The same is true of the so-called "right to buy." No one in a free country, when one thinks seriously about these matters, has a right to buy anything. If he is a freeman, what he has is a right to offer to buy. And if the man on the selling side is a freeman, in a free country, he has the right to offer to sell or to refuse to offer to sell. A completed transaction occurs, in a free country, when a willing and able buyer encounters a willing and able seller and they get together on terms which are mutually satisfactory.

Title IV does not promote freedom. It destroys freedom and creates power on one side. To speak of it in the name of freedom is to engage in an ugly perversion of the central principle of the good society.

I read the Attorney General's statement before the House Judiciary Committee, and there were a number of things in the Attorney General's statement that I thought interesting enough to call for comment. It brought out some of the issues that I think are paramount, in a particularly striking way. He said, for example, that "the ending of compulsory residential segregation has become a national necessity." His use of the terminology "compulsory residential segregation," to speak kindly, is strained. Taking the words in their natural meaning, one would have to conclude that the Attorney General is engaged in fantasy or science fiction. I am not aware of the existence of "compulsory residential segregation" anywhere in the United States. Indeed, since the Supreme Court's decision in Shelley v. Kraemer, even contractual residential segregation is no longer possible, for that case held racially restrictive covenants unenforcible.

The truth is that the only kind of residential segregation which exists in the United States today is purely voluntary. The further truth is that the persons ultimately responsible for such voluntary housing segregation as exists are individual homeowners. The Attorney General seeks to shift the onus. He said to the House Judiciary Committee:

I believe it is accurate to say that individual homeowners do not control the pattern of housing in communities of any size. The main components of the housing industry are builders, landlords, real estate brokers and those who provide mortgage money. These are the groups which maintain housing patterns

based on race.

Everywhere in the United States today homeowners are free to sell their homes to whomever they wish among those who bid. Nowhere are they prevented from selling to Negroes, Jews, Puerto Ricans, or any other so-called minority. It is unlawful everywhere for anyone to interfere with a man's right to dispose of his property as he sees fit. If one real estate broker refuses to deal with members of a given race, the homeowner is free to seek another. If he can find no broker who will deal indiscriminately, the homeowner may take over the selling function himself, as many do. I am confident that there is not a newspaper in the United States which would reject an advertisement offering a house for sale or for rent to all comers.

The Attorney General's strained use of the strange terminology, "compulsory residential segregation," I believe must be accounted for by his natural reluctance to describe the effect of title IV accurately. But no valid purpose is served in beating about the bush. The purpose and effect of title IV are to deny freedom and to restrict the right of private property, not to protect and advance them. The

particular and ultimate victim is the homeowner-not the builder, not the real estate broker, and certainly not the banker. For them, in their commercial roles, housing is purely a commercial matter. They will not be hurt in those roles by a law forbidding the discriminate sale or renting of private homes. But the individual homeowner will be. He will find his freedom and his most cherished values savagely mauled.

I want to refer to another aspect of the Attorney General's strained terminology about compulsory residential segregation: his reference to "national necessity.'

When one removes the tortured indirectness from the Attorney General's language, what remains is this assertion:

The policy of this Administration is to favor a compelled amalgamation of all races, colors, and creeds in residential areas; individual preferences, the right of private property, and personal freedom must all be sacrificed to this overriding policy.

Senator ERVIN. There is a vote call. We will dash over there and get back just as soon as possible. When we scheduled this hearing we had no reason to anticipate that we were going to have a constant succession of record votes.

(Short recess.)

Senator ERVIN. The subcommittee will resume.

Mr. PETRO. Shall I resume, Senator?

Senator ERVIN. Yes, sir.

Mr. PETRO. I was speaking about the Attorney General's use of the term "national necessity."

Senator ERVIN. I would just like to join you in emphasizing your statement on page 7 that taking this bill as it stands, the policy of the administration in advocating this housing provision is to compel amalgamation of all cultures and creeds in all residential areas. Individual preferences, the right of private property, and personal freedom must all be sacrificed to this overriding policy.

Mr. PETRO. I think we have the heart of the bill there.

Senator ERVIN. It seems to me that yours is a most effective statement, in a nutshell, of the policy which underlies this bill.

