HEART OF ATLANTA MOTEL, INC. v. UNITED STATES ET AL.
No. 515
SUPREME COURT OF THE UNITED STATES
379 U.S. 241; 85 S. Ct. 348; 1964 U.S. LEXIS 2187; 13 L.
Ed. 2d 258; 1 Empl. Prac. Dec. (CCH) P9712
October 5, 1964, Argued
December 14, 1964, Decided
PRIOR HISTORY: [***1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA.
DISPOSITION: 231 F.Supp. 393, affirmed.
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SUMMARY: The corporate owner-operator of a motel which
solicited and received patronage from interstate travelers brought suit in the
United States District Court for the Northern District of Georgia for
declaratory and injunctive relief preventing the Attorney General of the United
States from enforcing the public accommodations sections of the Civil Rights
Act of 1964 (78 Stat 241), as exceeding the congressional power to regulate
commerce, depriving it of liberty and property without due process of law,
taking its property without just compensation, and subjecting it to involuntary
servitude. The three-judge District Court held the challenged provisions to be
constitutional and enjoined the motel owner-operator from discriminating
against Negroes on account of race or color. (231 F Supp 393.)
On direct appeal, the Supreme Court of the United States affirmed. In an
opinion by Clark, J., expressing the views of eight members of the Court, it
was held that 201(a)(b)(c)(e) and 203-207 of the Civil Rights Act of 1964 are
constitutional as a proper exercise of the commerce power.
Black, J., concurring, stated that the statute as applied was valid under the
commerce clause and the necessary and proper clause.
Douglas, J., concurring, joined in the Court's opinion but added that he
preferred to base the constitutionality of the statute on the power conferred
on Congress by 5 of the Fourteenth Amendment.
Goldberg, J., concurring, joined in the Court's opinion but added that Congress
had authority both under the commerce clause and 5 of the Fourteenth Amendment
to enact the statute.
LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition:
CIVIL RIGHTS §3
COMMERCE §86
Civil Rights Act -- commerce power --
Headnote: [1A] [1B]
The commerce clause of the Federal Constitution gives Congress ample authority
to enact 201(a)(b)(c)(e) and 203-207 of the Civil Rights Act of 1964 (78 Stat
241), which forbid discrimination or segregation on the ground of race, color,
religion, or national origin in certain places of public accommodation
affecting commerce.
COMMERCE §64
federal power -- exercise --
Headnote: [2]
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 than one state and has a real and substantial
relation to the national interest.
COMMERCE §29
noncommercial transportation -- movement of persons --
Headnote: [3]
Interstate commerce, which Congress has power to regulate under Article 1, 8,
clause 3 of the Federal Constitution, includes the movement of persons through
more states than one, even though the transportation is not commercial in
character.
COMMERCE §72
congressional power -- correcting moral wrong --
Headnote: [4]
The congressional power to regulate interstate commerce is not restricted by
the fact that the particular obstruction to interstate commerce with which it
is dealing is also deemed a moral and social wrong.
CIVIL RIGHTS §3
COMMERCE §86
motels -- racial discrimination --
Headnote: [5]
Under the commerce clause Congress may prohibit racial discrimination by motels
serving travelers, however local their operations may appear, where such
discrimination against travelers has a disruptive effect on interstate
commerce.
COMMERCE §108
power of Congress -- intrastate activities --
Headnote: [6]
The power of Congress over interstate commerce extends to those intrastate
activities 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 of Congress.
COMMERCE §108
local activities -- regulation --
Headnote: [7]
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.
CONSTITUTIONAL LAW §694
due process -- motel owner -- racial discrimination --
Headnote: [8]
A motel owner-operator is not deprived of liberty or property under the Fifth
Amendment by the loss of its "right" to select its guests free from
governmental regulation by 201(a)(b)(c)(e) and 203-207 of the Civil Rights Act
of 1964 (78 Stat 241), which forbid discrimination or segregation on the ground
of race, color, religion, or national origin in certain places of public
accommodation affecting commerce.
