tive order of November 20, 1962, established the President's Committee on Equal Housing Opportunity and forbade discrimination in new FHA- or VA-insured housing.

By now, it should be plain that scattered State and local laws are not enough. The work of private volunteer groups is not enough. Court decisions are not enough. The limited authority now available to the executive branch is not enough.

The time has now surely come for decisive action by Congress. Only Congress can fully commit the Nation to begin to solve the problem on a national scale. That is the purpose of title IV.

The title applies to all housing and prohibits discrimination on account of race, color, religion, or national origin by property owners, tract developers, real estate brokers, lending institutions, and all others engaged in the sale, rental, or financing of housing.

It also prohibits coercion or intimidation intended to interfere with the right of a person to obtain housing without discrimination-for example, firing a Negro from his job because he inspected a house for possible purchase in an all-white neighborhood.

Title IV provides a judicial remedy. An individual aggrieved by a discriminatory housing practice could bring a civil action in either a Federal district court or a State or local court for injunctive relief and for any damages he may have sustained. In the court's discretion, he could also be awarded up to $500 exemplary damages. The title authorizes the Attorney General to initiate suits in Federal courts to eliminate a "pattern or practice" of discrimination, and to intervene in private suits brought in Federal courts.

Title IV is primarily based on the commerce clause and on the 14th amendment of the Constitution. I have no doubt that it is constitutional.

The commerce clause makes Congress responsible for the protection and promotion of interstate commerce in all its forms. The construction of homes and apartment buildings and the production and sale of building materials and home furnishings take place in or through the channels of interstate commerce. When the total problem is considered, it is readily apparent that interstate commerce is significantly affected by the sale even of single dwellings, multiplied many times in each community.

The housing industry last year represented $27.6 billion of new private investment. This expenditure on residential housing is considerably more than the $22.9 billion which all American agriculture contributed to the gross national product in 1965. Forty-one million tons of lumber and finished woodstock were shipped in the United States in 1963, and 43 percent of it was shipped 500 miles

or more.

With regard to interstate financing in the housing industry, Secretary Weaver has said that, for example, in 1964 approximately 40 percent of the mortgage holdings of mutual savings banks-representing some $15 billion-was on properties located outside the States where the banks were located. There is also a very substantial interstate flow of mortgage funds involved in the activities of savings and loan associations. Secretary Weaver also pointed to the ever-increasing mobility of our population-14 million persons moved from one State to another between 1955 and 1960, and of course sought new

homes in the State of their destination-as a critical factor in assessing the interstate character of the housing business.

Secretary Weaver's statistics were illustrated by a statement of Mr. William J. Levitt, president of Levitt & Sons, Inc., the builders of residential homes. Mr. Levitt, who supports title IV, says that "perhaps 80 percent of the materials that go into our houses come from across State lines."

Mr. Levitt says that-

with the possible exception of the New York Community that we are building now, every other community in which we build receives its financing from a State other than the one in which it is located.

Mr. Levitt also says that "75 to 85 percent" of his firm's advertising was interstate and that "out-of-State purchasers run from about 35 to 40 percent, on a low side, to some 70 percent, on our high side."

The power of Congress over interstate commerce and activities affecting that commerce is broad and plenary. With that controlling principle in mind, let me anticipate three questions at the outset. First, the congressional power is not, I repeat, Mr. Chairman, is not restricted to goods actually in transit. In sustaining the public accommodations title of the 1964 act as it applies to restaurants catering primarily to local residents, the Supreme Court laid any such notion to rest, saying:

Nor are the cases holding that interstate commerce ends when goods come to rest in the State of destination apposite here. That line of cases has been applied with reference to state taxation or regulation but not in the field of federal regulation (Katzenbach v. McClung, 379 U.S. 294, 302).

Second, it does not matter whether Congress motive in acting is solely to promote commerce. What was said by the Court in upholding another section of the public accommodations title of the 1964 act disposes of the point:

That Congress was legislating against moral wrongs in many of these areas rendered its enactment no less valid (Atlanta Motel v. United States, 379 U.S. 241, 257).

Third, I recognize that it is difficult to determine the extent to which discrimination by individual homeowners affects interstate commerce. But each part of the pattern of discrimination affects, and is affected by, the whole. And to eliminate the clear and substantial effect that patterns of discrimination have on commerce, Congress can and must deal with separate parts.

