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John at Runnymede at the insistence of 2,000 barons who refused to fight unless there was an end to illegal levies by the king and guaranteed privileges of nobility and freedom, the right of free men to legal protection, and free men as a privileged class and their right to own property. Are we going to go back 750 years in freedoms that were guaranteed to the common man?
True, our country has not yet reached its 200th birthday. But the right of owning property was one of the freedoms which was guaranteed to the human race for 750 years.
There is another provision called a judicial remedy where an individual aggrieved by discriminatory housing practices could go into court and say, “Your Honor, that man refuses to sell me his home. I was humiliated. I want you to appoint an attorney. I want $500 from that man for punitive damages and I want $5,000 for humiliation.” This statute, if imposed in the way it is written, could pretty well do that.
Senator ERVIN. If I may interrupt you at that point, do you not believe that all laws should be uniform in nature and apply in like manner to all people in like circumstances ?
Mr. MOURE. Yes, sir, I do.
Senator Ervin. Do you not believe that this principle ought to apply to litigants in court?
Mr. MOURE. I beg your pardon?
Senator Ervin. Do you not believe that the principle of uniformity of law should apply to procedures of law governing actions in the court? Mr. MOURE. They should.
Senator Ervin. And this law provides an attorney to serve at Government expense for the plaintiff and not for the defendant. Is that not true?
Mr. MOURE. This is what the law as written provides, sir. I certainly believe that if the courts are going to pay for an attorney for one side, they should pay for both sides. However, I believe this would be against the jurisprudence of our country.
Senator ERVIN. Does this law not also provide that the plaintiff can recover a fee for his attorney, but there is no comparable provision for the defendant to recover a fee for his attorney?
Mr. MOURE. That is true, sir.
Senator ERVIN. Do you not think that is sort of, to put it in the vernacular, loading the legal dice in favor of one party in the case against another?
Mr. MOURE. It is, sir. Further than that, it is also a possibility of harassment of every homeowner, because, in accordance with the way this particular provision of the act is written, I could go knocking from door to door, and every time someone refused to sell me his house, I could haul him into court the next day.
Senator Ervin. Do you not believe that litigants should pay the fees of their own attorneys? Mr. MOURE. Yes, sir, they should.
Senator ERVIN. And do you not believe that when Congress passes a law whereby one side can recover attorney's fees, it results in stirring up litigation?
Mr. MOURE. It does. It will cause additional litigation and further crowd the court calendars that we have today.
Senator ERVIN. It will certainly tempt an attorney who may be in necessitous circumstances to emulate the example of the devil who goes to and fro on the earth seeking whom he might devour. Is that not true? Mr. MOURE. That is true, sir.
I did want to quote from about four Supreme Court decisions, Mr. Chairman.
In Shelley v. Kraemer, 304 U.S. 1, 13 (1948), it was held : "* * * the action inhibited by the first section of the 11th amendment is only such action as may fairly be said to be that of the States. The amendment erects no shield against merely private conduct, however discriminatory or wrongful."
Most recently in United States v. Guest (decided March 20, 1966), the Court said:
"It is commonplace that rights under the equal protection clause itself arises only where there has been involvement of the State or of one acting under the color of its authority. The equal protection clause does not * * * add anything to the rights which one citizen has under the Constitution against another * * *."
In Lombard v. Louisiana, Mr. Justice Douglas drew a careful distinction between a restaurant business and a home:
If this were an intrusion of a man's home or yard or farm or garden, the property owner could seek and obtain the aid of the State against the intruder. For the Bill of Rights as applied to the States through the due process clause of the 14th amendment, cases its weight on the side of the privacy of homes. The third amendment with its ban on the quartering of soldiers in private homes radiates that philosophy. The fourth amendment, while concerned with official invasions of privacy through searches and seizures, is eloquent testimony of the sanctity of private premises. For even when the police enter private precincts they must, with rare exceptions, come armed with a warrant issued by a magistrate. A private person has no standing to obtain even limited access. The principle that a man's home is his castle is basic to our system of jurisprudence. (373 U.S. 267, 274–75.]
