Appellant, the owner of a large motel in Atlanta, Georgia, which restricts its
clientele to white persons, three-fourths of whom are transient interstate
travelers, sued for declaratory relief and to enjoin enforcement of the Civil
Rights Act of 1964, contending that the prohibition of racial discrimination
in places of public accommodation affecting commerce exceeded Congress' powers
under the Commerce Clause and violated other parts of the Constitution. A three-judge
District Court upheld the constitutionality of Title II, §§ 201(a),
(b)(1) and (c)(1), the provisions attacked, and, on appellees' counterclaim,
permanently enjoined appellant from refusing to accommodate Negro guests for
racial reasons.
Held:
1. Title II of the Civil Rights Act of 1964 is a valid exercise of Congress'
power under the Commerce Clause as applied to a place of public accommodation
serving interstate travelers. Civil Right Cases, 109 U.S. 3 , distinguished.
Pp. 249-262 .
(a) The interstate movement of persons is "commerce" which
concerns more than one State. Pp. 255-256 .
(b) The protection of interstate commerce is
within the regulatory power of Congress under
the Commerce Clause whether or not the transportation
of persons
between
States is "commercial." P. 256 .
(c) Congress' action in removing the disruptive effect which it found racial
discrimination has on interstate travel is not invalidated because Congress was
also legislating against what it considered to be moral wrongs. P. 257 .
(d) Congress had power to enact appropriate
legislation with regard to a place of public
accommodation such as appellant's motel even
if
it
is assumed
to
be of a purely "local" character, as Congress' power over
interstate commerce extends to the regulation of local incidents
thereof which might
have a substantial
and harmful effect upon that commerce. P. 258 .
(2) The prohibition in Title II of racial discrimination in public accommodations
affecting commerce does not violate the Fifth [p*242] Amendment as being a deprivation
of property or liberty without due process of law. Pp. 258-261 .
(3) Such prohibition does not violate he Thirteenth
Amendment as being "involuntary
servitude." P. 261 .
231 F.Supp. 393, affirmed.
Opinions
CLARK, J., Opinion of the Court
MR. JUSTICE CLARK delivered the opinion of the Court.
This is a declaratory judgment action, 28 U.S.C. § 2201 and § 2202
(1958 ed.), attacking the constitutionality of Title II of the Civil Rights Act
of 1964, 78 Stat. [p*243] 241, 243. [n1] In addition to declaratory relief, the
complaint sought an injunction restraining the enforcement of the Act and damages
against appellees based on allegedly resulting injury in the event compliance
was required. Appellees counterclaimed for enforcement under § 206(a) of
the Act and asked for a three-judge district court under § 206(b). A three-judge
court, empaneled under § 206(b) as well as 28 U.S.C. § 2282
(1958 ed.), sustained the validity of the Act and issued
a permanent injunction
on appellees'
counterclaim restraining appellant from continuing to violate
the Act which remains in effect on order of MR. JUSTICE BLACK,
85 S.Ct.
1.
We affirm
the judgment.
1. The Factual Background and Contentions of the Parties.
The case comes here on admissions and stipulated facts. Appellant owns and operates
the Heart of Atlanta Motel, which has 216 rooms available to transient guests.
The motel is located on Courtland Street, two blocks from downtown Peachtree
Street. It is readily accessible to interstate highways 75 and 85 and state highways
23 and 41. Appellant solicits patronage from outside the State of Georgia through
various national advertising media, including magazines of national circulation;
it maintains over 50 billboards and highway signs within the State, soliciting
patronage for the motel; it accepts convention trade from outside Georgia and
approximately 75% of its registered guests are from out of State. Prior to passage
of the Act, the motel had followed a practice of refusing to rent rooms to Negroes,
and it alleged that it intended to continue to do so. In an effort to perpetuate
that policy, this suit was filed.
The appellant contends that Congress, in passing
this Act, exceeded its power to regulate commerce
under Art. I, [p*244] § 8,
cl. 3, of the Constitution of the United States; that
the Act violates the Fifth
Amendment
because appellant
is deprived of the right to choose its customers and
operate its business as it wishes, resulting
in a taking of its
liberty and
property
without
due process
of law and a taking of its property without just compensation;
and, finally, that, by requiring appellant to rent available
rooms to
Negroes against
its will, Congress is subjecting it to involuntary servitude
in contravention of the Thirteenth
Amendment.
The appellees counter that the unavailability
to Negroes of adequate accommodations interferes
significantly with
interstate
travel,
and that Congress, under
the Commerce Clause, has power to remove such obstructions
and restraints; that
the Fifth Amendment does not forbid reasonable regulation,
and that consequential damage does not constitute a "taking" within
the meaning of that amendment; that the Thirteenth Amendment
claim fails because it
is entirely
frivolous to
say that an amendment directed to the abolition of human
bondage and the removal of widespread disabilities associated
with
slavery places
discrimination
in
public accommodations beyond the reach of both federal
and state law.
At the trial, the appellant offered no evidence,
submitting the case on the pleadings, admissions
and stipulation
of facts; however,
appellees
proved
the refusal of
the motel to accept Negro transients after the passage
of the Act. The District Court sustained the constitutionality
of
the sections
of the
Act
under attack
(§§ 201(a), (b)(1) and (c)(1)) and issued a permanent injunction on
the counterclaim of the appellees. It restrained the appellant from "[r]efusing
to accept Negroes as guests in the motel by reason of their race or color" and
from
[m]aking any distinction whatever upon the basis of
race or color in the availability of the goods, services,
facilities, [p*245] privileges, advantages or accommodations
offered or made available to the guests of the motel,
or to the general public,
within or upon any of the premises of the Heart of
Atlanta Motel, Inc.
2. The History of the Act.
Congress first evidenced its interest in civil rights
legislation in the Civil Rights or Enforcement
Act of April 9, 1866. [n2] There followed four
Acts, [n3]
with a fifth, the Civil Rights Act of March 1, 1875,
[n4] culminating the series. In 1883, this Court
struck down the public accommodations sections
of the 1875
Act in the Civil Rights Cases, 100 U.S. 3. No major
legislation in this field had been enacted by Congress
for 82 years when the Civil Rights Act of 1957
[n5]
became law. It was followed by the Civil Rights Act
of 1960. [n6] Three years later, on June 19, 1963,
the late President Kennedy called for civil rights
legislation
in a message to Congress to which he attached a proposed
bill. Its stated purpose was
to promote the general welfare by eliminating discrimination
based on race, color, religion, or national origin
in . . . public accommodations through the exercise
by Congress of the powers conferred upon it . . .
to enforce the provisions of
the fourteenth and fifteenth amendments to regulate
commerce among the several States, and to make
laws necessary and proper to execute the powers
conferred
upon it by the Constitution.
H.R.Doc. No. 124, 88th Cong., 1st Sess., at 14. [p*246] Bills were introduced
in each House of the Congress, embodying the President's suggestion, one in the
Senate being S. 1732 [n7] and one in the House H.R. 7152. However, it was not
until July 2, 1964, upon the recommendation of President Johnson, that the Civil
Rights Act of 1964, here under attack, was finally passed.
After extended hearings, each of these bills was favorably reported to its respective
house, H.R. 7152 on November 20, 1963, H.R.Rep. No. 914, 88th Cong., 1st Sess.,
and S. 1732 on February 10, 1964, S.Rep. No. 872, 88th Cong., 2d Sess. Although
each bill originally incorporated extensive findings of fact, these were eliminated
from the bills as they were reported. The House passed its bill in January, 1964,
and sent it to the Senate. Through a bipartisan coalition of Senators Humphrey
and Dirksen, together with other Senators, a substitute was worked out in informal
conferences. This substitute was adopted by the Senate and sent to the House,
where it was adopted without change. This expedited procedure prevented the usual
report on the substitute bill in the Senate as well as a Conference Committee
report ordinarily filed in such matters. Our only frame of reference as to the
legislative history of the Act is, therefore, the hearings, reports and debates
on the respective bills in each house.
The Act as finally adopted was most comprehensive, undertaking to prevent, through
peaceful and voluntary settlement, discrimination in voting as well as in places
of accommodation and public facilities, federally secured programs, and in employment.
Since Title II is the only portion under attack here, we confine our consideration
to those public accommodation provisions. [p*247]
3. Title II of the Act.
This Title is divided into seven sections,
beginning with § 201(a),
which provides that:
All persons shall be entitled to the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or segregation
on the ground of race, color, religion, or national origin.
There are listed in § 201(b) four classes of business establishments, each
of which "serves the public" and "is a place of public accommodation" within
the meaning of § 201(a) "if its operations affect commerce, or if discrimination
or segregation by it is supported by State action." The
covered establishments are:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient
guests, other than an establishment located within a building which contains
not more than five rooms for rent or hire and which is actually occupied by the
proprietor of such establishment as his residence;
(2) any restaurant, cafeteria . . . [not here involved];
(3) any motion picture house . . . [not here involved];
(4) any establishment . . . which is physically located within the premises of
any establishment otherwise covered by this subsection, or . . . within the premises
of which is physically located any such covered establishment . . . [not here
involved].
Section 201(c) defines the phrase "affect commerce" as applied to the
above establishments. It first declares that "any inn, hotel, motel, or
other establishment which provides lodging to transient guests" affects
commerce per se. Restaurants, cafeterias, etc., in class two affect [p*248] commerce
only if they serve or offer to serve interstate travelers or if a substantial
portion of the food which they serve or products which they sell have "moved
in commerce." Motion picture houses and other places listed in class three
affect commerce if they customarily present films, performances, etc., "which
move in commerce." And the establishments listed in class four affect commerce
if they are within, or include within their own premises, an establishment "the
operations of which affect commerce." Private clubs are excepted under certain
conditions. See § 201(e).
Section 201(d) declares that "discrimination or segregation" is
supported by state action when carried
on under color of any law, statute, ordinance,
regulation or any custom or usage required
or enforced by officials of the State
or any
of its subdivisions.
