Imágenes de páginas
PDF
EPUB

people keep whatever their notions are, and to let them keep their allergies if they want to. I think that that is one of the prerequisites of freedom.

Apart from all of the loose phraseology of the bill and all of its purposes and objectives, isn't the fundamental objection to title IV of this bill is that it undertakes to rob all of the people of America of the right and the freedom to own and use and sell and rent their property as they please?

Mr. EMLEN. Yes, sir.

Senator ERVIN. The Attorney General bases his claim of constitutionality for title IV on the commerce clause, and while the commerce clause has been dealt with in 1,700 or 1,800 cases by the Supreme Court of the United States, and it has been somewhat distorted, doesn't interstate commerce essentially have reference to the movement of people and goods and communications from one State to another?

Mr. WILLIAMSON. That is the essence of it.

Senator ERVIN. It gives Congress the power to regulate the movement of goods and communications.

Mr. WILLIAMSON. That is right.

Senator ERVIN. From one State to another.

Mr. WILLIAMSON. That is the gist of what the Supreme Court had to say on it.

Senator ERVIN. And isn't it in the very nature of things impossible for real estate-that is land-to move from one State to another, across State lines?

Mr. EMLEN. Yes, sir.

Mr. WILLIAMSON. It can't be; only in the event of a tornado. Senator ERVIN. Yes. Sometimes they blow some dust over, but that is a regulation of the Lord's rather than of Congress.

Now, I think it was well pointed out here the distinction between this and the public accommodations provision. The public accommodations provision was upheld on the ground that it dealt with interstate travelers and with goods which were moving or which had moved in interstate commerce.

Now many of the houses in the United States are built of timber, aren't they?

Mr. WILLIAMSON. Yes, sir.

Senator ERVIN. Which is cut within the borders of the State and the houses are built within the borders of the State, and nothing in it moves in interstate commerce, except perhaps a few nails, and they have come to rest and become integrated in the structure.

Mr. WILLIAMSON. It becomes part of the land.

Senator ERVIN. Don't you have difficulty in reconciling the theory that title IV is valid under the interstate commerce clause with the meaning of some very simple English words? I couldn't reach that conclusion myself without doing violence to the integrity of my intelligence. I don't say that of anybody else's. They may have a more elastic intelligence than I have.

Mr. WILLIAMSON. If this can be justified under the commerce clause, then I think any element of human endeavor could also. The Congress could enact a uniform divorce law under the theory that lack of uniformity puts a burden on the interstate travel of divorced people. Senator ERVIN. That is right.

Mr. WILLIAMSON. There would be no limit, and that is why we hope that the Congress won't tempt the Court to so rewrite the commerce clause.

Senator ERVIN. Woodrow Wilson stated, and he was a great constitutional scholar, whenever you abolish the distinction between intrastate and interstate commerce, you abolish the system set up by our Constitution.

Mr. WILLIAMSON. That is right.

Senator ERVIN. I hate to see it abolished. It has already been manhandled to a considerable extent. considerable extent. But I can reconcile those decisions which manhandle it with the theory that Congress does have the power to regulate intrastate activities where such regulation is essential or appropriate to the effective regulation of interstate commerce. But the final issue here is whether the American people are going to be permitted to exercise the free enterprise system, and the rights of private property with respect to the sale and rental of their homes, is that not the fundamental question?

Mr. WILLIAMSON. That is the issue.

Senator ERVIN. And the question is whether they are to be robbed of that right and whether the Federal Government is going to manage exactly where the people of the United States live and who their neighbors are to be.

Mr. WILLIAMSON. That is right.

Senator ERVIN. And when the Federal Government regiments people to that extent, they have mighty little freedom left, in my judgment.

Mr. WILLIAMSON. Well, if title IV is enacted, I think you will find that theme in the Civil Rights Act of 1967 or 1968.

Senator ERVIN. Yes.

Mr. AUTRY. Mr. Emlen, one more question. Isn't it true that integrated neighborhoods have voluntarily been maintained by those who wish to maintain them around the country, by setting up a sort of an unofficial quota system, which is voluntarily enforced within the neighborhood, so that an integrated neighborhood does not become either all white or all Negro?

Mr. EMLEN. The benign quota is well known. There is one developer who has been working on open occupancy housing that I know, Morris Milgram, who has done quite a lot of work. He was in Philadelphia once and now is in Chicago doing it. I know at one time at least Morris Milgram believed in the benign quota to try to establish a 60-40 ratio or something like that, which I imagine would be a pretty hard thing to do.

Mr. AUTRY. Wouldn't this bill prohibit that?

Mr. EMLEN. Yes, sir. There couldn't be any benign quota or anything like it in title IV.

Mr. WILLIAMSON. I think the witness for the Illinois Association of Real Estate Boards will have some testimony on that point as it operates in the Chicago area.

Mr. EMLEN. Certainly you are right. It couldn't possibly operate that way under this title.

Mr. AUTRY. It could destroy those neighborhoods that have voluntarily integrated.

Mr. EMLEN. Certainly.

Mr. AUTRY. Thank you.

Senator ERVIN. If a bill of this kind could be sustained under an interpretation of the interstate commerce clause, the only limitation whatever on the power of Congress under that clause would be whatever limitation the due process clause of the fifth amendment imposed, wouldn't it?

