centage than any other community in the city of Philadelphia, and I think that statement ought to be made to show the good will of the residents of the community. We do welcome Mr. Emlen here and his counsel.

Senator ERVIN. We certainly appreciate your appearance and your introduction of Mr. Emlen. I will make a confession at this point similar to the one you have just made, and that is I also have a few constituents that don't share the same views I maintain on all subjects. Senator SCOTT. Judging from the returns every 6 years, you seem to have a substantial majority in agreement with you.

Senator ERVIN. Thank you. You may proceed. We are delighted to have both of you gentlemen with us.

STATEMENT OF ALAN L. EMLEN, CHAIRMAN, REALTORS' WASHINGTON COMMITTEE, NATIONAL ASSOCIATION OF REAL ESTATE BOARDS; ACCOMPANIED BY JOHN C. WILLIAMSON, COUNSEL FOR THE REALTORS' WASHINGTON COMMITTEE, WASHINGTON, D.C.

Mr. EMLEN. Mr. Chairman, any questions that the committee would have to ask me in connection with law, points of law and the Constitution, I would like the privilege of referring them to my counsel, Mr. Williamson.

Mr. Chairman and members of the subcommittee, my name is Alan L. Emlen and I am a real estate broker with offices in Philadelphia. I have been engaged in the residential real estate brokerage business in the Philadelphia metropolitan area for 21 years. My firm maintains five offices in Philadelphia and contiguous suburbs. I am also a former member of the Pennsylvania Real Estate Commission. I appear today as chairman of the Realtors' Washington Committee of the National Association of Real Estate Boards to present the views of the association in opposition to title IV of the pending Civil Rights Act, S. 3296.

Our association consists of more than 83,000 realtors who are members of more than 1,500 local boards of realtors in every State of the Union.

I am attaching for the record a copy of the policy statement adopted by our last convention which serves as the basis for this appearance in opposition to title IV. The key to this policy statement is in the first sentence which I shall quote:

We reassert our support of the principle of equal opportunity in the acquisition and enjoyment of real property and the right of individuals to determine the disposition of that property.

We are here to raise our voice against the injection of the element of legal compulsion-of the police expedient-in the relations of a homeowner or any other residential property owner and the one who seeks to buy or rent his property.

We concern ourselves only with the private action of an individual property owner in an area where the State is in no way involved. We deplore the attempt in title IV to proscribe private action in private dealings between private individuals in the disposition of privately owned property.

The Attorney General in his testimony of June 6, said that he had no doubts whatsoever as to the constitutionality of title IV. He relies almost wholly on the dictum in a concurring opinion in the case of United States v. Guest, decided by the U.S. Supreme Court on March 28, 1966, a few weeks before the introduction of S. 3296 and more than 2 months after the President advised the Congress that this legislation would be sought. Perhaps if this dictum, which Justice Harlan in a concurring opinion to the Court's opinion described as "extraordinary," had not been forthcoming, we would not be here today.

Nevertheless, this dictum suggested that the 14th amendment of the Constitution could be extended to the acts of individuals, without the necessity for determining any level of State action. Thus a century of Supreme Court decisions on this point including the intent of the Congress as expressed in the language of the 14th amendment were swept aside as though they had never existed. A quotation from Supreme Court Justice Benjamin N. Cardozo on this extraordinary reliance of the Attorney General on the dictum in the Guest case is most appropriate:

We do not pick our rules of law full-blossomed from the trees.1

For a century there was neither obscurity nor opportunity for diverse judgment in interpreting the 14th amendment. Supreme Court Justices throughout the century have written an eloquent chapter in the law as to the meaning of the 14th amendment and its limitation to the actions of the State in abridging the privileges or immunities of citizens, depriving one of life, liberty, or property without due process of law, or denying one the equal protection of the laws.

Justice Douglas, concurring in the fairly recent opinion in Lombard V. Louisiana,' said:

If this were an intrusion of a man's home or yard or farm or garden, the property owner could seek and obtain the aid of the State against the intruder. For the Bill of Rights, as applied to the States through the Due Process clause of the 14th Amendment, casts its weight on the side of the privacy of homes. The 3rd Amendment with its ban on the quartering of soldiers in private homes radiates that philosophy. The 4th Amendment, while concerned with official invasions of privacy through searches and seizures, is eloquent testimony of the sanctity of private premises. For even when the police enter a private precinct they must, with rare exceptions, come armed with a warrant issued by a magistrate. A private person has no standing to obtain even limited access. The principle that a man's home is his castle is basic to our system of jurisprudence.