COMMERCE §62
federal power -- plenary nature --
Headnote: [9]
The commerce power is a specific and plenary one authorized by the Federal
Constitution itself.
CONSTITUTIONAL LAW §694
EMINENT DOMAIN §98
motel owner -- economic loss. --
Headnote: [10]
Sections 201(a)(b)(c)(e) and 203-207 of the Civil Rights Act of 1964 (78 Stat
241), which forbid discrimination or segregation on the ground of race, color,
religion, or national origin in certain places of public accommodation
affecting commerce, are not rendered unconstitutional under the Fifth Amendment
as a deprivation of liberty or property, or as a taking of property without
just compensation, by the fact that a motel owner-operator will suffer economic
loss as a result.
INVOLUNTARY SERVITUDE AND PEONAGE §1
Civil Rights Act -- motel owner --
Headnote: [11]
A motel owner-operator is not subjected to involuntary servitude in
contravention of the Thirteenth Amendment by being required to rent available
rooms to Negroes against its will as a result of 201(a)(b)(c)(e) and 203-207 of
the Civil Rights Act of 1964 (78 Stat 241), which forbid discrimination or
segregation on the ground of race, color, religion, or national origin in
certain places of public accommodation affecting commerce.
INVOLUNTARY SERVITUDE AND PEONAGE §1
statutes forbidding race discrimination --
Headnote: [12]
State statutes prohibiting racial discrimination in public accommodations
merely codify the common-law innkeeper rule, which long predated the Thirteenth
Amendment, and do not violate the Thirteenth Amendment.
COURTS §116
congressional discretion -- policy --
Headnote: [13]
The fact that Congress could have pursued methods other than the adoption of
the Civil Rights Act of 1964 (78 Stat 241) to eliminate the obstructions in
interstate commerce caused by racial discrimination is not a valid argument
against the constitutionality of the statute, but is a matter of policy which
rests solely with the Congress and not with the courts.
COMMERCE §63
commerce power -- constitutional limitations --
Headnote: [14]
The question of how obstructions in commerce may be removed, and what means
should be employed, is within the sound and exclusive discretion of the
Congress, subject only to one caveat--that the means chosen by it must be
reasonably adapted to the end permitted by the Federal Constitution.
SYLLABUS: 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 Rights Cases, 109 U.S. 3,
[***2] 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 Amendment as being
a deprivation of property or liberty without due process of law. Pp. 258-261.
(3) Such prohibition does not violate the Thirteenth [***3]
Amendment as being "involuntary servitude." P. 261.
COUNSEL: Moreton Rolleston, Jr., argued the cause and filed a
brief for appellant.
Solicitor General Cox argued the cause for the United States et al. With him on
the brief were Assistant Attorney General Marshall, Philip B. Heymann and
Harold H. Greene.
Briefs of amici curiae, urging reversal, were filed by James W. Kynes, Attorney
General of Florida, and Fred M. Burns and Joseph C. Jacobs, Assistant Attorneys
General, for the State of Florida; and Robert Y. Button, Attorney General of
Virginia, and Frederick T. Gray, Special Assistant Attorney General, for the
Commonwealth of Virginia.
Briefs of amici curiae, urging affirmance, were filed by Thomas C. Lynch,
Attorney General of California, Charles E. Corker and Dan Kaufmann, Assistant
Attorneys General, and Charles B. McKesson and Jerold L. Perry, Deputy
Attorneys General, for the State of California; Edward W. Brooke, Attorney
General of Massachusetts, for the Commonwealth of Massachusetts; and Louis J.
Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant
Attorney General, and Shirley Adelson Siegel, Assistant Attorney General, for
the State of New [***4] York.
JUDGES: Warren, Black, Douglas, Clark, Harlan, Brennan,
Stewart, White, Goldberg
OPINIONBY: CLARK
OPINION: [*242] [**350] 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. 241, 243. n1 [*243] 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.
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n1 See Appendix.