In addition, § 202 affirmatively
declares that all persons
shall be entitled to be free, at any establishment or place, from discrimination
or segregation of any kind on the ground of race, color, religion, or national
origin, if such discrimination or segregation is or purports to be required by
any law, statute, ordinance, regulation, rule, or order of a State or any agency
or political subdivision thereof.
Finally, § 203 prohibits the withholding or denial, etc., of any right or
privilege secured by § 201 and § 202
or the intimidation, threatening or coercion
of any
person
with the purpose
of interfering with any such
right or the punishing, etc., of any
person for exercising or attempting to
exercise
any such right.
The remaining sections of the Title are remedial ones for violations of any of
the previous sections. Remedies are limited to civil actions for preventive relief.
The Attorney General may bring suit where he has
reasonable cause to believe that any person or group of persons is engaged in
a pattern or practice of resistance to [p*249] the full enjoyment of any of the
rights secured by this title, and that the pattern or practice is of such a nature
and is intended to deny the full exercise of the rights herein described. . .
.
§ 206(a).
A person aggrieved may bring suit, in which
the Attorney General may be permitted to intervene.
Thirty days' written notice
before filing any such action must be given to the appropriate authorities
of
a State or subdivision
the law
of which prohibits the act complained of
and which has
established an
authority which may grant relief therefrom. § 204(c). In States where such condition
does not exist, the court, after a case is filed, may refer it to the Community
Relations Service, which is established under Title X of the Act. § 204(d).
This Title establishes such service in
the Department of Commerce, provides
for a Director
to be appointed
by the
President with
the advice and consent
of the
Senate, and grants it certain powers,
including the power to hold hearings,
with reference
to matters coming to
its attention
by
reference from
the court or between
communities and persons involved in disputes
arising under the Act.
4. Application of Title II to Heart of Atlanta Motel.
It is admitted that the operation of
the motel brings it within the provisions
of § 201(a)
of the Act, and that appellant refused
to provide lodging
for transient
Negroes
because of
their race or
color, and that it intends
to continue
that policy unless restrained.
The sole question posed is, therefore,
the constitutionality of the Civil
Rights Act
of 1964 as applied to
these facts. The legislative
history
of the Act indicates
that Congress based the Act on § 5 and the Equal Protection Clause of the
Fourteenth Amendment, as well as its power to regulate interstate commerce under
Art. I, § 8, cl. 3, of the Constitution.
[p*250]
The Senate Commerce Committee made
it quite clear that the fundamental
object
of Title
II was to
vindicate "the deprivation of personal dignity that surely
accompanies denials of equal access to public establishments." At the same
time, however, it noted that such an objective has been and could be readily
achieved "by congressional action based on the commerce power of the Constitution." S.Rep.
No. 872, supra, at 16-17. Our study of the legislative record, made in the light
of prior cases, has brought us to the conclusion that Congress possessed ample
power in this regard, and we have therefore not considered the other grounds
relied upon. This is not to say that the remaining authority upon which it acted
was not adequate, a question upon which we do not pass, but merely that, since
the commerce power is sufficient for our decision here, we have considered it
alone. Nor is § 201(d) or § 202,
having to do with state action, involved
here. and we
do not
pass upon
either
of those
sections.
5. The Civil Rights Cases, 109 U.S. (1883), and their Application.
In light of our ground for decision,
it might be well at the outset to
discuss the Civil
Rights Cases, supra,
which
declared
provisions
of the
Civil Rights
Act of 1875 unconstitutional. 18
Stat. 335, 336. We think that decision inapposite
and
without
precedential
value
in determining
the constitutionality
of the
present Act. Unlike Title II of the
present legislation, the 1875 Act
broadly
proscribed
discrimination in "inns, public conveyances on land or water, theaters,
and other places of public amusement," without
limiting the categories of affected
businesses to those impinging
upon interstate
commerce.
In contrast, the applicability of
Title II is carefully limited to
enterprises
having
a direct
and substantial relation to the interstate
flow of goods and people, [p*251]
except where state
action
is involved.
Further,
the fact
that certain kinds
of businesses may not in 1875 have
been sufficiently involved in interstate
commerce
to warrant bringing them within the
ambit of the commerce power is not
necessarily
dispositive
of
the same question
today.
Our populace
had
not reached its
present mobility, nor were facilities,
goods
and services circulating as readily
in interstate commerce as they are
today.
Although the principles which we
apply today are
those first formulated by Chief Justice
Marshall in Gibbons v. Ogden, 9 Wheat.
1 (1824), the
conditions of transportation
and commerce
have changed
dramatically,
and we must apply those principles
to the present state
of commerce. The sheer increase in
volume of interstate traffic
alone would
give discriminatory practices
which inhibit travel a far larger
impact upon the Nation's commerce
than such
practices had
on the economy of another day. Finally,
there is language
in
the Civil Rights Cases which indicates
that the Court did not fully consider
whether the 1875 Act could be sustained
as an exercise
of the commerce power. Though
the Court observed that
no one will contend that the power to
pass it was contained in the Constitution
before the adoption of the last three
amendments [Thirteenth, Fourteenth,
and Fifteenth],
the Court went on specifically to
note that the Act was not "conceived" in
terms of the commerce power, and
expressly pointed out:
Of course, these remarks [as to lack of congressional power] do not apply to
those cases in which Congress is clothed with direct and plenary powers of legislation
over the whole subject, accompanied with an express or implied denial of such
power to the States, as in the regulation of commerce with foreign nations, among
the several States, and with the Indian tribes. . . . In these cases, Congress
has [p*252] power to pass laws for regulating the subjects specified in every
detail, and the conduct and transactions of individuals in respect thereof.
At 18 . Since the commerce power was not relied on by the Government and was
without support in the record, it is understandable that the Court narrowed its
inquiry and excluded the Commerce Clause as a possible source of power. In any
event, it is clear that such a limitation renders the opinion devoid of authority
for the proposition that the Commerce Clause gives no power to Congress to regulate
discriminatory practices now found substantially to affect interstate commerce.
We therefore conclude that the Civil Rights Cases have no relevance to the basis
of decision here, where the Act explicitly relies upon the commerce power and
where the record is filled with testimony of obstructions and restraints resulting
from the discriminations found to be existing. We now pass to that phase of the
case.
6. The Basis of Congressional Action.
While the Act, as adopted, carried
no congressional findings, the
record of
its passage through
each house is replete
with evidence
of the burdens
that
discrimination
by race or color places upon interstate
commerce. See Hearings before Senate
Committee on Commerce
on S.
1732, 88th Cong.,
1st Sess.; S.Rep.
No. 872,
supra; Hearings before Senate Committee
on the Judiciary on S. 1731, 88th
Cong., 1st
Sess.; Hearings before House Subcommittee
No. 5 of the Committee on the Judiciary
on miscellaneous
proposals
regarding Civil
Rights, 88th
Cong.,
1st Sess.,
ser. 4; H.R.Rep. No. 914, supra.
This testimony included the fact
that our
people
have become increasingly mobile,
with millions of people of all races
traveling
from State
to State;
that Negroes
in particular
have been
the subject of
discrimination in transient accommodations,
having to
travel great distances [p*253]
to secure the
same; that often they have been unable to
obtain
accommodations, and have had to
call upon friends to put them up overnight,
S.Rep.
No. 872,
supra, at
14-22, and that these conditions
had become
so acute as to require the listing
of available lodging for
Negroes in a
special guidebook
which
was itself "dramatic
testimony to the difficulties" Negroes
encounter in travel. Senate Commerce
Committee Hearings, supra, at 692-694.
These exclusionary practices were
found to be nationwide, the Under
Secretary of Commerce testifying
that there is "no
question that this discrimination
in the North still exists to a
large degree" and
in the West and Midwest as well.
Id. at 735, 744. This testimony
indicated a qualitative,
as well
as quantitative,
effect
on interstate travel
by Negroes. The former was the
obvious impairment
of the Negro traveler's pleasure
and
convenience
that resulted when he continually
was uncertain of finding lodging.
As
for the latter, there was evidence
that this uncertainty stemming
from racial
discrimination had the effect of
discouraging travel on the part
of a substantial
portion of
the Negro community. Id. at 744.
This was the conclusion not only
of the
Under Secretary
of Commerce, but
also of the Administrator
of the
Federal
Aviation
Agency, who wrote the Chairman
of the Senate Commerce Committee
that
it was
hisbelief that air commerce is
adversely affected by the denial
to a substantial segment of the
traveling public of adequate and
desegregated public accommodations.
Id. at 12-13. We shall not burden this opinion with further details, since the
voluminous testimony presents overwhelming evidence that discrimination by hotels
and motels impedes interstate travel.
7. The Power of Congress Over Interstate Travel.
The power of Congress to deal with these obstructions depends on the meaning
of the Commerce Clause. Its meaning was first enunciated 140 years ago by the
great [p*254] Chief Justice John Marshall in Gibbons v. Ogden, 9 Wheat. 1 (1824),
in these words:
The subject to be regulated is commerce, and . . . to ascertain the extent of
the power, it becomes necessary to settle the meaning of the word. The counsel
for the appellee would limit it to traffic, to buying and selling, or the interchange
of commodities . . . , but it is something more: it is intercourse . . . between
nations, and parts of nations, in all its branches, and is regulated by prescribing
rules for carrying on that intercourse. [At 189-190 .]
* * * *
To what commerce does this power extend?
The constitution informs us, to
commerce "with
foreign nations, and among the
several States, and with the Indian
tribes."
It has, we believe, been universally admitted that these words comprehend every
species of commercial intercourse. . . . No sort of trade can be carried on .
. . to which this power does not extend. [At 193-194 .]
* * * *
The subject to which the power is next
applied is to commerce "among the
several States." The word "among" means
intermingled. . . .
* * * *
. . . [I]t may very properly be restricted to that commerce which concerns more
States than one. . . . The genius and character of the whole government seem
to be that its action is to be applied to all the . . . internal concerns [of
the Nation] which affect the States generally, but not to those which are completely
within a particular State, which do not affect other States, and with which it
is not necessary [p*255] to interfere for the purpose of executing some of the
general powers of the government. [At 194-195 .]
* * * *
We are now arrived at the inquiry -- What is this power?
