Title I: This title purports to punish those who interfere with federally protected activities. I am pleased that the Senate coupled the riot provisions with the sections dealing with other activities. It has been the consistent position of most members of the Judiciary Committee that these two subjects are merely differing aspects of the same problem and should be treated together.

Section 245, dealing with federally protected activities, has been drafted to reach two types of activities; namely, individuals who prevent other individuals from participating in or enjoying certain governmentally sponsored activities that is voting or jury serviceand individuals who prevent other individuals from participating in or enjoying certain nongovernmental activities that is, obtaining private employment or eating at a private lunch counter.

I concede that the Federal Government has the power-indeed the duty-to prevent discrimination on the basis of color in the conduct of a Federal activity, and under section 5 of the 14th amendment, a State activity as well. I further concede that as a necessary adjunct to this power, it may also regulate individuals who may deny to others the full use or enjoyment of a Federal or State activity.

The issue squarely put by sections 245 (b) (2) (C) and (F)—incidentally, gentlemen, (C) is the employment section and (F) is the public accommodation section-however, is whether that power extends to private individuals who, for racially motivated reasons, deny to others the full use of a private facility.

Title VIII: Title VIII deals with open housing. By its language, it covers not only the sale or rental of Government owned or financed housing, but strictly private housing as well.

Again, I concede that this Congress has the power to act to prevent discrimination on the basis of color in any housing owned or financed by the Federal Government, and under section 5 of the 14th amendment, in any State owned or financed housing. But again, this issue is squarely put as to whether or not under this title, the Federal Government may act to prohibit private discrimination in the sale or rental of private housing.

Possible sources of Federal power: Only two sources of power to reach individual acts of private discrimination have been suggested, and I am aware of no others.

(1) As a regulation of interstate commerce under article I, section 8, of the Constitution.

It is now settled that Congress may prohibit private acts of discrimination which tend to burden interstate commerce. This is the thrust of Katzenbach v. McClung, 379 U.S. 294, and Heart of Atlanta Motel v. United States, 379 U.S. 241, both upholding the constitutionality of the public accommodations sections of the 1964 Civil Rights Act (78 Stat. 241).

It is also settled that the burden upon commerce may be minimalMabee v. White Plains Publishing Co., 327 U.S. 178 or not readily apparent at all; for example, Wickard v. Filburn, 317 U.S. 117.

But it must be taken as equally well settled that for article I, section 8, to serve as the basis of power, interstate commerce must, in fact, be involved to some degree.

Under the 1964 Civil Rights Act, Congress was careful to limit the language of the public accommodations section to only those establishments whose "operations affect commerce"-section 201 (b).

No such limiting language is found in the present bill.

The omission is a significant one and leads to the conclusion that Congress is attempting to prevent private discrimination against all places of public accommodation, whether commerce is involved or not. Unless some other source of power is found, Congress may not reach that far.

With respect to the open housing sections, it has been argued that the prohibition against private acts of discrimination is amply supported under the commerce clause since buyers, materiel and credit freely cross State lines. This argument would have constiutional substance if Congress found as true the key fact that discrimination on the basis of race is a burden to the free flow of such commerce. H.R. 2516 fails to make this finding, and I personally believe that the omission is an intentional one.

I do not feel that the distinction between owner-occupied, ownersold, or broker-sold housing has any critical importance constitutionally, nor does the number of private units involved play a critical role. These facts should only come into play in support of a "commerce" argument which is backed by a congressional finding that commerce is affected and a record of testimony in support thereof before appropriate committees.

It is not stylish nowadays to remember that the commerce clause is not a source of unlimited power. However, I commend to the committee the statement of Chief Justice Hughes in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. at page 30:

The authority of the Federal Government may not be pushed to such an extreme as to destroy the distinction which the commerce clause itself establishes between commerce "among the several States" and the internal concerns of a State. That distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our Federal system.

(2) Under the 14th amendment:

Historically, the 14th amendment has served as a limitation on State action. Only recently has the language of section 5 of that article been viewed as an independent source of Federal power to reach private discrimination.

As of this date, the Supreme Court has not held that the 14th amendment serves as a constitutional basis for the Congress to prohibit acts of private discrimination.