Mr. Justice Goldberg, in his opinion in another case, was careful to draw a distinction between the protection afforded a man's private and his public choices, between civil rights and social rights:
* * * Prejudice and bigotry in any form are regrettable, but it is the constitutional right of every person to close his home or club to any person or to choose his social intimates and business partners solely on the basis of his personal prejudices including race. These and other rights pertaining to privacy and private association are themselves constitutionally protected liberties.
There are many other Supreme Court decisions, citations that could be given, dating from 1819 up to the case I cited in 1966, where it has been held that private property cannot be taken by the Federal Government except under clauses of eminent domain. Private property in the methods proposed in this bill could be taken for private use by the Federal Government.
Senator Ervin. If I may interrupt you at this point, you referred to Shelley v. Kraemer.
Mr. MOURE. Yes, sir.
Senator Ervin. Did not Chief Justice Vinson declare in that case that, as long as people maintain a segregated residential community by voluntary methods, the 14th amendment had no application whatever? Mr. MOURE. That is true, sir.
Senator Ervin. If that is correct, then the Congress cannot prohbit by legislative act what the Court has said is not violative of the 14th amendment, can it?
Mr. MOURE. That is true, sir. You also have to go back to 1875, right after the passage of the 14th amendment, and find the intent of the Congress that passed the 14th amendment. It was with these intensions that the Supreme Court has in all these years held the inalienable right of a man to own property, and that property shall not be challenged by the Federal Government.
Senator ERVIN. Your statement points out by a quotation by Justice Goldberg that the 14th amendment makes the distinction between civil rights and social affairs?
Mr. MOURE. Yes, sir, it does.
Senator ERVIN. Is there any basis whatever for saying that one man has a civil right to compel another to sell him a home or lease to him a home because of his race or his color or his national origin or his religion, or because of anything else?
Mr. MOURE. No, sir, and the United States v. Guest, which was settled in March of this year, said the equal protection clause does not add anything to the rights of one citizen, that one citizen has under the Constitution against another. Therefore, one citizen does not have a right to come in and tell me how to run my property, any more than they have to tell you, sir.
Senator Ervix. In other words, the civil rights of citizens are rights which are enforceable in his behalf against the State?
Mr. MOURE. Against the State, sir.
Senator ERVIN. And there is no law that gives one citizen a right to control the action of another citizen, is there?
Mr. MOURE. There is none under the Constitution, sir.
Senator Ervin. And whenever you say to A that he must sell his property to B or lease his property to B, you are in effect giving B a legal right against A which subordinates the rights of A to those of B, and, to a certain extent, subjects A to slavery on behalf of B, is that not true?
Mr. MOURE. That is correct, sir.
Senator Ervin. Therefore, a law of this kind, instead of promoting equality, destroys equality by giving certain individuals rights which take precedence over the rights of other individuals?
Mr. MOURE. It does. It is preferential treatment of one citizen against another, which is clearly a violation of the Constitution.
I would like to make one statement, sir. I would not be in your shoes and attempt to answer questions of such magnitude that it will bear upon the very threshold of breaking the rights and liberties of the peoples of our country. The basic principles under which our country was founded have brought us to one of the greatest powers this world has ever known. Let us not ruin this power. Let us guard it and keep it the way it has been.
Property rights, or, with your permission, the right to property by the people is a basic right under our Constitution. Property itself does not have any right. It is the people who have the right to buy, own, sell, rent, or lease property.
Failure to protect the free rights of our people to own property is a typical characteristic of the totalitarian states of this world today. This is contrary to the basic foundation of our country, and we must, therefore, maintain at all costs the right of people to own and sell or rent property.
Our Constitution calls for the restraint on governmental power. Over the last few decades the people have permitted the basic restraint of governmental power to slip from their hands. It is now time to reestablish the fundamental principle that Government must be restrained.
Mr. Chairman, let us take a look at the other side of these proposed laws. There are presently on the statute books of the United States sufficient laws to cope with all the problems which the Attorney General says he will be faced with unless he can have title IV.
The Congress recently established the Department of Housing and Urban Development, giving it full Cabinet rank. The laws under which this Department operates go back to the National Housing Act of 1937 and they have been implemented and expanded every year since. Under the housing law, there is a provision for nondiscrimination in housing. This, however, is a voluntary agreement entered into between the owner or developer and the Federal Government, for which the owner receives from the Government certain aids and assistance for the production of a specified type of housing.
