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people. You are well acquainted with the law, of course. But the 14th amendment never received two-thirds of the House of Representatives in proposing it.
Senator ERVIN. I am very familiar with that. I know that my own State rejected the 14th amendment when it had a legislative body elected by the people of North Carolina in accordance with the election laws adopted by the Legislature of North Carolina. However, under the Reconstruction Act many of the people in North Carolina were disenfranchised, and another group was given the franchise by Congress which had no power under the Constitution to do so. And then they had another convention elected by persons who possessed the qualifications prescribed by Congress rather than the North Carolina Legislature. That convention ratified the 14th amendment under coercion. Congress told them that they couldn't have representation in the Corgress of the United States until they ratified it.
Mr. WILLIAMS. My State also voted against it. And New York and Ohio and New Jersey reversed their vote and went against it. The first one slipped over, but as soon as they woke up, both Ohio and New Jersey rejected it. And they counted those two States, as you will see by Seward's message to the Congress.
So I say, sir, I am making this real earnestly, and I may get into court before it is over. But I say that the 14th amendment got 120 votes. And there were then according to the record 184 Members. I am not thinking the question now of the Civil War problem, I am thinking the question of the Constitution of the United States. And 120 does not constitute two-thirds of the whole House. But the body acting at that time recognized that. And they said it was two-thirds of those present. I say that that was not the constitutional majority. I don't care what the practice has been since, it was the day before vesterday a practice, I know. But the practice doesn't control, as Mr. Warren in his book says, and the Supreme Court has acted on it. The Constitution is always the law. And when the Supreme Court comes along there is another Constitution, so therefore they recognized principle as stated by many, which I can quote to you specifically.
Senator Ervix. I am familiar with Warren's history of the Supreme Court.
WILLIAMS. Perhaps some of the other members have not been. So that is very true.
So I am now returning to first principles. And I am asking this Judiciary Committee of the United States, Senator, composed, I suppose, of the leading body of lawyers in the United States, to consider ihat action against the Constitution itself, not against the practice of what they did before, I am now calling on them as if it were an ab initio matter, like a document is handed to a client when he comes to the office, and ask them to construe that Constitution according to the formula which he used in his office expressio unius exclusio alterius. I know that is the rule.
May I put in the record my viewpoint. The first thing you see in the Constitution in that respect is the impeachment. And says, may be impeached by two-thirds present, if you use the word "present.'
The next thing is the reporting of the votes, one-fifth present.
But when it comes to expelling Members of your body, and amending the Constitution, the word “present” wasn't there.
Now, what construction could there be under this document unless you are going to consider that they are idiots, crooked, or something else, what construction could you put upon it except that they meant it when they said, proposed by two-thirds of both Houses they may propose amendment? Now, what does the language mean if it doesn't mean two-thirds of the whole body? So therefore even in the Senate they got only 33 votes, I think, and I think this should have been 31, but the lack of 1 is just as bad as a stab in the heart or a cannonball. But one case is clear. When 20 is two-thirds of that body.
So therefore I say we are operating now, right here I am striking at the root of what you are doing here now--and that is the root, just as Justice Whittaker and two or three others said in the James case preceding in the inquiry of what constitutes taxable income must be the 16th amendment. And the starting power is the 11th. So this is a very pertinent part of this. So I am asking this august committee to determine whether or not the Constitution says that that was legally proposed, not what it practices. I am putting that up to this committee. And I hope it will-I have so much here I would like to say in this area, but so much has already been said, and you are tired, and so I will not impose myself on you. As I say, I have a whole lot of notations here.
May I have just 1 more minute in particular with property?
Justice Douglas—who is now very prominent, of course-made a statement. He said:
Property rights must be subordinated to the political rights as in substance to coarrest and unite in the national sovereignty.
That means, in essence, we are just temporary occupants of the property, we have no fixed rights. And of course I found that out in Baltimore. They have taken whole neighborhoods away from people.
I took a case down to the court of appeals, or at least I was associated with a man who did, and argued it, and wrote the brief. And the ordinances were so rotten that it was a wonder that they didn't fall apart on the paper. And yet the court of appeals sustained that. And the answer was—my associate was disgusted with one of the judges, and he said, “Well, they spent too much money."
And I said, “What did you say to him?"
And I said, "Do you know what I would have said to him? I would have said that is none of your business.”
But I didn't do it.
I thank you very much for your indulgence. And I hope I haven't bored you too much.
Senator Ervin. The committee will stand in recess until 10:30 Tuesday morning.
(Whereupon, at 1:30 p.m., the subcommittee was in recess, to reconvene on Tuesday, July 26, 1966, at 10:30 a.m.)
TUESDAY, JULY 26, 1966
Washington, D.C. The subcommittee met, pursuant to recess, at 10 a.m.,
in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr., presíding
Present: Senator Ervin (presiding).
Also present: George B. Autry, chief counsel, and staff director, H. Houston Groome, Jr., Lewis W. Evans, counsel, and Rufus Edmisten, research assistant.
Senator ERVIN. The hearing will come to order.
Mr. AUTRY. Mr. Chairman, the first witness this morning is the Honorable John Stennis, U.S. Senator from Mississippi.
Senator Ervin. Senator, welcome to the subcommittee. On my own behalf and on the behalf of the other members of the subcommittee, I wish to express our gratitude to you for taking the time to come here and give us the benefit of your views.
STATEMENT OF THE HONORABLE JOHN STENNIS, A U.S. SENATOR
FROM THE STATE OF MISSISSIPPI
Senator STENNIS. Mr. Chairman and members of the subcommittee, I particularly appreciate the opportunity to present my views on the proposed Civil Rights Act of 1966 before the chairman, recognized as one of the finest constitutional lawyers in the Nation.
