In other words, even though nobody complains, the Attorney General on his own initiative can institute action of this kind. Nobody complains, but yet the powerful Central Government here in Washington can bring a suit if they wish to do so to harass somebody on the pretense that someone is being denied his rights.

The only criteria established in this bill to guide the Attorney General in the institution of such suits is the wholly inadequate "whenever he has reasonable grounds to believe."

The initial question must be: What would the Attorney General consider reasonable grounds for proceeding against an official of the State of any private individual in this instance? Title IV of Public Law 88-352, the Civil Rights Act of 1964, authorizes the Attorney General to bring suits in school integration cases only after having received a complaint in writing signed by a parent or a group of parents alleging discrimination on the part of a school board. Even then, the Attorney General must have reason to believe that the complaint is meritorious and must certify that the individual is unable to initiate and maintain appropriate legal proceedings for relief on his own behalf. Then the Attorney General may institute such a suit. Now it is proposed to give the Attorney General free reign when deciding where and for what reasons he shall institute suits in cases of this type. This title contains no objective criteria by which the Attorney General will be guided in his institution of legal proceedings against either State officials or private individuals.

Completely aside from the constitutional issue involved, this is an unnecessary and unwarranted authorization for any one individual to wield arbitrary power over decisions of school boards or private individuals. "Reasonable grounds" to an Attorney General may be no more than a figment of his imagination, especially if he is a politically inclined Attorney General. If there is no complaint upon which he may base a decision to institute legal proceedings, the only alternative I see is a numerical or statistical balance of students based on the racial makeup of the community. If the racial balance of the students in any school district is not to the liking of the Attorney General, then this is reasonable grounds for him to institute suit against the local school board, if he sees fit. Such a grant of authority to any officer of any government should not go unchallenged.

Paragraph (b) of section 301, which authorizes the Attorney General to bring suit against individuals for their individual action raises an entirely different and a much more important constitutional question because it deals with individual action rather than action by the State or under color of law. This is the point which is raised so vividly by titles IV and V of S. 3296, and I will discuss this point in connection with those two titles.

Senator ERVIN. Senator, since you have reached the end of your discussion of title III, I will ask you if the decision of the Supreme Court in Brown v. Board of Education merely holds that no State can bar a child from a particular school on the basis of his race, and it does not hold that the 14th amendment requires integration of the races in public schools?

Senator THURMOND. The chairman has stated exactly what that decision holds. I might say that neither that decision nor any other

decision of the Supreme Court has been handed down that allows the Attorney General or any official to go as far as is contemplated here. No decision and no statute today on the lawbooks of this Nation requires integration, forced integration, compulsory integration. All that the decisions hold, all that the statutes hold today, is that there shall be no discrimination.

Now, in my State, for instance, the children are allowed to choose the school which they desire to attend and there is no discrimination, they can go to any school they want to. But if you pass this statute here, as proposed by the Attorney General, then the Federal Government can require forced integration. In other words, the Attorney General will decide which students can go to which schools. The authority of the school selection is taken out of the hands of the school board, is taken out of the hands of the parents, is taken out of the hands of the student. They will not even have the right to say which school they want to go to. If this bill passes, there will be no discretion left with them back there. If the Attorney General sees fit to exercise his power under this bill and decides that there must be integration to a certain extent or a certain degree or a certain percentage, certain students have to go there to accomplish that.

Senator ERVIN. I will ask you if the Brown case did not involve one case from Clarendon County, S.C., another case from Topeka, Kans., and another case from Delaware. And I will ask you if, when that Clarendon County case was remanded after the decision in the Brown cases, if Chief Judge John J. Parker did not write a per curiam decision, in which he expressly stated that the decision in the Brown case did not require integration, but on the contrary, merely prohibited discrimination, and that if the schools of a school district were open to all children, regardless of their race, and the children elected to attend separate schools, there was nothing in the Constitution to prevent them from so doing, any more than there was to prevent them from attending separate churches.

