ture to the great charter "in the meadow which is called Runnymeade. and life, liberty and property were, by the constitutions of the recently established governments equally entitled to the protection of those governments. Man's life and his liberty could only be taken, if the public good demanded it, after trial by jury. Likewise, a man could be shorn of his property or his property rights only after proper trial and just compensation. These three cardinal rights were coequal and not one was subordinate to another.

Our constitutional forebears had great respect for property and the rights of property owners, and the Constitution is replete with provisions securing the rights which attach to property. The same can be said with regard to the Bill of Rights, and in these first 10 amendments we find again that our forebears sought to protect not only personal rights, but property rights as well.

In the 14th amendment, insofar as the supreme law of the land, as written, was concerned, property rights were on a parity with personal rights. Property rights as well as personal rights were protected by due process. Unlawful seizure of either property or person was prohibited. Litigants over property were entitled to trial by jury as when the life or liberty of the litigants was involved.

Take away this basic human right-the right to own, use, manage, and dispose of one's own property-and what will happen to American free enterpises? What will happen to the individual American's incentive to labor and save and build for himself and his children? What will happen to that basic concept of freedom, that one has a moral and legal and natural right to enjoy the fruits of his own just labors and the product of his own honest sweat? What will have become of the priceless concept, so clearly enunciated by Sir Edward Coke, English jurist and political philosopher, "For a man's house is his castle"? The concept had appeared earlier in various Latin maximums, and the third and fourth amendments to the Federal Constitution are concerned with this idea.

And if the Federal Government may interfere with the constitutional, legal, and natural rights of the owner in the sale, lease, or rental of real property, what will hinder an all-powerful Federal Government from arrogating to itself the power, at some future time, to control the terms of sale or the price of the rental? What will hinder the Federal Government from arrogating to itself the power, at some future time, to control the use and disposal of the household furnishings and other personal property of an owner?

The gradual erosion of property rights which we have seen taking place, unnoticed to some people, but at the advocacy of others, will receive a massive impetus if title IV of this bill is enacted.

Title IV makes it unlawful for the owner of any building or land used for residential purposes to refuse to sell, rent, or lease such dwelling or land to any person if such refusal constitutes discrimination. It will be unlawful for the owner to publish any notice or advertisement, with respect to the sale, rental, or lease of a dwelling, that indiates any preference or discrimination based on race, color, religion, or national origin. It will also be unlawful for any bank, insurance company, or other lending institution to deny loans to persons applying therefor for the purpose of purchasing dwellings if such denial constitutes discrimination.

Senator ERVIN. If I may interrupt at this point with a question, you point out very correctly that, under title IV of the pending bill, it will be unlawful for the owner to publish any notice or advertisement with respect to the sale, rental, or lease of a dwelling that indicates any preference or discrimination based on race, color, religion, or national origin. But the question is this: If the Congress has the power to prohibit advertisement, which is nothing in the world but the exercise of the right to freedom of speech, in this particular field, what is there to prevent Congress from prohibiting free speech in every other field?

Senator BYRD. I see nothing, Mr. Chairman, to prohibit its doing so. I believe that perhaps a little later, I do touch on this point in a way to show that, under the commerce clause, while the Congress has gone a long way-too far, in reality, in my judgment-there still is a bar under the commerce clause which would prevent the Congress, in my judgment, from going this far, even.

Senator ERVIN. Some of the members of our Supreme Court say that the right of freedom of speech is absolute and subject to no limitation, and others say the right to freedom of speech is subject to only a few limitations, such as that a man shall not commit libel and the like. Now, to me it seems we have reached a tragic condition in this Nation if Congress can prohibit advertisements of this nature. If the Congress can do this, it can prohibit political advertisements and any other form of freedom of speech.

Senator BYRD. Mr. Chairman, I share that viewpoint. I feel that it would be unconstitutional for the Congress to enact this provision, but I have not-I must say that I have been surprised in the past to see Congress enact provisions, which, in my judgment and in the judgment of others who are far better constitutional lawyers than I ever expect to be, and in the fact of past decisions of the Supreme Court, are clearly unconstitutional. But even so, even though this title would appear to fly in the face of the Constitution, I would not be surprised, if the Congress shows the bad judgment to enact this bill, I would not be surprised to see the Supreme Court of the United States, as presently constituted, uphold the law.

