Mr. LATTA. I have no questions. I want to join my friend from California in commending Mr. Wiggins on what I think is one of the most scholarly statements that I have had the privilege to look at since I have been on this committee.

The CHAIRMAN. Mr. Young?

Mr. YOUNG. No questions. Thank you, Mr. Chairman,

The CHAIRMAN. Mr. Pepper, you are a great constitutional lawyer? Mr. PEPPER. I don't have that capacity. I would like to ask the gentleman one or two questions.

Under the Constitution, all persons born or naturalized in the United States are citizens of the United States and of the several States in which they reside. So all of these people who are the proposed beneficiaries of this legislation, presuming that they were born in the United States, are citizens of the United States as well as of the several States in which they reside.

What would the able gentleman-you have made an able statement of the matter say if it came to the knowledge of the Congress that all of the white people in this country had adopted a practice and there was sort of an agreement to that effect not to sell any food to any citizens of the United States who were Afro-Americans in descent?

Would there be any authority on the part of Congress under the national defense to preserve the health and potential of soldiers or otherwise? Would there be, in your opinion, any authority on the part of Congress to prevent such action?

Mr. WIGGINS. I don't think that there would be any question about the power of Congress to respond to that situation.

Mr. PEPPER. Do you think Congress could act?

Mr. WIGGINS. Yes, I think the Congress authority extends that far. Mr. PEPPER. Then your question about Congress acting in this case is a matter of degree. You don't think housing is sufficiently comparable and important to food to authorize Congress to act in the housing case when you think it could act in the food case?

Mr. WIGGINS. No. Let me make that distinction. I think it is possiblefor housing, some housing at least, to be involved in commerce. I am saying that this bill, however, purports to go beyond. I am also prepared to say that some housing is not involved in the flow of commerce. This bill reaches all housing.

I am mainly concerned with the fact that it goes beyond the thrust of the commerce clause. Distinguish that from food. Food is a steady stream from market until it is consumed. It does not attain a situs the way real property has a situs.

I think the factual distinctions are clear and would not bother the Court; nor should it bother this Congress one bit to say that food, all food, is a part of commerce. Indeed, as you know, in the one case cited, food homegrown by the farmer and consumed by the farmer, fed to his own chickens, which he ate himself, was deemed to affect commerce. That problem wouldn't bother me at all, sir.

Mr. PEPPER. Yet in housing, wouldn't it be probable that in nearly every house there are some ingredients that came into the area where the house is built that came across State lines; nails, or something that went into the house?

Mr. WIGGINS. Yes. You see, the problem is whether or not housing is commerce. This Congress ought to face up to it and make that finding, that it is commerce, and indicate in the bill that we are only reaching commerce because that is our constitutional policy.

That has been our approach in other civil rights bills which we sought to justify under the commerce clause. Here we carefully neglected to confine it to commerce. I conclude we are really attempting to reach beyond commerce to a certain level of housing. That is unconstitutional.

Mr. PEPPER. It is true that when we are generally speaking about the necessities of the people, we ordinarily say food, clothing, and shelter.

Mr. WIGGINS. Yes.

Mr. PEPPER. Thank you.

Mr. WIGGINS. Thank you.

The CHAIRMAN. Mr. Matsunaga?

Mr. MATSUNAGA. Mr. Wiggins, is it your position that if the dictum in the Guest case were the law today, then the constitutionality of H.R. 2516 would be upheld?

Mr. WIGGINS. My view is that if the dictum in the Guest case is the law, the answer is that this bill would be constitutional, and more than that, whatever the Congress wanted to do in the area of civil rights would also be constitutional. It is a no-holds-barred dictum. You can do whatever is appropriate.

Mr. MATSUNAGA. Then the gentleman will agree, of course, that much of our law today is based on dicta, what used to be dicta. The mere fact that the review of the Court over the actions of Congress started out as a dictum in the Marbury v. Madison case, there is th possibility, not a probability, that by the time H.R. 2516 comes before the Supreme Court, the Supreme Court may hold what is now dictum in the Guest case?

Mr. WIGGINS. I confess, sir; that the Court may uphold that and I regret to say that it probably will at some future time. I invite the gentleman to read the language of the 14th amendment and just search your heart and say, "Does that make sense? Does the language, the dictum, in the Guest case make sense?"

