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adequate consideration of the fact that the rights they create must necessarily infringe on the freedom of others, by subjecting them to the exercise of those rights by minority groups.
This statement will deal with the proper identification of those rights, the premises on which they are based, and the persons to whom they properly belong. In so doing, it is hoped that the preservation of these rights may be secured against their prospective demise. [Reading :)
II. FREEDOM OF ENTERPRISE AND PUBLIC UTILITY REGULATION
A. The right to choose oustomers
The Federal and State due process clauses, which protect liberty and property from governmental deprivation, and meaningless gestures without the underlying assumption of an American economic norm by which yardstick governmental intrusion into private business can be measured. It could hardly be contended that the word "property" in constitutional phraseology comprehends only goods intended for personal consumption—that the due process clause goes no farther than prohibiting government from giving one man's toothbrush to his neighbor. If that is all the protection the Constitution affords, Americans are no better off than Soviet citizens who are also protected in personal consumption property.
The American economic norm, ingrained through centuries of legal development, has been a free enterprise system, characterized by private ownership and control over property, a free competitive market, and only such governmental control or regulation as is made necessary by distortions in the free market. The whole philosophy of our antitrust laws is based on the economic norm of free competition; without such a norm they would be absurd.
A necessary corollary of a free market is the right to choose one's customers free from government dictation. The Fourth Circuit has declared :
"Absent conspiracy or monopolization, a seller engaged in a private business may normally refuse to deal with a buyer for any reason or with no reason whatever."
The United States Supreme Court has consistently upheld the right to refuse to sell when the right has been attacked.
The entire assumption in our economic structure, that economic needs can best be fulfilled by sellers and buyers free to deal with each other, is set at naught when government dictates a choice to either. B. Public utility regulation
The main characteristics of a public utility is that the public may demand the service as a right. An industry may be closely regulated and yet not be a public utility if it can choose its customers. The true hallmark of public utility is that everyone is entitled to the service without arbitrary discrimination. It is this duty to serve any applicant on equal terms without unreasonable discriminations which constitutes the main difference between public utilities and all other businesses. Accordingly, assuming that discrimination in tenant or vendee selection based on race, creed, color, or national origin is arbitrary, it nevertheless follows that an anti-discrimination law converts private dwellings in particular, and the housing industry as a whole, into public utilities.
The United States Supreme Court has repeatedly held that "the state could not, by mere legislative fiat... convert (private business) into a public utility ... for that would be taking private property for public use without just compensation, which no state can do consistently with the due process of law clause of the 14th Amendment.” Since anti-discrimination legislation in housing attempts to impose the obligations of public utilities on private businesses, it is unconstitutional.
III. POLICE POWER AND PROPERTY RIGHTS
A. Police power and market distortions
Those few decisions which uphold anti-discrimination legislation as against due process arguments rely on a series of generalized cliches about the use of the police power, as "one of the least limitable of government powers."
Traditional exercises of the police power fall into two major categories. The first consists of regulating property so that its use does not injure the health or safety of others, or destroy their use of their own property.
The concept that no person can use his property in such a way as to diminish the health, safety, or use of property of others is basic to any orderly society. Anti-discrimination legislation has no relevance to such enactments since it is not the use but the failure to convey the property which is restricted. No attempt has ever been made to support such legislation on this ground; any such attempt would be frivolous.
The other class of cases involves state legislation which was passed to correct deleterious social or economic conditions arising from a distortion in the normal free competitive market, resulting in an inequality in bargaining power and hence the inability of indivduals to obtain the benefits of a free competitive market.
The earliest examples of such laws were public utility regulations. Since utilities are by nature monopolies, they represent a permanent distortion of a competitive market norm, and hence justify permanent economic regulation.
Finally where a temporary economic condition, such as war or depression, dis torts the normal economic market, the police power permits the state to correct dislocations produced by this condition through temporary legislation which goes no farther than the minimum needed to correct the condition, and lasts no longer than the temporary emergency.
In this connection, rent control is of particular significance because several of the cases which uphold antidiscrimination legislation in housing rely strongly on this precedent. However, rent control is emergency legislation designed to deal with a temporary market imbalance. As Mr. Justice Holmes put it: The regulation is put and justified only as a temporary measure
A limit in time to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change.
Anti-discrimination legislation is, of course, nowhere predicated on, or drafted to last for, any purported emergency. Aside from Negro housing, no one has seriously contended that any shortage of housing exists for other groups who are just as much entitled to use the law as Negroes. A look at the New York experience, where the first anti-discrimination law in private housing was passed, shows how utterly baseless is the claim that this legislation is needed to assure good housing to any other segment of the population. Yet the law covers them also. B. Negro housing needs
Those courts which have done any more than enthuse on how un-American racial or religious discrimination is have totally ignored the alleged need to ban such discrimination against anyone else but Negroes. Instead, they have justified this sweeping legislation on asserted Negro housing needs. We can therefore assume that this constitutes a concession, sub silento, that the statute is unconstitutional as applied to anyone else, and turn to the law as if it singled out Negroes for protection.