Mr. WILLIAMSON. That is correct, that would be the only limitation. Senator ERVIN. And has it not been the general trend in the past that the due process clause of the fifth amendment as against the Federal Government and the due process clause of the 14th amendment as against the State government has been construed to protect the right of private property and it has been held in a multitude of decisions that property consists not only of the physical things, the property, the land or the house, but it also consists of the attributes of the property, and that among those attributes are the right to sell freely and the right to determine the lawful use of the property freely, and the right to lease the property freely.

Mr. WILLIAMSON. That is right.

Senator ERVIN. On behalf of the subcommittee, I want to thank Mr. Emlen and Mr. Williamson for making their appearance here. Mr. EMLEN. Thank you, Senator.

Mr. AUTRY. Mr. Chairman, the next scheduled witness was to be Mr. Roy Wilkins, the chairman of the Leadership Conference on Civil Rights. However, Mr. Wilkins called from New York this morning at 10 o'clock to say that his flight was fogged in at the New York airport and he would be unable to be here. Therefore, we will reschedule his appearance at a mutually convenient time a little later. Senator ERVIN. The subcommittee will stand in recess until 10:30 tomorrow.

(Whereupon at 12 p.m., the subcommittee recessed until 10:30 a.m., Tuesday, June 14, 1966.)

CIVIL RIGHTS

TUESDAY, JUNE 14, 1966

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to recess, at 10:37 a.m., in room 2228, New Senate Office Building, Senator Roman L. Hruska presiding.

Present: Senators Hruska, Kennedy of Massachusetts, and Javits. Also present: George Autry, chief counsel; H. Houston Groome, Lawrence M. Baskir and Lewis W. Evans, counsel; and John Baker, minority counsel.

Senator HRUSKA. The subcommittee will come to order. We will continue the hearings on the several civil rights bills now before the subcommittee.

Our first witness this morning is one of our distinguished colleagues, the senior Senator from the State of Florida. We always welcome him in any committee, and particularly in the Judiciary Committee.

Senator Holland, you have filed a statement. It will be printed in the record in its entirety. You may either read it or summarize it, as you choose.

STATEMENT OF HON. SPESSARD L. HOLLAND, U.S. SENATOR FROM THE STATE OF FLORIDA

Senator HOLLAND. Thank you, Mr. Chairman. I appreciate the chance to appear before this distinguished subcommittee. My prepared statement was drawn in contemplation of the fact that the chairman of the subcommittee would be presiding, and I refer to him several times in the statement. That will be without derogation upon the present presiding officer at all, but because of the facts that I thought would prevail at the time of the appearance. I am sorry that the death in Senator Ervin's family made it impossible for him

to be here.

I wish to thank the chairman and the members of the Constitutional Rights Subcommittee for the opportunity to express my views on the serious implications of S. 3296, the legislation they are presently considering. I will not impose upon much of the subcommittee's time, and I do not wish to duplicate the fine testimony already heard with respect to these proposals. I will, if the Chair permits, confine myself to a few brief comments on certain aspects of the

65-506-66-pt. 1-27

administration's bill, S. 3296. Of course, I shall be pleased to answer questions on the other portions of the bill if that is desired.

The provisions I primarily direct myself to are titles II and IV. I believe these provisions deserve especial comment because with respect to each title, they are novel, dangerous, and arrogant assumptions. The assumptions are novel because they presume to overrule 100 years of uniform, consistent, and reasonable interpretation, both legal and political, concerning the grant of power to the Federal Government under the 14th amendment. The assumptions are dangerous because in their logical extensions they presume the existence of unlimited Federal power over the other two repositories of sovereignty in this country-the States and the people. Finally, the assumptions are arrogant, because they presume a godlike and omnipotent fount of wisdom in representatives of the Federal Government, and no wisdom at all in the representatives of the States, nor, indeed, any wisdom in the people themselves.

As to title I, it is clear that Congress has authority to legislate as to Federal juries. I trust this subcommittee to do so wisely. Let me say only that there are certain details of the proposal which disturb me greatly. These are the parts of the title which require citizens to disclose to the Federal Government matters of their own conscience, details of their national orgin (which, except for foreignborn citizens would certainly be "American"), and matters of their financial circumstances. I do not believe that government has any business delving into these areas. Who can guarantee that these unwarranted and unnecessary intrusions into individual privacyhere claimed for a worthy end-will always be used worthily?

I am pleased to note that the Attorney General has consented to the principle that these inquiries into private matters will be entirely voluntary. I am hopeful that this will be made explicitly clear in any legislation which may be reported to the Senate, and that if it becomes law it will be made clear to every citizen when the form is presented to him. Of course, when the Federal Government, in all its majesty, presents a citizen a form to fill out, "voluntary" generally becomes an empty word.

I would add as to title I, that as a lawyer, I have great respect for the jury system-a system which is older than this country. I hope that the belatedly found need for these important and drastic changes in the Federal jury system will not tempt the Congress into ill-advised and impetuous legislation. They clearly deserve careful and dispassionate study and expert technical testimony.

Now as to title II. This title attempts to eliminate discrimination in State jury selection. I do not object, and I know the chairman does not object, to laws preventing racial discrimination in jury selection. Nor do I-and I know of no Senator who feels differently-object to Federal laws against racial discrimination in choosing State juries. There are now such laws; they have been used with success and they could be more vigorously applied.

However, discrimination-and I hesitate to use the word-has been a basic policy of jury selection in all States and, indeed, is presently the policy of the Federal system, as well. This is discrimination based upon intelligence, moral standing, and a number of other grounds.

« AnteriorContinuar »