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 Fourteenth 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."

The question to be answered by the Court, should Title IV be enacted, would seem to be "Is this law prohibited?" By the First Amendment prohibition against denials of the right to freedom of association? By the Fifth Amendment prohibition against deprivations of property without due process of law or against the taking of property for public use without just compensation? By the Ninth Amendment's recognition of the existence of rights retained by the people, with the classical expression of one such right perhaps being that "a man's home is his castle"? Or by the Tenth Amendment, which is more than a State's rights amendment, reserving as it does those "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, * * * to the States respectively or to the people"?

Both precedent and reason would seem to answer a resounding "Yes" to the question: "Is this law prohibitive?"

It is clear that, under its commerce power, the Congress can prohibit certain aspects of racial discrimination. It is also clear that under the commerce power the Congress can regulate intrastate activities if they have a substantial effect upon commerce. The cases hold that the commerce power can reach retailers whose sales are wholly intrastate and only one-ninth of whose purchases are made out of state. Meat Cutters v. Fairlawn Meats, 353 U.S. 20 (1957). The cases hold that Congress can reach a farmer who grows wheat on his own farm for his own consumption even though the amount he grows may be trivial. Wickard v. Filburn, 317 U.S. 111 (1942).

Is there really any activity which can be considered so local that Congress cannot regulate it? Are the limitations on the commerce power real or only theoretical?

It is not too difficult to find some limits within the Constitution itself. In Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946), it was shown that even a daily newspaper, whose out-of-state circulation was only about one half of one per cent of its sales, could be reached under the commerce power by way of the Fair Labor Standards Act. Suppose, however, Mr. Chairman, that instead of trying to regulate the wages and hours of the newspaper's employees, Congress tried to regulate its editorial policy. Suppose, for instance, that there had been so much editorializing on automobile safety that people stopped buying automobiles which, in turn, caused plant shutdowns and threatened the entire economy of the Nation. Suppose that Congress, after extensive hearings linking the economic depression to safety editorials, decided that the only way to relieve unemployment and get the Nation back on its wheels was to prohibit editorials on automobile safety. Could this be a valid exercise of the commerce power? In addition to the question whether the rental of a room or the sale of a house by its owner is a transaction so strictly local that the Congress cannot reach it under the commerce power, Title IV, as presently framed, presents questions akin to that posed by an attempt to reach a newspaper's editorial policy under the commerce power. Does Title IV, by prohibiting a religious home from discriminating on account of race or religion in the disposition of its rooms, infringe upon the First Amendment right to free exercise of religion?

Does Title IV, by permitting a court to order a man to sell his home, on which he has invited bids, to a person whose bid was rejected on account of race,

religion or national origin, interfere with any of the homeowner's constitutional liberties?

Does Title IV infringe on any constitutional liberty of a racial, religious or national group by prohibiting it from subdividing an island or other tract of land for homesites to be sold or leased only by approval of the group?

Does Title IV infringe any constitutional liberties of a man who rents a room or two in the house in which he lives by requiring him not to discriminate among prospective tenants on account of race, religion or national origin?

Whatever determination the Congress makes with respect to these threshold questions will be entitled to great weight in the Supreme Court's deliberations in the event of Title IV's enactment. It is the court, however, which will have the final word, since the Court is the ultimate arbiter of the meaning of the Constitution. Although the commerce power of the Congress may be plenary, it is the Court which will determine whether the activity reached is truly commerce as well as whether the method by which Congress has chosen to regulate it is prohibited by some other provision of the Constitution. Perhaps the fairest generalization which may be made is that the closer Congress comes to restricting the purely private prejudices of the individual home owner, the more likely will the Court be to find that the Congress has exceeded its power.

I, as a United States Senator, believe that the Congress will have once again exceeded its power if it enacts Title IV and I, therefore, am opposed to Title IV, the "open occupancy" section of S. 3296.

Senator ERVIN. Senator, you pointed out certain constitutional principles which you think are incompatible with the enactment of title IV. I will ask you if it is not the initial provision in the fifth amendment which says that private property shall not be taken for public use except upon the payment of just compensation.

Senator BYRD. Yes, that is the fifth amendment.