It is the power to regulate; that is, to prescribe the rule by which commerce
is to be governed. This power, like all others vested in Congress, is complete
in itself, may be exercised to its utmost extent, and acknowledges no limitations
other than are prescribed in the constitution. . . . If, as has always been understood,
the sovereignty of Congress . . . is plenary as to those objects [specified in
the Constitution], the power over commerce . . . is vested in Congress as absolutely
as it would be in a single government, having in its constitution the same restrictions
on the exercise of the power as are found in the constitution of the United States.
The wisdom and the discretion of Congress, their identity with the people, and
the influence which their constituents possess at elections are, in this, as
in many other instances, as that, for example, of declaring war, the sole restraints
on which they have relied, to secure them from its abuse. They are the restraints
on which the people must often rely solely, in all representative governments.
[At 196-197 .]
In short, the determinative test
of the exercise of power by the
Congress under
the Commerce
Clause is
simply whether
the
activity
sought to
be regulated is "commerce
which concerns more States than one" and
has a real and substantial relation
to the national interest. Let
us now turn
to this facet
of the problem.
That the "intercourse" of which the Chief Justice spoke included the
movement of persons through more [p*256] States than one was settled as early
as 1849, in the Passenger Cases, 7 How. 283, where Mr. Justice McLean stated: "That
the transportation of passengers is a part of commerce is not now an open question." At
401. Again, in 1913, Mr. Justice
McKenna, speaking for the Court,
said:
Commerce among the States, we have said, consists of intercourse and traffic
between their citizens, and includes the transportation of persons and property.
Hoke v. United States, 227 U.S. 308, 320. And only four years later, in 1917,
in Caminetti v. United States, 242 U.S. 470, Mr. Justice Day held for the Court:
The transportation of passengers in interstate commerce, it has long been settled,
is within the regulatory power of Congress, under the commerce clause of the
Constitution, and the authority of Congress to keep the channels of interstate
commerce free from immoral and injurious uses has been frequently sustained,
and is no longer open to question.
At 491. Nor does it make any difference whether the transportation is commercial
in character. Id. at 484-486. In Morgan v. Virginia, 328 U.S. 373 (1946), Mr.
Justice Reed observed as to the modern movement of persons among the States:
The recent changes in transportation brought about by the coming of automobiles
[do] not seem of great significance in the problem. People of all races travel
today more extensively than in 1878, when this Court first passed upon state
regulation of racial segregation in commerce. [It but] emphasizes the soundness
of this Court's early conclusion in Hall v. DeCuir, 95 U.S. 485.
At 383 .
The same interest in protecting interstate
commerce which led Congress to
deal with segregation in
interstate [p*257]
carriers
and the
white slave traffic
has prompted it to extend the
exercise of its power to gambling, Lottery
Case, 188
U.S. 321 (1903); to criminal
enterprises,
Brooks v. United States, 267
U.S. 432 (1925); to deceptive practices
in the sale of products, Federal
Trade Comm'n
v. Mandel
Bros., Inc.,
359 U.S.
385 (1959); to fraudulent
security
transactions,
Securities & Exchange Comm'n v. Ralston Purina Co., 346 U.S. 119 (1953);
to misbranding of drugs, Weeks v. United States, 245 U.S. 618 (1918); to wages
and hours, United States v. Darby, 312 U.S. 100 (1941); to members of labor unions,
Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); to crop control,
Wickard v. Filburn, 317 U.S. 111 (1942); to discrimination against shippers,
United States v. Baltimore & Ohio R. Co., 333 U.S. 169 (1948); to the protection
of small business from injurious price-cutting, Moore v. Mead's Fine Bread Co.,
348 U.S. 115 (1954); to resale price maintenance, Hudson Distributors, Inc. v.
Eli Lilly & Co., 377 U.S.
386 (1964), Schwegmann v. Calvert
Distillers
Corp.,
341 U.S. 384 (1951);
to professional
football,
Radovich v.
National Football
League, 352 U.S. 445 (1957),
and to racial discrimination
by owners
and
managers
of terminal restaurants,
Boynton v. Virginia,
364
U.S. 454 (1960).
That Congress was legislating against moral wrongs in many of these areas rendered
its enactments no less valid. In framing Title II of this Act, Congress was also
dealing with what it considered a moral problem. But that fact does not detract
from the overwhelming evidence of the disruptive effect that racial discrimination
has had on commercial intercourse. It was this burden which empowered Congress
to enact appropriate legislation, and, given this basis for the exercise of its
power, Congress was not restricted by the fact that the particular obstruction
to interstate commerce with which it was dealing was also deemed a moral and
social wrong. [p*258]
It is said that the operation
of the motel here is of a purely
local
character.
But,
assuming this to
be true, "[i]f it is interstate commerce that feels
the pinch, it does not matter how local the operation which applies the squeeze." United
States v. Women's Sportswear Mfrs. Assn., 336 U.S. 460, 464 (1949). See Labor
Board v. Jones & Laughlin
Steel Corp., supra. As Chief
Justice
Stone put it
in United States
v. Darby,
supra:
The power of Congress over interstate commerce is not confined to the regulation
of commerce among the states. It extends to those activities intrastate which
so affect interstate commerce or the exercise of the power of Congress over it
as to make regulation of them appropriate means to the attainment of a legitimate
end, the exercise of the granted power of Congress to regulate interstate commerce.
See McCulloch v. Maryland, 4 Wheat. 316 , 421 .
At 118 . Thus, the power of Congress
to promote interstate commerce
also includes the power
to regulate the
local incidents thereof,
including local activities
in both the States of origin
and destination, which might
have a
substantial and
harmful effect upon
that commerce.
One need
only examine the evidence
which we have discussed above
to see that
Congress may -- as it has
--
prohibit racial
discrimination by motels serving
travelers, however "local" their
operations may appear.
Nor does the Act deprive appellant
of liberty or property under
the Fifth Amendment.
The commerce power invoked
here by the
Congress is a specific
and plenary one
authorized by the Constitution
itself. The only questions are:
(1)
whether Congress had a rational
basis for
finding that racial discrimination
by motels affected
commerce, and (2) if it had such
a basis, whether the means it
selected to eliminate
that evil
are
reasonable
and appropriate.
[p*259] If
they are,
appellant has
no "right" to select
its guests as it sees fit, free
from
governmental regulation.
There is nothing novel about such legislation. Thirty-two States [n8] now have
it on their books either by statute or executive order, and many cities provide
such regulation. Some of these Acts go back four-score years. It has been repeatedly
held by this Court that such laws [p*260] do not violate the Due Process Clause
of the Fourteenth Amendment. Perhaps the first such holding was in the Civil
Rights Cases themselves, where Mr. Justice Bradley for the Court inferentially
found that innkeepers,
by the laws of all the States, so far as we are aware, are bound, to the extent
of their facilities, to furnish proper accommodation to all unobjectionable persons
who in good faith apply for them.
At 25 .
As we have pointed out, 32 States now
have such provisions and no case
has been cited
to us where
the attack
on a state statute
has
been successful,
either in
federal or state courts. Indeed,
in some cases, the Due Process
and Equal
Protection
Clause
objections have been
specifically
discarded in this
Court. Bob-Lo Excursion
Co. v. Michigan, 333 U.S. 28,
34 n. 12 (1948). As
a result, the constitutionality
of such state statutes stands
unquestioned. "The authority of the Federal
Government over interstate commerce does not differ," it was held in United
States v. Rock Royal Co-op., Inc., 307 U.S. 533 (1939), "in extent or character
from that retained by the states over intrastate commerce." At
569-570. See also Bowles v. Willingham,
321 U.S. 503 (1944).
It is doubtful if, in the long
run, appellant will suffer economic
loss
as a result
of the Act. Experience
is to
the contrary
where discrimination is
completely
obliterated as to all public
accommodations. But whether this
be true or not
is of no consequence, since this
Court has specifically
held
that
the
fact
that a "member of the class which is regulated may suffer economic losses not
shared by others . . . has never been a barrier" to such legislation. Bowles
v. Willingham, supra, at 518. Likewise, in a long line of cases, this Court has
reflected the claim that the prohibition of racial discrimination in public accommodations
interferes with personal liberty. See District of Columbia v. John R. Thompson
Co., 346 U.S. [p*261] 100 (1953), and cases there cited, where we concluded that
Congress had delegated lawmaking power to the District of Columbia "as broad
as the police power of a state," which included the power to adopt "a
law prohibiting discriminations against Negroes by the owners and managers of
restaurants in the District of Columbia." At
110. Neither do we find any merit
in the claim that the
Act is a taking
of property without
just
compensation.
The cases are to the contrary.
See Legal Tender Cases, 12 Wall.
457,
551 (1870); Omnia Commercial
Co. v. United States, 261 U.S.
502
(1923); United
States v.
Central Eureka Mining Co., 357
U.S. 155 (1958).
We find no merit in the remainder
of appellant's contentions, including
that of "involuntary servitude." As we have seen, 32 States prohibit racial
discrimination in public accommodations. These laws but codify the common law
innkeeper rule, which long predated the Thirteenth Amendment. It is difficult
to believe that the Amendment was intended to abrogate this principle. Indeed,
the opinion of the Court in the Civil Rights Cases is to the contrary as we have
seen, it having noted with approval the laws of "all the States" prohibiting
discrimination. We could not say that the requirements of the Act in this regard
are in any way "akin to African slavery." Butler
v. Perry, 240 U.S. 328, 332 (1916).
We therefore conclude that the action of the Congress in the adoption of the
Act as applied here to a motel which concededly serves interstate travelers is
within the power granted it by the Commerce Clause of the Constitution, as interpreted
by this Court for 140 years. It may be argued that Congress could have pursued
other methods to eliminate the obstructions it found in interstate commerce caused
by racial discrimination. But this is a matter of policy that rests entirely
with the Congress, not with the courts. How obstructions in commerce [p*262]
may be removed -- what means are to be employed -- is within the sound and exclusive
discretion of the Congress. It is subject only to one caveat -- that the means
chosen by it must be reasonably adapted to the end permitted by the Constitution.