It seems to me rather clear that the appropriate legislation which can be enacted under section 5 of the 14th amendment specifically refers to enforcing the provisions of this article and the provisions referred to are the 14th amendment provisions.

It would require an utter repudiation of a long line of cases to say that the 14th amendment refers to private actions.

Mr. MATSUNAGA. The fact remains that reasonable men do disagree on the interpretation, especially of our Federal Constitution. There is this possibility, not a probability, of a dictum becoming a holding?

Mr. WIGGINS. It may, but I again will restate my view that we in Congress have the separate, independent duty to interpret the Constitution. I suggest this commonsense interpretation.

Mr. MATSUNAGA. No further questions.

The CHAIRMAN. Mr. Anderson?

Mr. ANDERSON of Tennessee. I have no questions.

The CHAIRMAN. Mr. Wiggins, unfortunately, I was out of the room when you testified. I shall not attempt to rehash what has been said, or the questions that have been asked.

I wanted to approach this just briefly from another angle. The thing that has bothered me ever since this controversy arose after the other body rewrote this bill is whether under the circumstances that exist under the action that was taken by the other body, would it or not be your opinion, as a Member of the Congress, that the usual procedure should be, after all of these amendments that we are adding to the bill, one of two things: either the Committee on the Judiciary should reexamine the bill and correct such flaws as it might see fit to improve the bill either from the point of view of making it stronger or weaker or expressing the will of the House and the committee, or it should go to conference?

Does the gentleman care to express himself about that?

Mr. WIGGINS. Yes, sir; I would be happy to.

I would settle for conference. But in terms of what is best, I believe it would help this bill and would not affect adversely its ultimate chances of passage if the Judiciary Committee of this House had an opportunity to work on the language of the bill because of the kind of legislation you expect to be drafted on the floor of the body. It really does not give due credit to the Congress, in my opinion.

The CHAIRMAN. As a matter of fact, this bill was largely written on the floor of the other body.

Mr. WIGGINS. That is the problem. I agree, sir. That is the problem. It would help the bill to go to the House Judiciary Committee, but short of that, it would help also to go to conference.

I wish the chairman would consider whether or not this matter is of such overriding urgency to require special action to be taken by the House.

We have open housing legislation in most of the large, industrial, Northern States. We have it right here in the District of Columbia. We have it in my State of California.

This is not as if we are all of a sudden confronted with an emergency problem that we must meet tomorrow afternoon. It is something we should handle carefully and use our best judgment.

The CHAIRMAN. I am sure the gentleman has given more thought to this than I have, and possibly is much more capable of arriving at the proper conclusion. Wouldn't the effect of this be to preempt the State laws? There is some confusion about that, I understand.

Mr. WIGGINS. The language of the bill, as you know, specifically disclaims any attempt to preempt the State law.

The CHAIRMAN. That is in one provision, isn't it?

Mr. WIGGINS. Yes, sir; I believe it is in title I that the language occurs. I also believe in title VIII that language occurs.

The Congress, if this bill is passed, would say it is not preempting State law. I am concerned, however, that Congress is getting its nose under the tent into an area which quite properly ought to be reserved to State governments.

You see, Mr. Chairman, I believe very strongly, and I am sure the chairman does as well, in the viability of State government. The way

to make it work is to give it responsibility and make it perform. The idea of taking powers away from the State simply because they have not performed, to me, carries the seeds of destroying the whole federal system. I don't approve of that.

The CHAIRMAN. Of course, the gentleman, in subscribing to that theory, I am afraid, puts himself in the position with some of us older people who subscribe to that doctrine and believe that the 10th amendment to the Constitution is still part of it.

Of course, the gentleman will recall that those powers are not specifically delegated to the Federal establishment, the Government shall remain in the Congress or the people. But that amendment seems to have been lost sight of in all of this theory about appealing to the minority groups.

I thank the gentleman.

Mr. Latta?

Mr. LATTA. The gentleman mentioned that the District of Columbia has an open-housing bill.

Mr. WIGGINS. I believe I said that; yes, sir.

Mr. LATTA. How does that compare with this one? Is it as tough, so to speak, as this bill?

Mr. WIGGINS. In answer to the gentleman, I would have to say I am not that well acquainted with the provisions of the District's openhousing bill. I am relying upon statements made to me that (a) we have such a bill; and (b) we have made one for some time. I have not had the occasion to review its text, so I cannot answer the gentleman with any authority.

