an invitation to other States to pass laws of any sort without regard to our treaty obligations generally. He believed that the U.S. textile industry had a great responsibility in this matter.

Mr. Kilborne said that, with the exception of the Southern Garment Manufacturers Association, the textile industry was anxious to have these laws removed. Their, efforts had been successful in preventing the passage of a similar law in Georgia, but Mr. Kilborne doubted that they had been instrumental in the defeat of the proposed legislation in Connecticut. He pointed out, however, that in the case of Alabama and South Carolina the problem was now in an area over which the textile industry had no control.

In reply to the Acting Secretary’s question Mr. Metzger said that although in other respects the two laws were identical, the penalty in one case included imprisonment as well as a fine, while in the other the only penalty was a fine. He added that in his opinion the two laws were unconstitutional on two scores: they represented State regulation of interstate and foreign commerce, a field reserved to Congress under the Constitution, and which Congress occupied by the enactment of marking legislation under the Tariff Act of 1930;³ and they are in violation of the Treaty of Friendship, Commerce and Navigation with Japan, and consequently invalid under the supremacy clause.

Mr. Tyson pointed out that the continued existence of these laws raised serious problems for the U.S. since it casts doubt on the ability and willingness of the U.S. to enforce its treaty obligations generally, it weakens the U.S. position in seeking corrective action when treaty commitments are violated by the Japanese and it gives the Japanese an excuse for imposing discriminatory restrictions against American products. It was pointed out that in this context Ambassador MacArthur had expressed concern over the existence of these laws.

With respect to South Carolina, the Acting Secretary wondered if an approach had been made to former Governor Byrnes.⁴ He believed that in view of his previous experience as Secretary of State, this was a problem which Governor Byrnes would fully understand, and that his influence might be more effective than that of the textile industry.

Assistant Secretary Kearns agreed to explore further the possibility of obtaining repeal and to be prepared to review the matter in the Fall. He expressed the hope that the Department of State would consider approaching Governor Byrnes.

1. Source: Department of State, Secretary’s Memoranda of Conversation: Lot 64 D 199, August 1957. Confidential. Drafted by Vettel.
2. See footnote 3, Document 60.
3. Public Law 361, enacted June 17, 1930; for text, see 46 Stat. (pt. 1) 590.
4. James F. Byrnes, Secretary of State July 1945–January 1947, and Governor of South Carolina 1951–1955.