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an all-encompassing interpretation of the commerce clause would have obviated the necessity for any other grants of power. I cannot ascribe to the framers of the Constitution a willful intent to make a futile gesture to limit Congress power by specifically authorizing fields of legislation while granting such pervasive power in one single clause.
I am frank to admit that I do not know how the Supreme Court, as it is today composed, would rule on this issue. I do know, however, that it is the duty and the obligation of each Member of Congress, according to the oath he took upon assuming his duties in Congress, to weigh each piece of legislation presented to him on the scales of the Constitution. If he finds a lack of authority under the Constitution, he must vote against that proposal.
Under no theory of either the commerce clause or the 14th amendment do I find constitutional authority to deprive any individual of his basic, inherent right to hold, use, and enjoy private property.
Senator ERVIN. Senator, does not the pertinent part of the 14th amendment merely prohibit three certain types of action by States; namely, actions by States which deprive persons of the privileges and immunities of Federal citizenship, actions
by States which deprive persons of due process of law, and actions by States which deprive persons of equal protection of the law?
Senator THURMOND. There is no question in my mind that that is the meaning and intent of the 14th amendment, and the decisions of the courts have uniformly held that down through the years.
Senator ERVIN. Does not the fifth section of the 14th amendment merely authorize Congress to enact legislation which is appropriate to enforce the provisions of the 14th amendment?
Senator THURMOND. That is correct.
Senator ERVIN. And those provisions relate solely to State action and not to the action of individuals!
Senator THURMOND. That is exactly correct.
Senator ERVIN. And I will ask you if the legislative history of the 14th amendment does not show that it was carefully drawn for the purpose of restricting its application to State action and to exclude individual action?
Senator THURMOND. I do not think there is any question but that the interpretation placed upon it by the able and distinguished chairman of this subcommittee is absolutely correct.
Senator Ervin. Now, you stated a moment ago, did you not, that every decision interpreting the 14th amendment, from the time of its ratification, down to the present moment, has held that these provisions of the 14th amendment are merely prohibitions upon State actions and do not reach the actions of individuals, no matter how wrongful those actions of the individuals are, unless State action is involved also!
Senator THURMOND. I do not see how any other interpretation could be reached, and the decisions of the Court affirm that position.
Senator ERVIN. Could you tell me how any man can take the words of the 14th amendment, just from the standpoint of the plain meaning of the English language, and attribute to them any meaning other than that they affect State action as contradistinguished from individual action
Senator THURMOND. I do not see how they could do so, especially anyone who has studied law or been admitted to a bar.
Senator Ervin. Do you not agree with me that you would have to distort and pervert the plain meaning of the 14th amendment and the uniform interpretation placed upon the 14th amendment to reach the conclusion that you can reach the action of private individuals under it?
Senator THURMOND. I think you would have to completely destroy the purpose those who wrote the 14th amendment had in mind when it was written.
Senator Ervin. The alleged discrimination in the sale or rental of houses is purely individual action, is it not !
Senator THURMOND. Exactly.
Senator Ervin. I will ask you if, under the decision in Shelley v. Cramer, any man of any race can purchase a dwelling house or rent a dwelling house in any place anywhere in the United States, if he can find a person who is willing to sell or to rent to him?
Senator THURMOND. Exactly, and no State action prohibits that. That is entirely up to the individual who owns the property. Now, to show you how asinine this is, suppose a young married man would be called in the service. Suppose his wife would decide that she would like to stay with her parents while her husband is away during the war in Vietnam, say. They decide to rent the home for the 2 years he is away. Under this proposed bill, the wife would not have the right to choose the person to whom she would want to lease her home during those 2 years. She would be forced to lease it maybe to people she would prefer not to lease it to.