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[***5]
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 [**351] 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, [*244] § 8, cl. 3, of the
Constitution of the United States; [***6] 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 [***7] 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 "refusing to accept Negroes as guests in the motel by
reason of their race or color" and from "making any distinction
whatever upon the basis of race or color in the availability of the goods,
services, facilities, [*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
[***8] of the 1875 Act in the Civil Rights Cases, 109 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 . . .
[**352] 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.
[*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, [***9] that the Civil Rights
Act of 1964, here under attack, was finally passed.
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n2 14 Stat. 27.
n3 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.
n4 18 Stat. 335.
n5 71 Stat. 634.
n6 74 Stat. 86.
n7 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.
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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. [***10]
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.
[*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, [***11] 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]. [***12] "
Section 201 (c) defines the phrase "affect commerce" as applied to
the above establishments. [**353] 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 [*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 [***13] 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 [*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 [***14] 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 [***15]
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.
[*250] [**354]
[1A]
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
[***16] 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. 3 (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 [***17] II is
carefully limited to enterprises having a direct and substantial relation to
the interstate flow of goods and people, [*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 [***18] 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 [*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.
[**355] 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 [***19]
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 [***20]
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 [*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
[***21] 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 his "belief 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.
[2]
The power of Congress to deal with these obstructions depends on the meaning of
the Commerce Clause. Its meaning was first enunciated [***22] 140
years ago by the great [*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 [**356] 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 . . . .
. . . .
". . . It [***23] 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 [*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
[***24] 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.
[3]
That the "intercourse" of which the Chief Justice spoke included the
movement of persons through more [*256] States than one was settled
as early as 1849, in the Passenger Cases, 7 How. 283, where
[***25] 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, [**357]
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 [***26] 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 [*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); [***27] 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).
[4]
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. [***28]
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, [**358] 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.
[*258]
[5]
[6]
[7]
It is said that the operation of the motel here is of a purely local character.
But, assuming this to be true, "if 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: [***29]
"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, [***30] however
"local" their operations may appear.
[8]
[9]
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.
[*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 [**359] order and
many cities provide such regulation. Some of these Acts go back fourscore
years. It has been repeatedly held by this Court that such laws
[*260] do not violate the Due Process Clause of the Fourteenth
Amendment. Perhaps the first such holding was in the [***31] 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***32]
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).
[10]
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
[***33] 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 rejected
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. 100 [*261] (1953), and
cases there cited, where we concluded that Congress had delegated law-making
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).
[***34]
[11]
[12]
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 [**360] 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).
[1B]
[13]
[14]
We, therefore, conclude that the action [***35] 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 [*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, [***36] 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;
[*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 [***37] 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 [**361] (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
[***38] 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 [*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 [***39] 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, [***40] in its discretion, permit the
Attorney General to intervene in such civil action if he certifies that the
case [*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 [**362] 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 [***41]
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 [*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) [***42]
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 [***43] 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 [*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 [***44] 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.
[**363] "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 [***45] without regard [*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."
CONCURBY: BLACK; DOUGLAS; GOLDBERG
CONCUR: MR. JUSTICE BLACK, concurring. *
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
* [This opinion applies also to No. 543, Katzenbach v. McClung,
post, p. 294.]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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 [***46] 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
[*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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 78 Stat. 243-246, 42 U. S. C. §§ 2000a-2000a-6 (1964 ed.).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***47]
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
[*270] by Art. I, § 8, "To regulate [**364]
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 [***48] 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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 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;
. . . .
"(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 . . . . For purposes of this section,
'commerce' means travel, trade, traffic, commerce, transportation, or communication
among the several States . . . ." [***49]
n3 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.
n4 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.
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I.
It requires no novel or strained interpretation of the Commerce Clause to
sustain Title II as applied in either [*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,
[***50] 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
[**365] 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.
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n5 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.
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[***51]
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 [*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 [***52] 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
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n6 "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.) [***53]
n7 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.
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[*273] Congress [**366] 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" [***54] 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, [***55] 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.