As has been noted above, statutes correcting inequalities in bargaining position and thus restoring a normal competitive market have been upheld as appropriate exercises of the police power. However, the mere fact that the state may have a limited interest at some period in time in the correction of a distortion caused by an absence of a normal market does not give it the power to regulate the whole area indefinitely as to both time and people.
Applying these principles to Negro housing, one would expect to find the following limitations to make the statute valid :
(1) The Negro who sought to use the law in fact needed housing.
(2) At the same time and place the law was in effect, a shortage of Negro housing did in fact exist, similar to the shortage producing rent control, and that this shortage did in fact distort a normal competitive market.
(3) Government could find no way consistent with the constitution other than regulation to alleviate the shortage and restore normal market condi. tions.
(4) The regulation was reasonably calculated to restore normal market conditions. An examination of the typical anti-discrimination law in hous
ing shows that it lacks all four of the above attributes. First, such legislation does not require that the Negro complainant need the housing. The lower-rent housing, into which Negroes who need housing fall, the shortage of apartments prevents anti-discrimination legislation from being effective because there are enough white applicants to fill all vacancies, while in luxury housing, the small number of Negroes who can afford such accommodations can also afford to have new living quarters built for them.
Since anti-discrimination laws in private housing operate in actuality only in higher rent apartments where there are more vacancies than applicants, only a relatively small percentage of Negroes who are in the upper income brackets and can afford to apply are benefited by them. It is these very people, moreover, who can afford to build new Negro housing. Hence, the small Negro minority which these laws benefit is precisely the group not in need of them to secure good housing. In short, this legislation is pro bono social climbers and nothing more. Invoking such laws for their benefit is like enforcing minimum wage legislation for Elizabeth Taylor.
Secondly, anti-discrimination legislation is nowhere limited to places where Negro housing is in short supply, nor is it limited to periods of time during which such shortage exists. The cases simply assume the existence of a shortage, and commentators on both sides have followed suit.
The result of Negro housing gains in the last decade is to make the claim of a Negro housing shortage a myth in many areas and a fading problem elsewhere. If these gains continue at their present rate, the alleged shortage will become fiction in a relatively short time. Like emergency rent control, anti-discrimination legislation in housing is invalid because the emergency is over, and a normal market has been established in many areas.
Thirdly, regulation is not the only way to alleviate what shortage exists. In fact, it is the least efficient. The average Negro needs a house, not a law suit.
States can supply housing by building public housing projects for low income Negroes who cannot afford other dwellings, by encouraging private builders to build non-white housing through tax abatement, mortgage reinsurance, and other assistance, and probably most important, by creating a business climate which encourages private building for Negroes. Elimination of restrictions designed to promote integration, such as the ban on newspaper advertisements that indicate that housing is for Negroes, would help, by permitting builders for Negroes to reach their market more directly.
Fourthly, anti-discrimination legislation in housing is not only calculated to restore normal bargaining conditions, but as a whole further distorts them. This is because it is both ineffectual in adding to the total Negro housing supply, and creates a number of grave, built-in administrative abuses in being enforced. To demonstrate the problem, we may once again refer to the New York experience, which has the oldest anti-discrimination commissions and laws in housing in the country.
Three years ago, this author pointed out the following facts:
When the law (New York City anti-discrimination ordinance) first went into effect * * * the City Commission on Intergroup Relations, the administrative body charged with administration of this ordinance, received an annual appropriation of $358,050. A year later, only 27 complaints were adjusted to the satisfaction of the complainant or the Commission, for a total cost per dwelling unit obtained via the anti-discrimination law of over $13,000. With this money, the city could virtually have built each of the complainants his own apartment or house.
IV. COMPULSORY INTEGRATION AND FREEDOM OF CHOICE A. Integration as the motivation for anti-discrimination laws
The asserted justification for these laws as good housing laws cannot stand close scrutiny because it is not in fact their true motivating reason, but only their ostensible excuse. The evidence is overwhelming that anti-discrimination laws in housing are motivated by the desire to promote compulsory integration.
The attitude of leading Negro proponents of anti-discrimination legislation and of Negro organizations against proposals for good Negro housing unless it was integrated is well known. Their willingness to sacrifice housing for integration is a matter of record. However, probably the most significant evidence that anti-discrimination legislation is really designed to promote integration comes from New York, which had instituted integration policies in housing at the time such legislation was passed, and pursues them with a single-minded purpose.
The New York City Housing Authority admitted keeping an average of at least 65 apartments in public housing in Negro areas vacant rather than rent them to waiting Negroes in order to obtain whites to better integrate them.
This resulted in a rental loss, in one reported project alone, of $115,000 in less than a year.