Well, certainly a person who owns a piece of property, where it is their property, their private individual property, their home, their castle, where they live when the husband is not at war, should have the right to look around and select some person who would protect the house, who would not abuse the house, who would protect the furniture, who would maybe look after the lawn being mowed and look after the shrubbery being fertilized and cultivated and would protect the premises in general, and to think that she would have to rent it to someone she does not want to is unheard of and unthinkable, and in my language, it is purely un-American. This deprives people of their freedom and it is very difficult to conceive of many instances that go further than this in depriving people of their freedom in this country,
Senator Ervin. I will ask you if section 403 of this bill does not make it unlawful for an owner or manager to refuse to rent a dwelling to any person because of religion?
Senator THURMOND. That is what the bill provides.
Senator ERVIN. Now, in the State of North Carolina, members of the Methodist Church have raised contributions and have erected a home in which they rent apartments to elderly members of the Methodist Church, and particularly to retired ministers of the Methodist Church. And the Presbyterians in North Carolina have raised contributions and erected a home for like purpose for elderly Presby. terians and retired Presbyterian ministers and their families. And the Jewish people of North Carolina now are in the process of erecting a similar home for elderly members of the Jewish religion. I will ask you if, under this bill, a person of any other religion or a person of no religion of the requisite age could not compel the Presbyterians
to rent him an apartment in the Presbyterian home, or the Methodists to rent him an apartment in the Methodist home or the Jewish people to rent him an apartment in the Jewish home!
Senator THURMOND. If this proposed bill passes, I do not see how the Methodists could refuse renting or leasing their property to an atheist, an agnostic, a Buddhist, or any other person who came along and wanted to rent it.
Senator Ervin. Do you not believe that this section is not only against commonsense, but it is a denial of the right to freedom of religion guaranteed in the first amendment, and the right to freedom of association, which is also guaranteed in the first amendment !
Senator THURMOND. I do not think there is any question about it. I think it is a direct violation.
Senator Ervin. You have mentioned the fact that the Attorney General says this can be justified under the commerce clause. Is not a dwelling real estate in law, and is it not something that is fixed and immobile? Is that not the characterization of real estate as distinguished from personal property?
Senator THURMOND. I have always considered it so, and I think the public generally has.
Senator Ervin. Have you ever seen any real estate moving in interstate and foreign commerce?
Senator THURMOND. No, I have never been in an earthquake in which real property was moved from one State to another.
Senator Ervix. Outside of the fact that on occasion, you may have seen a little dust fall across the State line in a storm, you
have never seen real estate of any character moving in commerce, have you?
Senator THURMOND. That is correct.
Senator Ervin. Can you reconcile the theory that the commerce clause would justify such legislation with the plain words of the Eng. lish language in which it is expressed ?
Senator THURMOND. It is unthinkable to me. The only way in which real estate can move from one State to another is for them to change the State line.
Senator Ervin. Do you agree with me that the commerce clause is subject to limitations of the Constitution such as those relating to depriving persons of property without due proces of law and such as those relating to condemnation of private property for public use?
Senator THURMOND. I thoroughly agree with the chairman. I think there is no question about this proposal here being unconstitutional, from any number of angles that might be considered.
Senator Ervin. I will ask you, despite the fact that there is a recognized principle that allows the State to regulate the use of property for police purposes, has it not been held by the decisions that the due process clause of the 5th amendment and the due process clause of the 14th amendment protect the owner in the use of his property and that under these decisions, the property does not consist solely of the tangible property, but consists also of the attributes of property such as the right to use it as one pleases and the right to sell it to whom one pleases and the right to rent it to whom one pleases?
Senator THURMOND. That is correct, and I think that is well illustrated in condemnation cases, where there is a separation, for instance.
If a State condemns a portion of a man's property, he can get damages not only for the part taken, but damages to the rest of the property because of the partial taking.
Senator Ervin. Now, do you not agree with me that under the decisions, when the attempt is made by law to curtail one of the attributes of property, such as the right to sell the property or the right to lease the property, that the courts hold it is a deprivation of due process of law?
Senator THURMOND. I do not think there is any question about it.
Senator Ervin. I will ask you another thing with reference to the provision of the fifth amendment which says that no private property shall be taken for public use except upon the payment of just compensation. Is it not a fundamental principle of interpretation of all writings, regardless of whether they be constitutions or statutes or private contracts, that the expression of one thing is the exclusion of another?
