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Before discussing titles IV and V, I should like to mention briefly Congress' duty to consider the constitutionality of proposed legislation. Notwithstanding the oath each Member of Congress takes to uphold and support the Constitution, there is an attitude among some that we should not be too troubled by this requirement. Instead, they advocate consideration of only the political and social aspects of legislation, leaving all determinations of constitutionality to the Supreme Court. This approach is completely fallacious and unsupportable according to the traditions and decisions of American jurisprudence and the principle of separate coequal powers.

The Supreme Court, according to its own rules of interpretation, is guided by one overriding presumption when undertaking its function of judicial review which dispels the notion of abdicating this congressional responsibility.

It proceeds on the assumption that the Congress is no less mindful than the Court of the restraints imposed upon the powers of the National Government by the Constitution, and that, prior to its approval of any measure the legislative branch conscientiously appraised its validity and in perfect good faith_concluded that the enactment met the test of constitutionality. Therefore, the Court will not consider the constitutional question if that can be avoided; and if it does consider the question, the burden is on him who challenges the act's constitutionality.

The Court has expressed this many times and recently as follows:

This Court does and should accord a strong presumption of constitutionality to acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgement by constitutional majorities of the two Houses of Congress that an act is within their delegated power or is necessary and proper to execution of that power (U.S. v. Gambling Devices, 346 U.S. 441, 449 (1953)).

Congress cannot shift its responsibility to the Attorney General and assume that a legislative proposal is constitutional because he asserts that it is. The duty and responsibility rests solely upon the shoulders of each Member of Congress to determine whether a proposed measure is compatible with our Constitution.

Many of us, unfortunately, attempt to discharge this duty by predicting what the Supreme Court will hold when a given bill under consideration is ultimately reviewed. This may be a natural reaction, but it utterly fails to comprehend the nature of the responsibility we face.

Court decisions are, of course, a useful tool which we may use to recognize legislative limitations and obligations. But we should not, by contenting ourselves with reading the tea leaves of past judicial decisions, escape the duty of deciding for ourselves what is constitutional

This is not what the Constitution expects of us. On the contrary, it requires that we look to the language, the intent, and the legislative history of each of its provisions in determining whether a bill is consonant with that document.

The Court properly upholds the constitutionality of any act of Congress unless it finds that what we have done is clearly repugnant to the words and spirit of the Constitution.

So, during these hearings I ask that the members of the subcommittee and the witnesses act as more than fortunetellers—that they judge the bills before us against the mandates and prohibitions of the Constitution according to our own individual intellect and conscience and not abdicate that responsibility to the President or to the Court.

I might interrupt my reading of the statement at this point to inform Senator Bayh and Senator Javits that I have a very long statement, and that when we opened the committee hearing I offered any member of the committee an opportunity to make a statement, and I would not want to foreclose either of you gentlemen or Senator Hruska or Senator Scott who were not present. If any of you have a statement you would like to read at this time, I will give way for the time being

Senator Scott. Mr. Chairman, I would like unanimous consent to insert my statement without reading it, at the conclusion of the chairman's statement, and such other statement as I may wish to put in.

Mr. Ervin. I assume there is no objection, and therefore that request will be granted.

Senator Javits. Mr. Chairman, I have a 5-minute statement. The Chair has always been so gracious to me that I will stand by until the Chair is finished. But if the Chair wishes me to proceed

Mr. Ervin. I will leave that up to the Senator. I still have some distance to go.

Senator Javits. I think the chairman is at page 14 and I can do mine anytime before 12. I will just stand by and await the pleasure of the Chair. I might explain to the chairman that I had to go the the Franklin D. Roosevelt Memorial Commission meeting this morning.

Mr. ERVIN. I am certainly conscious of the fact that every Senator has more obligations than he can possibly get around to.

Senator Javits. I hope to make a brief statement when the Chair is finished.

