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gram or activity financed, in whole or in part, either directly or indirectly, by the Federal Government. Indeed, he can go even farther in imposing his racial views upon all persons and institutions coming under the provisions of the bill.
The CHAIRMAN. You certainly could not assume that it wouldn't be enforced.
Senator Ervin. Incidentally, under this same title, the President could deny, to people embraced within the housing program, not only the right to determine to whom their land should be sold, but also the right to determine to whom their property could be rented.
The Supreme Court of the United States has held in Shelley v. Kraemer, 334 U.S. 1, that State courts cannot enforce a racial restriction in a deed, because that would be State action. But the Supreme Court also held that private restrictive covenants barring the sale of land to non-Caucasians are valid, under the 14th amendment, so long as the purposes of those agreements are achieved by the parties through voluntary adherence to the terms. And that is held not only in Shelley y. Kraemer, but in Hurd v. Hodge, 334 U.S. 24, and Barrows v. Jackson, 346 U.S. 349.
The President, under this title of the bill, could exercise the power to take away from people covered by the housing program the rights they possess under the 14th amendment to determine who their neighbors should be.
Senator JOHNSTON. In other words, the courts have said that the State cannot make it prohibitive, but the individuals themselves can?
Senator ERVIN. Yes.
It is impossible to exhaust all of the possibilities of the action the Federal Government could take under the powers that would be vested in the administration by title VI. I am now going to call attention to title VII.
Title VII would give congressional sanction to the President's Commission on Equal Opportunity in Employment, which was created by an Executive order. It merely states, in general terms, that the Commission shall exercisesuch powers as are necessary to prevent discrimination against employees or applicants for employment because of race, color, religion, or national origin by Government contractors and subcontractors, and by contractors and subcontractors participating in programs or activities in which direct or indirect financial assistance by the United States is provided by way of grant, contract, loan, insurance, guarantee, or otherwise.
I am reading from section 701, on pages 35 and 36 of the bill.
As the committee knows, articles I of the Constitution of the United States vests, in Congress, all of the legislative power of the Federal Government.
It has been held, in many cases, that Congress cannot delegate, to any person, the President or anybody else, the power to determine to whom a law shall apply, or the power to determine what shall constitute violations of that law, or the power to determine what the punishments under that law shall be.
I will now read from lines 2, 3, 4, 5, 6, 7, and 8, on page 36 of the bill, section 701 :
The Commission shall have such powers to effectuate the purposes of this title as may be conferred upon it by the President. The President may also confer upon the Commission such powers as he deems appropriate to prevent discrimination on the ground of race, color, religion, or national origin in Government employment.
In other words, the President's Commission is to have all the powers conferred upon it by the President, whatever they may be. One will search the law books in vain for a more unmitigated attempt to delegate the powers of Congress to legislate to the President.
There are a number of decisions of the Supreme Court on that point. They all lay down the proposition that Congress can delegate the power to an executive agency to make a finding of fact, or to exercise some discretion in the carrying out of an act. But they also say that Congress cannot delegate, to the President, or to anybody else, the power to say to whom an act shall apply, what shall constitute specific offenses under the act, or what punishment will be visited upon those who violate the act.
I will not encumber the record with citations of these decisions. There are many of them that hold that Congress cannot delegate such power to the President.
I want to say a few things in conclusion. A strange theory has arisen in the United States to the effect if a man wishes to select, as his neighbors and associates, and as the associates of his immature children, people belonging to his race, he is an evil man who discriminates against people of other races. That is the theory upon which this legislation is based. I find it extremely difficult to accept that theory. I have noticed, in all areas of the country that I have been privileged to visit, that where men are left free to select their own associates and associates for their immature children, they virtually always select people of their own race.
I do not think that that is evil or unnatural. I think it is obedience to a law of nature which says that like seeks like. I think that is perfectly natural. I think that these efforts to prevent people from selecting, as their neighbors, and as associates for themselves and their children, members of their own race are efforts to bring about something which is artificial rather than natural.