Several Justices have entertained that view-for example, Douglas and Goldberg in separate, concurring opinions in the Atlanta Motel case, and indeed a majority reached that conclusion as dictum in United States v. Guest, 383 U.S. 745.

Whatever the view of the Court may be in the future on this issue, we in Congress have an equal and independent duty to interpret the Constitution.

Section 5 of the 14th amendment states that "Congress shall have the power to enforce, with appropriate legislation, the provisions of this article." The "provisions" of the 14th amendment prohibit State discrimination, not private discrimination. The only "right" which exists under the 14th amendment is to be treated equally by the State. It does not mean that every person has a constitutional "right" to be treated equally by every other person. That is the thrust of the civil rights cases.

Rights do not exist in the air. Rather, they exist between legal entities. The 14th_amendment establishes that relationship between State and citizen. It does not address itself to the question of how one citizen should treat another.

I conclude, Mr. Chairman, that the 14th amendment to the Constitution does not authorize the Federal Government to prohibit acts of private discrimination unrelated to governmental activities, and that there is no showing that interstate commerce is affected by the conduct sought to be regulated in this bill. In its present form, therefore, the bill is most probably unconstitutional.

To those who cry in despair, "Something must be done to end bigotry in America," we should answer, "The Congress agrees, but look to your State government."

And if the reply is heard that State government is not responsive to the needs of the people, we should have the courage to say, "Change the policies of your State government."

The Constitution guarantees to all Americans equal political power to affect the actions of their Government. Congress has appropriately implemented that power by legislation. It is the political power thus created-rather than raw force-which must be the vehicle to accomplish social change.

If Congress preempts powers properly reserved to the States, State government and the federal system as a viable structure shall die. I view private acts of discrimination as no greater evil than the emasculation of the federal system contemplated in this bill.

Thank you again for the privilege of testifying.

Mr. MADDEN. Congressman Wiggins, I personally haven't made any exhaustive study regarding the constitutionality of this legislation, but have you read over the Senate hearings on this legislation when they were held last August over in the other body?

Mr. WIGGINS. Yes; I did, sir. They had the whole title on the constitutionality in the Senate hearings. I read the Senate report, rather than the hearings themselves.

Mr. MADDEN. Of course, as I say, personally I haven't gone into the constitutionality of this legislation, but the hearings were held over there on the constitutionality of the fair housing provisions of H.R. 2516 based on the 14th amendment and the commerce clause in the Constitution, and the Supreme Court decisions in other civil cases. You mentioned the Atlanta Motel case. In my mind, from the hearings that I read, they leave little doubt regarding the constitutionality of the fair housing angle of this legislation.

Further, during the Senate hearings on fair housing last August, a variety of qualified witnesses, lawyers, testified on the constitutionality of this law. The U.S. Attorney General, Ramsey Clark, said that there is no doubt whatsoever about the constitutionality of this proposal.

In the Senate hearings on page 7 of his testimony, he also testified to the constitutionality of the open housing legislation with the deans of three major law schools, Rev. Robert F. Drian, Boston College Law School; Joseph B. Fordham of the University of Pennsylvania Law School; and Louis H. Pollock of the Yale Law School. Those hearings and that testimony start on page 127 of the Senate hearings.

The constitutionality authority of the Congress to enact fair housing legislation was confirmed by a committee consisting of some 30 con

stitutional lawyers and experts, scholars, and this committee of 30 lawyers was headed by Sol Rabkin of the Anti-Defamation League. My personal opinion is, considering the testimony of the Senate hearings from distinguished legal authority like this, that there is no doubt regarding the constitutionality of this legislation.

Mr. WIGGINS. I appreciate the gentleman's comment. I can only say that I respectfully disagree with you and with the gentleman you cited in support of your position.

I will say this: that for this bill to be constitutional, two facts have to exist. Point 1: The dictum in the Guest case has to be the law of the land. I am not willing to say that it is. The Supreme Court has not said that it is. I would hope that the Supreme Court would never reach that conclusion in a holding because it would be a strained construction of section 5 of the 14th amendment to say that appropriate legislation means any legislation.