It is settled that the reach of the commerce clause is not exceeded merely because the particular activity regulated is local or is quantitatively unimportant where considered in isolation-such as the sale of a single dwelling. In Mabee v. White Plains Publishing Company, 327 U.S. 178, the Fair Labor Standards Act was applied to a newspaper whose circulation was about 9,000 copies and which mailed only 45 copies-about one-half of 1 percent of its business-out of State. And in Wickard v. Filburn, 317 U.S. 111, the Agricultural Adjustment Act of 1938 was applied to a farmer who sowed only 23 acres of wheat and whose individual effect on interstate commerce amounted only to the pressure of 239 bushels of wheat upon the total national market. See also Labor Board v. Fainblatt, 306 U.S. 601, 607; United States v. Darby, 312 U.S. 100, 123; United States v. Sullivan, 332 U.S. 689.

The discrimination at which title IV is directed affects commerce in several different ways. For instance, it restricts the movement of building materials and home furnishings from one State to another. The confinement of Negroes to older homes in the ghettos restricts the number of new homes which are built and consequently reduces the amount of building materials which move in interstate commerce. It has a similar impact upon the number of new apartment buildings constructed and the amount of materials purchased for their construction.

Additionally, discrimination in housing impedes the interstate movement of individuals. Although many Negroes do move from one part of the country to another despite the lack of unsegregated housing at their destination, there can be little doubt that many others are deterred from doing so. In particular, Negroes in the professions or those with technical or other skills are less likely to move into communities where a "black ghetto" is their only prospect. See Katzenbach v. McClung, supra at 300.

Title IV is also sustainable as "appropriate legislation" to enforce the substantive guarantees of the 14th amendment.

The right to acquire property without the discrimination dates from emancipation. The Negro slave was, of course, confined to a segregated compound or "slave quarters," legally disabled from acquiring a residence of his choosing. This was, indeed, one of the "necessary incidents of slavery." Civil Rights Cases, 109 U.S. 3, 22. Nor did the situation change radically immediately after formal emancipation. Some of the so-called Black Codes of 1865 and 1866 continued these disabilities, sometimes altogether fencing out the Negro from the towns. See Slaughter-House Cases, 16 Wall. 36, 70. It is not surprising, therefore, that the drafters of the 14th amendment explicitly addressed themselves to the problem.

Viewing the right to hold property as one of "those fundamental rights which appertain to the essence of citizenship*** the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery" (Civil Rights Cases, supra, 109 U.S. at 22), the 39th Congress acted even before the adoption of the 14th amendment, invoking its power to enforce the 13th.

The very first Civil Rights Act, in 1866, provided that all citizens of the United States

of every race and color, shall have the same right . . . to inherit, purchase, lease, sell, hold and convey real and personal property as is enjoyed by white any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding (Act of April 9, 1866, subsection 1, 14 Stat. 27).

persons

Two months later, the same Congress-some of its Members doubtful of the constitutional basis for the legislation, others anxious to place it beyond easy repeal (see Hurd v. Hodge, 334 U.S. 24, 3233)-proposed the 14th amendment, which was understood as incorporating into the Constitution the guarantees of the Civil Rights Act of 1866. See Slaughter-House Cases, supra, 16 Wall. at 70; Civil Rights Cases, supra, 109 U.S. at 22; Yick Wo v. Hopkins, 118 U.S. 356, 369; Buchanan v. Warley, 245 U.S. 60, 78-79; Olama v. California, 332 U.S. 633, 640, 646; Shelley v. Kraemer, 334 U.S. 1, 10-11; Hurd v. Hodge, supra, 334 U.S. at 32-33; Takahashi v. Fish Commission, 334 U.S. 410, 419-420. And to make the assurance doubly sure, a subsequent Congress expressly reenacted the 1866

provision in the Enforcement Act of 1870. Act of May 31, 1870, section 18, 16 Stat. 144, 146.

That law remains on the statute books today. R.S. section 1978, 42 U.S.C. 1982. The right involved is not a mere abstract privilege to purchase or lease property which is satisfied if Negroes are not absolutely disabled from acquiring property at all. What was given was more than the bare right to hold property. The constitutional and statutory guarantee includes also an immunity from being fenced out of any neighborhood, indeed, any block, on the ground of race. Buchanan v. Warley, supra; Harmon v. Tyler, 273 U.S. 668; Richmond v. Deans, 281 U.S. 704; Shelley v. Kraemer, supra; Hurd v. Hodges, supra; Barrows v. Jackson, 346 U.S. 249.