It was further reported :
Housing authority officials have conceded that advantages might be given to members of one racial group over those of another in renting a particular apartment in a particular project. But, they have argued, without this policy, projects in certain areas would be tenanted predominately by members of one racial group
* * * "Our program * * *" William Reid, Chairman of the Au. thority, said * * * "is a positive program designed to * * * bring about true integration." B. Compulsory integration as a negation of freedom of choice
The notion that government can subject people to experiences such as integration to vaccinate them with ideas like it can vaccinate them with medicine must seem a little raw even to the most devoted adherents of an all-powerful state. True, mass brain-washing is not unknown in modern times. In varying degrees, it has been used, and sometimes with remarkable success, in Nazi Germany, Fascist Italy, Communist Russia, and Communist China. But such seeds seem unable to flourish in the soil of non-totalitarian states, where many people are of the view that government has no business meddling with what is in the minds of people.
Senator ERVIN. As a matter of fact, is not this housing section & thought control bill in its ultimate analysis ?
Mr. Hicks. Yes, sir; that is exactly the way Liberty Lobby has presented it.
Senator Ervin. It is to try to compel people not to think of matters of race or matters of religion or matters of national origin when they sell or rent housing?
Mr. HICKS. It is an attempt
Senator Ervin. And it punishes people not for what they do but for what they think, in opposition to Government edict.
Mr. Hicks. Well, to the extent that their thoughts are reflected in their outwardly expressed attitudes, it punishes them for thinking, yes, sir. It is an attempt to enforce the biblical injunction to love one's neighbor. That is what it is, and we can see it as nothing more or less than that.
Senator Ervin. The bill does not condemn an external act, but it condemns the thought which a man has in his mind at the time the external act is done?
Mr. Hicks. That is right, sir. That goes throughout this bill, not just title IV. But when I get to title V, this question of motivation is at the heart of this bill, very definitely.
Senator Ervin. Yes. That is the reason I say it is an effort on the part of Government by the compulsion of law to make people think like the Government would like them to think, instead of like they may naturally think.
Mr. Hicks. Well, I think we have some evidence to that effect a little further on here in the statement. I do not recall exactly.
In a democracy, people make up their own minds. It is a basic premise that “freedom of the individual in and under a democracy has implicit in it, as an absolute, the freedom of association.”
When faced with the fact that antidiscrimination legislation collides head on with freedom of choice, advocates of compulsory integration lose their glib self-assurance and begin to equivocate by trying to find excuses as to why such right should not be considered. These excuses, examined seriatim, are hardly convincing.
The first such argument is moral preachment. A recent case declared:
The private ownership of private property free of unreasonable restriction upon the control thereof, is truly a part of our way of life, but on the other hand, we as a people do hold firmly to the philosophy that all men are created equal. Indeed, discrimination against any individual here on account of race, color, or religion is antagonistic to fundamental tenets of our form of government and of the God in who we place our trust.
This was a court decision.
It is clear that the only antidote to such a visceral reaction is a theological brief. Research of old cases is only a fruitless road to unnecessary eyestrain. The possibility that Government could enact through penal sanctions whom one shall associate with or talk to is just as absurd as the notion that it could enforce through positive law good table manners or the Boy Scout Code. The intrusion of particular sectarian religious doctrines into the statute books which the above case would sanction is an alarming innovation for a nation of such diverse customs, ideas, and ideals.
Another line of attack is the assertion that the exercise of freedom of choice so as to discriminate based on ethnic grounds lacks a rational basis. To begin with, this contention is irrevelant. It is no more persuasive than would be the contention that freedom of religion should be abolished unless the worshipper could scientifically demonstrate that his mode of worship had a rational foundation, or that freedom of speech should be eliminated unless the speaker could first prove that his thoughts should be heard, or that the right to listen to the radio station which one wants should not be permitted unless he hearer can demonstrate that he has good taste, or that right to choose one's friends should be curtailed unless the person can show that his choice is rational as a matter of social science. The transferring of choice from the individual to government in the realm of personality is the essence of a totalitarian police state.
The short of the matter is that, for all of its fancy trimmings and wrappings, a law banning discrimination in housing is, and is intended to be, a law compelling people to integrate who do not desire to do so. To thus treat human beings as chess pieces, to be moved at the will or whim of others who would like to plan their lives for them, is as flagrant a violation of basic human rights and dignity as can be found in the worst totalitarian system ever devised. Moreover, such integration for the sake of integration over the obvious objections of the people being integrated is patently violative of their constitutional rights. To hold otherwise is to reduce fundamental human rights to the level of norms which can be changed at each passing fad or fancy in social engineering by self-appointed planners for the lives of others.
All the fancy phrases of “democratic living," "fair housing," "open occupancy,'
," and "equality” cannot substitute for the denial of the right of freedom of association. Infringement of this right makes antidiscrimination legislation in houisng violative of fundamental liberties.
5. Title V: Mr. Chairman, Liberty Lobby believes that title V of this act is a prime example of all that is bad in "civil rights” legislation. With the passage of this title of the act, the vast majority of Americans are going to believe that at last there will be an end to the sensa