Yet in title IV the Congress would authorize the omnipotent arm of the Attorney General to reach into a private home, unlatch the door, and direct the owner to rent a room or sell the home to a person with whom he does not choose to execute a rental or sales agreement. The very breadth of the implications of the Attorney General's position casts doubt upon its validity.

Justice Harlan, in his concurring opinion in Peterson v. Greenville,3 underscored the suppression of individual freedom which would inevitably ensue were the Congress to enact title IV as an implementation of the 14th amendment. In the opinion he stated:

***Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of 1 "The Nature of the Judicial Process"-Cardozo.

2373 U.S. 267 (1963).

373 U.S. 244 (1963).

protection from governmental interference. This liberty would be overridden, in the name of equality, if the strictures of the Amenemdnt were applied to governmental and private action without distinction. 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 properly be left to the more precise instruments of local authority.

We insist that nothing in the Federal Constitution gives to one citizen the right to acquire property from another citizen who does not wish to sell it to him regardless of the reason. In legal usage a right involves a legal relationship between people. The capacity to create enforcible legal relations by one's voluntary act such as contract rights, property rights, the marriage relation, and so on, is an essential ingredient of citizenship. Federal constitutional guarantees, implemented by the Congress, prevent any State from denying these rights on racial grounds; but these rights are enforcible only against State officers and not against private persons. A may desire to buy B's home, but A does not have a right to buy B's home unless there is a valid contract-that is to say, a legal relationship. The Congress, in title IV, is being asked to assert the coercive power of the State to give A this right, and this cannot be done without depriving B of a right that is deeply rooted in our traditions as well as in the common law.

Compelling the homeowner or rental owner of real estate to enter into a contract with one not of his choice is an affront to the American tradition of freedom of contract, the very underpinnings of which rest on the proposition that no American, without his consent, need become an unwilling contractor with any other person.

4

The Attorney General in his testimony referred to the Shelley v. Kraemer case which held that racially restricted covenants were not enforceable in either State or Federal courts. A statement from the majority opinion in that case is most pertinent to consideration of title IV. The opinion says:

*** the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the 14th Amendment is only such action as may fairly be said to be that of the State. That amendment erects no shield against merely private conduct, however discriminatory or wrongful.

The Attorney General also cites the commerce clause as a constitutional basis for forcing homeowners and rental property owners to contract with persons other than those of their choice. The Attorney General is, of course, predicting the attitude of the U.S. Supreme Court toward this new role for the commerce clause, and we regret that his view is nurtured by ample precedents that the power of the Congress to regulate commerce among the States is almost without limitation.

I say "almost without limitation" because we cannot concede that the Constitution, whose underlying thesis is one of limitation and enumeration of powers, would give the Congress the power to bring every intrastate sale within the scope of the commerce clause.

A home is part of the land; its constituent parts, although once having flowed in commerce, have come to rest. To contend that the rental of a room in one's home, or the sale of a home, is interstate commerce is to state a concept of law which realism cannot accept.

We have studied the precedents cited by the Attorney General in reliance on the commerce clause and respectfully suggest that he may

4334 U.S. 1 (1948).

5

be on a judicial shopping spree to find appropriate constitutional "hooks" upon which to peg his conclusion. One of the cases cited, Wickard v. Filburn, arose out of a violation of a Federal acreage allotment and the Court held that growing wheat in excess of the Federal allotment would have a substantial economic effect on interstate commerce. The constitutional question had already been resolved that the Congress had the power to regulate the production of wheat in order to stimulate trade in wheat at increased prices. The Attorney General found an analogy to the home in the fact that all of the wheat was consumed on the farm. However, the analogy does not stand up even under cursory analysis.

Senator ERVIN. If I may interrupt you, I would like to ask you a question here at this point. The case of Wickard v. Filburn involved an interpretation of the power of the Secretary of Agriculture under the Agricultural Adjustment Act, and the Agricultural Adjustment Act was an act whose primary purpose was to regulate interstate and foreign commerce in farm commodities. Did they not make the strange ruling in Wickard v. Filburn on the basis that Congress has the power to regulate intrastate activities to the extent and only to the extent. that the regulation of such activities is necessary or appropriate to the effective regulation of interstate or foreign commerce itself?