We cannot say that its choice here was not so adapted. The Constitution requires
no more.
Affirmed.
APPENDIX TO OPINION OF THE COURT
TITLE II-- INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and accommodations of
any place of public accommodation, as defined in this section, without discrimination
or segregation on the ground of race, color, religion, or national origin.
(b) Each of the following establishments which serves the public is a place of
public accommodation within the meaning of this title if its operations affect
commerce, or if discrimination or segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient
guests, other than an establishment located within a building which contains
not more than five rooms for rent or hire and which is actually occupied by the
proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other
facility principally engaged in selling food for consumption on the premises,
including, but not limited to, any such facility located on the premises of any
retail establishment; or any gasoline station; [p*263]
(3) any motion picture house, theater, concert hall, sports arena, stadium or
other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises
of any establishment otherwise covered by this subsection, or (ii) within the
premises of which is physically located any such covered establishment, and (B)
which holds itself out as serving patrons of such covered establishment.
(c) The operations of an establishment
affect commerce within the meaning
of this title
if (1) it is one
of the establishments
described
in paragraph
(1)
of subsection (b); (2) in the
case of an establishment described
in
paragraph (2)
of subsection (b),
it serves or offers to
serve interstate
travelers
or a substantial portion of the
food which it serves, or gasoline
or other
products
which it sells, has moved in
commerce; (3) in the case of
an establishment
described
in paragraph (3) of subsection
(b), it customarily
presents films, performances,
athletic teams, exhibitions,
or
other sources of
entertainment which
move in commerce, and (4) in
the case of an establishment
described
in paragraph
(4)
of subsection (b), it is physically
located within the premises of,
or there is physically
located
within its
premises, an
establishment the
operations of which affect commerce
within the meaning of this subsection. For purposes
of
this section, "commerce" means
travel, trade, traffic, commerce,
transportation, or
communication among the several
States, or between
the District of Columbia
and any State, or between any
foreign country or any
territory or possession and any
State or the District of Columbia,
or between points in the
same State but through any other
State or the District of Columbia
or a foreign
country.
(d) Discrimination or segregation by an establishment is supported by State action
within the meaning of this title if such discrimination or segregation (1) is
carried [p*264] on under color of any law, statute, ordinance, or regulation;
or (2) is carried on under color of any custom or usage required or enforced
by officials of the State or political subdivision thereof; or (3) is required
by action of the State or political subdivision thereof.
(e) The provisions of this title shall not apply to a private club or other establishment
not, in fact, open to the public, except to the extent that the facilities of
such establishment are made available to the customers or patrons of an establishment
within the scope of subsection (b).
SEC. 202. All persons shall be entitled to be free, at any establishment or place,
from discrimination or segregation of any kind on the ground of race, color,
religion, or national origin, if such discrimination or segregation is or purports
to be required by any law, statute, ordinance, regulation, rule, or order of
a State or any agency or political subdivision thereof.
SEC. 203. No person shall (a) withhold, deny, or attempt to withhold or deny,
or deprive or attempt to deprive, any person of any right or privilege secured
by section 201 or 202, or (b) intimidate, threaten, or coerce, or attempt to
intimidate, threaten, or coerce any person with the purpose of interfering with
any right or privilege secured by section 201 or 202, or (c) punish or attempt
to punish any person for exercising or attempting to exercise any right or privilege
secured by section 201 or 202.
SEC. 204. (a) Whenever any person has engaged or there are reasonable grounds
to believe that any person is about to engage in any act or practice prohibited
by section 203, a civil action for preventive relief, including an application
for a permanent or temporary injunction, restraining order, or other order, may
be instituted by the person aggrieved and, upon timely application, the court
may, in its discretion, permit the Attorney General to intervene in such civil
action if he certifies that the case [p*265] is of general public importance.
Upon application by the complainant and in such circumstances as the court may
deem just, the court may appoint an attorney for such complainant and may authorize
the commencement of the civil action without the payment of fees, costs, or security.
(b) In any action commenced pursuant to this title, the court, in its discretion,
may allow the prevailing party, other than the United States, a reasonable attorney's
fee as part of the costs, and the United States shall be liable for costs the
same as a private person.
(c) In the case of an alleged act or practice prohibited by this title which
occurs in a State, or political subdivision of a State, which has a State or
local law prohibiting such act or practice and establishing or authorizing a
State or local authority to grant or seek relief from such practice or to institute
criminal proceedings with respect thereto upon receiving notice thereof, no civil
action may be brought under subsection (a) before the expiration of thirty days
after written notice of such alleged act or practice has been given to the appropriate
State or local authority by registered mail or in person, provided that the court
may stay proceedings in such civil action pending the termination of State or
local enforcement proceedings.
(d) In the case of an alleged act or practice prohibited by this title which
occurs in a State, or political subdivision of a State, which has no State or
local law prohibiting such act or practice, a civil action may be brought under
subsection (a): Provided, That the court may refer the matter to the Community
Relations Service established by title X of this Act for as long as the court
believes there is a reasonable possibility of obtaining voluntary compliance,
but for not more than sixty days: Provided further, That upon expiration of such
sixty-day period, the court may extend such period for an additional [p*266]
period, not to exceed a cumulative total of one hundred and twenty days, if it
believes there then exists a reasonable possibility of securing voluntary compliance.
SEC. 205. The Service is authorized to make a full investigation of any complaint
referred to it by the court under section 204(d) and may hold such hearings with
respect thereto as may be necessary. The Service shall conduct any hearings with
respect to any such complaint in executive session, and shall not release any
testimony given therein except by agreement of all parties involved in the complaint
with the permission of the court, and the Service shall endeavor to bring about
a voluntary settlement between the parties.
SEC. 206. (a) Whenever the Attorney General has reasonable cause to believe that
any person or group of persons is engaged in a pattern or practice of resistance
to the full enjoyment of any of the rights secured by this title, and that the
pattern or practice is of such a nature and is intended to deny the full exercise
of the rights herein described, the Attorney General may bring a civil action
in the appropriate district court of the United States by filing with it a complaint
(1) signed by him (or in his absence the Acting Attorney General), (2) setting
forth facts pertaining to such pattern or practice, and (3) requesting such preventive
relief, including an application for a permanent or temporary injunction, restraining
order or other order against the person or persons responsible for such pattern
or practice, as he deems necessary to insure the full enjoyment of the rights
herein described.
(b) In any such proceeding the Attorney General may file with the clerk of such
court a request that a court of three judges be convened to hear and determine
the case. Such request by the Attorney General shall be accompanied by a certificate
that, in his opinion, the case is of general public importance. A copy of the
certificate [p*267] and request for a three-judge court shall be immediately
furnished by such clerk to the chief judge of the circuit (or in his absence,
the presiding circuit judge of the circuit) in which the case is pending. Upon
receipt of the copy of such request it shall be the duty of the chief judge of
the circuit or the presiding circuit judge, as the case may be, to designate
immediately three judges in such circuit, of whom at least one shall be a circuit
judge and another of whom shall be a district judge of the court in which the
proceeding was instituted, to hear and determine such case, and it shall be the
duty of the judges so designated to assign the case for hearing at the earliest
practicable date, to participate in the hearing and determination thereof, and
to cause the case to be in every way expedited. An appeal from the final judgment
of such court will lie to the Supreme Court.
In the event the Attorney General fails to file such a request in any such proceeding,
it shall be the duty of the chief judge of the district (or in his absence, the
acting chief judge) in which the case is pending immediately to designate a judge
in such district to hear and determine the case. In the event that no judge in
the district is available to hear and determine the case, the chief judge of
the district, or the acting chief judge, as the case may be, shall certify this
fact to the chief judge of the circuit (or in his absence, the acting chief judge)
who shall then designate a district or circuit judge of the circuit to hear and
determine the case.
It shall be the duty of the judge designated pursuant to this section to assign
the case for hearing at the earliest practicable date and to cause the case to
be in every way expedited.
SEC. 207. (a) The district courts of the United States shall have jurisdiction
of proceedings instituted pursuant to this title and shall exercise the same
without regard [p*268] to whether the aggrieved party shall have exhausted any
administrative or other remedies that may be provided by law.
(b) The remedies provided in this title shall be the exclusive means of enforcing
the rights based on this title, but nothing in this title shall preclude any
individual or any State or local agency from asserting any right based on any
other Federal or State law not inconsistent with this title, including any statute
or ordinance requiring nondiscrimination in public establishments or accommodations,
or from pursuing any remedy, civil or criminal, which may be available for the
vindication or enforcement of such right.
1. See Appendix.
2. 14 Stat. 27.
3. Slave Kidnaping Act, 14 Stat. 50; Peonage Abolition Act of March 2, 1867,
14 Stat. 546; Act of May 31, 1870, 16 Stat. 140; Anti-Lynching Act of April 20,
1871, 17 Stat. 13.
4. 18 Stat. 335.
5. 71 Stat. 634.
6. 74 Stat. 86.
7. S. 1732 dealt solely with public accommodations. A second Senate bill, S.
1731, contained the entire administration proposal. The Senate Judiciary Committee
conducted the hearings on S. 1731, while the Committee on Commerce considered
S. 1732.
8. The following statutes indicate States which have enacted public accommodation
laws:
Alaska Stat., §§ 11.60.230 to 11.60.240 (1962); Cal. Civil Code, §§ 51
to 54 (1954); Colo.Rev.Stat.Ann., §§ 25-1-1 to 25-2-5 (1953); Conn.Gen.Stat.Ann., § 53-35
(1963 Supp.); Del.Code Ann., Tit. 6, c. 45 (1963); Idaho Code Ann., §§ 18-7301
to 18-7303 (1963 Supp.); Ill.Ann.Stat. (Smith-Hurd ed.), c. 38, §§ 13-1
to 13-4 (1964), c. 43, § 133 (1944); Ind.Ann.Stat. (Burns ed.), §§ 10-901
to 10-914 (1956, and 1963 Supp.); Iowa Code Ann., §§ 735.1 and 735.2
(1950); Kan.Gen.Stat.Ann., § 21-2424 (1961 Supp.); Me.Rev.Stat.Ann., c.
