The Heart of Atlanta
As I discussed last time, in 1883 the US Supreme Court struck down the Civil Rights Act of 1875 in The Civil Rights Cases. Justice Bradley, for the majority, wrote that applying the Reconstruction amendments to prohibit private racial discrimination would be “running the slavery argument into the ground.” Not yet two decades after the abolition of slavery, freed persons needed to just get over it and stop expecting to be the “special favorite of the laws.”
Notwithstanding The Civil Rights Cases, Congress tried again to outlaw racial discrimination in public accommodations in the Civil Rights Act of 1964. The Supreme Court had a change of heart in Heart of Atlanta Hotel, Inc. v. US and upheld the 1964 Act.Why the different result? Writing for a unanimous court, Justice Clark explained:
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.
“Commerce” to the rescue again! I previously found that the Foreign Commerce Clause provides textual support for Congress’s apparently absent immigration power and reasoned that the Indian Commerce Clause is the source of Congress’s special jurisdiction to regulate native tribes. Now it seems that the Interstate Commerce Clause supplied congressional power to prohibit private racial discrimination all along.
Why didn’t the court in The Civil Rights Cases think of that? Well, they did of course. But Justice Bradley dismissed that idea out of hand:
And whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another is also a question which is not now before us, as the sections in question are not conceived in any such view.
So, because Congress did not explicitly rely on the commerce power in enacting the 1875 Civil Rights Act, the court would not even consider whether that provision would supply an alternative justification for the law. Justice Harlan in dissent thought this cop-out was, to borrow a phrase, pure applesauce:
Has it ever been held that the judiciary should overturn a statute because the legislative department did not accurately recite therein the particular provision of the Constitution authorizing its enactment?
Congress closed that loophole in 1964, explicitly relying on its commerce power and laying a detailed legislative record demonstrating how racial discrimination in public accommodations burdened and interfered with interstate travel. And even if regulating public accommodations as components of interstate commerce was a stretch in the Reconstruction era, by the 1960s, it was a slam dunk, as Justice Clark explained:
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 … 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.
Justice Douglas, for his part, argued that private discrimination did implicate the Fourteenth Amendment because it inevitably required state enforcement. When an intransigent black person refused to leave the whites-only counter, it was necessary to call the police to remove and prosecute them for trespass. Under a case called Shelley v. Kraemer, the enforcement of private discrimination by state officials violates the Equal Protection Clause. That case prohibited state courts giving legal effect to private restrictive covenants on real property that prohibited black people from purchasing residences in certain neighborhoods.
I appreciate Justice Douglas’s point, but it only goes so far. The court certainly could have held that enforcement of private racial segregation by state officials violates equal protection, but such a ruling would not have answered the issue presented by the Civil Rights Act: whether Congress may enact appropriate legislation prohibiting private discrimination directly. The decision in Shelley after all did not hold that restrictive racial covenants are directly void, only that courts could not enforce them.
In addition, whites in that era were hardly shy about resorting to self help to enforce white supremacy. State involvement usually amounted to a sin of omission in failing to rein in white vigilante “justice.” The sheriff might join the lynch mob, but he was hardly doing so in his official capacity.
In any event, although Justices Douglas and Goldberg wanted to relitigate in concurring opinions whether the Fourteenth Amendment authorizes appropriate federal legislation prohibiting discrimination in public accommodations, it was the protean commerce power that saved the day in the end.
Heart of Atlanta is rightly celebrated as a landmark civil rights decision, wherein the court finally made amends for its infamous ruling in The Civil Rights Cases. Yet in vindicating Congress’s authority to dismantle Jim Crow as an application of interstate commerce, the court left in place its Gilded Era precursor’s crimped and anemic construction of the Equal Protection Clause.
Instead, the court chose to further expand the already distended notion of “commerce.” Under the courts reasoning, seemingly any business, even if it operates completely within the bounds of a single state and does not send any articles of commerce across state lines, may be regulated by Congress if it has some effect on interstate commerce. In our modern integrated economy, is there any aspect of our lives that is off limits from Congress’s authority to regulate commerce among the several states?