Hon. SAM J. ERVIN, Jr., THE GEORGE WASHINGTON UNIVERSITY, Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: I respond, somewhat belatedly because of the pressure of end-of-the semester activities, to your request for an expression of views concerning the constitutionality of the proposed Civil Rights Act of 1966. I shall address my brief remarks to the constitutionality of Title IV of the proposed Act, in its original form, in regard to discrimination in housing transactions. This is the section whose constitutionalty has attracted the most attention. In regard to Title IV, as in regard to the public accommodations section of the Civil Rights Act of 1964, two constitutional clauses are commonly ap pealed to, viz., the Commerce Clause and the Fourteenth Amendment. Considering first the possibility of resting Title IV on the Commerce Clause, it would seem that the later New Deal cases such as United States v. Darby Lumber, 312 U.S. 100 (1941) [wages and hours] and Wickard v. Filburn, 317 U.S. 111 (1942) [wheat production], and the two cases sustaining the constitutionality of the public accommodations section of the 1964 Civil Rights Act-Heart of Atlanta Motel v. United States, 379 U.S. 241 [motel accommodations] and Katzenbach v. McClung, 379 U.S. 294 [restaurant service]-provide a basis for sustaining the constitutionality of Title IV of the proposed 1966 Act. These cases suggest that the Housing Title could be deemed constitutional under the Commerce Clause (a) if the Title were directed to housing constructed with materials a significant portion of which had moved in commerce, (b) if it was supported by congressional findings concerning the need for such legislation in the light of the impact of local housing transaction practices on the volume and the quality of the national market for housing materials, and (c) if it was supported by further congressional findings concerning the impact of local housing transaction practices on general population mobility and on industrial and business location as affected by prospective employee mobility. The connection with commerce of the intra-state practices involved in all four precedent cases seems tenuous (particularly in Darby and McClung) until it is perceived that the basic thrust of these cases is to construe the Commerce Clause as placing within Congressional purview all matters which in their cumulative impact affect the national economy. This involves reading "Commerce," as Chief Justice John Marshall tended to read it, as "national economy." Under the precedent cases both economic activity (Darby) and social practices (McClung) which affect the size and the quality of the national market seem to be within Congressional purview. It may be noted that in McClung the restaurant was eleven blocks from an interstate highway and there was no showing that its customers were interstate. However, a substantial proportion of its food was interstate and the restaurant was deemed to be subject to the Civil Rights Act on a "total incidence" theory. The Court concluded that "interstate travel was obstructed direcly by it [restaurant discrimination], that business in general suffered and that many new businesses refrained from establishing there as a result of it," 85 S. Ct. at 382. It would seem then that the issue of constitutionality would turn in part on the ability of the proponents of the statute to adduce evidence on which findings of fact of the sort indicated above could rest, i.e., findings concerning the relation of local housing transaction practices to the national market and the national economy. In short, the Commerce Clause cases of Wickard and Darby, coupled with the two recent cases sustaining the constitutionality on Commerce Clause grounds of the Civil Rights Act of 1964, and especially the McClung case, seem to warrant this conclusion: An adverse affect on business and on employee mobility caused by discriminatory practices, whether found in places of public accommodation such as restaurants or found in regard to such aspects of life as access to housing, brings such practices within the purview of Congress under its Commerce Clause power to safeguard and promote the national economy. As the forces of technology have led to increased interconnection and inter-dependence in business matters, more "intra-state" activities than formerly come within congressional reach because of their impact on an integrated economic system. Turning briefly to the Fourteenth Amendment as a possible constitutional base for Title IV of the proposed 1966 Civil Rights Act, I feel that despite the opinions of Justices Douglas and Goldberg in the Heart of Atlanta and McClung cases, it would be more difficult to rest the constitutionality of a national housing discrimination law on the equal protection clause of the Fourteenth Amendment. It may be possible to draw a rational distinction between the potential reach of the "state action" concept of the equal protection clause of the Fourteenth Amendment in regard to public accommodations and state facilities, and its reach (or lack of reach) in regard to private housing transactions for family use. There would seem to be a generic difference between private housing, which is the focus of the proposed 1966 Civil Rights Act, and the question of access to those businesses generally open to the public, which was the issue in Heart of Atlanta, McClung, and the earlier sit-in case of Bell v. Maryland, 377 U.S. 226 (1964), and the question of access to and enjoyment of state highways, which was the issue in the recent case of United States v. Guest, 86 Sup. Ct. Reporter 1170 (1966). The broader views of certain justices on the outreach of the Fourteenth Amendment have not yet commanded the support of a majority of the Supreme Court as the basis for a holding. Also, even these broader views so far have been expressed only in cases where the activity at issue was much more public than is access to housing, i.e., eating in a restaurant, sleeping in a motel as a part of travel, driving on a state highway. Indeed in their opinions expressing a broad view of the reach of the Fourteenth Amendment in regard to public accommodations, both Justices Douglas and Goldberg have spoken of the special private character of single family housing. For