137, § 50 (1954); Md.Ann.Code, Art. 49B, § 11 (1964); Mass.Ann.Laws,
c. 140, §§ 5 and 8 (1957), c. 272, §§ 92A and 98 (1963 Supp.);
Mich.Stat.Ann., §§ 28.343 and 28.344 (1962); Minn.Stat.Ann., § 327.09
(1947); Mont.Rev.Codes Ann., § 64-211 (1962); Neb.Rev.Stat., §§ 20-101
and 20-102 (1962); N.H.Rev.Stat.Ann., §§ 354:1, 354:2, 354:4 and 354:5
(1955, and 1963 Supp.); N.J.Stat.Ann., §§ 10:1-2 to 10:1-7 (1960), §§ 18:25-1
to 18:25-6 (1964 Supp.); N.M.Stat.Ann., §§ 49-8-1 to 49-8-7 (1963 Supp.);
N.Y. Civil Rights Law (McKinney ed.), Art. 4, §§ 40 and 41 (1948, and
1964 Supp.), Exec.Law, Art. 15, §§ 290 to 301 (1951, and 1964 Supp.),
Penal Law, Art. 46, §§ 513 to 515 (1944); N.D.Cent.Code, § 12-22-30
(1963 Supp.); Ohio Rev.Code Ann. (Page's ed.), §§ 2901.35 and 2901.36
(1954); Ore.Rev.Stat., §§ 30.670, 30.675 and 30.680 (1963); Pa.Stat.Ann.,
Tit. 18, § 4654 (1963); R.I.Gen.Laws Ann., §§ 11-24-1 to 11-24-6
(1956); S.Dak.Sess.Laws, c. 58 (1963); Vt.Stat.Ann., Tit. 13, §§ 1451
and 1452 (1958); Wash.Rev.Code, §§ 49.60.010 to 49.60.170, and § 9.91.010;
Wis.Stat.Ann., § 942.04 (1958); Wyo.Stat.Ann., §§ 6-83.1
and 6-83.2 (1963 Supp.).
In 1963, the Governor of Kentucky issued an executive order requiring all governmental
agencies involved in the supervision or licensing of businesses to take all lawful
action necessary to prevent racial discrimination.
BLACK, J., Concurring Opinion
MR. JUSTICE BLACK, concurring. [*]
In the first of these two cases, the Heart of Atlanta Motel, a large motel in
downtown Atlanta, Georgia, appeals from an order of a three-judge United States
District Court for the Northern District of Georgia enjoining it from continuing
to violate Title II of the Civil Rights Act of 1964 [n1] by refusing to accept
Negroes as lodgers solely because of their race. In the second case, the Acting
Attorney General of the United States and a United States Attorney appeal from
a judgment of a three-judge United States District Court for the Northern District
of Alabama holding that Title II cannot constitutionally be applied to Ollie's
Barbecue, a restaurant in Birmingham, Alabama, which serves few if any interstate
travelers but which buys a substantial quantity of food which has moved in interstate
commerce. It is undisputed that both establishments had and intended to continue
a policy against serving Negroes. Both claimed that Congress [p*269] had exceeded
its constitutional powers in attempting to compel them to use their privately
owned businesses to serve customers whom they did not want to serve.
The most immediately relevant
parts of Title II of the Act,
which,
if valid, subject this
motel
and
this restaurant
to
its requirements
are
set out
below. [n2] The language of that
Title shows that Congress, in
passing it,
intended
to exercise -- at least in part
-- power granted in the Constitution
[p*270] by
Art.
I, § 8, "To regulate Commerce . . . among the several States.
. . ." Thus, § 201(b) of Title II, by its terms, is limited in application
to a motel or restaurant of which the "operations affect [interstate] commerce,
or if discrimination or segregation by it is supported by State action." [n3]
The "State action" provision
need not concern us here, since
there is no contention
that Georgia
or Alabama has at this
time given
any support
whatever to these establishments'
racially discriminatory
practices. The basic constitutional
question decided by the courts
below, and which this Court must
now decide,
is whether
Congress
exceeded
its powers
to regulate
interstate
commerce
and pass
all laws necessary and proper
to such regulation in subjecting
either
this
motel or this
restaurant to
Title II's commands
that applicants
for food
and lodging
be served without regard to their
color. And if the regulation
is otherwise within the congressional
commerce power,
the motel and
the restaurant
proprietors further
contend that it would be a denial
of
due process under the
Fifth Amendment to compel them
to
serve Negroes against
their will.
[n4] I agree that all these constitutional
contentions must be rejected.
I
It requires no novel or strained interpretation
of the Commerce Clause to sustain
Title II as applied in either
[p*271] of
these cases.
At least since
Gibbons
v. Ogden, 9 Wheat. 1 , decided
in 1824 in an opinion by Chief
Justice John
Marshall, it
has been uniformly
accepted
that
the power of
Congress to
regulate commerce
among the States is plenary, "complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations, other than are prescribed in
the constitution." 9 Wheat. at 196 . Nor is "Commerce" as used
in the Commerce Clause to be limited to a narrow, technical concept. It includes
not only, as Congress has enumerated in the Act, "travel, trade, traffic,
commerce, transportation, or communication," but
also all other unitary transactions
and activities that take
place in
more States
than one. That
some parts or segments of such
unitary transactions may take
place only
in one State
cannot, of course, take from
Congress its plenary power
to regulate them
in the national
interest.
[n5] The
facilities and instrumentalities
used
to carry
on
this commerce, such as railroads,
truck lines ships, rivers,
and even highways,
are also
subject to
congressional regulation
so
far as is
necessary to
keep interstate traffic upon
fair and equal terms. The Daniel
Ball, 10 Wall. 557.
Furthermore, it has long been
held that the Necessary and
Proper Clause,
Art.
I, § 8, cl. 18, adds to the commerce power of Congress the power to regulate
local instrumentalities operating within a single State if their activities burden
the flow of commerce among the States. Thus, in the Shreveport Case, Houston,
E. & W. T. R. Co. v. United
States, 234 U.S. 342 , 353-354
, this Court
recognized that Congress
could
not
fully carry
out its
responsibility
to
protect interstate
commerce were its constitutional
power to
regulate that commerce to be
strictly limited to prescribing
the rules
for controlling
the things
[p*272] actually
moving in such commerce or
the contracts, transactions,
and
other
activities,
immediately concerning
them. Regulation of purely
intrastate railroad
rates is primarily a local
problem for state, rather than
national,
control. But the Shreveport
Case sustained the power of
Congress under the Commerce
Clause
and the Necessary and Proper
Clause to
control purely intrastate rates,
even
though
reasonable,
where the effect of such rates
was found to impose a discrimination
injurious to interstate commerce.
This
holding that Congress
had power under these
clauses not merely to enact
laws governing interstate activities
and transactions,
but also to regulate
even purely local
activities and
transactions where
necessary
to foster and protect interstate
commerce, was amply supported
by Mr. Justice
(later Mr. Chief
Justice)
Hughes' reliance
upon many
prior
holdings of
this Court
extending back to Gibbons v.
Ogden, supra. [n6] And, since
the Shreveport
Case,
this Court has
steadfastly
followed,
and indeed
has emphasized
time and time
again, that Congress has ample
power to protect interstate
commerce
from
activities adversely
and injuriously
affecting it, which,
but for this
adverse effect
on interstate commerce, would
be beyond the power of Congress
to
regulate. [n7] [p*273]
Congress in § 201 declared that the racially discriminatory "operations" of
a motel of more than five rooms for rent or hire do adversely affect interstate
commerce if it "provides lodging to transient guests . . . ," and that
a restaurant's "operations" affect such commerce if (1) "it serves
or offers to serve interstate travelers" or (2) "a substantial portion
of the food which it serves . . . has moved in [interstate] commerce." Congress
thus described the nature and
extent of operations which
it wished to
regulate, excluding some
establishments from the
Act either
for reasons
of policy
or because it believed its
powers to regulate
and protect interstate commerce
did not extend so far. There
can be no
doubt
that the operations
of both the motel and the
restaurant here fall squarely
within the measure Congress
chose to adopt
in the
Act and
deemed adequate to show a constitutionally
prohibitable adverse effect
on commerce. The choice of
policy
is, of course, within
the exclusive
power of Congress;
but whether particular operations
affect interstate commerce
sufficiently to come
under the constitutional power
of Congress to regulate
them is ultimately a judicial,
rather than a legislative,
question, and
can be settled
finally only
by this
Court. I agree that, as applied
to
this motel and this restaurant,
the Act
is a valid exercise of congressional
power, in
the case of the motel because
the record amply demonstrates
that
its practice
of discrimination tended directly
to interfere with
interstate travel,
and, in the case
of the restaurant,
because Congress had ample
basis for concluding that a
widespread practice of racial
discrimination by restaurants
buying as substantial
a quantity of goods shipped
from
other States
as this restaurant buys
could distort
or
impede interstate
trade. [p*274]
The Heart of Atlanta Motel is a large 216-room establishment strategically located
in relation to Atlanta and interstate travelers. It advertises extensively by
signs along interstate highways and in various advertising media. As a result
of these circumstances, approximately 75% of the motel guests are transient interstate
travelers. It is thus an important facility for use by interstate travelers who
travel on highways, since travelers in their own cars must find lodging places
to make their journeys comfortably and safely.
The restaurant is located in
a residential and industrial
section
of Birmingham,
11 blocks from
the nearest
interstate highway.
Almost all,
if not all,
its patrons are local people,
rather than transients. It
has seats for
about 200 customers
and annual gross sales of about
$350,000. Most of its sales
are of barbecued
meat sandwiches and pies.
Consequently,
the main
commodity it purchases
is meat, of which, during the
12 months before the District
Court
hearing,
it bought $69,683
worth (representing 46% of
its total expenditures
for supplies),
which had been shipped into
Alabama from outside
the State. Plainly, 46%
of the goods
it sells
is a "substantial" portion
and amount. Congress concluded
that restaurants which purchase
a substantial
quantity of goods
from other
States might well
burden and disrupt the flow
of interstate
commerce if allowed to practice
racial discrimination, because
of the stifling
and distorting effect
that such discrimination on
a wide scale might
well
have on the
sale of goods shipped
across state lines.