Senator THURMOND. Chief Judge John J. Parker did write such a decision. He wrote the decision clarifying and interpreting that Supreme Court decision of the United States and made it very clear that the Supreme Court decision of the United States did not require integration. It merely prohibited segregation.

Senator ERVIN. And I will ask you if, when Brown v. The Board of Education of Topeka, was remanded to the Federal three-judge district court sitting in the State of Kansas, that three-judge court did not also hand down a decision to the effect that the Brown case did not require integration of schools, but merely prohibited discrimination against individuals?

Senator THURMOND. That is exactly what the decision held, and as I stated a few moments ago, there has been no decision of our Supreme Court, the Supreme Court of the United States, holding that there had to be forced or compulsory integration. All of the decisions have merely held that there cannot be segregation.

Senator ERVIN. And I will ask you, since those cases were handed down, if there has not been a decision, of the Federal district court sitting in the State of Delaware, exactly to the same effect?

Senator THURMOND. The decision in Delaware was of a similar nature.

Senator ERVIN. And I will ask you if in the case of Beall v. Gary School District of Indiana, there was not a district court decision to exactly the same effect?

Senator THURMOND. The holding of that decision was the same.

Senator ERVIN. And I will ask you if that decision was not carried by appeal to the U.S. court of appeals for the circuit having jurisdiction in Indiana and if that circuit court did not affirm that decision. Senator THURMOND. They affirmed that decision.

Senator ERVIN. And after that, did not the Supreme Court of the United States refuse to grant certiorari to review the decision of the U.S. court of appeals?

Senator THURMOND. That is correct, which in effect affirmed their previous decision that there should not be segregation. It did not hold that there must be compulsory integration.

Senator ERVIN. I would like to ask you if it is not a fundamental principle of our law that a constitutional right is a right which belongs to an individual and it is to be exercised or waived according to the volition of the individual.

Senator THURMOND. That is a well settled principle of law.

Senator ERVIN. I will ask you if title III of this bill does not in effect and purpose rob individuals, parents, schoolchildren, and school districts, of the right to exercise their own constitutional right or to waive their constitutional right. It confers upon one public official, the temporary occupant of the office of the Attorney General of the United States, sitting up here on the banks of the Potomac River, the power to determine whether these people shall have the power to exercise or to refrain from exercising their constitutinoal rights? In other words, it gives him the power to make the decision for them, regardless of their personal wishes?

Senator THURMOND. Mr. Chairman, I think the effect of this bill would be to preempt the rights of the school boards, the parents, and the children, in these matters, and transfer that power to the Attorney General of the United States.

Senator ERVIN. How can you reconcile such proposed legislation with the proud boast of America that we are a free country, when such legislation provides that people would not have the freedom to determine for themselves whether they shall exercise or refrain from exercising their constitutional rights, but that on the contrary, a Federal official who is not elected by anybody, and responsible to nobody except the President, shall have that sole authority for the people throughout the United States?

Senator THURMOND. Well, the preamble to the Constitution provides, I think, the main purpose in establishing our constitutional form of government, to preserve liberty to the people, to preserve freedom to the people, and when we pursue a course like this, if Congress should pass this bill, it seems to me that they are going back on the very intent of our forefathers who wrote the Constitution: to preserve the liberty and freedom to the people. In fact, the whole Constitution of the United States was written on the theory to protect the individual from government, because the greatest tyrant in history has been govern

men.

Senator ERVIN. Thank you very much.

Senator THURMOND. Now we come to Title IV: The Housing Provisions.

Title IV of S. 3296 purports to protect the right of every person to be free from discrimination on account of race, color, religion, or national origin in the purchase, rental, lease, financing, use, and occupancy of housing in the United States. Although the bill itself is silent as to the constitutional basis for this provision, the testimony of witnesses on behalf of the administration, including primarily the Attorney General, has sought to constitutionally justify this provision under the 14th amendment to the Constitution and the commerce clause.