example, in Lombard v. State of Louisiana, 373 U.S. 267 at 274-275. Justice Douglas 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 Due Process Clause of the Fourteenth Amendment, casts its weight on the side of the privacy of homes." And in Bell v. State of Maryland, 378 U.S. 226 at 313, Justice Goldberg stated: "Prejudice and bigotry in any form are regretable, but it is the constitutional right of every person to close his home or club to any person or to choose his social intimates and business partners solely on the basis of personal prejudices including race. These and other rights pertaining to privacy and private associations are themselves constitutionally protected liberties." If it be asked why these considerations do not also limit the power of Congress under Commerce Clause, the short answer is that privacy ceases when a demonstrable adverse effect on commerce and the national economy are shown. It can be said, therefore, that the precedent cases do not compel the conclusion that the Fourteenth Amendment supports the constitutionality of Title IV of the proposed Civil Rights Act of 1966. The theory that Congress has a broader legislative power under Section 5 of the Fourteenth Amendment than does the judiciary when operating without statutory support under Section 1 of the Fourteenth may undercut my reservations about use of the Fourteenth as the foundation for the Housing Title of the proposed 1966 Civil Rights Act. However, this theory, suggested by Justice Black in Bell v. Maryland and by Justice Brennan in United States v. Guest, has never been well articulated and was expressed only in the context of cases where the activity was less private than is single family housing. Adoption of a theory of broad Congressional power under Section 5 of the Fourteenth Amendment would substantially erode the distinction between public (state-affecting) and private spheres of life. By contrast, use of the Commerce Clause would leave unaffected the distinction between the two spheres and would regulate the private sphere only insofar as that sphere adversely affected the national economy. As in regard to the 1964 Civil Rights Act's public accommodations section, the Commerce Clause appears to offer a more rational basis for constitutionality. Further, arguments as may be erected on the basis of a supposed right of privacy have greater force when applied against the use of the Fourteenth Amendment than against the use of the Commerce Clause as the constitutional base for a national housing discrimination law. I hope these views on possible constitutional bases for Title IV of the proposed Civil Rights Act of 1966 in regard to housing discrimination will be helpful to your Subcommittee. Sincerely yours, ROBERT G. DIXON, JR. Senator ERVIN. Prof. Paul Kauper of the University of Michigan has informed the subcommittee that his current research abroad will prevent his preparing a statement. I might note here that the voluminous mail which I have received as chairman since we last discussed this matter has increased, contrary to early predictions. I have now received 8,500 letters in opposition and approximately 144 in favor. Senator Fong and Senator Javits, if you have any questions you would like to ask at this time you may do so. We postponed the testimony primarily so that members of the subcommittee and Senator Dirksen of the full committee could ask questions. Under the rules you are entitled to question the witness first. Senator JAVITS. I will defer questions until later. I would just like to say this. My own mail is running favorably to the enactment of a section dealing with discrimination in housing from throughout the State of New York, not just the city of New York, and other parts of the country. And also that there is a very real connection being recognized between our efforts here and the violence in certain sections of the country arising from frustrations attributable to the effect of discrimination in housing. And I wish to state that, as the Chair has felt free to state its own views, and the mail which the Chair has received. And so, Mr. Chairman, I too shall yield to Senator Dirksen. STATEMENT OF HON. NICHOLAS deB. KATZENBACH, ATTORNEY GENERAL OF THE UNITED STATES-Resumed Senator DIRKSEN. Mr. Attorney General, there are some differences between the bill as originally introduced and the version which is presently before the House. And I see that these differences have elicited some comment from various sources. I believe the State Brokers Association, which I understand is a colored group, has indicated that it thinks the present version is weaker than the original bill. I think Mr. Wilkins, the secretary and director of the National Association for the Advancement of Colored People, has come to the same conclusion, and has lamented the fact that the so-called individual single family dwelling, or what has been characterized as the Mrs. Murphy aspect of the bill, has somewhat been eliminated. We heard Mr. Speiser of the American Civil Liberties Union referred to section. 403 (a) (3) of the House version as unconstitutional. In addition, there have been other statements. I would like to have some expression from you as to what your opinion is as to a change to be made in the House bill contrary to the original bill. Attorney General KATZENBACH, I would prefer the bill as the Senate introduced it to the version that was adopted in the House. At the same time I think that the version adopted in the House is an effective bill that would be a tremendous help in solving this very real problem. And in some respects I think the administrative provisions that they put in were a good addition to the bill. In eliminating individuals from the coverage of the act I think it was the feeling that in so doing they had met the major arguments that were made against the bill, and that it could still be effective in covering as it does the rental housing with minor exceptions in the larger apartment houses, covering all new developments, and covering loans, and preventing the real estate people and others from discriminating on their own hook. So that I think it is a good bill in the House. I do not think it is as good a bill as the administration put in, but I think you would agree with me that the