Of course, instances of discrimination in the rental and sale of property based on religion or national origin are relatively rare, but these terms have been included to make the legislation more palatable. Why the legislation does not make it unlawful for property owners to discriminate against elderly people or against parents with children has not been explained, but one may conjecture that it is perhaps because the elderly folks and the large families have not yet taken to the picket lines and have been noticeably absent from the sit-ins and, thus far, have not threatened to riot.

Any plaintiff, under this section of the bill, may bring a civil action in a U.S. court, and the court may appoint an attorney for the plaintiff and authorize commencement of the action without payment of fees, cost, or security. Moreover, the U.S. Attorney General may intervene for, or in the name of the United States if he certifies that the action is of general public importance, with the United States being entitled to the same relief as if it instituted the action. The defendant property owner, of course, will have to furnish his own attorney and pit his own resources, be they great or small, against the all-pow

erful Federal Department of Justice and its lawyers whose salaries his own taxes help to pay.

The court may grant such relief as it deems appropriate including a temporary or permanent injunction, restraining order, or other order, and it may award damages to the plaintiff including damages for humiliation and mental pain and suffering, and up to $500 punitive damages. The court may also allow a prevailing plaintiff a reasonable attorney's fee as part of the costs. No provision is made, however, for allowing a prevailing defendant an attorney's fee as part of the costs of successfully defending his case against an unjust charge. This is inequitable, because if it is fair for the prevailing plaintiff to be allowed an attorney's fee, it should be fair for the prevailing defendant to be allowed an attorney's fee, and there is ample precedent.

I submit that this legislation is unconstitutional in that it is weighted against the property owner, denying him the equal protection of the law, and insofar as it constitutes governmental interference with his ownership, use, management, and freedom to dispose of his property, it deprives him of property without due process and thus contravenes the fifth amendment to the Federal Constitution.

I have not reached any decision as to the other sections of this bill, but my study of the "forced housing" section convinces me that it is an invasion of property rights, whether the property owner is white or nonwhite, and is thus unfair and unconstitutional.

I recognize that every man has a right to buy or rent property, but, by the same token, the owner of property has an equal right to refuse to sell or refuse to rent if he so chooses, and, in my judgment, he is not duty bound to explain his reasons.

Christ admonished us to "love thy neighbor as thyself," but he did not deny one's right to choose his associate or his neighbor. In this regard, it may also profit one to reflect upon Christ's parable of the laborers hired for the vineyard, in which parable the householder, in reference to his property, answered his critics by saying, "Is it not lawful for me to do what I will with mine own?"

If a man, white or Negro, of his own volition, wishes to sell or rent to a party of another color, that, in my judgment, is his prerogative, and he cannot legally be prevented from so doing. But I do not believe that he should be under compulsion to do so, against his own free will, by virtue of governmental constraints of any sort.

Mr. Chairman, I have cited a number of cases in the next several pages which, in my judgment, clearly indicate that this title of the bill, cannot be based upon the 14th amendment, nor can it be based upon the commerce clause. I think it would be clearly unconstitutional, and I therefore have attempted so to state by citing the cases and by quoting from the rulings therein.

I shall move to page 18.

The Supreme Court has not yet held that the 14th amendment in any way limits an owner's right to refuse to sell or lease a home or apartment on racial grounds. It has not yet held that where a State or political subdivision exercises no element of coercion upon a homeowner to discriminate, the homeowner is not free to discriminate without violating the provisions of the 14th amendment. The Court has not even been able to muster a majority to hold that the 14th amend

ment prohibits the owner of a restaurant or other place of public accommodation from discriminating among customers on account of race, which is a much easier conclusion to support. See Bell v. Maryland 378 U.S. 226 (1964).

To conclude that the 14th amendment, itself, does not prohibit the homeowner from discriminating on account of race is not necessarily to conclude that, in the exercise of its power to enforce the 14th amendment, the Congress could not prohibit such discrimination. However, the Court has held, in the civil rights cases, to which I have previously alluded in my statement-that the 14th amendment does not empower the Congress to prohibit owners of inns, carriers, and places of amusement from discriminating on account of race. Although Congress, in 1964, enacted new legislation prohibiting owners of certain inns, restaurants, and places of amusement affecting commerce from discriminating on account of race, basing the act in part on its power to enforce the 14th amendment, the Court has held the legislation constitutional on the basis of the commerce power. Two of the Justices would have upheld the law on the basis of section 5 of the 14th amendment.

