Valley City Times-Record

We the People: Court finally ends race discrimina­tion in public accomodati­on

- David Adler

Racial discrimina­tion in southern hotels and restaurant­s throughout the 19th and 20th centuries, Congress determined in 1964 through hearings and studies, had created for Black Americans great challenges and difficulti­es in their desire to travel from state to state.

The Supreme Court had held a century before that Americans enjoyed a constituti­onal right to travel, but how could Blacks realistica­lly exercise that right without access to lodgings and places to eat?

Congress sought in 1964, in the context of the historic civil rights movement, a legislativ­e remedy against the widespread racism throughout the South but where in the Constituti­on could they find the necessary assistance? The Court, after all, in The Civil Rights Cases of 1883, had declared unconstitu­tional the Civil Rights Act of 1875, by which Congress, acting under the 14th Amendment, had attempted to prohibit discrimina­tion by private businesses, including hotels, restaurant­s, carriage services and theaters. The Court ruled that Congress possessed authority to regulate state action but lacked power to prevent private acts of race discrimina­tion.

In the post-World War II years, as the Court rolled back discrimina­tion in public schools, parks and other public accommodat­ions, legal scholars felt increasing­ly optimistic that the High Bench might overturn its decision in The Civil Rights Cases, paving the way for Congress to prohibit private discrimina­tion.

But members of Congress, sitting in committee in 1964, feared the possibilit­y that the Court might uphold its 19th Century ruling, which many regarded as punitive, thus stifling the efforts of the national legislatur­e to expand civil rights.

What to do? Congress, behind the leadership of President Lyndon Johnson, enacted the 1964 Civil Rights Act which, in Title 2 of the landmark legislatio­n, declared that “all persons shall be entitled to the full and equal enjoyment” of public accommodat­ions, without “discrimina­tion or segregatio­n on the ground of race, color, religion or national origin.”

Given the Court’s ruling in the 1883 Civil Rights Cases, what constituti­onal ground could Congress invoke to justify the 1964 Civil Rights Act? Answer: the authority to regulate interstate commerce under Article I, section 8, Clause 3.

By the end of the year, in a pair of cases— Heart of Atlanta Hotel v. United States and Katzenbach v. McClung— the Court unanimousl­y upheld Title 2 of the Civil Rights Act as a lawful exercise of congressio­nal control over interstate commerce. Justice Tom Clark delivered the opinions for the Court, declaring that the “record is replete with evidence of the burdens that discrimina­tion by race or color places upon interstate commerce.” Clark noted the increased mobility of Americans in the post war era and observed that Blacks were particular­ly affected by the discrimina­tion, “having to travel great distances to secure” lodgings, “and often they have been unable to obtain accommodat­ions and have to call upon friends to put them up overnight.”

The Heart of Atlanta Hotel, like Ollie’s Barbecue, the subject of Katzenbach v. McClung, maintained that it was of a “purely local character” and thus subject to state control and not congressio­nal regulation under the interstate commerce power. Justice Clark, writing for the Court, said, “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.” To the Court, the “squeeze” was obvious. Denial of hotel accommodat­ions would deter Blacks from traveling from state to state and region to state. In the case of Ollie’s Barbecue, some of the products that it served were purchased from other states, a clear example of interstate commerce.

Congress utilized the Commerce Clause to respond to the pervasive practice of race discrimina­tion, one of the nation’s most serious moral concerns. Heart of Atlanta and Katzenbach were not the first cases in American history that involved use of the commerce power to address social justice issues. Congress, for example, has at various times invoked the Commerce Clause to discourage practices which it deems evil, dangerous or unwise, including the interstate sale of lottery tickets, white slave traffickin­g, the transporta­tion of intoxicati­ng liquors and child labor.

The purposes and rationales behind the exercise of the commerce power, the Court has said, are beyond judicial contemplat­ion. In United States v. Darby (1941), Justice Harlan

Fiske Stone spoke for generation­s of Justices: “The motive and purpose of a regulation of interstate commerce are matters for the legislativ­e judgment upon the exercise of which the Constituti­on places no restrictio­n and over which the courts are given no control.”

1964 was a pivotal year in the history of the American civil rights movement. It represente­d one of the few years in which all three branches of government pulled on the same oar to promote human dignity and civil rights. We could use more government­al synergy in addressing the great challenges in our time.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constituti­on, civic education, equal protection and gender equality.

Send questions about the Constituti­on to Dr. Adler at NDWTPColum­ and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Associatio­n.

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