Point 2: For this legislation to be constitutional, it will have to reach only commerce, and the legislation is not drafted in that way. Its reach is beyond commerce or even things that affect commerce.

I suspect that the Judiciary Committee of the Senate has carefully omitted the language which would confine it to commerce. There are the only two sources of constitutional authority. If they are not true or if they are not present, the bill is unconstitutional.

Mr. MADDEN. In view of the testimony before the Senate committee regarding these experts, including the Attorney General of the United States, you are not opposed to having the Rules Committee adopt this resolution and let the members decide on that?

Mr. WIGGINS. No, sir. It is not my purpose here to suggest that this committee should bottle it up.

Mr. MADDEN. If it should be unconstitutional, the courts can take care of that, don't you think?

Mr. WIGGINS. No; I do not agree that Members of Congress should not concern themselves with constitutional questions.

Mr. MADDEN. That is true. If your contention is correct, it could be corrected by the courts?

Mr. WIGGINS. Yes, and I hope that if this body, in its eminent wisdom, passes the bill, it will be corrected by the court.

Mr. SMITH. I would like to commend the gentleman for his statement. I have had the opportunity of working with him on some matters, in redistricting and other constitutional questions. I know him to be a very able lawyer and I know he has spent some time on this. I commend the gentleman for his interest in it.

Do you think the problems you raise can be corrected by court, or should they be corrected in a conference? Do you have any thought on that?

Mr. WIGGINS. Yes, sir. We in Congress should never pass a bill that is tainted with unconstitutionality if it can be corrected here. I would like to see a conference correct not only the constitutional issues that I have suggested. I haven't even discussed the fact that the bill is drafted in such a way that it is hardly a credit to the Congress. It really ought to be cleaned up, in my view, in conference before it becomes law, if it is to become law.

Mr. SMITH. You are in support of civil rights legislation?

Mr. WIGGINS. I would have no trouble at all in supporting this bill, given just a few amendments. But I could not support it and will not support it in its present form, because I am convinced that it is unconstitutional.

The CHAIRMAN. Mr. Delaney?

Mr. DELANEY. What about the general welfare clause? Would that exempt it?

Mr. WIGGINS. No, sir. There is no right of Congress to legislate, apart from the appropriation of money, for the general welfare. I stated that positively as a matter of constitutional law.

I really should say that is my opinion, but I think that is the law, that this Congress has no police power or jurisdiction, to do whatever is in the public interest or the general welfare. That clause only comes into play in connection with the spending of money.

Mr. DELANEY. Not with the delegation of power. We have only such power as delegated to us by the original articles, and then the amendments as they have been added.

Mr. WIGGINS. That is right.

Mr. DELANEY. You found no place where under a general welfare clause this could be included?

Mr. WIGGINS. I find only one article, one power. I am talking about article 1, section 8, the enumerated power of the Constitution that might be called upon to support this legislation, and that is the commerce clause.

Mr. DELANEY. Thank you.

Mr. BOLLING. No questions.

The CHAIRMAN. Mr. O'Neill? Mr. Quillen?

Mr. QUILLEN. Mr. Wiggins, I, too, want to commend you and ask you a question.

The gun law provisions, and the titles dealing with the rights of the Indians, would you consider those two parts of the bill to be germane to the matter at hand?

Mr. WIGGINS. I would be happy to give my opinions on the matter. Under the rules of the House I am not sure how I would rule if I were the parliamentarian. But they border upon being not germane.

The Indian civil rights bill is a civil rights bill in that broad context and perhaps should be included here. I personally think that it is a mistake, however, to do so without separate consideration by a committee of this House.

On the sole issue of germaneness, if I had to make a mistake, I would make a mistake on the side of conservatives and say that it is not germane for the purpose of seeing that it had better consideration by this House.

Mr. QUILLEN. Thank you.

The CHAIRMAN. Mr. O'Neill?
Mr. O'NEILL. I have no questions.

The CHAIRMAN. Mr. Sisk?

Mr. SISK. No questions, Mr. Chairman, other than to commend the gentleman. I know he is a very able lawyer. I think he has prepared a very fine statement.

Mr. WIGGINS. Thank you.
The CHAIRMAN. Mr. Latta?