Senator HART. Thank you very much.

Senator ERVIN. I am sorry to have detained you so long.

Mr. AUTRY. Mr. Chairman, the next witness is the Honorable John Sparkman, Senator from Alabama, and chairman of the Subcommittee on Housing of the Senate Labor and Public Welfare Committee. Senator ERVIN. Senator, we are delighted to have you with us.

STATEMENT OF HON. JOHN SPARKMAN, U.S. SENATOR FROM THE STATE OF ALABAMA

Senator SPARKMAN. Thank you, Mr. Chairman. Mr. Chairman, for 30 years I have worked to provide safe, decent, and sanitary housing for America's citizens.

Senator ERVIN. If I may interject myself at this point, I would say that there is no human being in the United States who has done as much to accomplish that purpose as you have.

Senator SPARKMAN. Thank you, Mr. Chairman.

Legislation which I have sponsored and legislation which I have supported has made it possible for millions of Americans to own their own homes.

I think I may say that I know something about housing and some of the problems connected with it. And that is why I am dismayed by the housing provisions of the legislation you are considering today.

As a lawyer, I am disheartened by the provisions of the proposals which would limit State power of law enforcement and which would further erode the principle of federalism.

And as an American, I am hopeful that this bill will not become law. My first objection to the housing provision is that it clearly violates the right to the free use and disposal of property.

Throughout the history of Anglo-American law, the distinguishing feature between types of ownership has been in the degree to which an individual could use and dispose of his property.

Mr. Chairman, this bill, if adopted, would irrevocably destroy that right. The private owner would no longer have a free choice in selecting his buyer. He would no longer have a free choice of sales price or conditions of sale. The landlord could not exercise his own free will in selecting the tenants who will share his home with him. Let me emphasize that this bill applies to every room for rent in every home in America, every apartment and every house. There are no exceptions.

The legal significance of the property right was recognized by the eminent jurist, Blackstone, when he observed:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole *** dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

Now, Mr. Chairman, things have changed since Blackstone. The property right is no longer an absolute right. But in those areas where it has been limited, there has been a tangible real harm from which the society had to be protected. And there has been a strong legal basis for the protective action.

Where is the legal base for this action that is proposed?

This invasion of rights applies equally to homes which in no legal or logical manner are connected with interstate commerce.

This invasion of rights applies equally to property transactions which create no threat to the peace, security, health or safety of a community and hence provide no legal basis for the proper exercise of State police power.

This invasion of rights cannot be said to rest upon the "due process" clause of the 14th amendment. Interpretation of that right has uniformly been that it applies only to action by State agencies, and not to those of individuals.

Where is the legal basis for such repugnant Federal action?

The answer, Mr. Chairman, is that there is none.

It is an arrogation of power, unprecedented, unjustified, and unwise. But strong voices have been raised in support of this bill.

We are told that this bill is the ultimate action to solve all social problems. We are told that this bill is a panacea, a cureall for our Nation's social ills.

But, Mr. Chairman, we have heard that argument before. With the introduction of every so-called civil rights bill in the past, advocates of each bill have told us in effect, "This is the last one. This is the answer."

What has been the result? There have been street demonstrations, and disorders with the passage of each new bill.

There has developed a malignant theory that if a group has a gripe in our society, it takes to the streets to solve it.

The results of each and every piece of so-called civil rights legislation in the past should be proof enough that the Congress cannot legislate solutions to problems of human relations. Social engineering by legislative edict has been proved grossly ineffective.

We are also told that this bill is addressed to the controversy between property rights and so-called human rights. And we are asked to believe that somehow the former are unworthy and the latter are an ultimate good.

The first answer to that argument is that the ownership of property is a human right.