Senator THURMOND. That is right.
Senator Ervin. And do you not agree with me that when the fifth amendment says no private property shall be taken for public use except upon the payment of just compensation, that expression excludes any idea that the Constitution authorizes the taking of private property for private use under any circumstances !
Senator THURMOND. In my opinion, it certainly does.
Senator ERVIN. I have observed in the North, the South, the East, and the West that where people select associates for themselves and for their children of immature years, they virtually always select members of their own race or their own religion. Has that not been your observation ?
Senator THURMOND. I think that is true, and I think it is natural that generally people would prefer to be with people of their own religion or their own race. That does not mean discrimination when I
say that. I do not believe in discrimination. But I do bitterly oppose actions that destroy the freedom of the people, the right of the individual to make his choice.
Senator Ervin. Do you not think that a very strong case can be made for the proposition that men segregate themselves in society on the basis of race, on the basis of the natural law that like seeks like rather than dissimilar!
Senator THURMOND. Well, I think so.
Senator ERVIN. Do you not think that this is the explanation as to why, in so many of the Northern States we have de facto segregation in residential communities?
Senator THURMOND. Well, there is no question about it. There is much more integration in the South in living, housing, and so forth, than there is in the North. If you go to New York City, you will find most of the Negroes living in Harlem. If you go to Detroit, you will find most of the Negroes there living in a certain section. If you go to Chicago, you will find most of them there, I believe, to the East Side. I presume they are happy to be among people of their Senator Ervin. Since every person is free to purchase a home in any community where he can find a willing seller, do you not infer that these residential patterns have been established by the will of the people?
Senator THURMOND. I think it is the desire of the people to have it that way. Otherwise, it would be different, because if anybody wants to sell or anybody wants to buy, if both parties are willing, then it is purely a private agreement, it is private property. It is an understanding between two individuals.
Senator ERVIN. And do you not believe that this has been the result of the working of the free enterprise system and the result of the working of freedom on the part of people to select places where they wish to live?
Senator THURMOND. I think so. I think such a policy is followed by the people because that is what they prefer.
Senator ERVIN. And do you not agree with me that this is a decision which ought to be made by the people as individuals in exercising freedom rather than by compulsion by the power of Federal laws!
Senator THURMOND. I think to compel them to do otherwise is depriving the people of their freedom.
Senator Ervin. Now, one provision I wish to call your attention to is subsection (c) of section 406:
The court may grant such relief as it deems appropriate, including a permanent or temporary injunction, restraining order, or other order, and may award damages to the plaintiff, including damages for humiliation and mental pain and suffering, and up to $500 punitive damages.
I will ask you if, under this provision, damages for humiliation and mental pain and suffering cannot be unlimited ?
Senator THURMOND. Well, it limits general punitive damages to $500, but it leaves unlimited damages for humiliation and mental pain and suffering:
Senator ERVIN. I will ask you if this is not an unusual provision in that it says the court may grant such relief as it deems appropriate. I will ask you if, under that, the court cannot grant any kind of relief the court sees fit, with no limitation whatever.
Senator THURMOND. That appears to be the case as the bill is now worded.
Senator Ervin. Does that not permit tyranny upon the bench?
Senator THURMOND. Well, I think if this bill passes, there is going to be tyranny. And I think it would allow a judge to engage in tyrannical acts, if it passes.
Senator Ervin. Do you not agree with me that one of the reasons we attempted to establish a free republic over here was because we did not like tyranny upon the throne?
Senator THURMOND. That is the reason our forefathers came to this country originally. They came here seeking freedom and that is the reason they seceded from Great Britain, because Great Britain was practicing tyranny on them and depriving them of that freedom.
Senator Ervin. Do you see much choice between tyranny on the throne or tyranny on the bench.
Senator THURMOND. I do not think it makes much difference if tyranny comes from one source or another. If people are deprived of