As a result of this strange theory, we have agitation for laws under which men would be denied the right to select their neighbors, or to determine the use of their own property.
I don't think that any man can enjoy any right unless he has economic freedom. If he does not have economic freedom, he has no means by which he can really exercise any other right he is given. I don't think that the fact that people like to live in neighborhoods inhabited by people of their own race manifests an evil mind or constitutes any discrimination against people of other races.
I wish to cite certain figure relating to the District of Columbia to support the thesis that there are millions of Americans who do not believe that the Federal Government ought to undertake to compel compulsory integration of the races. When the school desegregation decision was handed down in May, 1954, it was decided that the public schools of the District should be immediately desegregated. It was said that this would make the Capital a showplace for the Nation to emulate.
The white population of the District fell from 517,865 in 1950 to 345,263 in 1960-a loss of 172,602. During the same period the enrollment of white children in the public schools of the District decreased from 46,763 to 24,982-a loss of 21,754. An additional loss in the enrollment of white children in the District public schools amounting to 2,702 has occurred since 1960. These figures do not explain the entire situation, for many District schools are still largely segregated as a result of residential patterns.
The facts indicate that people have moved out of the District largely or at least in part because they did not desire to have their children attend desegregated schools.
The percentage of white children in the schools of the District today is 15 percent; 85 percent are Negroes.
This desire of people to select as their neighbors and associates and as associates of their
immature children people of their own race is a feeling that is shared by millions and millions of people of all races in all areas of this country.
The CHAIRMAN. It is true of all races; isn't it?
As I say, I think this is in obedience to natural law. And I think that the Federal Government is committing a grave error when it attributes this feeling to discrimination and race prejudice instead of the operation of natural law. I think the Federal Government is committing an offense against the American people in saying that they should
be denied, by exercise of arbitrary power, the right to select their own neighbors and to sell their own homes.
There are millions and millions of other Americans who entertain views of this nature.
One of the great liberals of this country is Herbert Weschler, the Harlan Fisk Stone professor of constitutional law at Columbia University. In April 1959, he delivered the Oliver Wendell Holmes lecture at Harvard Law School on the subject, "Neutral Principles of Constitutional Law." He favors integration. He speaks of freedom of association, and points out that in some cases freedom of association is denied by segregation. But he says this in closing:
But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is not this the heart of the issue involved—conflict in human claims of high dimension, not unlike many others that involve the highest freedoms that Professor Sutherland has recently described ? Given a situation where the State must presently choose between denying the association to those individuals who wish it, or imposing it on those who would avoid it, is there a basis in neutral principle for holding that the Constitution demands that the claims of association should prevail? I should like to think there is. But I confess that I have not yet written the opinion. To write it is for me to challenge the problem school segregation cases pose.
Some people say that a man who does not support this bill favors discrimination.
I don't think that is true. I think you have here a situation where, as Professor Weschler says, there is a conflict between two principles. You have a conflict here between so-called equality, coerced by law, and freedom of the individual. You have this in the school situation; you have it in public accommodations.
The 14th amendment applies to State action because those who drafted it wanted to leave the power to regulate relations among individuals to the States, subject only to the prohibitions it imposes on the States in respect to due process, the equal protection of our laws, and privileges and immunities of citizens. The bill constitutes a drastic assault on the principle of local government, which the amendment preserves.
I want to keep as much government as near home as possible, because if I do not like the government I have near home, I can go and tell that government so. And if it does not mend its ways to suit me, I can do something effective to get rid of it. It is otherwise with respect to this gigantic bureaucracy we have up here on the banks of the Potomac River.
The people who drew our Constitution realized that liberty is inevitably imperiled by any government far removed from the people.
For that reason they divided the powers of government between the Federal Government and the States.
Chief Justice Chase was absolutely correct in defining the purposes of the Constitution of the United States in a nutshell in the celebrated case of Texas v. White. He said the Constitution, in all of its provisions, looks to an indestructible union composed of indestructible States.