Senator ERVIN. Now, is it not a basic rule of interpretation applicable to all written documents, whether they be constitutions or statutes or contracts, that the expression of one thing is the exclusion of another, and does not that principle, in your judgment, exclude any theory that private property can be taken for private use even with the payment of just compensation?

Senator BYRD. Yes, I share that viewpoint which has been expressed. Senator ERVIN. You point out very well in your statement that in your judgment, title IV would permit a person of a different faith to compel a home established for people of another particular faith to take him into the home as a renter. I will ask you if that does not violate both the right of association and the right of freedom of religion guaranteed by the first amendment?

Senator BYRD. I think it does, particularly the first of the two named.

Senator ERVIN. In other words, people of a religious faith certainly have the right to freedom of association under the first amendment and that right of freedom of association cannot be impaired by legislative action under the Constitution as thus far interpreted.

Senator BYRD. I think that is right, and under this provision as I interpret it, if a Catholic should wish to rent his home or part of his home to another Catholic and should exclude a Protestant in so doing, I think he would be subject to the prohibition of the law and vice versa.

Senator ERVIN. Do you not think that in its practical operation, title IV would, in effect, discriminate against persons of the race or the religion of the seller or renter in that the seller or renter, in order

to avoid conflict with the law and being sued for unlimited damages, would sell or rent to a person of another religion or another race in preference to a person of his own race or religion?

Senator BYRD. I think that is true, and I said the same thing with regard to, I believe it is title VII in the Civil Rights Act of 1964, which dealt with so-called equal opportunities in employment, that the person of a minority race would have an advantage over a person of the majority race and that the employer would more likely be prone to employ such a person in preference to the person of the majority race for fear that he would be subjected to litigation if he did otherwise.

Senator ERVIN. Has it not always been a basic principle of our law that the right to regulate the title to real estate and contracts relating to real estate has been a power which belonged to the States and not to the Federal Government?

Senator BYRD. Would you repeat that, please?

Senator ERVIN. Has it not always been a basic principle of our system of jurisprudence that the power to regulate the title to real estate and contracts relating to real estate belongs to the States rather than to Congress?

Senator BYRD. I think that is right, Mr. Chairman. I would certainly feel that you, as a former justice of the Supreme Court of the State of North Carolina, would certainly be correct in your assumption.

Senator ERVIN. Now, is it not also true that all of the States in the Union have adopted what they call statutes which require that the contracts relating to the sales of land should be in writing and that they be signed by the party against whom the contract is sought to be enforced?

Senator BYRD. Yes.

Senator ERVIN. Were not these passed in order to make the titles to real estate secure and save people against litigation affecting the title of real estate or controversy about real estate where there was no written contract?

Senator BYRD. That is my understanding of the history of the

statute.

Senator ERVIN. Would not title IV, in effect, impair the efficacy of those laws by making the cases brought under title IV dependent upon oral testimony rather than written testimony?

Senator BYRD. I think it would.

Senator ERVIN. Senator, I want to commend you on the excellence of your statement and say that I know of no man in public life who is more devoted to constitutional principles than yourself and no man who studies constitutional law more diligently than you do.

Do you have any questions?

Senator JAVITS. No questions, thank you.

Senator BYRD. Thank you, Mr. Chairman. You have been overly generous. I appreciate your remarks and your questions.

Senator ERVIN. Thank you for your appearance.

Mr. AUTRY. Mr. Chairman, the next witness is Mr. Nathaniel S. Keith, president, National Housing Conference.

Senator ERVIN. Mr. Keith, on behalf of the subcommittee, I wish to thank you for making your appearance and giving us the benefit of your views on this legislation.

STATEMENT OF NATHANIEL S. KEITH, PRESIDENT, NATIONAL HOUSING CONFERENCE, WASHINGTON, D.C.

Mr. KEITH. Thank you, Mr. Chairman. I have a brief prepared statement which, if it is agreeable with you, I will read.

Mr. Chairman and members of the committee, I appreciate this opportunity to present the views of the National Housing Conference on title IV of S. 3296, the proposed Civil Rights Act of 1966.

