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There is the right to use, the right to exclude others, the right to sell, the right to devise, and others. A person's property in a given object then consists of the total bundle of rights he has in that object. Those different rights are all different items of property. They are not all of equal importance.
It is possible that one or more of them may be taken away while the others are left undisturbed. One of the dangers inherent in this possibility is that we might consent to having them taken away one by one until there is scarcely anything left in the bundle. Another danger is that we might let one slip away thinking that we can hold on to all the others and then discover too late that that one, the one we have surrendered, is the one upon which the very existence of all of the others essentially depend.
The particular right involved in title IV is the right to sell. And here I am using the word "sell” to include the right to transfer for a term, that is to say, the right to rent or lease. In an effort to evaluate the importance of that particular right it might be well to begin by reminding ourselves briefly of a bit of history that all of us have been taught but which we might have a tendency to forget in this age when we are more concerned with the enjoyment of the fruits of freedom than we are with the sacrifices necessary to achieve it. And I might say necessary to maintain it.
And if I seem to dwell too long on what appears to be history of a bygone age, my purpose is to call attention to the fact that the right to sell, the right that is under attack in title IV, is the very right which supports and sustains most of the civil and political liberties held sacred by all Americans. While we might overlook that fact in our day, the Founding Fathers certainly did not forget it in theirs.
From the very foundation of our Republic, and in English jurisprudence even before that, down to the present time, our legal system has considered the right to sell as an essential feature of any free society. Some of our State constitutions have provisions declaring the right of property to be "before and higher than any constitutional sanction." (Arkansas constitution, art. 2, sec. 7.)
And more recently it has been declared that, “In organized societies the degree of liberty among human beings is measured by the right to own and manage property, to buy and sell it, to contract.” (Garber, “Of Men and Not of Law” 34 (1966).)
Now one, certainly, is justified in asking whether all these assertions are mere examples of holiday rhetoric or whether they actually do epitomize the lifeblood of freedom and the building blocks of a free society and economic stability.
A close examination will reveal that it was the right to sell, to give away, or even to dissipate one's interest in property that enabled the serfs and villeins of the feudal period to emerge from their servile status to the status of freemen.
Maybe it doesn't appear that there is any need to go back to that, but I'think there is. It puts us right in our present predicament.
The men who occupied the land and tilled the soil were referred to as freemen even in the feudal period, but then, as is true in the minds of some men even now, freedom had become deeply involved in semantics. A freeman in that period could not transfer his holdings, which in practical experience meant he could not cash in on the fruit of his own labor without the consent of his lord, his lord representing an ascending political hierarchy with the crown, in other words the state, as the ultimate authority.
Of course the lord was under a similar burden so far as his efforts to transfer his own holdings were concerned. But his position was different in that his holdings were larger and of a higher order. He was economically secure and had a comfortable income.
It was the fellow who had the least that was under the heaviest burden for until the man higher up let loose, there was nothing available for the man on the bottom to acquire. And whether a clog on the right to sell is labeled a medieval doctrine of feudal tenure or a Civil Rights Act of 1966, its effect in the marketplace will be the same and the man at the bottom will still be the loser.
Of course it must be recognized that during the feudal period there were restrictions upon the right of inheritance, use, and other incidents of property ownership as well as upon the right to transfer. But the point to be made here is that the right to sell
was the particular right that held the center of the stage, and until that right was achieved, political freedom and the whole gamut of civil rights, that we like to talk about so much, lay dormant, and it will become dormant again. And that right to sell, that economic mobility, or in the jargon of the profession that freedom of alienation, soon became the chief factor in the development of individual freedom of all kinds and it stimulated the economic development of property.
When the occupant of land became free to sell at a price agreeable to him without seeking the consent of his lord and without paying a fine to his lord for having done so, he began to take on the coloration of a freeman in the true sense of that word.
This might sound rather obvious to us, but we should remember that that right to transfer land has not prevailed throughout the world and has not prevailed throughout history. But where it has prevailed happens to be that particular area of the earth's surface where the better things of life we might say, the comforts, have been developed.
