In
Heart of Atlanta Motel, Inc. v. United States:
[The record in both houses of Congress in passing the Civil Rights Act of 1964] is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce.... 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 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, 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. 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. This testimony indicated a qualitative, as well as quantitative, effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler's pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community...
It was this burden [on interestate commerce] which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.
Heart of Atlanta dealt with a hotel, and there was a second case,
Katzenbach v. McClung, about a restaurant called Ollie's Barbecue:
Ollie's Barbecue is a family owned restaurant in Birmingham, Alabama, specializing in barbecued meats and homemade pies, with a seating capacity of 220 customers. It is located on a state highway 11 blocks from an interstate one and a somewhat greater distance from railroad and bus stations. The restaurant caters to a family and white-collar trade with a take-out service for Negroes. It employs 36 persons, two-thirds of whom are Negroes....
The record is replete with testimony of the burdens placed on interstate commerce by racial discrimination in restaurants. A comparison of per capita spending by Negroes in restaurants, theaters, and like establishments indicated less spending, after discounting income differences, in areas where discrimination is widely practiced... This diminutive spending springing from a refusal to serve Negroes and their total loss as customers has, regardless of the absence of direct evidence, a close connection to interstate commerce...
Moreover, there was an impressive array of testimony that discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes. This resulted, it was said, because discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions. This obviously discourages travel and obstructs interstate commerce, for one can hardly travel without eating....
The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere....
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39 comments:
Blacks had real problems getting a wedding cake baked 50 years ago.
Growing up, I remember "Help Wanted -- Female" and "Help Wanted - Male" job ads in newspapers. They probably existed nationwide. But what existed then doesn't exist now.
JFK's father and his family were very connected to the finances and mores of organized crime called Mafia. That was why JFK was very cautious in any actual Civil Rights legislation support.
Although living in the northern cities plus New Orleans and Miami of the south the racially proud Siclian Mafia guys did not want integration.
The Heart Of Atlanta Motel was the Mafia owned place all of the Mafia guys stayed to be serviced their way in Atlanta. So Bobby Kennedy went after them first. It was Jack that got the payback.
Almost certainly the wrong decision, at least as far as its basis in the commerce clause, but wrong for abstract and emotionally unsatisfying reasons. The commerce clause is the rip in the tent that the camel got his nose through. By 50 years ago, of course, the camel was already inside the tent and shitting on everything.
Here's the larger point; power, once granted, is never surrendered. Even if the commerce clause was first abused to, say, provide relief from ritual satanic sacrifice to innocent infants (just picking something all decent people would oppose) it would by now have become the on ramp to the super highway of federal excess that it currently is.
So it is with every single concession to authority no matter the do-gooder origin of the impulse. I hate a fucking do-gooder worse than any creature drawing breath. The do-gooder's outrage that justifies meddling for the greater good will be forgotten when the project of central control they have enabled is complete.
I do not know about the reasoning; there is no question that Negroes (and other dark-skinned people) were not free to move around in these united states, and there surely is a way to interpret other clauses than the interstate commerce clause to prohibit such restrictive practices.
I also seem to remember that there were some cases at the time where the commerce clause was stretched a lot farther than this.
Like that a local fried chicken outlet was subject to the interstate commerce clause because certain ingredients in their secret sauce they came from out of state, or something like that.
Strike "they."
I do not think it fosters respect for "the law" when lawyers stretch the plain texts like this.
chickelit said...
Growing up, I remember "Help Wanted -- Female" and "Help Wanted - Male" job ads in newspapers. They probably existed nationwide. But what existed then doesn't exist now.
That's for sure. There aren't even any Negroes in the United States anymore.
I also seem to remember that there were some cases at the time where the commerce clause was stretched a lot farther than this.
Once a farmer was banned from growing cattle feed on his farm, that he intended to feed to his cattle and not sell, on the grounds that since he wouldn't be buying the feed on the market, it was covered by the commerce clause.
I remember Help Wanted - White and Help Wanted - Colored ads in the Atlanta Constitution. I remember the Heart of Dixie Motel (not a place you would have wanted to stay, regardless). I remember riding in the front of the bus. Today I eat at the Golden Rule Barbecue on the way to Birmingham every chance I get. Look that case up. I note the number of low income racially mixed families shopping at Wal-Mart. Not so many in my Episcopal Church, although they are way more liberal. Anybody who tries to say that there has been no racial progress in the last 50 years is delusional, or in it for power and/or profit.
