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or immoral workmen, or if people are known to take poor care of their homes or apartments, properties need not be sold to them.

Now, if I understand that statement correctly, and I do not know that I do, does that mean that you are saying that the seller will have the right-and not be prosecuted—if he determines in his own mind that the person who has sought to buy his property is a person who probably would not keep that home as well as would another person. Would you say that is a basis upon which he cannot sell it to one and sell it to another?

Senator Douglas. Well, I would say that such reasons as I say in the subsequent sentence, should be real and justifiable, and not mere verbal devices to cover up basic racial prejudices.

Senator SMATHERS. What I am driving at is how do we really determine and who is it that determines whether or not a person basic racial prejudice, or whether in point of fact that person believes that the person who has sought to buy his house is not a particularly good owner?

Senator Douglas. The procedure would be for the aggrieved person to bring a case, and then for judgment to be made before the proper tribunal. But he would have to prove that it was discrimination, not justifiable rejection for immorality, bad behavior, or poor home maintenance.

Senator SMATHERS. In other words, you are saying that the person who claimed discrimination, they would file the suit, and then the burden of proof is on that person?

Senator Douglas. That is correct.
Senator SMATHERS. To establish before the court?

Senator DOUGLAS. That is correct, much the same thing follows in the FEPC provisions.

Senator SMATHERS. Right.

Now in the bill as I understand it, there is provision that the attorney's fees would be taken care of if it is determined that there was discrimination. As a matter of fact, it is a subsidized proceeding, I believe.

Does this not put a homeowner in the position that if he had his house up for sale and if two people, each of them made an offer of $25,000 apiece, would not the homeowner be just generally well advised to always sell that particular piece of property to the member of the minority group, so that he could guarantee himself that he would not be subjected to some sort of a lawsuit?

Senator Douglas. Well, I may say that the costs are limited, the actual costs, up to $500 of punitive costs, so that the sky would not be the limit.

Senator Ervin. If you will pardon me, Senator, I think you are wrong on that. He could recover actual damages for humiliation, and mental anguish, which could go to the skies, and he can also recover punitive damages, punitive damages are limited to not exceed $500. He is allowed to recover actual damages for humiliation and anguish and there is no limit whatever on those.

(At this point, Senator Ja vits entered the hearing room.)

Senator Douglas. Mr. Chairman, if you are not satisfied with the language on costs, I will be very glad to accept amendments which will bring this in line.

Senator ERVIN. And on another point relative to what Senator Smathers is asking about, if the person desires to purchase or lease, he can get a court-appointed attorney. If he wins the case, he can get the attorney's fees allowed. If the owner of the property wins the case, he gets nothing except the bare court costs. get back attorney fees.

That shows how unequal and prejudiced the bill is. That is not your bill but that is the administration bill.

Senator Douglas. If the plaintiff loses the case, he has to bear the entire cost himself, and this is a deterrent against capricious suit.

Senator Ervin. No, he gets a court-appointed attorney. He does not have to pay him. Senator Douglas. He

pays

his

own costs. That is a deterrent. Senator ERVIN. If he is à pauper he does not have to pay that. He does not even have to secure the payment of costs because he can bring suits without securing the costs, which shows how the law is one-sided instead of being equal.

Thank you, Senator.
Senator Douglas. A pauper could not afford to go to law.
Senator SMATHERS. Let me just ask this question.

The Senator is of course familiar with the provision of the Constitution which says that one shall not be deprived of

Senator DOUGLAS. Life, liberty, and property without due process

of law, yes.

I am also familiar with the same clause in the 14th amendment. No State shall deny to any person the equal protection of the laws.

Senator SMATHERS. We are all familiar with that.
Senator DOUGLAS. Not so familiar.

Senator SMATHERS. But what I am trying to get at is in point of fact not the way the language of this bill is drafted such that it would deprive in fact a person of his right of property, in that it does not let him make a disposition of that property in a manner which he might choose to do.