Mr. PETRO. Thank you, Senator. I would like to continue in plain talk, because verbal byplay must not be allowed to conceal the real meaning of the Attorney General's statement. He refers to "national necessity." What meaning are we to give to "national necessity" when that expression runs counter to individual preference? The purpose of title IV, to repeat, is to produce a racial mixture in residential areas. If that mixture does not now exist it is because individual homeowners have preferred something else. But this is a nation of homeowners. Is not the residential pattern therefore an expression of their desires, and as such an expression also of national policy? By what right does the administration arrogate to itself the authority to frustrate such desires and to identify contrary wishes as "national necessities"?

A man's family and his home are dear to him, the things he cherishes most in the world. He will work for them as he will work for nothing else. In fact I have a considerable number of callouses right now on my hands, Senator, from clearing several acres of woods, a living testimonial to the drive built into a man to take care of his home. A man will work for his family and his home as he will work for nothing

else. And out of such striving great things have emerged. America as we know it today, with all its power and wealth, is a byproduct of the efforts that men have expended in building their families and homes. All the massive edifices in Washington, D.C., all the vast means at the disposal of the Government of the United States, are mere incidentals to the main business of the ordinary American, who works for his family and his home-not for "national necessity," whatever that pompous phrase may mean.

We must get these things straight. Governments do not produce either men, families, or wealth. Men produce those things. The only thing that government produces is more government. If, in producing more and more government, a country should destroy the mainspring of human striving, the fact that the destruction has been cloaked in the verbiage of "national necessity" will not change the consequences. The country will regress; its wealth diminish; its government become a fourth-rate power; its general tone will become puny.

I take no position one way or the other on the desirability of racially amalgamated residential areas, and I do not see how any other mere mortal can do so, for it seems to me to be entirely a matter of personal preference.

I believe it was the right of the people in Senator Douglas' Hyde Park-Kenwood area to undergo the integration experience that they have undergone, and I might add from personal direct knowledge that the experience was a good deal more horrifying than Senator Douglas suggested. To repeat, I don't know what the pattern of any residential neighborhood should be. What I do know and assert is that the goodness, wealth, and power of this country are products of the striving of freemen in the pursuit of their preferences; in short, products of the right of private property. I know, furthermore, that title IV, whatever the Attorney General may say about it, is the most far-reaching and thoroughgoing invasion of the right of private property that has ever been proposed in this country. The Attorney General refers to title IV as a "national necessity." I believe it better described as a national disaster.

Senator ERVIN. Again, I am going to have to vote.

(Short recess.)

Mr. AUTRY. Pursuant to the request of the chairman, the witness will continue with his prepared statement. The chairman will returo as soon as the vote is completed.

Mr. PETRO. All right, Mr. Autry. I turn now to the procedural aspects of this bill. I find the procedural aspects of title IV as questionable as its substantive policy, perhaps far more serious in the inroads it makes on the rights of homeowners.

It encourages unmeritorious and vexatious litigation despite the crowded conditions of court dockets all over the country. It creates evidential problems which are likely to make a mockery of due process of law. Its provision for remedies are likely to intimidate the decent citizen. The powers of intervention granted the Attorney General are vague and ill defined and smack more of the police state than of a society ruled by law.

Consider the matter of unmeritorious and intimidatory litigation. Section 406(b) authorizes the Federal courts, whenever they "deem just," to subsidize proceedings against homeowners who have allegedly

refused to sell or rent on the basis of race, creed, or national origin. No such subsidy is made available to the defending homeowner. Thus a disappointed purchaser has everything to gain and nothing to lose by suing the homeowner. Under section 406 (b) the would-be purchaser may commence a civil action "without the payment of fees, costs, or security ***" This means he may secure even an ex parte restraining order, preventing the homeowner without notice or hearing from selling to another, without forfeiting a bond or security. This is different from the situation which prevails in the case of any other kind of litigation whatsoever.

There is no need to dwell at length upon the evils of this provision. They are obvious. Every homeowner in the country is a potential victim when he puts his house up for sale, whether or not he has violated the law. The normal restraints upon vexatious litigation are gone.

Mr. AUTRY. May I interrupt for just a moment, Professor? Senator Smathers is back, and he will assume the chair in Senator Ervin's absence.

Senator SMATHERS. Will you go right ahead?