The second answer is given by no less a liberal spokesman for human rights than Walter Lippmann when he said:

It has been the fashion to speak of the conflict between human rights and property rights, and from this it has come to be widely believed that the cause of private property is tainted with evil and should not be espoused by rational and civilized men. In so far as these ideas refer to . great impersonal corporate properties, they make sense. . . But the issue between the giant corporation and the public should not be allowed to obscure the truth that the only dependable foundation of personal liberty is the personal economic security of private property. Mr. Lippmann went on to draw the conclusion "Private property was the original source of freedom. It is still its main bulwark."

Now, Mr. Chairman, those of us who support this point of view are always the subject of attack. We are pictured as supporting the greedy landlord who stands in the doorway turning away the poor, but deserving applicants. We are labeled "bigots," and we are told that we are biased, reactionary, ignorant, and prejudiced.

These labels are but semantic substitutions for thinking, which cannot obscure the fact that this proposal simply means a Federal official can tell me to whom and under what circumstances I can sell my home.

This proposal simply means that my freedom of choice and freedom of association must be sacrificed for no legal reason and for no rational basis.

I think also, Mr. Chairman, that this bill, if passed, will have results not anticipated by its supporters. Consider the following hypothetical example: A church group which had purchased property for construction of a home for its elderly could not legally build such a home for the exclusive use of members of its faith. This example is but one of many that show the danger of such sweeping delegation of power.

I may say, Mr. Chairman, I take a great deal of pride in legislation that I sponsored that made it possible for the building of homes specially designed for elderly people, and as might well be expected, the various church groups throughout the country have been leaders in taking advantage of that program that is provided for under the law, of providing a place where their elderly retired people may live, and this bill, if enacted into law, would destroy that very helpful program that has been designed and has been accomplishing so much good. Many more could be given, but I think this is a good example. That leads me to the final objection I have to this part of the bill. The whole process of democracy is one designed to draw legal, rational limits between the rights of various citizens. No right is an absolute right.

We all know that the right to free speech does not extend to shouting "fire" in a crowded theater. It has been said that my right to swing my fist ends at my neighbor's jaw.

In like manner, this bill is an attempt to choose between two national policies. The right of the property owner to sell, rent, or lease his property is a right supported by many centuries of Anglo-American law.

The right of a buyer to buy any house anywhere is a right never before established.

I believe that it is at this point that we must support the established right. The fundamental difference between our free enterprise system and totalitarianism is the right of free property.

This bill infringes on that right.

But the weaknesses of this bill are not confined to any one section. Other sections of the bill attack the traditional Federal-State relationships in State law enforcement matters and the selection of State juries.

Congress has no legal right to destroy the division that has always existed between the Federal and State legal systems, and it was established under the Constitution itself. This action is nothing but a naked encroachment on the valid legal power of the State.

You know, Mr. Chairman, the erosion of the principle of federalism is a phenomenon so often occurring that I fear it is beginning to lose its impact. No greater indictment could be made of our performance as national legislators than that we failed to understand the significance of that erosion.

During my 30 years in Congress, I have witnessed more and more attempts by various groups to resolve all their problems at the Federal level without even considering that there might be a workable solution found at the local level. I for one, am a firm believer in the

abilities and aptitudes of the many fine people responsible for our local governments.

Many problems call for a special solution which can best be determined by local initiative. I submit that the Federal Government does not always have the last word in problem solving. True, situations arise in our complex society which call for assistance from the Federal Government and this cannot be ignored.

But as legislators, we should allow the States and the local communities to meet the challenge of resolving their own difficulties before running to Washington to seek a solution.

Mr. Chairman, I have confidence in the people at the grassroots level.

No greater attack could be made on any bill than that it furthers the destruction of federalism.

The ignominious proposal to put the Federal Government in the business of selecting state juries deals a lethal blow to our dual system of government.

The right to trial by jury is one of the oldest and most cherished rights of man. It was Thomas Jefferson who, in his first inaugural address said that:

Trial by juries form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.

For centuries the right to trial to jury has been one of the bulwarks against tyranny. The jury trial is one of a citizen's oldest protections against the power of the sovereign.