Senator Bayh. Mr. Chairman, I appreciate the courtesy. I have no statement to make.

Senator HRUSKA. I have none at this time, Mr. Chairman.
Senator ERVIN. Then I will proceed.


Although I have strong objections to the administration's proposed title IV, I find myself in the anomalous position of first commending the President for submitting it. I do this because there has been considerable criticism of the President for not "enacting" the provisions of the title by Executive order and integrating housing with the "stroke of a pen.

I will admit that all of us could enjoy a more leisurely summer and politically secure November if the President had decided this controversial issue for us.

Unfortunately for our tranquillity, however, every last drop of legislative power of the National Government is vested in Congressthere is none left for the President. We receive a fair wage for performing these functions; and the executive has enough problems of its own without assuming those conferred by article I, section 1.

Although I believe the President is mistaken in his view of the constitutionality of this measure, he has been faithful to the Constitution by allowing Congress to legislate rather than usurping the power to himself.

It is a sad commentary that anyone should seriously advocate that the separation of powers and the integrity of Congress be sacrified merely to avoid controversy.

Title IV proposes a Federal housing law which would deprive the American people of their right to sell, lease, or rent their property to whom they choose; it could prevent landowners from refusing to negotiate for the sale of their property; and it could subject homeowners to the harassment of lawsuits with unprecedented Federal civil sanctions in cases where they refuse to convey or negotiate the conveyance of their property for reasons which could be construed to be based on racial discrimination.

This entire title is, in my judgment, clearly beyond the authority of Congress-under either the commerce clause or the 14th amendment. Further, the section violates the freedom of association, implicit in the first amendment, property rights, explicit in the fifth amendment; and partially, the right to privacy within the penumbra of the Bill of Rights.

It is obvious that real property does not move in the channels of interstate commerce. Yet, the Attorney General has stated that the power granted to Congress by the commerce clause allows it to regulate all housing. The proponents suggest that these few words from the Constitution enable such regulation-“Congress shall have the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” But the very attribute of real property which distinguishes it from all other property excludes it from interstate commerce-its immovability. A house may be bought and sold, but with the exception of the house trailer and in the absence of acts of God, it never crosses a State line. I fail to see how we can rely upon tornadoes and hurricanes as channels of interstate commerce; and the Attorney General has not limited this bill to the sale and rental of mobile homes.

The very tenuous and erroneous suggestion is made that the materials and furnishings which make up any physical structure bring the whole into interstate commerce. Congress can, of course, regulate the materials and furnishings as they move in the channels of interstate commerce but in this instance the flow has stopped. The materials have, by legal definition, assumed the character of reality.

An example or two will illustrate the absurdity of the Attorney General's contention.

Suppose a doctor decides to volunteer for civilian service in Vietnam for a year. While he is there his family goes to live with his wife's mother and he rents his house to a colleague who he knows will care for the property. Where is the interstate commerce? And where is there any proper national policy which says he should not rent to whom he pleases?

Suppose a widow, whose only income consists of social security payments, wishes to supplement that income. She rents a room in her home to one of her own race. Where is the interstate commerce? And where is her right to freedom of association, her right to privacyindeed, her personal right even to be prejudiced?

Suppose a man who owns the house and lot next door to his home sells it to a friend? Where is the interstate commerce? And why should the Federal Government care?

Suppose the manager of a home for retired Methodist ministers refused to negotiate with a retired Baptist minister for the rental of an apartment? Where is the interstate commerce? And, anyway, what business is it of ours?

Yet the proposed legislation would subject each transaction to Federal control in the name of regulating interstate commerce. Those who argue that this control can be based on the commerce clause might do well to give careful thought to the consequences if their position is accepted.

It is elementary that this Nation was founded and has become great upon the proposition that the powers of government are derived from the governed, and that liberty is directly dependent upon the degree to which the individual is able to remain free from governmental control. A corollary to this idea is the restraint on governmental power embodied in the Federal system according to which the National Government has only those powers granted to it.