Mr. PETRO. Thank you, Senator. The normal restraints upon vexatious litigation are gone. As we shall see, it is likely that the burden of proof will come to rest swiftly upon the homeowner, rather than, as is traditional, at least in due-process countries, upon the complaining party. The difficulty of sustaining the burden of proof together with the subsidizing of the complainant add up to a massive instrument for the intimidation of homeowners.

I

Even without the subsidy provision, title IV, if enacted, is likely to produce a flood of litigation, and litigation of a peculiarly complicated character. With the subsidy, of course, there will be even more. do not suggest that the litigation-breeding charge is ever a valid argument against an otherwise meritorious law, for I believe that if a proposal has merit, it should pass even though it increases the burden on the courts. The trouble with title IV, however, is that it is both bad in principle and likely to encourage great volumes of unmeritorious and purely vexatious litigation, when the Federal courts are already heavily burdened.

The probable result is that proceedings under title IV will work the most vicious kind of injustice. Complainants, that is to say, disappointed purchasers from a minority, will ask for restraining orders, pending a full trial, which is likely to be long and drawn out. Homeowners will thus lose their purchasers, while the complaining parties, on the other hand, will have nothing to lose, especially when even their attorneys' fees and security costs are covered by the taxpayers. The net effect is likely to create discrimination in favor of members of minority groups. Indeed, that seems to be the object of all the procedural features of title IV. The compulsions and the denials of freedom which characterize the substantive features of title IV will probably be surpassed by the compulsions inherent in its procedural features.

I turn now to problems of proof and due-process implications. Every time a belligerent member of an identifiable minority bids unsuccessfully on a home, or a rental, he is in a position to make life miserable for the hapless homeowner. Suppose a Jewish homeowner, with his house up for sale, receives equal bids from two persons, one a

Jew, the other an Italian. If he sells to the Jew, the disappointed Italian has the basis for a suit. The Italian may petition for a temporary restraining order, thus blocking the sale to the Jew, pending full trial. How long will the Jewish purchaser keep his offer open?

And what will happen at the trial? The law is vague. It forbids refusing to sell to any person because of race, color, religion, or national origin. How much proof is required? What kind? On whom will the burden of proof come ultimately to rest?

We have considerable experience with a similarly vague law. An analogous provision in the National Labor Relations Act prohibits discrimination by employers which tends to discourage union membership. The National Labor Relations Board considers itself as having a prima facie case of discrimination when a union man is discharged by an employer who has betrayed antiunion sentiment. At that point the burden of proof shifts to the employer. He must show that there was some good cause for the discharge a violation by the discharge of some strictly enforced rule, or a failure by him to meet objectively demonstrable standards. If he fails in this showing, the employer will be found guilty of unlawful discrimination.

The homeowner under title IV is in a much more difficult position than the employer under the National Labor Relations Act. How is the homeowner to prove-in the case I give that he had some objectively demonstrable cause other than race or religion-when the Italian made the same offer that the Jew made?

It is possible that the Federal courts, unlike the National Labor Relations Board, will require objective evidence of discriminatory motivation before they hold homeowners guilty of title IV violations. But if the courts take that position, title IV will become a dead letter; ocular proof of discriminatory motivation is in the nature of things unavailable. Hence the probability, if title IV is to be viable, is that the courts will do what the Labor Board has done; that is, rely upon presumptions and inferences. In that case title IV will become an even more pervasive instrument for the denial of due process that the Labor Act has been. The burden of proving lack of discriminatory motivation will fall upon the homeowner, and in 99 cases out of a hundred, he will be unable to carry that burden. He will not be able to prove, in the case I have cited, that there was a nondiscriminatory basis for his refusal to sell to the Italian.

Add this to the fact that he will probably have been restrained by the court from conveying to the Jewish purchaser, pending trial, and it becomes evident that title IV puts the homeowner into an impossible position when he is confronted with purchasers from different minorities. No matter which he chooses to sell to, the other is in a position to make life miserable for him. An age-old instinct of the common law was to conceive rules in the manner most likely to encourage and promote the alienability of realty and chattels. It would appear that the aim of title IV is, at least, in part, to frustrate realty trans

actions.

If the homeowner is confronted with offers from a Negro and a white Anglo-Saxon Protestant, he has no choice under title IV at all. Preferring the Anglo-Saxon will, if the disappointed Negro is belligerent or fronting for a pressure group, produce an immediate restraining order, frustrating an immediate sale and probably inducing the purchaser to go elsewhere, for many important family matters hinging