[*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
[***56] 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
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n8 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).
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[***57]
[*275] The [**367] 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
[***58] 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. 255 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
[*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 [***59] 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.
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n9 Bureau of the Census, 1964 Statistical Abstract of the United States, 25
(18,872,000 Negroes by 1960 census).
n10 See, e. g., S. Rep. No. 872, 88th Cong., 2d Sess., 15-18.
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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 [***60] 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 [*277] adopted to achieve these ends are also
appropriate, [**368] plainly adopted to achieve them and not
prohibited by the Constitution but consistent with both its letter and spirit.
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n11 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. 124
(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).
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[***61]
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. [***62] And a more or less
vague clause like the requirement for due process, originally meaning
"according to [*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
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n12 The motel's argument that Title II violates the Thirteenth Amendment is so
insubstantial that it requires no further discussion.
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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, [***63]
which invalidated the Civil [**369] 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 [*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. [***64] 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."
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n13 18 Stat. 335.
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MR. JUSTICE DOUGLAS, concurring. *
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* [This opinion applies also to No. 543, Katzenbach v. McClung,
post, p. 294.]
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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 [***65] 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.
[*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 [***66] 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 [**370] 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; [***67] 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 [*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.
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n1 For a synopsis of the legislative history see the Appendix to this opinion.
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[***68]
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
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 See Peterson v. City of Greenville, 373 U.S. 244
(discrimination in restaurant); Lombard v. Louisiana, 373
U.S. 267 (discrimination in restaurant); Burton v. Wilmington
Parking Authority, 365 U.S. 715 (discrimination in restaurant); Watson
v. City of Memphis, 373 U.S. 526 (discrimination in city park); Brown
v. Board of Education, 347 U.S. 483 (discrimination in public school
system); Nixon v. Herndon, 273 U.S. 536 (discrimination in
voting).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***69]
[*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 [**371] 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." (Italics added.)
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 [***70]
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 [*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."
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n3 The Georgia trespass law is found in Ga. Code Ann., § 26-3005 (1963 Supp.),
and that of Alabama in Ala. Code, Tit. 14, § 426 (1958 Recomp.).
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[***71]
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 [***72] rent or hire and which is actually
occupied by the proprietor [*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.
[**372] 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, [***73] 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 [*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 [***74]
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 [***75] 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 [*286] legislation. Zoning laws tell the owner
[**373] 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 [***76] 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 [*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 [***77] 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 [***78] 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 [*288] "authorization, permission, or
license." See id., at 2656. The Attorney General objected to
this: [**374] 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 [***79]
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).
[*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. [***80] 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.
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* All citations are to Vol. 110, Congressional Record.
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[***81]
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
[*290] Lindsay makes remarks indicating that [**375] 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 [***82] 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: "Custom or usage is not constituted merely by a practice
[***83] 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 [*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.
MR. JUSTICE GOLDBERG, [***84] concurring. *
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* [This opinion applies also to No. 543, Katzenbach v. McClung,
post, p. 294.]
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I join in the opinions and judgments of the Court, since I agree "that the
action of the Congress in the adoption of the Act as applied here . . . is
within the power granted it by the Commerce Clause of the Constitution, as
interpreted by this Court for 140 years," ante, at 261.
The primary purpose of the Civil Rights Act of 1964, however, as the Court
recognizes, and as I would underscore, is the vindication of human dignity and
not mere economics. The Senate Commerce Committee made this quite clear:
"The primary purpose of . . . [the Civil Rights Act], then, is to
[**376] solve this problem, the deprivation of personal dignity
that surely accompanies denials [*292] of equal access to public
establishments. Discrimination is not simply dollars and cents, hamburgers and
movies; it is the humiliation, frustration, and embarrassment that a person
must surely feel when he is told that he is [***85] unacceptable as
a member of the public because of his race or color. It is equally the
inability to explain to a child that regardless of education, civility,
courtesy, and morality he will be denied the right to enjoy equal treatment,
even though he be a citizen of the United States and may well be called upon to
lay down his life to assure this Nation continues." S. Rep. No. 872, 88th
Cong., 2d Sess., 16.