This bill destroys that protection because the sovereign is now involved in choosing the jury.

The jury system is worth protecting. It is the best trial system ever devised by freemen. It should not be tampered with.

Federal jury packing is not the answer to any problems of our society.

In summary, Mr. Chairman, this bill is an ill advised attempt to subvert the rights of States and the rights of peoples to the arbitrary commands of the Federal Government.

This bill rests on no legal basis and its passage would be a serious blow to basic American philosophy and American law.

It must be rejected.

Senator ERVIN. Senator, I would like to call your attention to a magnificent statement by Justice Harlan in his concurring opinion in Peterson v. Greenville 373 U.S. 244. He says in effect that in controversies of this kind we have a clash between liberty and equality. I wanted to direct your attention to this:

Freedom of the individual to dispose of his property as he sees fit, to be arbitrary, capricious, even unjust in his public relations are things entitled to a large measure of protection from governmental interference. This liberty would be over-ridden in the name of equality if the strictures of the 14th Amendment were applied to governmental and private action without distinction.

Don't you agree that if a man has to conduct himself according to the dictates of the Government, he has no liberty? And isn't one of the fundamental purposes of this bill to deprive him of liberty in respect to his private property?

Senator SPARKMAN. I think the statement of Justice Harlan is incontrovertible, and I certainly agree with the conclusions stated by the distinguished chairman.

Senator ERVIN. And he adds to this opinion, also, something that you called attention to very eloquently:

Also inherent in the concept of state action are values of Federalism, a recognition that there are areas of private rights upon which federal power should not lay a heavy hand and which should more properly be left to the more precise instruments of local authority.

Now do you know of any decision ever handed down which holds that the Federal Government has power to legislate in respect to the title to real estate or the use of real estate within the borders of the State, in the hand of private owners?

Senator SPARKMAN. None whatsoever.

Senator ERVIN. Hasn't it always been considered that under the Constitution, the sole power to regulate the disposition and the use of privately owned property belongs to the States and that the Federal Government has no authority whatever in this field?

Senator SPARKMAN. I certainly agree with that statement.

Senator ERVIN. And isn't the housing provision of this bill totally incompatible with that principle?

Senator SPARKMAN. It certainly is, in my opinion.

Senator ERVIN. I want to call your attention to something in the report from the Library of Congress by Vincent A. Doyle, which I am making a part of the record at the request of the distinguished Senator from Michigan. Mr. Doyle says this:

There is not much doubt that Title IV lays a heavy federal hand on areas of rights which have heretofore been considered private. It admits of no exceptions to its restrictions. The private religious home which rents accommodations to the elderly of its faith would no longer be able to exclude members of other faiths. The Swedish Old Folks Home would be required to open its doors to the elderly of other ancestries. The owner of a home who has fallen upon hard times and decides to rent a few rooms to tide him over would have his choice of tenants circumscribed.

As I construe that statement, it is in complete harmony with the points which you have made in your statement.

Senator SPARKMAN. I think it coincides.

Senator ERVIN. Now in Forsyth County, N.C., at the present moment members of the Jewish faith are erecting a home for elderly members of their faith.

I will ask you if this bill should become law and be upheld as valid, could not members of other faiths go there and compel the manager to receive them as renters notwithstanding the fact that the home was built by Jews solely for the benefit of the elderly of the Jewish faith.

Senator SPARKMAN. That would be true. That would be the case. Senator ERVIN. Is there not a principle known as freedom of association which is sanctioned by the first amendment as interpreted by the Supreme Court of the United States in a number of cases, and does not this principle guarantee to all Americans the right to associate together to accomplish legitimate purposes?

Senator SPARKMAN. It certainly does.

Senator ERVIN. And while no law is valid which bars a man's power to sell or rent his property to any individual of any race or religion, didn't the Supreme Court declare in Shelley v. Kraemer that