I regret very much that the Congress is now called upon to consider a new and far-reaching civil rights bill so closely upon the heels of the passage of the Civil Rights Act of 1967, particularly since we have not as yet had time to assess the full and final impact and effect of the 1964 law.
I sincerely hope before we commit ourselves to the course proposed by this bill that we will take stock of the situation and face squarely the basic and fundamental issues involved. What is really involved is, as was so eloquently stated by Mr. Justice Harlan in his concurring opinion in Peterson v. Greenville, 373 U.S. 244, 250 (1963), "clash of competing constitutional planes of a high order: liberty and equality.” This is particularly true of title IV of the bill, which deals with alleged discrimination in housing.
During the past few years Congress has passed more than enough civil rights legislation to protect the real and imaginary constitutional rights of all citizens for decades to come.
Some of these have trampled upon the inherent rights and liberties of large segments of our people people who have no organized voice before the Congress or in administration circles. We are limited on this question directly until the people have spoken on the subject directly, and they have not spoken in any constitutional amendment or in the Constitution itself.
This bill proposes under title IV to regulate, supervise, and control—to “oversee"-every individual in the Nation concerning his every move in the purchase, sale, or leasing of his privately owned dwelling house or any part thereof, so far as his personal choice of a renter or purchaser may involve possible discrimination as between the races.
Unless he submits to bureaucratic control, he will run the chance of a court order or prosecution to compel obedience.
What Member of Congress can make a constituent believe that his rights have been protected, if that Member votes to turn loose on that constituent such massive power to a governmental bureau? The average citizen, of course, will not have a chance.
It is high time, I respectfully suggest, that all of us--and particularly those who have a sincere regard for basic human and constitutional rightspause and consider carefully the impact which title IV would have upon individual liberties and freedom.
Senator ERVIN. And does this not constitute saying that now the Members of Congress and the Supreme Court can state what the rights of the American people are rather than the Constitution? Senator STENNIS. Why, absolutely.
Under the best case which can be made for title IV, the basic issue is the fundamental liberty of the individual versus alleged equalityand regimented equality at that. “Equality” and “liberty" are not synonymous and never can be. Subordination of basic liberties to a politically oriented concept of equality can destroy this Nation just as surely as can an attack by a militarily powerful aggressor. It is essential that we keep both in proper perspective and balance, and bear in mind that the basic and inherent freedom of the individual and individual action is entitled to a great degree of protection from governmental interference, even though the interference carries the spurious sanction of alleged equality and social justice. Blind allegiance to the principle of equality can and will make ashes of our basic freedoms.
By tinkering with our cherished Constitution, we can limit the right to own, hold, and use property; we can mandate free access for all persons to all places; we can freeze all of our citizens at the same economic level; we can cast all Americans into the same mold and take from the rich and give to the poor. We must remember, however, that if and when we do this the America that we love and revere will be no more.
Mr. Chairman, I will not burden you with a detailed discussion of the many objectionable, unconscionable aspects of this bill. The primary thrust of my remarks will be directed to title IV, which attempts to proscribe discrimination on account of race, color, religion, or national origin in the purchase, rental, lease, financing, use, and occupancy of personal dwellings and apartment houses.
Senator Ervin. When you attempt to put everybody on an equal basis, do you not drag everybody down to the lowest common denoininator of all citizens?
Senator STENNIS. Absolutely. In elevating those you would propose to help, you downgrade all of the group and, in so doing, you destroy initiative and destroy the desire to follow the two courses suggested.
The argument that the equal protection clause of the 14th amendment supports title IV conveniently overlooks the fact that the Supreme Court has never held that the 14th amendment in any way limits an owner's right to refuse to sell or lease a home or apartment on grounds of race, religion, or national origin. The Supreme Court has never held that, where no State action is involved, an individual homeowner violates the 14th amendment by discriminating in the sale or rental of his property. Indeed, a majority of the Court has not yet even held that the 14th amendment prohibits the owner of a restaurant or other place of public accommodation from discriminating among customers on account of race.
Senator ERVIN. You have an eloquent phrase in this line: "Blind allegiance to the principle of equality can and will make ashes of our basic freedoms.” It destroys the rights of those it proposes to help. When you subordinate the rights of one group to the rights of another group, you are giving one group superiority.
Senator STENNIS. "The sweep and breadth of this title is as broad as the human mind can make it. “As originally presented, and as the bill now stands before this committee, it applies to the individual owner of a single-family dwelling as well as to real estate brokers, lending institutions, and others engaged in business activities in connection with the construction, sale, or rental of dwellings. I will discuss in a few minutes certain major changes in this section proposed by the House Judiciary Committee.
Title IV attempts to lay the harsh and heavy hand of Federal regulation on rights and liberties which have always been considered private and sacred to the individual. There are no exceptions to its restrictive provisions. It deliberately and callously tramples upon the freedom of an individual to choose his own associates and neighbors and to use and dispose of his property as he sees fit. If Federal power can reach this far into private lives and private transactions, is there any limit upon it whatsoever? It is unthinkable that the great majority of the people of this Nation will willingly submit to such drastic governmental dictation and control.
The Attorney General has stated that title IV is based on the commerce clause of the Constitution and on the 14th amendment. However, neither provision gives the Congress the power or the authority to enact such drastic legislation.
Title IV of the bill in one sweeping sentence boldly announces the policy of the U.S. Government regarding the “purchase, rental, lease, financing, use, and occupancy of housing throughout the Nation.”
This is not a question of policy; it is a question of authority of the Congress. Congress has absolutely no right under any clause of our