Certainly
this belief would not be irrational
even had there not been a large
body of
evidence before the Congress
to show the
probability of this adverse
effect. [n8] [p*275]
The foregoing facts are more
than enough, in my judgment,
to show
that Congress
acting within
its
discretion
and judgment has power under
the Commerce Clause and the
Necessary and Proper
Clause to bar
racial discrimination in the
Heart
of Atlanta Motel
and Ollie's Barbecue.
I recognize that every remote,
possible, speculative effect
on commerce should
not be accepted as an
adequate constitutional ground
to uproot and throw into the
discard all our
traditional distinctions between
what is purely local,
and therefore controlled
by state laws, and what affects
the
national interest
and is
therefore
subject to control by federal
laws. I recognize too that
some isolated and
remote lunchroom which sells
only to local people and
buys almost all
its supplies in the locality
may possibly be beyond the
reach of
the power of
Congress to regulate commerce,
just as such an
establishment is not covered
by the present
Act. But, in deciding the constitutional power
of Congress in cases like the
two before us, we do not consider
the
effect on
interstate commerce
of
only
one isolated,
individual, local event, without
regard to the fact that this
single local event,
when added to many others of
a similar nature, may impose
a burden
on interstate commerce by reducing
its volume or distorting its
flow. Labor
Board v. Reliance Fuel Oil
Corp., 371 U.S. 224;
Wickard v. Filburn,
317 U.S. 111
, 127-128 ; United States v.
Darby, 312 U.S. 100 , 123 ;
Labor Board
v. Fainblatt,
306
U.S. 601, 608-609; cf. Hotel
Employees Local No. 26 v.
Leedom, 358 U.S. 99. There
are approximately 20,000,000
Negroes in our country. [n9]
Many of them
are able to, and do,
travel among the States in
automobiles. Certainly it would
seriously
discourage such travel
by them if,
as evidence
before the
Congress indicated has been
true in the past, [n10] they
should
in the
[p*276]
future continue
to be
unable to
find a decent place along their
way in which to lodge or eat.
Cf. Boynton v. Virginia, 364
U.S. 454. And the flow of interstate
commerce may be impeded
or distorted substantially
if local
sellers of interstate
food are
permitted to exclude all Negro
consumers. Measuring, as this
Court has so often
held is required, by the aggregate
effect of
a great number of such
acts of discrimination,
I am of the opinion that Congress
has constitutional power under
the Commerce and
Necessary and Proper Clauses
to protect interstate commerce
from the injuries
bound to befall it from these
discriminatory practices.
Long ago, this Court, again speaking through Mr. Chief Justice Marshall, said:
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.
M'Culloch v. Maryland, 4 Wheat. 316 , 421 . By this standard, Congress acted
within its power here. In view of the Commerce Clause, it is not possible to
deny that the aim of protecting interstate commerce from undue burdens is a legitimate
end. In view of the Thirteenth, Fourteenth and Fifteenth Amendments, it is not
possible to deny that the aim of protecting Negroes from discrimination is also
a legitimate end. [n11] The means [p*277] adopted to achieve these ends are also
appropriate, plainly adopted to achieve them, and not prohibited by the Constitution,
but consistent with both its letter and spirit.
II
The restaurant and motel proprietors
argue also, however, that
Congress violated the
Due Process
Clause of the
Fifth Amendment
by requiring
that they serve
Negroes if they serve others.
This argument comes down to this:
that the broad power
of Congress to enact laws
deemed necessary and proper to regulate
and protect
interstate commerce
is practically
nullified by
the negative constitutional
commands that no person shall
be
deprived of "life, liberty, or property without
due process of law," and that private property shall not be "taken" for
public use without just compensation. In the past, this Court has consistently
held that regulation of the use of property by the Federal Government or by the
States does not violate either the Fifth or the Fourteenth Amendment. See, e.g.,
Ferguson v. Skrupa, 372 U.S. 726; District of Columbia v. John R. Thompson Co.,
346 U.S. 100; Village of Euclid v. Ambler Realty Co., 272 U.S. 365 ; Nebbia v.
New York, 291 U.S. 502 . A regulation such as that found in Title II does not
even come close to being a "taking" in the constitutional sense. Cf.
United States v. Central Eureka Mining Co., 357 U.S. 155. And a more or less
vague clause like the requirement for due process, originally meaning "according
to [p*278] the law of the land" would be a highly inappropriate provision
on which to rely to invalidate a "law of the land" enacted
by Congress under a clearly
granted power like that to
regulate interstate
commerce.
Moreover, it would be highly
ironical to use
the guarantee of due process
-- a guarantee which plays
so important
a part in
the Fourteenth Amendment,
an amendment adopted
with the
predominant aim of protecting
Negroes from discrimination
-- in order
to strip Congress of power
to protect Negroes from discrimination.
[n12]
III
For the foregoing reasons, I concur
in holding that the anti-racial
discrimination provisions
of Title
II of
the Civil Rights
Act of 1964 are valid as
applied to this motel and this restaurant.
I
should add that nothing
in the Civil Rights Cases,
109 U.S.
3 , which
invalidated
the Civil
Rights
Act of
1875, [n13] gives
the slightest support to
the
argument that Congress is without
power under the
Commerce Clause to enact
the present
legislation, since, in
the Civil Rights Cases, this
Court expressly left
undecided the validity
of
such antidiscrimination
legislation if rested on
the Commerce Clause. See 109 U.S.
at 18-19 ;
see also Butts
v. Merchants & Miners Transp. Co., 230 U.S. 126, 132. Nor does any
view expressed in my dissenting opinion in Bell v. Maryland, 378 U.S. 226, 318,
in which MR. JUSTICE HARLAN and MR. JUSTICE WHITE joined, affect this conclusion
in the slightest, for that opinion stated only that the Fourteenth Amendment,
in and of itself, without implementation by a law passed by Congress, does not
bar racial discrimination in privately owned places of business in the absence
of state action. The opinion did not discuss the power of Congress under [p*279]
the Commerce and Necessary and Proper Clauses or under section 5 of the Fourteenth
Amendment to pass a law forbidding such discrimination. See 378 U.S. at 318,
326, 342-343 and n. 44. Because the Civil Rights Act of 1964, as applied here,
is wholly valid under the Commerce Clause and the Necessary and Proper Clause,
there is no need to consider whether this Act is also constitutionally supportable
under section 5 of the Fourteenth Amendment, which grants Congress "power
to enforce, by appropriate
legislation, the provisions
of this article."
* [This opinion applies also to No. 543, Katzenbach v. McClung, post, p. 294
.]
1. 78 Stat. 243-246, 42
U.S.C. §§ 2000a-2000a-6
(1964 ed.).
2. Section 201 of the Act,
78 Stat. 243, 42 U.S.C. § 2000a
(1964 ed.), provides in
part:
(a) All persons shall be entitled to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of any place
of public accommodation, as defined in this section, without discrimination or
segregation on the ground of race, color, religion, or national origin.
(b) Each of the following establishments which serves the public is a place of
public accommodation within the meaning of this title if its operations affect
commerce, or if discrimination or segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient
guests, other than an establishment located within a building which contains
not more than five rooms for rent or hire and which is actually occupied by the
proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other
facility principally engaged in selling food for consumption on the premises,
including, but not limited to, any such facility located on the premises of any
retail establishment; or any gasoline station;
* * * *
(e) The operations of an establishment
affect commerce within
the meaning of this title
if (1) it is one
of the establishments
described
in paragraph
(1)
of subsection (b); (2)
in the case of an establishment described
in
paragraph (2)
of subsection (b),
it serves or offers to
serve interstate
travelers
or a substantial portion
of
the food which it serves, or gasoline
or other
products
which it sells, has moved
in commerce. . . . For purposes of
this
section, "commerce" means
travel, trade, traffic,
commerce, transportation, or
communication
among the several
States. . . .
3. This last definitional
clause of § 201(b), together with § 202,
shows a congressional purpose also to rely in part on § 1 of the Fourteenth
Amendment, which forbids any State to deny due process or equal protection of
the laws. There is no contention in these cases that Congress relied on the fifth
section of the Fourteenth Amendment granting it "power to enforce, by appropriate
legislation, the provisions of" the
Amendment.
4. The motel also argues that the law violates the Thirteenth Amendment's prohibition
of slavery or involuntary servitude and takes private property for public use
without just compensation, in violation of the Fifth Amendment.
5. Compare United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 546-547;
Board of Trade v. Olsen, 262 U.S. 1, 33-36; Swift Co. v. United States, 196 U.S.
375 , 398-399 .
6.
The genius and character of the whole government seem to be that its action is
to be applied to all the external concerns of the nation, and to those internal
concerns which affect the States generally, but not to those which are completely
within a particular State, which do not affect other States, and with which it
is not necessary to interfere for the purpose of executing some of the General
powers of the Government.
Gibbons v. Ogden, supra, 9 Wheat. at 195 . (Emphasis supplied.)
7. See, e.g., Labor Board v. Reliance
Fuel Oil Corp., 371 U.S.
224; Lorain Journal
Co. v. United
States,
342 U.S.
143; United
States
v. Women's
Sportswear Manufacturers
Assn., 336 U.S. 460; United
States v. Sullivan, 332 U.S. 689;
Wickard v. Filburn,
317 U.S.
111 ; United
States
v. Wrightwood
Dairy Co.,
315 U.S.
110; United
States v. Darby, 312 U.S.
100 ; Labor Board v. Jones & Laughlin Steel Corp., 301
U.S. 1 ; Kentucky Whip & Collar
Co. v. Illinois Central
R. Co., 299 U.S.
334. See
also Southern
R. Co. v. United
States, 222 U.S.
20.
8. See, e.g., Hearings Before the Senate Committee on Commerce on S. 1732, 88th
Cong., 1st Sess., Part 1, Ser. 26, pp. 18-19 (Attorney General Kennedy), 623-630
(Secretary of Labor Wirtz); Part 2 Ser. 26, pp. 695-700 (Under Secretary of Commerce
Roosevelt).