process of legislation often involves some differences of opinion and some compromises to get workable legislation. Senator DIRKSEN. I see they have proposed a so-called Fair Housing Board. And it has quite considerable powers. Attorney General KATZENBACH. Yes; it does. Senator DIRKSEN. Not unlike those of the National Labor Relations Board. Actually that would be an administrative provision where discrimination is involved. Attorney General KATZENBACH. Yes. Senator DIRKSEN. But am I correct in my understanding that you have not only this administrative avenue, but he personally has the individual remedy. Attorney General KATZENBACH. That is correct. Senator DIRKSEN. In other words, he has both remedies under the bill as presently drawn as it stands before the House. Attorney General KATZENBACH. Yes. Senator DIRKSEN. In the original bill or the original version of the bill in the House, but not the present bill, as I recall it contained language to the effect that an individual owner would not be free to discriminate the same as a principal. But I do not think I find that language in the present version of the House bill. Is that correct? Attorney General KATZENBACH. In the present version of the House bill I believe it was the intention of the author of the amendment to leave an agent of an individual seller free to represent his principal, and if the principal insisted upon discriminating in the sale, that the agent would then be free to do so if he was acting only on instructions from his principal. I would agree with you that it is not clear as it is presently drafted that that is true. And I think it is ambiguous in that respect. And I would think that exemption was not clear from the language of the House bill as it now exists. Senator DIRKSEN. Now, under any concept of agency, could you tender a right to an owner and not give him the subsequent right to delegate or extend that to any agent, any broker regardless of whether he was licensed or not? Attorney General KATZENBACH. It does not seem to me very difficult, Senator. All you have to do is say it. In effect what you are saying if you do that, you are saying that no real estate agent can list or take a sale if it is discriminatory. And it would seem to me that the effect of that would mean that he could not take he could not represent a principal if that principal insisted on discriminating even if the principal were free in and of himself to do so. Senator DIRKSEN. I do not believe there is anything clear in the House bill in this respect. If there is, I do not think I have found it. Attorney General KATZENBACH. As I said, I think that it is unclear in that regard. But I think that the intention of the author was to say that if a person listed a house with a real estate agent and said, "I will not sell to Negroes, or whites, or whoever it might be," that the agent could then be free from the other prohibitions which would otherwise exist. But I would say even under their intention the agent would not be free to discriminate unless the principal had insisted and advised him in advance that this would be the case. But I agree with you, that the way the exemption exists there, it is not clear that the real estate broker is not still covered. And I think that ambiguity was pointed out by the chairman of the committee in his report on the bill, where he said he thought that it was the intent of the authors to do that, but that perhaps a clarifying amendment on that point would have to be made if that intention was to be fulfilled. Senator DIRKSEN. Within the last 10 days Attorney General KATZENBACH. I might say, Senator, that I would prefer it under the other construction. Senator DIRKSEN. Within the last 10 days or 2 weeks the Governor of Illinois issued an executive order. And it is directed to the 20,000 brokers, real estate agents and salesmen who deal with real estate. In other words, this is an antidiscrimination order. But it would affect only them. It would not affect an owner, as I understand. But suppose an owner listed his property with an agent, and the agent is under the provisions of the executive order, what does he do? How do you resolve the conflict? Attorney General KATZENBACH. I have not read the executive order. I only read about it in the newspapers. So I could not really give a definitive answer to that. But I would suppose, Senator, that you could say that no licensed real estate broker will take a sale, will make a sale, will represent somebody unless he is free to sell it without racial restriction. I would think that would be quite reasonable. Now, this would leave the owner free to attempt to represent himself or to sell it himself. But he could not then go to a real estate firm if he insisted upon discriminating. Senator JAVITS. Would the Senator yield at that point? But there is no penalty on the broker or the realtor if he has no instructions under the House bill, is that not true? There is no sanction? Attorney General KATZENBACH. There is no sanction against him if he has that other than Senator JAVITS. If he has that instruction? Attorney General KATZENBACH. If he has that instruction. Senator JAVITS. Doesn't that make this whole title as full of holes as a Swiss cheese? Attorney General KATZENBACH. This would depend, Senator, which version you took of it. I think that if you took what I think the author of the amendment intended, then it would not be full of holes, it would merely be carrying out his intention, because he wanted to free real estate brokers to represent individuals who refused to sell their house to a person of a particular race or religion. Senator JAVITS. I am talking about the point of view, if the Senator would indulge me, of people like myself who want discrimination in housing, and elsewhere, made unlawful. As far as we are concerned, it is as full of holes as a Swiss cheese. All the proprietor or renter has to do is to instruct the broker, and discrimination will be sanctioned. Attorney General KATZENBACH. With respect to individuals selling their own homes, that would be true. The intention of the House author was to exempt that particular area of the real estate market. I too would not like to see that exempt. On the other hand, as I said, the bill does cover a large area of housing effectively. |