Ownership took on new meaning. It included a power to cash in as well as a power to use. And when that freedom was obtained men no longer remained serfs, they no longer remained slaves, and the economy no longer remained static. It is no mystery that the real beneficiaries of this political and economic transition were those who possessed the least, it was the "have nots” rather than the “haves."
With free economic mobility the fellow at the very bottom of the heap could exchange his services for a share in what was held by the man near the top. In this system of free exchange, not only was there no necessity for serfs or slaves but there ceased to be any place for parasites. Property tended to shift to those who put it to the most economic use. And there emerged the day of plenty which, although it is unique in the history of the world and is to this day confined to a comparatively small part of the earth's surface, it is so taken for granted in this country that we tend to forget its source.
But this personal liberty to deal in, dispose of, and profit from ownership of property did not come at a single stroke nor will it be lost at a single stroke. Its coming was a step-by-step process in which each
step was characterized by a bitter struggle. Those who are already wealthy, who are already entrenched, who “have it made," are more likely to be interested in preserving their holdings than they are in searching for easier means of transferring it. But unless that right to transfer is recognized and is readily available, the "have not” fellow has little opportunity to improve his lot. The legal history from the feudal period into the industrial economy of our present era can be quite accurately described as a struggle for an expansion of the rights of property ownership available to the individual and it can be asserted with a high degree of confidence that if we retreat back into a lethargic age of tyranny, it will be a step-by-step surrender of those same personal rights. And let no one forget that it is a personal right that we are dealing with in title IV. It is the right of an individual to deal with the fruits of his own labors in the way that seems most pleasing to him. And if he is not free to sell that which he acquires, he will be much less interested in acquiring it. If the restrictions imposed by title IV are imposed upon the ownership of property, it is inevitable that there will be less incentive to acquire, build, and develop. This means that there will be less housing and you will not improve the housing of Negroes or anyone else by reducing the total amount of housing available.
You might point out to me that title IV doesn't take away the right to sell, that it takes away only a limited part of that right, that is to say the right to select one's own customers, and that is true. But how much have you withdrawn from the rights of a prospective seller when you have withdrawn or even restricted his power to choose the persons with whom he deals?
There is a 1965 decision in the North Dakota Supreme Court [Holien v. Trydahl, 134 N.W. 2d 851 (N.D. 1965)] that casts some light here. It held that freedom to select one's customers was such an inherent part of ownership that an arrangement entered into by the voluntary act of private parties requiring an owner, even though offering his property to a particular person before being permitted to sell to anyone else, was void.
In the North Dakota case the restriction wasn't imposed by the State. No principles of constitutional law were involved. Nevertheless the North Dakota Supreme Court considered even this mild restriction on the power to select one's own customers such a state of ownership that it was not to be tolerated in a free society, even where the parties so desired.
It is doubtful if very many of our courts will go quite as far as the North Dakota court did, but it does illustrate the importance at least some judges have attached to the doctrine of economic mobility.
Title IV proposes, not only to permit a much greater restriction on the freedom to select customers, but to impose that restriction without regard to the wishes of the parties.
Now to say that a provision such as title IV will discourage building, and thereby make less housing available is no idle guess. Any kind of building, whether it be individual homes or apartment houses, calls for a substantial investment. It requires the assumption of substantial responsibility.
There will always be some people who will prefer the relative calm of remaining a tenant to the responsibility and uncertainty involved in ownership. And the tenant by preference group will necessarily be enlarged by anything that increases the risks of ownership without offering commensurate hope of reward.
There are a number of States, as you gentlemen are all well aware, that already have laws similar to title IV, although I do not know of any that is quite so broad in the extent of its coverage. I have not heard or read anything to indicate that housing is any more readily available to minority groups in these States than it is elsewhere. Nor should anyone be surprised at that.
The so-called ghettos, where members of a particular racial or religious group are congregated in large numbers are not brought about by the refusal of landowners in other areas to sell to the members of that racial or religious group. The thing that prompts a free man to sell is his own self-interest, and the price he receives is far more important in the marketplace than is the racial characteristics of the person from whom the price is being obtained.