9. Bureau of the Census, 1964 Statistical Abstract of the United States, 25 (18,872,000
Negroes by 1960 census).
10. See, e.g., S.Rep. No. 872, 88th Cong., 2d Sess., 15-18.
11. We have specifically upheld the
power of Congress to use
the commerce power
to end racial
discrimination.
Boynton
v.
Virginia, 364 U.S. 454;
Henderson v. United States,
339 U.S. 816; Mitchell v. United
States, 313 U.S. 80; cf.
Bailey
v. Patterson, 369 U.S.
31; Morgan
v. Virginia, 328 U.S. 373
. Compare cases
in which the
commerce power
has been
used
to advance
other
ends not entirely
commercial:
e.g., United States v.
Darby, 312 U.S. 100 (Fair Labor Standards
Act);
United
States
v. Miller,
307 U.S. 174
(National Firearms
Act); Gooch
v. United States,
297 U.S. 1 24 (Federal
Kidnaping
Act); Brooks v. United States,
267 U.S. 432
(National Motor Vehicle
Theft Act); United States v. Simpson,
252 U.S.
465 (Act
forbidding shipment
of liquor
into a "dry" State);
Caminetti v. United States,
242 U.S. 470 (White-Slave
Traffic [Mann] Act);
Hoke
v. United States,
227 U.S. 308 (White-Slave
Traffic [Mann] Act);
Hipolite Egg Co. v. United
States,
220 U.S. 45 (Pure Food
and Drugs Act);
Lottery
Case,
188 U.S.
321 (Act forbidding
interstate shipment of
lottery tickets).
12. The motel's argument that Title II violates the Thirteenth Amendment is so
insubstantial that it requires no further discussion.
13. 18 Stat 335
DOUGLAS, J., Concurring Opinion
MR. JUSTICE DOUGLAS, concurring. [*]
I
Though I join the Court's opinions,
I am somewhat reluctant
here, as I was
in Edwards
v. California,
314 U.S. 160,
177, to rest
solely on
the
Commerce
Clause.
My reluctance is not due
to any conviction that Congress lacks
power
to regulate
commerce in
the interests
of human rights.
It is, rather,
my belief
that
the right of people to
be free
of state action that discriminates
against
them
because of race, like the "right of persons to move freely from State to State" (Edwards
v. California, supra, at 177), "occupies a more protected position in our
constitutional system than does the movement of cattle, fruit, steel and coal
across state lines." Ibid.
Moreover, when we come
to the problem of abatement
in Hamm
v. City
of Rock
Hill, post,
p.
306, decided
this day,
the result reached
by the Court is, for me,
much more obvious as a
protective
measure
under the Fourteenth
Amendment
than under
the Commerce Clause.
For the former
deals with
the constitutional status
of
the individual, not
with the impact on commerce
of local activities or
vice versa. [p*280]
Hence, I would prefer to
rest on the assertion of
legislative
power
contained
in § 5 of the Fourteenth Amendment, which states: "The Congress shall
have power to enforce, by appropriate legislation, the provisions of this article" --
a power which the Court
concedes was exercised
at least in
part in this
Act.
A decision based on the Fourteenth Amendment would have a more settling effect,
making unnecessary litigation over whether a particular restaurant or inn is
within the commerce definitions of the Act or whether a particular customer is
an interstate traveler. Under my construction, the Act would apply to all customers
in all the enumerated places of public accommodation. And that construction would
put an end to all obstructionist strategies, and finally close one door on a
bitter chapter in American history.
My opinion last Term in Bell v. Maryland, 378 U.S. 226, 242, makes clear my position
that the right to be free of discriminatory treatment (based on race) in places
of public accommodation -- whether intrastate or interstate -- is a right guaranteed
against state action by the Fourteenth Amendment, and that state enforcement
of the kind of trespass laws which Maryland had in that case was state action
within the meaning of the Amendment.
II
I think the Court is correct in concluding that the Act is not founded on the
Commerce Clause to the exclusion of the Enforcement Clause of the Fourteenth
Amendment. In determining the reach of an exertion of legislative power, it is
customary to read various granted powers together. See Veazie Bank v. Fenno,
8 Wall. 533, 548-549; Edye v. Robertson, 112 U.S. 580 , 595-596 ; United States
v. Gettysburg Electric R. Co., 160 U.S. 668, 683. As stated in McCulloch v. Maryland,
4 Wheat. 316 , 421 :
We admit, as all must admit, that the powers of the government are limited, and
that its limits are [p*281] not to be transcended. But we think the sound construction
of the constitution must allow to the national legislature that discretion, with
respect to the means by which the powers it confers are to be carried into execution,
which will enable that body to perform the high duties assigned to it in the
manner most beneficial to the people. 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 "means" used in the present Act are, in my view, "appropriate" and "plainly
adapted" to the end
of enforcing Fourteenth
Amendment rights [n1]
as well as protecting
interstate commerce.
Section 201(a) declares in Fourteenth Amendment language the right of equal access:
All persons shall be entitled to the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or segregation
on the ground of race, color, religion, or national origin.
The rights protected are clearly within the purview of our decisions under the
Equal Protection Clause of the Fourteenth Amendment. [n2] [p*282]
"State action" -- the key to Fourteenth Amendment guarantees -- is
defined by § 201(d)
as follows:
Discrimination or segregation
by an establishment is
supported by State action
within the meaning of this
title if such discrimination
or segregation (1) is carried
on under color of any law,
statute, ordinance, or
regulation; or (2)
is carried on under color
of any custom or usage
required or enforced by
officials of the State
or political subdivision
thereof; or (3) is required
by action of
the State or political
subdivision thereof.
That definition is within our decision
of Shelley v. Kraemer,
334 U.S. 1 , for the "discrimination" in the present cases is "enforced by officials
of the State," i.e.,
by the state judiciary
under the
trespass
laws.
[n3] As we wrote
in Shelley v. Kraemer,
supra,
19 :
We have no doubt that there has been state action in these cases in the full
and complete sense of the phrase. The undisputed facts disclose that petitioners
were willing purchasers of properties upon which they desired to establish homes.
The owners of the properties were willing sellers, and contracts of sale were
accordingly consummated. It is clear that, but for the active intervention of
the state courts, supported by the full panoply of state power, petitioners would
have been free to occupy the properties in question without restraint.
These are not cases, as has been suggested, in which the States have merely abstained
from action, leaving private individuals free to impose such discriminations
as they see fit. Rather, these are cases in which the States have made available
to such individuals [p*283] the full coercive power of government to deny to
petitioners, on the grounds of race or color, the enjoyment of property rights
in premises which petitioners are willing and financially able to acquire and
which the grantors are willing to sell. The difference between judicial enforcement
and nonenforcement of the restrictive covenants is the difference to petitioners
between being denied rights of property available to other members of the community
and being accorded full enjoyment of those rights on an equal footing.
Section 202 declares the right of all persons to be free from certain kinds of
state action at any public establishment -- not just at the previously enumerated
places of public accommodation:
All persons shall be entitled to be free, at any establishment or place, from
discrimination or segregation of any kind on the ground of race, color, religion,
or national origin, if such discrimination or segregation is or purports to be
required by any law, statute, ordinance, regulation, rule, or order of a State
or any agency or political subdivision thereof.
Thus, the essence of many of the guarantees embodied in the Act are those contained
in the Fourteenth Amendment.
The Commerce Clause, to
be sure, enters into some
of
the definitions
of "place
of public accommodation" in §§ 201(b) and (c). Thus, a "restaurant" is
included, § 201(b)(2), "if . . . it serves or offers to serve interstate
travelers or a substantial portion of the food which it serves . . . has moved
in commerce." § 201(c)(2). But any "motel" is
included
which provides lodging to transient guests, other than an establishment located
within a building which contains not more than five rooms for rent or hire and
which is actually occupied by the proprietor [p*284] of such establishment as
his residence.
§§ 201(b)(1) and (c)(1). Providing lodging "to transient guests" is
not strictly Commerce Clause
talk, for the phrase aptly describes any guest -- local or interstate.
Thus, some of the definitions of "place of public accommodation" in § 201(b)
are in Commerce Clause language, and some are not. Indeed, § 201(b) is explicitly
bifurcated. An establishment "which serves the public is a place of public
accommodation," says § 201(b), under either of two conditions: first, "if
its operations affect commerce" or, second, "if
discrimination or segregation
by it is supported by State
action."
The House Report emphasizes these dual bases on which the Act rests (H.R.Rep.
No. 914, 88th Cong., 1st Sess., p. 20) -- a situation which a minority recognized
was being attempted and which it opposed. Id., pp. 98-101.
The Senate Committee laid emphasis on the Commerce Clause. S.Rep. No. 872, 88th
Cong., 2d Sess., pp. 12-13. The use of the Commerce Clause to surmount what was
thought to be the obstacle of the Civil Rights Cases, 109 U.S. 3 , is mentioned.
Ibid. And the economic aspects of the problems of discrimination are heavily
accented. Id. p. 17 et seq. But it is clear that the objectives of the Fourteenth
Amendment were by no means ignored. As stated in the Senate Report:
Does the owner of private property devoted to use as a public establishment enjoy
a property right to refuse to deal with any member of the public because of that
member's race, religion, or national origin? As noted previously, the English
common law answered this question in the negative. It reasoned that one who employed
his private property for purposes of commercial gain by offering goods or services
to the public must stick to his bargain. It is to be remembered that the right
of the private [p*285] property owner to serve or sell to whom he pleased was
never claimed when laws were enacted prohibiting the private property owner from
dealing with persons of a particular race. Nor were such laws ever struck down
as an infringement upon this supposed right of the property owner.
But there are stronger and more persuasive reasons for not allowing concepts
of private property to defeat public accommodations legislation. The institution
of private property exists for the purpose of enhancing the individual freedom
and liberty of human beings. This institution assures that the individual need
not be at the mercy of others, including government, in order to earn a livelihood
and prosper from his individual efforts. Private property provides the individual
with something of value that will serve him well in obtaining what he desires
or requires in his daily life.