Senator DOUGLAS. I need not remind you, Senator, of the way in which this issue has been fought over for 60 years, for 80 years. Originally the courts gave a very strict interpretation. No, I would say a very forced interpretation of due process.

They threw out the minimum wage laws for women, maximum hours laws for women knowing this interfered with the right of a woman to work for less than the minimum wage if she wanted to or to work excessive hours if she wanted to. Gradually that point of view has been superseded, and it has not stretched as far as it used to be.

We have also seen expansion of the commerce clause. The commerce clause has been extended to agriculture. Even if a person produces agricultural products for his own use, this has been

Senator SMATHERS. The point I am trying to make, Senator, is this, and I do not want to argue with you. I just want to get your comment about it.

You said in your answer to Senator Ervin that what you were really seeking to do is that people would have the voluntary right to associate with each other, and that ought to be protected certainly, as you say. I do not think anybody could oppose that.

Should not a person also have the voluntary right to dispose of that which they have worked and acquired over the course of years in a manner which they wanted to?

Is that not an equal right?

Senator Douglas. I do not think you should have the right to discriminate. I do not think they have a right to discriminate on such extrinsic grounds as race or color or religion. I really do not think so. People should be considered as individuals on their merits.

Senator SMATHERS. Well, if what we said, if what you said were carried to its logical conclusion, there would really be no reason then for us to have different churches or different neighborhoods or different anything.

Senator Douglas. No.

Senator SMATHERS. Because everybody would be of the same means, the same norm.

Senator Douglas. We could have variety based on voluntary choice, but not forced association or forced disassociation.

Senator SMATHERS. I do not believe that if a person in Chevy Chase wanted to sell their property to somebody who they thought would give them a good price first, and I think that is going to be the governing thing in the disposition of property every time, who pays the most, and usually when a person is getting ready to move they do not much care who gets it as long as they pay the price, but it seems to me to tell them that they cannot make a disposition of it without first exonerating themselves of any sort of discrimination, real or imagined, I think puts the homeowner and the property owner in a disadvantageous position, and I do not know whether the Senator really wants to do that or not. I do not think he does. That was the reason that I raised the question.

Senator ERVIN. Senator Javits, do you have any questions?

Senator Javits. Yes. I was going to first of course compliment my old colleague in arms for his personal and durable struggle for civil rights. He has always faced the problem directly.

Senator DOUGLAS. May I say I am greatly pleased that you should be on this bill, 2923.

Senator Javits. I am very honored to be. To have had two such stalwarts as yourself and Senator Case join in this legislation is a matter of great satisfaction to me. This kind of coalition is what you and I have spent most of our lives here trying to bring about.

Senator DOUGLAS. That is correct.

Senator Javits. I am very gratified. The bipartisan tradition of civil rights has been preserved.

I would like to ask, if I may, Senator Douglas, about a number of unique features of this bill. †here are not too many, but they seem to me to stand out.

The first is the fact that you do have a title in the bill for the removal of cases from State to Federal courts.

Senator DOUGLAS. Yes.

Senator Javits. Now I might say that I favor that very strongly, and the Association of the Bar of the City of New York has articulated a bill on that subject which is very well researched and very substantially backed. I have introduced that measure as drafted by the Bar Association of the City of New York, which is composed of lawyers of all ideological complex, conservative as well as liberal, as an amendment to the pending bill, and I gather that you, Senator Douglas, place considerable store in this provision; do you not?

Senator Douglas. Very much.

The Association of the Bar of the City of New York is a very distinguished body. I think perhaps it is the most socially conscious element in the bar in the country. I will say that I think we beat them to the punch, Senator, because on February 10 we introduced our bill, and in that we laid down five criteria. I do not know how they compare with the bar.

This is in transferring cases, civil rights crimes, to Federal courts they must involve a victim who is a member of a racial or color group subject to discrimination or a person advocating or supporting equal protection for such racial or color group.

Discrimination exists where members of the racial or color group are first systematically excluded from jury service. We have already had the testimony on that.