Moreover, that this is the primary purpose of the Act is emphasized by the fact
that while § 201 (c) speaks only in terms of establishments which "affect
commerce," it is clear that Congress based this section not only on its
power under the Commerce Clause but also on § 5 of the Fourteenth Amendment. n1
The cases cited in the Court's opinions are conclusive that Congress could
exercise its [*293] powers under the Commerce Clause to accomplish
this purpose. As §§ 201 (b) and (c) are undoubtedly a valid exercise of the
Commerce Clause power for the reasons stated in the opinions of the Court, the
Court considers that it is unnecessary to consider whether it is additionally
supportable by Congress' exertion of its power under § 5 of the Fourteenth
Amendment. [***86]
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n1 Hearings in Congress as well as statements by administration spokesmen show
that the original bill, presented by the administration, was so based even
though it contained no clause which resembled § 201 (d) -- the so-called
"state action" provision -- or which even mentioned "state
action." See, e. g., Hearings before Senate Committee on Commerce
on S. 1732, 88th Cong., 1st Sess., 23, 27-28, 57, 74, 230, 247-248, 250,
252-253, 256, 259; Hearings before Senate Judiciary Committee on S. 1731, 88th
Cong., 1st Sess., 151, 152, 186; Hearings before Subcommittee No. 5 of the
House Committee on the Judiciary on H. R. 7152, 88th Cong., 1st Sess., 1396, 1410;
Hearings before House Judiciary Committee on H. R. 7152, as amended by
Subcommittee No. 5, 88th Cong., 1st Sess., 2693, 2699-2700; S. Rep. No. 872,
88th Cong., 2d Sess., 2. The later additions of "state action"
language to § 201 (a) and § 201 (d) did not remove the dual Commerce
Clause-Fourteenth Amendment support from the rest of the bill, for those who
added this clause did not intend thereby to bifurcate its constitutional basis.
This language and § 201 (d) were added, first, in order to make certain that
the Act would cover all or almost all of the situations as to which this Court
might hold that § 1 of the Fourteenth Amendment applied. Senator Hart stated
that not to do so would "embarrass Congress because . . . the reach of the
administration bill would be less inclusive than that Court-established
right." Hearings before Senate Commerce Committee, supra, at 256.
See also id., at 259-262. Second, the sponsors of § 201 (d) were
trying to make even clearer the Fourteenth Amendment basis of Title II. See, e.
g., Hearings before Subcommittee No. 5 of the House Committee, supra,
at 1413-1418; Hearings before the Senate Commerce Committee, supra, at
259-262. There is no indication that they thought the inclusion of § 201 (d)
would remove the Fourteenth Amendment foundation of the rest of the title.
Third, the history of the bill after provisions similar to § 201 (d) were added
contains references to the dual foundation of all Title II provisions before
us. See Hearings before Subcommittee No. 5 of the House Committee, supra,
at 1396, 1410; Hearings before House Judiciary Committee, supra, at
2693, 2699-2700; 110 Cong. Rec. 1925-1928.
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[***87]
In my concurring opinion in Bell v. Maryland, 378 U.S. 226,
317, however, I expressed my conviction that § 1 of the Fourteenth Amendment
guarantees to all Americans the constitutional right "to be treated as
equal members of the community with respect to public accommodations," and
that "Congress [has] authority under § 5 of the Fourteenth Amendment, or
under the Commerce Clause, Art. I, § 8, to implement the rights protected by §
1 of the Fourteenth Amendment. In the give-and-take of the legislative process,
Congress [**377] can fashion a law drawing the guidelines necessary
and appropriate to facilitate practical administration and to distinguish
between genuinely public and private accommodations." The challenged Act
is just such a law and, in my view, Congress clearly had authority under both §
5 of the Fourteenth Amendment and the Commerce Clause to enact the Civil Rights
Act of 1964.