This proposition is written into our Constitution.

If it can be successfully maintained that this housing proposal is constitutionally permissible under the commerce clause, then there is no conceivable limit to the power of the Federal Government, except for those matters expressly forbidden. The Attorney General's interpretation of the limits of the commerce clause power is supported by references to the interpenetrations of modern society.

But the constitutional fallacy of such scholastic reasoning as a basis for

a extending Federal power was long ago recognized by Justice Frankfurter in Polish Alliance v. Labor Board:

The interpenetrations of modern society have not wiped out State lines. It is not for us to make inroads upon our Federal system either by indifference to its maintenance or excessive regard for the unifying forces of modern technology. Scholastic reasoning may prove that no activity is isolated within the boundaries of a single state, but that cannot justify absorption of legislative power by the United States over every activity (322 U.S. 643, 650 (1944)).

I challenge the Attorney General to mention any area of human activity not subject to Federal legislation under his interpretation of the commerce clause. We should appreciate that "federalism” is not a meaningless platitude nor an outmoded cliche. It is not merely a happy accident of history; not merely a convenient tool of government. Rather, it is the foundation of our Government. The administration's interpretation of the clause destroys this foundation. And today it is threatened by an interpretation of one constitutional clause concerning interstate commerce by which the Federal Government could ultimately control every activity of every American from the time he is born till the time he "shuffles off this mortal coil."

The 14th amendment is also relied upon in the effort to support the constitutionality of this title. This argument, however, is so ridiculous, so absolutely unsupportable by the language of the amendment, that I have yet to hear someone seriously defend it. Until some attempt at documentation is made, I see no reason to waste the subcommittee's time discussing it.

But even if we accept the Attorney General's suggestion that the commerce clause or the 14th amendment may be relied upon, we still must consider specific constitutional prohibitions on our legislative power.

Much has been said recently concerning “human rights” as opposed to "property rights." This is nonsense. Property has no rights,

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only attributes. The right to property is a human right, a civil right-a right expressly protected by the Constitution. It is one of the basic rights of a free people. Conversely, failure to protect the human right to property is a typical characteristic of totalitarian states along with the denial of freedom of speech, press, and religion.

The basic human right not be be deprived of liberty or property without due process of law—the only right expressly mentioned in both the 14th amendment and the Bill of Rights--would be sacrificed by this title to a new so-called right of open occupancy.

Furthermore, there are other human rights and freedoms protected from governmental interference which are placed in jeopardy by this legislation. Among those are the right to freedom of association, recognized in the case of NAACP v. Alabama (357 U.S. 449 (1958)), and the right to privacy recognized in the case of Griswold v. Connecticut (381 U.S. 479 (1965)). As Justice Douglas said in Griswold at page 484:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which Government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people!" and again at page 485:

Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."

No one would contend that Congress may use the legislative power conferred by section 5 of the 14th amendment or by the commerce clause in a way which would invade those liberties specifically guaranteed by the first section of the 14th amendment, or by the 5th amendment, or by the first 10 taken together. Human liberty requires the maintenance of restraint upon governmental power. Restraint is hardest when the power sought is for noble ends. But power conferred is not easily recaptured. History shows that no one can guarantee that the ends of power will always be worthy. It may well be said that a noble expediency is the fatal disease of human liberty.

But noble as its purpose may be, all evidence indicates that title IV will be ineffective to accomplish its intended goal. Although it will disrupt the real estate trade, it will not integrate neighborhoods or housing; although hundreds of homeowners will be harassed by suits incorporating unprecedented Federal tort claims, the broad policy will be unenforceable.

The objective claimed for this title is adequate and integrated housing for deprived minority groups. Twenty States, the District of Columbia, Puerto Rico, the Virgin Islands, and some 26 municipalities have fair-housing laws (although none with coverages as broad as the one proposed here). Yet the largest slums and ghettos of

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