Mr. WILLIAMSON. That is correct. The Court had to find that the production of the wheat had a substantial effect on the power of the Congress to regulate the production of wheat, and its marketing in interstate commerce.

Senator ERVIN. You may not concur with my language, but don't you concur in the substance of my thought, that Wickard v. Filburn is just a "fool" application of a sound principle of law?

Mr. WILLIAMSON. That is right.

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Mr. EMLEN. The Attorney General also relies on Katzenbach v. McClung, a case arising out of the public accommodations title of the 1964 Civil Rights Act, to rebut the assertion that building materials having been put to rest as part of the land, the element of interstate commerce no longer obtains.

However, the McClung case is readily distinguishable. Here in the case involving Ollie's Barbecue, the meat having traveled in interstate commerce did not in fact come to rest. It was sold in a matter of hours to persons traveling intrastate as well as interstate. However, lumber and roofing materials not only come to rest, but lose their separate identity to become part of the land.

If the Congress enacts title IV and thereby fails to exercise some restraint on the U.S. Supreme Court, then I doubt that there is any element of private human endeavor-social, political, or economicthat can escape the commerce clause. Even the 1954 school cases could have been decided under the commerce clause. Private schools, private clubs yes, even housekeeping would fall within the all-encompassing grasp of the commerce clause everything and everyone that makes use of an article that possessed an element which at one time flowed in commerce. We hope that the Congress by rejecting title IV will thereby sound a note of caution that there are reasonable limits beyond which the Congress will not tempt the Court to so "rewrite" the commerce clause.

$317 U.S. 111 (1942).

379 U.S. 294, 302 (1964).

The moral end advanced by title IV cannot justify the means through which it is sought to be attained. The obliteration of the distinction between public and private affairs, a necessary consequence of title IV, represents a sharp erosion of individual liberty. If individual freedom is worthy of preservation, it behooves all Americans to mark well the distinction between public and private affairs and to employ most sparingly the force of law to coerce human conduct. in the area of private affairs.

For the remainder of my testimony I would like to discuss some rather serious obstacles to the enforcement provisions of title IV. As an association of licensed real estate brokers we are of course concerned with the effect of title IV on the sale of homes. We have studied title IV and we are convinced that the language is not only destructive of the rights of property ownership, but attempts at its enforcement are certain to adversely affect the sale and transfer of homes.

Under section 406 of the bill, a plaintiff has within 6 months after an alleged discriminatory housing practice or violation has occurred to file suit in a Federal, State, or local court.

Assume that a contract for the sale of a home was executed on January 20 and final title search preliminary to recording of the deed occurred on April 20. On April 19 a complaint was filed against the seller alleging an act of discrimination in the sale of the house the previous November or December. Because the suit is quasi in rem, that is, it relates to the house which is the object of the title search, the title attorney will not certify title, thereby preventing disbursement of the mortgage proceeds and bringing the sale of the home to a grinding halt. I can comprehend of no legislative proposal more destructive of the growth of homeownership than title IV, because the mere allegation of discrimination would shift the burden of proof to the defendant homeowner. His would be the almost impossible burden of establishing that he made a subjective judgment for good and sufficient reason other than those proscribed by title IV.

Let me cite another example of the mischief that this legislation may generate. A suit for preliminary injunction is filed and on the basis of pleadings, and without the taking of testimony, the injunction is issued. The seller would have to wait from 1 to 3 years in many jurisdictions for an opportunity to prove that this refusal to contract with the complainant was based on grounds other than racial or religious discrimination. During the interim the house must remain off the market.

Under the common law, a contract does not come into existence until a legally binding offer has been "accepted." The offeror may withdraw an offer at any time prior to such acceptance. Unless specifically worded so as to constitute an offer, an advertisement for sale of a piece of property is merely an invitation to receive offers. The seller in this case retains the right to reject any and all offers or to withdraw the property from sale for any reason whatsoever.

Title IV would seriously impair this freedom of action of the seller of a home. It would, in effect, convert an advertisement into a legally binding offer with respect to any person who alleges violation of section 403. The action by such person, however, would not be for breach of contract, but for violation of an entirely new right-that of the right to buy real property advertised for sale. Thus the placing