Mr. LATTA. Then if the District of Columbia does have a bill and it is an effective piece of legislation, which I would think it would be, it sort of lays waste to the argument that we have got to pass this in undue haste or we are going to have riots because if they had riots here in the District of Columbia to the extent that the papers say they did, and the television says they did, it seems not to be related to the matter of open housing.

I didn't see too many signs saying they would want open housing in the District of Columbia. I think we had testimony before this committee that 22 States also had open housing, including the State of Ohio. I heard last night where they had a riot in Cincinnati. They had one in Youngstown. So apparently it is not related to this problem we have been considering here before our committee.

Mr. WIGGINS. It might be, in answer to the gentleman, a fair comment to ask, Have we had a riot in the States that do not have an openhousing law? I am sure that we probably have had. I certainly agree that legislation of this sort has got to be totally unrelated to the emotional issue on the street. I hope that we will view it without reference to any incidents of the last few days.

The CHAIRMAN. Thank you, Mr. Wiggins.

Mr. WIGGINS. I thank the chairman for the privilege of testifying. The CHAIRMAN. Because of, first, the vote to be taken to wind this matter up today, and the agreement of the committee this morning informally that the committee will go into executive session at 11:30, I suspect that this will conclude the hearing.

I understand, Mr. McCulloch, that you had a statement that you wanted to present to the committee.

STATEMENT OF HON. WILLIAM M. McCULLOCH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Mr. McCULLOCH. Mr. Chairman, if there be no time to orally present it, of course, I want to file it for the record. I have deep feelings about this matter.

The CHAIRMAN. Of course, I call to the attention of my friend from Ohio the fact that we have invited him on several occasions to take the witness stand. The last message I had from him was that he desired to file his statement.

Mr. Latta?

Mr. LATTA. That is the impression that the gentleman gave us. The gentleman from Ohio indicated he wanted to file it rather than to present it.

The CHAIRMAN. That is correct.

Mr. McCULLOCH. I should like to file this statement and have the time, please, sir, to say, regretfully, that I cannot agree with my very able colleague on the Judiciary Committee, Mr. Wiggins. There is a long section of my statement devoted to the constitutionality of this legislation.

The CHAIRMAN. Without objection, the request of the gentleman from Ohio to submit his statement for the record will be granted. (Mr. McCulloch's statement follows:)

STATEMENT OF WILLIAM M. MCCULLOCH

Mr. Chairman and Members of the Committee: I am pleased to present my views to the Committee on Rules on H. Res. 1100. Everyone knows that the adoption of this resolution by the House would enact H.R. 2516 into law as written by the other body.

From January eighteenth to March eleventh of this year-for nearly two months-the other body considered little more than H.R. 2516. The labors of the other body drew national attention, and rightly so.

Open Housing, a most important part of the Bill, is once again before the Congress. In 1966, the House approved Open Housing legislation, but the other body did not act thereon. Now the other body has acted and the burden is upon

us.

The people are watching, the people are waiting.

Indeed, they should. The broad problem of civil rights and civil disorders is one of the most difficult and troublesome domestic issues of our time. The problem saps our national strength, it paralyzes our will, it shames our soul.

Last summer, the President appointed a National Advisory Commission on Civil Disorders. What the report of the Commission said is pertinent here: "This is our basic conclusion: Our nation is moving toward two societies, one black, one white-separate and unequal."

Focusing on the question of open housing, the Report observed:

"Discrimination prevents access to many non-slum areas, particularly the suburbs, where good housing exists. In addition, by creating a 'back pressure' in the racial ghettos, it makes it possible for landlords to break up apartments for denser occupancy, and keeps prices and rents of deteriorated ghetto housing higher than they would be in a truly free market."

Men can be imprisoned outside of jails. The ghetto-dweller knows that. The Negro knows that he is caged, that society really gives him nowhere else to go. There are no iron bars, but iron bars do not always the prison make. (Apologies to Richard Lovelace.) But neither are there any exist to so many entrances. A federal open-housing bill could be compared to a writ of habeas corpus for a whole people. On passage of the bill, Congress would thereby decree that society has no right, no authority to imprison a man in a ghetto, because of his color. A door would be opened. The prisoner would be free to leave, yes, free to flee the ghetto. Of course, the bill would not buy for the prisoner a fine home in the