There were no Negroes in the USA 50 years ago. There were only mental defective simpletons that we used to raise our children in our homes and do the work Americans would not do.
But WWI and WWII and Baseball
revealed to us that the mental defective simpletons had not been our cousins we called Negroes after all.
To expand on my snark before dinner - I don't think that all public accommodation laws are unconstitutional. But they balance rights against important freedom of association rights that they take away. This decision didn't limit the concept of public accommodation sufficiently. It opened the door to totalitarian nannies to force speech and association in relatively frivolous contexts (as if food and shelter controlled by effective monopolies were equivalent to wedding cakes and photographs.)
Perhaps the worst outcome is the further self aggrandizement of the SCOTUS. Having nine old people wrapped in black robes thinking they have unfettered power to judge right and wrong is bad for any country.
It would, of course, have created its own set of problems, but I rather wish that the Court, instead of taking the Commerce Clause route, had gone with Robert Jackson's concurring opinion in Edwards v. California (1941):
"I concur in the result reached by the Court, and I agree that the grounds of its decision are permissible ones under applicable authorities. But the migrations of a human being, of whom it is charged that he possesses nothing that can be sold and has no wherewithal to buy, do not fit easily into my notions as to what is commerce. To hold that the measure of his rights is the commerce clause is likely to result eventually either in distorting the commercial law or in denaturing human rights. I turn, therefore, away from principles by which commerce is regulated to that clause of the Constitution by virtue of which Duncan is a citizen of the United States and which forbids any state to abridge his privileges or immunities as such."
This resulted, it was said, because discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions.
From that characterization it would appear Tom Clark was no fan of soul food, which would appear bigoted in itself.
He went on to resign his seat to make way for Thurgood Marshall in exchange for making his idiot son US Attorney General.
Thanks. I never knew what the Court's basis was for ending discrimination in public accommodations.
"Negro".
That word sounds so foreign now
or maybe so clinical
The effect of this decision on college and pro sports has been enormous. There were no professional sports franchises in the Southeast and only one in Texas at the time. The Braves moved to Atlanta in 1966, the Saints were started, etc. The dying SEC with its all white teams was revitalized. In 1970, USC traveled to Alabama and steam rolled the all white Crimson Tide. Bear Bryant integrated the team shortly after and the SEC became a power conference.
College and pro sports are a multi billion industry. Would not have happened without this law or decision.
They used a vaguely worded clause in the Constitution to trample on the right to hold philosophical and political principles and the freedom to act on those principles.
I prefer for people with such despicable principles to be free to act on them. That lets me know who they are. Now we don't.
The result of these political confirmity laws is that racism is illegal. If they can outlaw racism, they can outlaw any political heterodoxy. And they have.
Of course I meant conformity.
Skyler
I admire your intellectual purity. But I'm glad you weren't in Congress or on the Supreme Court in 1964.
Businesses that wanted to serve blacks and white equally were burned down or their owners beat up or threatened. The police did nothing about it. Apparently they didn't share your belief that business owners should be free to serve who they want.
You don't stop terrorism by taking away rights of the innocent.
Mark Caplan said...
Thanks. I never knew what the Court's basis was for ending discrimination in public accommodations.
The court did not require the end of discrimination. The Congress did. The Court unaminously declined to uphold a Constitutional challenge to the legislation. This was not an "activist" decision but quite consistent with past interpretations of Congressional power.
For those blaming a liberal cabal in this case, remember "unanimously" and "upheld a statute."
Just an old country lawyer said...
Anybody who tries to say that there has been no racial progress in the last 50 years is delusional, or in it for power and/or profit.
It's not that they're denying progress and political evolution -- it's the incessant setting of the clock back 50 years or 400 years (depending on who's writing/commenting here) to argue how bad things are today. It's the flip side of conservatives incessantly prattling about how good things used to be.
Seize the day instead of carping about yesterday.
"Negro" was a fine term. Rich and evocative.
The commerce clause covers whatever the justices need it to cover to arrive at the decision they want (you would think now that we have emanations and penumbras, the commerce clause wouldn't have to work so hard, but you'd be wrong).
You don't get to argue against this decision because the losers were racist.
I would also point out that in the Internet age, virtually anything we buy online could constitute "interstate commerce"--unless you're positive that the website, the store that runs it, and even the Internet path between you and the website, are all within your own state.
Furthermore, if you try to sell something on Ebay, it's very likely that at least one of the bidders in the auction won't be living in your own state.
So by the Supreme Court's logic, the Congress can regulate your interactions with commercial (*.com) websites however they wish. No limits.