This bill would go a long ways toward destroying the States. When the States are destroyed, the Union created by the Constitution is also destroyed.
The values at issue here go far beyond the question of legal rights and matters of that kind. This is so because no truer thing was ever said than the statement which Judge Learned Hand attributed to Justice Brandeis. According to Judge Hand, Justice Brandeis said this about the desirability of preserving the States:
The States are the only breakwater against the ever-pot ding surf which threatens to submerge the individual and destroy the only society in which personality can exist.
If Congress, the courts, and the President continue to concentrate and centralize the powers of Government in Washington, they will destroy the rights of our people and make them serfs of the Federal Government, not freemen. This bill ought to be defeated because it is inconsistent with the system of government our Constitution was drawn to establish. Moreover, it undertakes to substitute socalled equality coerced by law for liberty.
I want to read again from Judge Harlan's opinion in Peterson v. The City of Greenville, pages 2 and 3:
The ultimate substantive question is whether there has been State action of a particular character, whether the character of the States' involvement in an arbitrary discrimination is such that it should be held responsible for the discrimination. This limitation on the scope of the prohibitions of the 14th amendment serves several vital functions in our system underlying the cases involving an alleged denial of equal protection by ostensibly private actions of a clash of competing constitutional claims of a higher order-liberty and equality.
Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of protection from governmental interference.
This liberty would be overridden in the name of equality if the strictures of the amendment were applied to governmental and private action without distinction. Also inherent in the concept of State action are values of federalism, a recognition that there are areas of private rights upon which Federal Government should not lay a heavy hand, and which should properly be left to the more precise instruments of local authority.
I respectfully submit that those who seek to have public accommodations open to persons of all races should seek to obtain that object by persuasion.
Much has been done by persuasion in this country in that area. In my own State of North Carolina, we have had a great opening of doors in places of public accommodation. Similar action is occurring throughout the United States. That is the way problems of this nature ought to be solved.
We ought to rely solely upon persuasion. But if we are going to rely on law, we ought to rely upon law enacted by the only authority under our constitutional system which can exercise such power, and that is the State legislatures and the councils of municipalities. They have police power which the Federal Government lacks. They have the power to pass laws to regulate public accommodations, if they desire to do so. Their laws would be much more desirable, because they can tailor them to suit local conditions. This cannot be done in legislation on the national level.
Many racial problems arise out of economics, and efforts should be made to assist members of minority groups in obtaining suitable jobs. These efforts should be voluntary, however, rather than coercive. I do not believe that you can promote good racial relations or good economics by the Government going in and grabbing an employer by the throat and saying, “You have to hire this man whether you want to or not.” That would be the destruction of another freedom.
I think that people who invest their money in a business have the right to determine whom they shall hire and whom they shall promote, and whom they shall discharge.
Whenever there is a conflict between supposed equality coerced by law and the freedom of the individual, I am going to take my stand for the freedom of the individual. This country was made great by men who were granted freedom to strive and to achievenot by men who were robbed of basic economic, legal, and personal rights through the coercive power of law.
If government robs our people of their economic freedom to manage their own property in their own way, it will be denying in the long run to so-called minorities one of the most precious rights they can ever seek or attain.
If a man wants to drink cool water out of a spring on the top of a mountain, he ought to climb to the top of the mountain to get it. If he is unwilling to do that, he can, if he can bring enough pressure on government, induce the government to pipe that water from the top of the mountain, through governmental pipes, down to the valley where he is. But he will discover when he receives that water at the end of the governmental pipe that it has not only lost its coolness, but it has lost its taste, and become stale and flat, and is no longer desirable.
Racial problems are like all human problems. They can be solved in a satisfactory manner only by cooperation, good will, and understanding on the local level where people live.
No men of any race can law or legislate their way to the more abundant life. They must achieve such life by their own exertions and by their own sacrifices. And anybody who maintains the contrary is either fooling himself or trying to fool somebody else.