Senator ERVIN. That is of a contractual nature, is it not? Mr. MOURE. There is quite a difference here, sir. There is a voluntary agreement between the seller or the owner of the property and a branch of the Federal Government.
Senator ERVIN. And there is no compulsion for the man to seek Government assistance?
Mr. MOURE. No, sir.
Senator Ervin. He does that voluntarily and thus surrenders what would be the right of a private citizen who acquires property without Government assistance, does he not?
Mr. MOURE. He does. He enters into a specific contractual arrangement.
One of the major reasons why a large number of the builders and developers of this country have not taken full advantage of the HUD programs is the long time it takes to process the papers through the Department, plus the known factor of something between 10 and 15 percent in extra costs that are necessary in construction under these programs.
The Attorney General in one of his statements stated that approximately 20 percent of the housing being build in this country today comes under some HUD program or other. If the time limitation for processing were reduced from an average of 24 to 48 months down to 6 to 12 months, I feel confident that a much larger number of builders and developers would use these programs.
Therefore, what we should do at this time, in reality, is not invade the privacy of ownership of real property, but look for ways of assisting Department of the Government to do its job a little quicker, a little more efficiently, and with better understanding among all the people than they have had in the past.
To summarize my statements, I believe that title IV of S. 3296 should be rejected as being a wholly unconstitutional attempt at legislation. We should devise a means under which all the housing industries would be able to work this problem out on a voluntary basis and we must, above all, maintain the constitutional right and liberty of all people to be able to choose their social intimates and business partners, and their neighbors, on the basis of personal private preference as is guaranteed by the Constitution. (The complete statement of Mr. Moure follows:)
STATEMENT OF ROGER J. MOURE Mr. Chairman and members of the Subcommittee,
My name is Roger J. Moure. I am a resident of Arlington County in the Commonwealth of Virginia. I am a Tax and Business Consultant and have been for a period of in excess of twenty years. I am the former Executive Director of the Northern Virginia Apartment Owners Association. I have had experience in doing extremely critical research on housing and housing provisions.
I would like to say at the outset that there are many provisions in this bill which are very good. However, Mr. Chairman, I am going to limit my statement to Title IV of the proposed bill which, in the words of the Attorney General of the United States, “would end compulsory residential segregation, a formidable obstruction to progress toward human equality." I wonder whether our esteemed Attorney General has gone to all the lengths of researching this problem that should have been done prior to submission to the Congress of the United States of the proposed bill.
Title IV raises many questions and many fringes. Does Title IV infringe on the 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?
Does Title IV infringe upon the constitutional liberty of a racial, religious or national group by prohibiting it from subdividing a tract of land for home sites to be sold or leased only upon approval of the group?
Does Title IV infringe upon the constitutional rights of religious organizations by telling them that they can no longer maintain homes for the aged or infirm, or similar institutions? Are educational institutions, privately owned, or owned by religious organizations, to be deprived of their constitutional rights to accept only members of their particular church into that school?
These, gentlemen, are basic and elementary questions.
I am not objecting to the right that is guaranteed all citizens of this country because of religious belief, race, color, or creed—it is only for those people who have suddenly become a minority, the property owners, that I am speaking. It is one of the fundamental basic foundations upon which our country was founded upon which we must decide what we are going to do.
Now, Gentlemen, I have some very pertinent items which I would like to present to you for your consideration. Upon completion of my statement I will attempt to answer your questions. I doubt that I will have all the answers: I may have none of them ; but with your permission I would find those answers and furnish them to you.
Now, on the pending legislation, Senate Bill 3296, which is the proposed Civil Rights Act of 1966, before this Subcommittee of the Judiciary Committee of the United States Senate, it is not civil rights legislation per se.
The pending legislation before the Judiciary Committee of the United States Senate is not civil rights legislation; it is an attempt by the Attorney General of the United States to circumvent the Constitution of the United States. It is a direct violation of the Fifth Amendment of the Constitution of the United States which prevents the deprivation of personal property by the Federal Government for any reason other than that used in the power of eminent domain which has certain expressed limitations.
Under the proposed legislation, the Attorney General is, in essence, taking into the realm of the Justice Department of the United States all right and title to real estate, wherever situated, within the limits of this great nation of