Justice MUSMANNO. Mr. Chairman, I believe that there are many people who would like to sell property to individuals regardless of color but entertain a fear that they may be criticized in their community for doing this very thing. But when the law is universal, then that fear is removed. Many people have opposed proposed reforms in government fearing that they might bring about embarrassment and discomfort but when the laws finally were enacted, they went along with the laws and found that their fears had been entirely groundless. Senator ERVIN. In other words, you would abolish the liberty of people in order to remove fear?

Justice MUSMANNO. I certainly would not abolish the liberties of peoples. I served in two wars, as the chairman served so gallantly in World War I and earned so many marvelous decorations for bravery, for the cause of liberty.

Senator ERVIN. Judge, I believe we were fighting for liberty rather than governmental regimentation, were we not?

Justice MUSMANNO. Well, I do think this is liberty. Are we going to ignore that the Civil War was fought for the emancipation of a race? Certainly, we cannot ignore all the deaths which occurred in the Civil War so that we could add to the Constitution, the 13th, 14th, and 15th amendments which say specifically that you cannot deprive a person of his citizenship because of his color, you cannot deprive him of his rights because of his color, you cannot deprive him of his vote because of his color-he is the same as anybody else.

Senator ERVIN. Judge, I cannot find anything in the Constitution that says I am compelled to sell or rent my house to a particular man because of his color, his religion, or his national origin. We certainly did not fight the Civil War for the purpose of depriving all Americans of their right to freedom of private property and their right to freedom of contract for the benefit of only one group of Americans.

Justice MUSMANNO. The rights of property do not rise any higher than liberty, do not rise any higher than social consciousness, do not rise any higher than the obligation we owe our fellow man. If we are going to eventually enter into that era of the brotherood of man proclaimed in the Old and New Testaments, we must begin to eliminate these prejudices which have grown up through the centuries based upon selfishness, and the fallacy that one race is greather than another. That is what caused World War II, because those who were Nazified in their thinking believed that the Aryan race was superior and that Jews should be exterminated, and they did exterminate them, exterminated 6 million of them on this notion that the Aryan race was superior.

Senator ERVIN. Judge, I think it is a very peculiar way of bringing about the brotherhood of man for the law to grab a man by the throat and tell him he no longer has the right to rent his property to whom he pleases or sells it to whom he pleases. I do not believe we can bring about the brotherhood of man by robbing men of their privileges.

You spoke about the law of Pennsylvania. You are a very distinguished jurist and an eminent lawyer. Has it not been established by law that the right to regulate the title to real estate and the right to regulate the terms of contracts with respect to real estate rests in the States rather than in the Congress?

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Justice MUSMANNO. I don't think so. I think where the fundamental rights of a U.S. citizen are involved, State laws are subsidiary. Senator ERVIN. Judge, can you cite me a single statute that has been passed by the Congress since George Washington took his first oath of office as President of the United States whereby Congress has undertaken to regulate the title to real estate or to regulate the terms of contracts relating to real estate?

Justice MUSMANNO. I just read you the statute of 1866, followed by the statute of 1875, followed by the 14th amendment which specifically states that, Mr. Chairman.

Senator ERVIN. All that statute said was that notwithstanding a person's race, he should have the same rights to acquire and dispose of property which white people had under State laws.

Justice MUSMANNO. Well, that encompasses what is referred to in this bill. No one is going to be compelled to sell his property to any particular individual under this legislation as I read it. It provides that he may not deny the right to a person of color to bid for the purchase of that property.

Senator ERVIN. It says in effect that if he prefers a man of his own race or a man of his own religion or a man of his own national origin over a person of another race or another religion or another national origin, that he can be amerced in unlimited damages. And also that the court can issue any kind of order, which I take to include a mandatory injunction, and he can be compelled to sell to a person selected by the court rather than by himself.

Justice MUSMANNO. I do not agree that the seller, the owner of property, is in anyway compelled to sell his property to any particular individual. He may not discriminate against that individual. But where he has a matter of choice, certainly he can exercise that choice.

Senator ERVIN. Well, if he prefers an individual of his own race in preference to an individual of another race, can he not be taken into court?

Justice MUSMANNO. He can be taken into court if it appears he is discriminating.