The term "Negro" (Spanish or Portuguese for Black) rather loosely refers to the Bantu-speaking peoples of sub-Saharan Africa, keeping in mind that not all Negro peoples speak a Bantu dialect and that not all Bantu-speakers are Negroes.
David said...
That's for sure. There aren't even any Negroes in the United States anymore.
And yet the United Negro College Fund still exists, although it appears they're primarily referring to themselves using just their initials, kind of like KFC.
This brings to mind the question, should organizations change their names when the language evolves? For example, there's the National Association for the Advancement of Colored People (NAACP). Should they change their name? Perhaps the United Negro College Fund already has changed theirs. What about Black Entertainment Television (BET) or the Congressional Black Caucus?
Two innovation made the economic rise of the South possible: central air conditioning and the civil rights laws.
Words, words, words:
Negro, pronounced Knee-grow, was the term preferred by African-Americans, as opposed to the commonly used pronunciation by white people of "Niggra" which too easily slid into "Nigger." "Colored" was what "nice" people used. "Black" was looked on as a little crude by African Americans at the time, but gained currency in the late '60's and early 70's, while the intellectuals gravitated to "Afro-American." The accepted term continues to change and evolve.
I point these things out because it occurred to me that most of the commenters on this site were born after the major civil rights battles were won, and grew up elsewhere than in the South. I'm about the age of our charming hostess, having graduated from high school in 1967. 11 years after Brown v Board of Education they finally began to integrate the Fulton County (Atlanta's county, not City of Atlanta, which began about the same time) public schools. During my senior year my high school had its first African American students: 5 in the eighth grade. Shortly thereafter things began to change dramatically.
Thanks for your blog, Althouse.
Businesses that wanted to serve blacks and white equally were burned down or their owners beat up or threatened. The police did nothing about it. Apparently they didn't share your belief that business owners should be free to serve who they want.
So there's your point of attack. The police are acting unconstitutionally by failing to protect everyone equally. You can attack that without attacking freedom of association and without stretching the commerce clause beyond the limits of the English language.
Epstein's take is that it violates freedom of association except where it's a noncompetitive market.
Say, in the case of civil rights, public or private violence would befall the business owner who served blacks. So it's not a competitive market.
The business owners, though, would like to serve blacks. It's more business.
So the law there is making you do what you want to do anyway.
In the case of baking wedding cakes or photography however it's unconstitutional flatly. There are lots of alternative markets, as is usually the case.
Jeff,
What you're saying was an open question until 2000.
The Supreme Court held in United States v Morrison that the federal government could not use its powers under the 14th Amendment to regulate conduct of non state actors in the face of state non enforcement of laws.
Jeff,
You also have to consider the necessary and proper clause. It's not whether banning intrastate discrimination in public accommodations is interstate commerce. It's whether it's a necessary and proper means of regulating interstate commerce.
Not being able to stay at a hotel or eat at a restaurant while traveling affects interstate commerce. People can't travel interstate and less money is spent. The effect on college and pro sports alone was substantial.
Can you imagine what the SEC would be like if it was still all white teams like it was until the late 60s? It would make the MVC look like the NFC west.
mccullough,
If the police are not state actors, then who is? Unequal enforcement of the laws is a pretty blatant violation of the 14'th Amendment. We're not talking about nonstate actors here.
Jeff
According to the Supreme Court, Congress can't step in and ban something directly that the state doesn't enforce. So if some states didn't investigate or prosecute the murders of blacks, then Congress can't remedy this problem by banning murder in those states and federally prosecuting the offenders.
The court did not require the end of discrimination. The Congress did. The Court unaminously declined to uphold a Constitutional challenge to the legislation. This was not an "activist" decision but quite consistent with past interpretations of Congressional power.
Perfect. I'm in favor of strict constructionism, but your description is perfect. Thank you.
I'm not suggesting they prosecute the offenders, rather that they prosecute the people making the decisions to selectively enforce the laws against assault, arson and murder. The state actors, in other words.
I think it's only polite to call people whatever they want to be called and so I've carefully kept up with all the different names for one of the races in this country. And I see we're going from "African-American" back to "black" as in the recent "Black Lives Matter" campaign. I feel that we are lacking some great writer or great man who could describe today's reality as it is, not as it was. Why is it so hard to see what we are actually seeing, to hear what we are hearing? But it is. And it all gets shadowed forth in how we - black and white - can't see each other. That isn't all we can't see and the blindness is spreading.
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