To be sure, despite its absolute language, the existing statute has been held to protect only against State action. Shelley v. Kraemer, supra. But it does not follow that Congress may not now enlarge the right. On the contrary, in light of its origin, the right to be free of racial discrimination in the purchase and rental of residential property partially grounded as it is in the 13th amendment-is one of those privileges of national citizenship which Congress may protect even as against wholly private action. See Slaughter-House Cases, supra, 16 Wall. at 80; Civil Rights Cases, supra, 109 U.S. at 20, 23: Clyatt v. United States, 197 U.S. 207, 216–218.

Indeed, in the Civil Rights cases, the Supreme Court distinguished between the asserted right to be free from discrimination in privately owned places of public accommodation-which it characterized as one of the "social rights of men and races in the community"-and the "fundamental rights which are of the essence of civil freedom," enumerated in the Civil Rights Act of 1866; and the Court came close to suggesting that, while Congress could not constitutionally protect the former as against private discrimination, it might be competent to fully safeguard "civil rights." 109 U.S. at 22.

In any event, it is clear that the right to freedom from discrimination in housing enjoys particular recognition under the 14th amendment. This is reflected in the fact that State-imposed residential segregation was held unconstitutional (Buchanan v. Warley, supra) as early as 1917, at a time when enforced segregation in public and private schools was condoned (Berea College v. Kentucky, 211 U.S. 45; see Gong Lum v. Rice, 275 U.S. 78, 85-87; Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 344, 349), as it was with respect to transportation (Plessy v. Ferguson, 163 U.S. 537; see McCabe v. A.T. & S.F. Railway Company, 235 U.S. 151, 160) and other activities (for example, Pace v. Alabama, 106 U.S. 583). So, also, it is revealing that in the restrictive covenant cases (Shelley v. Kraemer, supra; Hurd v. Hodge, supra; Barrows v. Jackson, supra), the Court found prohibited "State action" in the apparently neutral judicial enforcement of private discriminatory agreements-invoking a doctrine which it has declined to follow elsewhere.

Moreover, it is highly relevant that government action-both State and Federal-has contributed so much to existing patterns of housing segregation. Local housing segregation orders were outlawed in 1917 (Buchanan v. Warley, 245 U.S. 60) but ordinances which had a similar effect were still being tested in the courts as late as 1930. See Harmon v. Tyler, 273 U.S. 668 (1927); City of Richmond v. Deans, 281 U.S. 704 (1930). Private racially restrictive covenants were

65-506-66-pt. 1- 7

enforceable by the courts until the Supreme Court's 1948 decision in Shelley v. Kraemer, 334 U.S. 1, and as late as 1936, the Federal Housing Administration in its Underwriting Manuals affirmatively recommended such covenants and warned against "inharmonious racial groups." With such a history of past governmental support, it can hardly be argued that present practices represent purely private

choice.

As was stated in the opinion of Mr. Justice Brennan in United States v. Guest, the 14th amendment includes "a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens." In the light of the history of particular concern in the framing and interpretation of the 14th amendment for the right of Negroes to purchase or lease property and in view of the past contributions of government to housing segregation, the "positive grant of legislative power" contained in the 14th amendment surely provides a constitutional basis for title IV.

The authority for the legislation is clear. So, too, is the need. As Mr. Levitt's testimony made clear, a builder or landlord who now resists selling or renting to a Negro often does so not out of personal bigotry but out of fear that his prospective white tenants or purchasers will move to housing limited to whites and that, because similar housing is unavailable to Negroes, what he has to offer will attract only Negroes. This, generally, would narrow his market considerably. If all those in the housing industry are bound by a universal law against discrimination, there will be no economic peril to any one of them. All would be in a position to sell without discrimination. Therefore, I think it would be a mistake to regard the most significant aspect of a Federal fair housing measure as its sanctions against builders, landlords, lenders, or brokers. What is more significant, rather, is that they can utilize this law as a shield to protect them when they do what is right.

Nor need we fear that title IV would impair real estate values. Mr. James W. Rouse, the president of a nationally known mortgage banking and real estate development firm, has said that, in his opinion, a national fair housing law would prevent any irrational fluctuations in real estate values. He stated that "the preponderance of real estate developers and homebuilders would prefer to operate in a fully open market, but they fear the results of going it alone." He went on to say that open housing does not have adverse effects on mortgage financing.

TITLE V: TERROR AND VIOLENCE

What I have described so far are measures to help the Nation deal with the effects of segregation, in many instances segregation long enforced by law.

What is equally-critically-necessary is to deal decisively with segregation enforced by lawlessness.

As President Johnson observed in his recent civil rights message: Citizens who honor the law and who tolerate orderly change a majority in every part of the country-have been shocked by attacks on innocent men and women who sought no more than justice for all Americans.