Senator ERVIN. Does section 406 (c) not say that the court may grant such relief as it deems appropriate, including a temporary or permanent injunction, restraining order, et cetera and may award damages to the plaintiff for humiliation, pain and suffering, and up to $500 punitive damages?

You tell me that if that provision is adopted by Congress, a court cannot issue a mandatory injunction to compel a man to rent or sell his house to somebody other than the man he prefers?

Justice MUSMANNO. If it can be shown that the only reason he refuses to sell the house is because of the color of the potential purchaser, then he will come within the provisions of this act. However, he has the right to determine that a certain purchaser will make a better tenant, that his status is such that he is more apt to keep the property in repair and maintain it properly, or that his morals are better. But when he says, I will not sell it to him because he is of a certain race or has a certain ethnic origin, the laws says, and properly so, that under our Constitution and all the ideals that I read into a democracy, he may not do that.

Senator ERVIN. In other words, if he makes his decision to sell it to one man rather than another because of race, color, religion, or national origin, then he is subject to the penalties of this bill, is he not? And then the court will make him sell it to a man to whom he does not wish to sell.

Justice MUSMANNO. If he refuses to sell it only because of one of these proscribed reasons, he certainly comes within the perspective of the law.

Senator ERVIN. Now, let us assume a hypothetical case, as we lawyers sometimes talk about.

Justice MUSMANNO. That is right, Judge.

Senator ERVIN. Here we will assume a man of the Jewish faith who has a dwelling house located in an exclusive Jewish community. He wants to sell that house and he prefers to sell it to another person of his own faith, rather than to a person of some other faith or lack of faith. What evil is there in that man having that privilege?

Justice MUSMANNO. Well, Mr. Chairman, there is a provision in the law that a religious institution may sell to those of a certain faith. Senator ERVIN. Not if he sells because he prefers a man of his own faith to a man of another faith. That is what this bill says. What essential evil is there in a person of a Jewish faith preferring to sell a residence in a community inhabited by other people of the Jewish faith to another person of the Jewish faith rather than to a Protestant, Catholic, or a person of no faith? What is the inherent evil in that? Justice MUSMANNO. One of the most disgraceful sights in America is to go to a hotel and see a sign, "Only gentiles allowed." Why should we permit that in a democracy?

Senator ERVIN. If you will pardon me, Judge, as one ex-judge to another judge you are not answering the question. I am not talking about hotels and I am not talking about only gentiles being accepted. Justice MUSMANNO. It is all part of the same fabric.

Senator ERVIN. I am asking you what inherent evil it is for a person of the Jewish faith to prefer to sell his home in a community inhabited by people of the Jewish faith to a person of the Jewish faith rather than to some other person of some other faith? What inherent evil is there in that?

Justice MUSMANNO. I do not read in this law that he would be denied that oportunity to sell to one of his own faith.

Senator ERVIN. He cannot under subsection (c) of section 403 make the statement that he prefers to sell it to a person of his own faith. I will read that, starting with line 19:

It shall be unlawful

I am omitting some words not pertinent

to print or publish or cause to be printed or published any notice or advertisement with respect to the sale, rental, or lease that indicates any preference, limitation, or discrimination based on race, color, religion, or national origin or an intention to make any such preference, limitation, or discrimination.

In other words, he commits an unlawful act if he publishes any advertisement that he prefers to sell his home in a Jewish community to another person of the Jewish faith.

Justice MUSMANNO. The keynote of that clause is discrimination rather than preference.

Senator ERVIN. Well, "preference" is used. If he makes any preference.

Justice MUSMANNO. Makes a preference through the avenue of discrimination. In other words, he will not sell to a Jew, he will not sell to a Negro, he will not sell to a Puerto Rican. And under the ideals of our country, I believe that that is improper, I think it is unfair. I do not think that so long as we retain these barriers between races, between nationalities, we are ever going to achieve the ideal that we have in the Judeo-Christian concept as outlined in the Bible.

Senator ERVIN. Judge, I hate to take issue with a distinguished judge like yourself, but as we lawyers would say, this is phrased in the disjunctive, not in the conjunctive, and it makes it unlawful to manifest by any publication or any notice or any statement an intention to make any such preference, limitation, or discrimination. In other words, it penalizes him for just announcing a preference.