Is this time-honored means to freedom and liberty now to be twisted so as to
defeat individual freedom and liberty? Certainly denial of a right to discriminate
or segregate by race or religion would not weaken the attributes of private property
that make it an effective means of obtaining individual freedom. In fact, in
order to assure that the institution of private property serves the end of individual
freedom and liberty, it has been restricted in many instances. The most striking
example of this is the abolition of slavery. Slaves were treated as items of
private property, yet surely no man dedicated to the cause of individual freedom
could contend that individual freedom and liberty suffered by emancipation of
the slaves.
There is not any question that ordinary zoning laws place far greater restrictions
upon the rights of private property owners than would public accommodations [p*286]
legislation. Zoning laws tell the owner of private property to what type of business
his property may be devoted, what structures he may erect upon that property,
and even whether he may devote his private property to any business purpose whatsoever.
Such laws and regulations restricting private property are necessary so that
human beings may develop their communities in a reasonable and peaceful manner.
Surely the presence of such restrictions does not detract from the role of private
property in securing individual liberty and freedom.
Nor can it be reasonably argued that racial or religious discrimination is a
vital factor in the ability of private property to constitute an effective vehicle
for assuring personal freedom. The pledge of this Nation is to secure freedom
for every individual; that pledge will be furthered by elimination of such practices.
Id. pp. 22-23 .
Thus, while I agree with the Court
that Congress, in fashioning
the present Act,
used the Commerce
Clause
to regulate racial
segregation, it also
used (and properly
so) some of its power under § 5
of the Fourteenth Amendment.
I repeat what I said earlier, that our decision should be based on the Fourteenth
Amendment, thereby putting an end to all obstructionist strategies and allowing
every person -- whatever his race, creed, or color -- to patronize all places
of public accommodation without discrimination whether he travels interstate
or intrastate.
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING.
(1) The Administration Bill (as introduced in the House by Congressman Celler,
it was H.R. 7152).
Unlike the Act as it finally
became law, this bill (a)
contained findings
(pp.
10-13) which
described
discrimination
[p*287]
in places of public
accommodation and in findings
(h) and (i) connected this
discrimination to
state
action and
invoked Fourteenth Amendment
powers
to deal with the problem,
and (b) in setting
forth
the public
establishments
which
were covered,
it used
only
commerce-type
language, and did not contain
anything like the present § 201(d) and its
link to § 201(b) -- the "or" clause in § 201(b). Nor did
the bill contain the present § 202.
In the hearings before
the House Judiciary Subcommittee,
the Attorney
General
stated clearly and repeatedly
that, while
the bill relied "primarily" on
the Commerce Clause, it
was also intended to rest
on
the Fourteenth
Amendment.
See Hearings
before
Subcommittee
No. 5, House Judiciary
Committee, 88th
Cong., 1st Sess., 1375-1376,
1388, 1396, 1410, 1417-1419.
(2) The Subcommittee Bill (as reported to the full House Judiciary Committee).
The Attorney General testified against
portions of this bill.
He reiterated that the administration
bill rested
on the
Fourteenth Amendment,
as well as on the
Commerce Clause: see
Hearings, House Judiciary Committee
on H.R. 7152, as amended
by Subcommittee No. 5, 88th Cong.,
1st
Sess.,
2693, 2700,
2764. But
this bill
added for the first time
a provision
similar to the present § 201(d) --
only much broader. See id. at 2656, first full paragraph. (Apparently this addition
was in response to the urgings of those who wanted to broaden the bill and who
failed to comprehend that the administration bill already rested, despite its
commerce language, on the Fourteenth Amendment.) The Attorney General feared
that the new provision went too far. Further, the new provision, unlike the present § 201(d)
but like the present § 202, did not limit coverage to those establishments
specifically defined as places of public accommodation; rather, it referred to
all businesses operating under state [p*288] "authorization, permission,
or license." See
id. at 2656. The Attorney
General
objected to
this: Congress
ought
not to invoke the
Fourteenth Amendment
generally, but
rather ought to
specify the establishments
that would be covered.
See id. at
2656, 2675-2676,
2726.
This
the administration bill
had done by covering
only those
establishments
which had certain
commercial characteristics.
Subsequently, the Attorney
General indicated that
he would accept
a portion of the
Subcommittee additions
that ultimately
became §§ 201(d)
and 202; but he made it
clear that he did not understand
that these
additions removed
the Fourteenth Amendment
foundation which
the
administration had placed
under its bill. He did
not
understand
that these additions confined
the Fourteenth
Amendment foundation of
the bill to the additions
alone;
the commerce
language sections were
still supported in the
alternative
by the Fourteenth
Amendment. See especially
id. at 2764;
compare p.
2727
with p. 2698. The Subcommittee
said
that it made these additions
in order to insure
that the Fourteenth Amendment
was relied on. See id.
at 2763; also
Subcommittee
Hearings, supra, 1413-1421.
And the Attorney General
repeated at p. 2764 that
he would agree
to whatever
language
was necessary
to make
it clear
that the
bill relied
on the Fourteenth
Amendment, as well as the
Commerce Clause.
Therefore it seems clear
that a dual motive was
behind the
addition
of
what ultimately
became §§ 201(d)
and 202: (1) to expand
the coverage of the Act;
(2)
to make it
clear that Congress
was
invoking its powers
under the
Fourteenth Amendment.
(3) The Committee Bill (as reported to the House).
This bill contains the present §§ 201(d) and 202, except that "state
action" is given an even broader definition in § 201(d) as then written
than it has in the present § 201(d).
[p*289]
The House Report has the following statement:
Section 201(d) delineates the circumstances under which discrimination or segregation
by an establishment is supported by State action within the meaning of title
II.
H.R.Rep. No. 914, 88th Cong., 1st Sess., 21. On p. 117 of the Report, Representative
Cramer says:
The 14th amendment approach
to public accommodations
[in the
committee bill, as contrasted
with
the administration bill]
is not limited
to the narrower
definition of "establishment" under the interstate commerce approach, and covers
broad State "custom or usage" or where discrimination is "fostered
or encouraged" by
State action (sec. 201(d)).
By implication, the committee has merely broadened the coverage of the administration's
bill by adding the explicit state action language; it has not thereby removed
the Fourteenth Amendment foundation from the commerce language coverage.
Congressman Celler introduced
into the Congressional
Record a series
of memoranda
on the constitutionality
of the various
titles
of
the bill; at
pp. 1524-1526
[*] the Fourteenth Amendment
is discussed; at p. 1526,
it is suggested
that
the Thirteenth Amendment
is to
be regarded
as "additional authority" for
the legislation.
At p. 1917, Congressman
Willis introduces an amendment
to
strike out "transient
guests" and to replace these words with "interstate travelers." As
reported, says Congressman Willis, the bill boldly undertakes to regulate intrastate
commerce, at least to this extent. Ibid. The purpose of the amendment is simply
to relate "this bill to the powers of Congress." Ibid. Congressman
Celler, the floor manager of the bill, will not accept the amendment, which introduces
an element of uncertainty into the scope of the bill's coverage. At p. 1924,
Congressman [p*290] Lindsay makes remarks indicating that it is his understanding
that the commerce language portions of § 201 rest only on the Commerce Clause,
while the Fourteenth Amendment is invoked to support only § 201(d).
But at p. 1926, Congressman
MacGregor, a member of
the Judiciary Subcommittee,
states,
in response
to
Congressman
Willis'
challenge to the constitutionality
of the "transient guests" coverage,
that:
When the gentleman from
Louisiana seeks in subparagraph
(1)
on page 43 [§ 201(b)(1)]
to tightly circumscribe
the number of inns, hotels,
and
motels to
be covered under
this legislation,
he does
violence to
the 1883 Supreme
Court decision
where it defines the authority
of the Congress under the
14th amendment.
.
. . Mr.
Chairman, in light of the
1883 Supreme Court decision
cited
by the gentleman
from Louisiana,
and in light
of a score
of subsequent
decisions,
it is
precisely the legislative
authority granted in the
14th amendment
that we seek here
to exercise.
At pp. 1962-1968, there
is the discussion surrounding
the passage
of the Goodell
amendment striking
the word "encouraged" from § 201(d)(2) of the
bill as reported. Likewise in these pages there is the discussion concerning
the Willis amendment to the Goodell amendment: this amendment eliminated the
word "fostered." After the adoption of these amendments, the custom
or usage had to be "required or enforced" by the State -- not merely "fostered
or encouraged" -- in order to constitute "state action" within
the meaning of the Act.
At p. 1964, Congressman
Smith of Virginia offered
an amendment
as
a substitute
to the Goodell
amendment that would have
eliminated the "custom or usage" language
altogether. Congressman
Celler said in defense
of the bill
as reported:
[C]ustom or usage is not constituted merely by a practice in a neighborhood or
by popular attitude in a particular community. It consists of a practice which,
though not embodied in law, receives notice and sanction to the extent that it
is enforced by [p*291] the officialdom of the State or locality
(pp. 1964-1965). The Smith Amendment was rejected by the House (p. 1967).
It would seem that the action on this
Smith substitute and
the statement by Congressman
Celler mean
that a State's enforcement
of the custom
of segregation in places
of public accommodation
by the use of its trespass laws is
a
violation of § 201(d)(2).
(4) The House Bill.
The House bill was placed directly
on the Senate calendar,
and did not go to
committee.
The
Dirksen-Mansfield substitute
adopted by
the Senate
made
only
one change in §§ 201 and 202: it changed "a" to "the" in § 201(d)(3).
Senator Dirksen nowhere
made any explicit references
to
the constitutional
bases
of Title II. Thus,
it is fair
to assume
that the Senate's
understanding on this
question was no different
from the House's view.
The Senate
substitute was adopted
without change
by the
House on July
2, 1964, and
signed by the President
on the
same day.
* [This opinion applies also to No. 543, Katzenbach v. McClung, post, p. 294
.]
1. For a synopsis of the legislative history see the Appendix to this opinion.