The first concept to be kept in mind throughout any discussion of this title is that the subject sought to be regulated and the matter upon which it is proposed to legislate in this title is the private dealings between individuals. This title does not even purport to have application to any State involvement or involvement by any official person, or body, of the State. The right to hold and enjoy property is a personal right which attaches to each and every individual in this country under the laws and traditions established by the laws. Property itself has no rights. There is no contest here between what could be termed "property rights" on the one hand versus "personal rights" on the other. We are dealing only with personal rights and, in this specific case, with the personal right to hold, use, and enjoy property.

In the case of the U.S. v. Dickinson, 331 U.S. 745 (1947), the Supreme Court held that property is "taken" within the meaning of the Constitution

when inroads are made upon the owners' use of it to an extent that, as between private parties, a servitude has been acquired either by an agreement or in course of time.

The rights which a person has in the use and enjoyment of his property include a free and unfettered decision as to whom he will rent, if he decides to rent, and to whom he will sell, should he decide to sell. This is purely a personal decision on his part and, as we shall see, there is no legally enforceable way his neighbors or any other individuals can influence his decision in any unconstitutional manner.

The most celebrated case in this field, and certainly the landmark case, is Shelley v. Kramer, 334 U.S. 1 (1948). In this case, the judicial power of the State was called into play to enforce restrictive covenants between private adjoining landowners which discriminated against prospective purchasers on account of their race. The Supreme Court of the United States held that restrictive covenants, although they were purely private agreements, could not be enforced in the courts since an attempt to do so would involve State action. Speaking for the Court, Chief Justice Vinson said:

These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such restrictions as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of the Government to deny to petitioners, on the grounds of race or color the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell.

The Attorney General has relied very heavily upon this case to substantiate his claim of constitutionality of this provision of S. 3296.

This case should give him no solace, for it is clear from even a casual reading of it that the object of the 14th amendment is State action, and what is sought to be controlled by this legislation is purely private

action.

The Supreme Court has consistently held, beginning with the Civil Rights Cases in 1883, and down to the present time, that the 14th amendment is directed only toward State action and does not apply to acts of individuals in their individual capacity. In 1883 in the Civil Rights Cases, the Supreme Court said—

that Congress' power under section 5 (of the Fourteenth Amendment) is confined to the adoption of "appropriate legislation for correcting the effects of * * * prohibited State law and State acts, and thus to render them effectually null, void, and innocuous.

In 1948, in Shelley v. Kramer, the Court said that

the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such as may fairly be said to be that of the State. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.

As recently as March 28, 1966, the Supreme Court, in U.S. v. Guest, said:

It is a commonplace that rights under the equal protection clause itself arise only where there has been involvement of the State or of one acting under the color of its authority. The equal protection clause does not *** add anything to the rights which one citizen has under the Constitution against another “U.S. v. Cruikshank, 92 U.S. 542, 554-555.

As Mr. Justice Douglas more recently put it: "The 14th amendment protects the individual against State action, not against wrongs done by individuals." (Citations omitted.) This has been the view of the Court from the beginning. "It remains the Court's view today."

There are various citations on this point that are unnecessary to give here.

Since it is obvious that title IV of this bill is aimed at only private action and does not purport to be concerned with State action, it is not appropriate legislation or constitutional legislation under the 14th amendment.

The Attorney General cites also the commerce clause of the Constitution as constitutional authority for this proposal. The commerce clause of the Constitution reads as follows:

The Congress shall have power *** to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.

That is the full commerce clause.

Admittedly, the commerce clause has been cited as authority for farreaching legislative enactments in recent years. If it does indeed authorize Congress to regulate private action dealing with the sale or rental of real property situated wholly within the borders of one State, then there is no field of endeavor which Congress cannot control under the authority granted in this clause. There is no question in my mind but that such an elastic view exceeds the power intended to be granted Congress by the framers of the Constitution. Had they intended otherwise, the framers of the Constitution certainly would not have gone to the time and trouble of delineating certain specific grants of power to Congress. This would have been completely unnecessary, because such