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To the extent that the Civil Rights cases, supra, would confine the power of the Congress under section 5 of the 14th amendment to the adoption of "appropriate legislation for correcting the effects of ** prohibited State laws, and State acts, and thus to render them effectually null, void, and innocuous," three Justices have indicated a readiness to overrule it. (United States v. Guest, supra, opinion of Mr. Justice Brennan, joined by the Chief Justice and Mr. Justice Douglas, concurring in part and dissenting in part, slip opinion at 9.) To the extent that the Civil Rights cases would be inconsistent with the conclusion that "the specific language of section 5 empowers Congress to enact laws punishing all conspiracies-with or without State action-that interfere with 14th amendment rights" three additional Justices have indicated a willingness to overrule it without specifically naming it. (Id. concurring opinion of Mr. Justice Fortas, slip opinion at 2.) Can these three and three be put together to add up to a majority that would hold title IV to be a valid exercise of congressional power under section 5? Not necessarily.

Let us assume for a moment, what would seem to be, or at least about to become a completely valid assumption, that section 5 does empower Congress to enact laws punishing all conspiracies-with or without State action-that interfere with 14th amendment rights. Is the right of a prospective home buyer not to have his purchase offer refused on account of his race such a right? It has never been held to be and the combined opinions in Guest, supra, would not seem to compel such a conclusion.

In measuring the breadth of Federal power to be inferred from the dictum, in Guest, that section 5 of the 14th amendment "empowers the Congress to enact laws punishing all conspiracies with or without State action-that interfere with 14th amendment rights," it should be noted that the acts with which the Court was there concerned, were conspiracies carried out in part "by shooting Negroes; by beating Negroes; by killing Negroes." They were acts clearly criminal and the only question was whether the United States had made them punishable or had the power to make them punishable by Federal law.

To the extent that title IV prohibits the intimidation or coercion of a mob attempting to prevent a Negro family from moving into a neighborhood, the dicta in Guest would seem to indicate that the 14th amendment is a sound constitutional basis for title IV. The acts reached are clearly criminal and the only question is whether the Congress has a concurrent jurisdiction with the States to punish them. To the extent that title IV forbids an individual homeowner to refuse to sell his home, or rent an apartment or room in it because of the race of a prospective purchaser, there would seem to be a leap beyond the dicta in Guest. Nothing in the 14th amendment makes the discriminatory act of the homeowner in refusing to sell or rent on account of race unlawful. Nothing in the 14th amendment, as it has been construed until now, requires the State to make such discriminatory act unlawful. What 14th amendment right would Congress be enforcing? Attorney General Katzenbach argues persuasively that Federal prohibition of discrimination in the sale or rental of housing is an appropriate exercise of the power of Congress to enforce the 14th amendment.

It may be Mr. Justice Harlan, in his concurring opinion in Peterson v. Greenville, supra, and I think it worth repeating, who has given the most eloquent answer to this argument:

Underlying the cases involving an alleged denial of equal protection by ostensibly private action is a clash of competing constitutional claims of a high order: liberty and equality. Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be arbitrary, capricious, even unjust in his personal relations are things entitled to a large measure of protection from governmental interference. This liberty would be overridden, in the name of equality, if the strictures of the (14th) amendment were applied to governmental and private action without distinction. Also inherent in the concept of State action are values of federalism, a recognition that there are areas of private rights upon which Federal power should not lay a heavy hand and which should more properly be left to the more precise instruments of local authority.

There is not much doubt that title IV lays a heavy Federal hand on areas of rights which had heretofore been considered private. It admits no exceptions to its restrictions. The private religious home which rents accommodations to the elderly of its faith would no longer be able to exclude members of other faiths. The Swedish Old Folks Home would be required to open its doors to the elderly of other ancestries. The owner of a home who has fallen upon hard times and decides to rent a few rooms to tide him over would have his choice of tenants circumscribed.

If the Federal power can reach this far into individual private lives, is there anything to prevent it from reaching into private associations-private clubs, private schools, private organizations of any

kind?

There would seem to be little doubt, now, that the constitutionality of legislation to enforce the 14th amendment will be measured by the test formulated by Mr. Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 420 (1819).

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.