Some of the high concentrations of a particular racial or religious group have developed because the members of that particular group chose to live near each other. Others have developed because the members of conflicting racial or religious groups have moved away. This tendency to move away until the minority becomes the majority is probably the biggest single factor in the development of what is popularly known as ghettos or ghetto areas.
I believe that each one of you can confirm that within your own experience, if you will just take a serious look at the Negro sections of the cities with which you are familiar—not what I say, not what you read, not anything else. Just look at those areas with which you are personally familiar and I dare say that you will find very few if any that have developed because of a refusal of persons outside that area to sell to Negro customers.
What you are more likely to find is that a once thriving white population has moved away. That is precisely what is happening in New York City, especially Manhattan at the present time. And New York City was one of the first, if not the first, localities in the country with a so-called fair housing law. And although it started in the city, it was soon extended to the whole State.
There is no evidence that I have been able to see anywhere that the statute has had any effect on the continued tendency of Negroes and Puerto Ricans to become concentrated in particular areas. Title IV makes no provision for preventing whites from moving away from these areas. We may say it would be sad if it did, but it doesn't. And yet this tendency to move away, not the tendency to keep others from buying, appears to have been the principal factor in the development of the existing ghettos.
But even if the freedom to select one's own customers should be considered less important than I have indicated, and if it did not have any depressing effect upon the economy and did not curtail the total housing available, the question still remains as to whether title IV will make it easier for a Negro or member of some other minority group to purchase appropriate quarters.
I should like to reduce that to very simple terms and discuss it from the point of view of a homeowner who is ready to sell his house and has listed it with a real estate broker. When a prospective buyer presents himself, there are many factors to be considered and many reasons might arise as to why the seller does not wish to deal with that particular buyer. The most important of these is usually the buyer's financial position.
Concerning that one item, uncertainties and doubts might arise that cannot be objectively demonstrated, but which are sufficient to discourage the seller, who will then choose not to deal.
Or on purely subjective grounds, but for reasons sufficient to himself, the seller might suspect that the buyer has such a personality that he will be difficult to deal with on the matter of the transfer of possession, condition of the premises at the time of transfer, or some other relevant circumstance of that sort. For any one of these reasons, or for no reason at all, the seller might elect to do business or he might elect not to do business with that particular buyer who has presented himself.
If title IV becomes law, how have you changed the situation? If title IV becomes effective, a potential seller will be in precisely the same position as we have described, except for one thing. In his mind now all customers, all prospective buyers, are divided into two groups. In the usual situation, for this is the main target of the limitation, one group will be whites and the other group will be Negroes. Let's say that our particular seller is unconcerned as to the race of the buyer, but he is still interested in these various objective factors previously mentioned.
Title IV tells him that if he rejects a white buyer for whatever reason, no explanation will be called for. But if he rejects a Negro buyer, he will subject himself to possible litigation, and the necessity of proving that the Negro was not rejected because of his race. What kind of proof will he present?
As already indicated, many of the usual reasons for refusing to deal with a customer are subjective, and they are not susceptible to judicial proof. But even if our seller succeeds in his proof, he will have been subjected to troublesome, embarrassing, and expensive litigation, in which no good citizen desires to become involved. Faced with this situation, with these two groups and these two prospects, what is the seller most likely to do? If he is at all prudent, he will avoid seeing any colored buyers.
Now I realize that the proposed law prohibits this, but such a provision just can't be enforced. It has been analogized by some people before this committee as being somewhat similar to the prohibition, but I think that is treating it too fairly. I would say it is much more analogous to a law prohibiting a man from kissing his own wife in his own home after dark. Anyone who knows anything about the buying and selling of real estate knows how easy it is to avoid offers he doesn't want to receive.
One method that I am told is currently a common practice in some areas where State laws similar to title IV are already in effect is that of managing not to be at home when the broker shows up with a Negro to look at the house. There are many ways that this can be done and still be absolutely immune from the detection by even skillful investigators.