Second, systematically denied the franchise in elections involving judges or prosecuting officials.

Third, systematically segregated or discriminated against in jails, police stations, courts, or other public buildings related to the administration of justice.

Fourth, systematically subjected to harsher punishments upon conviction.

Fifth, systematically subjected to more onerous terms and conditions of bail or conditional release.

In other words, this is not something to be picked out of the air. Take these five elements and then see whether or not they apply.

Senator JAVITS. In any case it is very good to have this eminent bar association's proposals on removal, and I just wanted to emphasize the importance that the Senator attaches to it.

I notice also that in your reference to an extension of what we call part 3 of the 1957 bill, you speak of the fact that “injunctions may now be obtained in many circumstances such as segregation in schools."

It is a fact, is it not, that the administration bill seeks to strengthen the power of the Attorney General in that area?

Senator DOUGLAS. Yes; that is true. Senator JAVITS. And that therefore it is Senator Douglas. I think that also may have been taken from our bill.

Senator Javits. There is some echo in any case in this bill, in the administration's bill.

Now, the other idea that I would like to call to your attention is to me the most unique idea in this legislation, and that is the indemnification section.

Senator Douglas. I have just undergone very severe cross-examination from our very able chairman on that point. If you continue the argument with him, you may do much better than I.

Senator Javits. I do not wish to have an argument. I was just going to mention that philosophically I think it does establish a Federal responsibility and obligation. We have provided for indemnification because we have been at fault for not bringing about compliance with the Constitution and the laws for so many decades, that we impose. To me it is analogous with the fact that you can sue the city if it fails to fix the sidewalk because that is its job. You can be shown to be negligent but, you may sue and recover, so I think that is In addition, when the Federal Government is called on to send marshals or somebody else into a particular area in order to see that civil rights are given and enjoyed, I think that it would give a greater sense of responsibility to know that the alternative to such action is that someone could be liable for damages, and that the States would have to pay

In the amendment which I have put in, Senator Douglas, to carry out that concept in the current bill, I included a trust fund of $10 million, so that you would not have to depend upon a day-to-day appropriation.

Do you have any feeling about that?

Senator Douglas. I think that is a very valuable suggestion. It is awfully hard to get a special bill through the Congress, particularly of this nature.

Senator Javits. To pay a judgment against the United States. And finally, Senator, and please feel free not to answer this next point because I do not want in any way to embarrass or press you. As I say, you are a Senator of the Democratic Party and in the majority, but if you do have a comment I would appreciate it out of my love and respect for you.

I have made the point that since the door has been opened by President Kennedy toward dealing with housing discrimination by Executive order, it is not tactically very wise now to submit this whole issue to the Congress where it turns out to be the stormy petrel of the whole civil rights bill, where from all indications you are not going to do as well as you could do by another Executive order. We are convinced from our study that an Executive order building upon the Kennedy Executive order could deal with 80 percent of discrimination in housing.

Senator Douglas. Wait a minute, that would only cover public housing and FHA housing; would it not?

Senator Javits. Well, it could also cover under the same theory housing under guaranteed mortgages and housing loans made by federally insured banks and savings and loan associations.

If the Senator has any comment on that as to the validity of

Senator Douglas. I have great respect for you, Senator, but it seems to me that the President is honoring the prerogatives of the Congress, and is trying not to invade the legislative powers of Congress by Executive order.

I have heard so many members of your party--not you-so many members of your party inveigh against the invasions by the executive or the legislative branch that I think perhaps they may have made the President sensitive on this score, and if you can persuade your fellow Republicans to lay off on criticisms of Executive action, I will try to persuade the President to apply and operate in this field by Executive order, and when you succeed, I will try to succeed. But I do not believe in unilateral action.

Senator Javits. Senator, I do not want to fence with you about this matter. I am deeply convinced that since President Kennedy has acted, and this action stood up, that an extension of that action is very much wiser and more prudent in the interests of the civil rights cause than to throw it in the maelstrom of

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