The National Housing Conference, which has been in existence for 36 years, is the principal national public interest organization in the field of housing and community development. Our membership consists of community leaders, private enterprise leaders, representative professionals, and leaders of labor, religious, and other public interest organizations from all sections of the United States who share a common objective of furthering improved housing and improved neighborhoods for all segments of the American people.

Because of its concentration on these problems over the years, the National Housing Conference has long recognized that the most critical phase of the national housing problem is the concentration of predominantly low-income families and individuals in substandard and slum housing, whether it be in the slums of medium size or large cities or in pockets of rural slums. The existence of these deplorable housing conditions is of course a glaring contradiction to the promise and accomplishments of American society. The social consequences of the continuation of these conditions have become more and more evident over the years. As the statistics show, furthermore, under contemporary conditions the predominant occupancy of these areas is on the part of racial minority groups, hemmed in by longstanding pat

terns of discrimination.

The National Housing Conference recognizes that poor housing is only one element in the overall problem of the poverty stricken in this country. We welcome the growing recognition by the Nation that intensive programs of education, job training, and social services are also essential to make significant progress in overcoming these problems. Nevertheless, to us it is crystal clear that a comprehensive attack to remove slum housing and slum neighborhood environments are an indispensable part of any program to meet the problems of the poor and particularly to open up new opportunities and new hope for the youths and the children who are now prisoners of this environment.

Throughout its entire life the National Housing Conference has been committed to the principle of equal opportunity for all American families to secure good housing in good neighborhoods. While recognizing the small but significant progress that has been achieved in recent years, our organization deplores the fact that this opportunity is still denied to millions of American families throughout every section of the land because of their race, color, creed, or national origin, and especially because of their color. We have therefore long supported the principle of a competitive housing market open to free bargaining by all American families without regard to racial or ethnic background.

The conference has observed the generally successful, even if limited, application of the President's Executive order on equal oppor

tunity in housing. However, since the scope of this order is confined to housing in which the Federal Government has a direct financial relationship, its impact has been confined to a relatively small segment of the total national housing market. To extend the principle of equal opportunity in housing to the market as a whole, much more comprehensive measures are essential.

For this reason, the National Housing Conference generally supports title IV, the pending bill, and its establishment as the policy of the United States "to prevent, and the right of every person to be protected against, discrimination on account of race, color, religion, or national origin in the purchase, rental, lease, financing, use, and occupancy of housing throughout the Nation." However, in order to assure the achievement of these principles and objectives, we recommend to your committee that administrative remedies be incorporated in title IV rather than to rest the implementation of that title largely on individual actions by persons discriminated against. We note with interest that Senator Javits has introduced an amendment designed to accomplish this general objective.

The conference is convinced that this legislation is an essential element in an overall approach to resolving the problems of the poor and of racial minorities. As pointed out before, we also recognize that intensive programs of education, training, and social services are likewise essential elements. Further, we recognize that the accomplishment of the policy proposed by title IV will require not only the elimination of slums and ghettos but also a massive expansion in the supply of decent housing and good neighborhoods, available on a nondiscriminatory basis. This goal therefore must involve a coordinated and intensive effort by the Federal Government and State and local governments and by private enterprise in the fields of housing real estate, and mortgage finance.

I appreciate this opportunity to present the views of the National Housing Conference on title IV of the proposed Civil Rights Act of 1966.

Senator ERVIN. I take it that your organization recognizes that title IV of the bill is designed to deprive all Americans of the right to sell or rent their property freely according to their own choices.

Mr. KEITH. Well, I believe that the position of our organization, Senator, is that the solution to the problem in the pattern of discrimination in housing requires this kind of intervention by the Federal Government.

Senator ERVIN. Well, that is the question I am asking you. In other words, your organization favors a law which is designed to deprive all American citizens of the right to sell or rent their property freely to persons of their own choice? That is what this bill does, does it not? Mr. KEITH. Certainly it does.

Also, I might point out, Senator, that there are historically in the real estate market many limitations on the freedom of the property owner to dispose of their property, such as zoning or

Senator ERVIN. Can you tell me a single one of those limitations upon the freedom of property which has been imposed by an act of Congress in the whole history of this Nation?

Mr. KEITH. No, sir; it only has been established under the local police powers.