Justice MUSMANNO. In other words, this person announces to the world that he does have prejudices

Senator ERVIN. No.

Justice MUSMANNO. Well, when he says he prefers, in the context of this bill, he means that he has prejudice based on race. That is the evil of the law of today, that you can actually show a discrimination through an alleged preference.

Senator ERVIN. Well, then, if a person prefers to marry somebody of his own race, he would be an iniquitous person, too, would he not? Justice MUSMANNO. I believe that those who are in opposition to this legislation, certainly have a right to oppose it, but are magnifying the possibilities of what will occur.

Senator ERVIN. I think, Judge, that we are just appraising liberty at its true value. We who are opposed to this legislation are fighting for liberty, fighting for the right of a man to do with his own property as he sees fit and to sell to a man of his own race or own religion if he cares to do so. You and I differ on this.

Justice MUSMANNO. I would just say in summing up that my thought is that this entire phraseology is based upon the proposition of discrimination, that you cannot refuse to give to a person his constitutional rights because of race, color, ethnic origin, or economic status. That is the point.

Senator ERVIN. We have the fifth amendment which says among other things, that private property cannot be taken even for public use without the payment of just compensation.

Justice MUSMANNO. Right.

Senator ERVIN. Is it not a fundamental principle of interpretation of the Constitution that the expression of one thing is the exclusion of another? Do you not use that sometimes in your decisions? Justice MUSMANNO. Oh, yes.

Senator ERVIN. Well, when it says you cannot take property for public use except upon the payment of just compensation, does that not impliedly say that you cannot take property for private use at all?

Justice MUSMANNO. That is absolutely correct.

Senator ERVIN. Yet this bill will allow the court to take the private property of one man and compel him to rent or sell it to another. Would that not be the effect of it?

Justice MUSMANNO. Because in doing that through discrimination, he is violating the basic concepts of our Constitution that all men are created equal, coming from the Declaration of Independence. Now, you can speak of preference, you can speak of desire to sell your property to a Jew or to a Catholic or to a Pole, and you have that preference. But if it is done through the avenue of discrimination, then you are violating the law and I think justice requires the law should be enforced.

Senator ERVIN. I would say if a man cannot do with his own property as he prefers, he has no liberty. When you say to A, "you must sell your property to B," you are subordinating his rights. Instead of promoting the equality of A and B, you are making A inferior to B and B superior to A in his legal rights.

Justice MUSMANNO. The law as I read it indicates that if you are not going to sell to B because he is a Negro, then you are violating the basic concepts of the whole form of our Government. That is what it amounts to. Every one understands that is the purpose of the legislation.

Senator ERVIN. Well, the purpose of the legislation is to take away from the American people in all areas of this Nation the freedom to establish residential patterns satisfactory to them and to confer on the Federal Government the power to coerce people to establish residential patterns satisfactory to the Federal Government instead.

Justice MUSMANNO. Well, most respect fully, I disagree. I believe that the purpose of this legislation is to effectuate the intentions so clearly expressed in the Constitution of the United States that no U.S. citizen shall be deprived of his right to own property because of his color. That is what it amounts to. Now, this phraseology may be misleading. It may seem to go further than it should go. But the primary concept is that you cannot say to a Negro, to an Italian, or to a Pole, you cannot live here because your parents came from Italy or Poland or your grandparents were slaves. That is the purpose of this legislation.

Senator ERVIN. What it says in effect is that a member of any minority group can compel another man to sell or lease him his property against his will or suffer the consequences of unlimited damages or perhaps contempt of court for violation of an injunction.

I thank you, Judge. I enjoyed the colloquy with you and I regret very much that you do not share the same sound views as to the iniquity of this legislation as I do.

Senator KENNEDY of Massachusetts. Mr. Chairman?
Senator ERVIN. Yes, Senator.

Senator KENNEDY of Massachusetts. I want first of all to extend a warm welcome to the distinguished judge, Judge Musmanno, and to say how delighted I am that he would take the time to come here and appear before this committee. Although I was not here for the opening remarks of his statement, I did follow his remarks from the time I entered and I have had a chance to review them briefly while I have had them here before me.