exceeds the power of Congress, invades the reserved. powers of the States, and violates the limitations imposed by the Fifth and Thirteenth Amendments."

The provisions summarized above make it plain that Congress invoked both its power to regulate interstate commerce under Article I, Section 8, clause 3, and also its power under Section 5 of the Fourteenth Amendment to enforce, by appropriate legislation, the provisions of that Amendment. The stipulation before the district court shows that 75 percent of appellant's guests come from outside the State of Georgia, that appellant accepts convention trade from other States, and that appellant widely solicits patronage in advertising media having a national circulation. Accordingly, the government has proceeded throughout this litigation upon the theory that the constitutionality of Title II, as applied to appellant, may be sustained under the commerce clause without reference to the additional power conferred by Section 5 of the Fourteenth Amendment. We stake our case here upon the same theory.

The decision in the Civil Rights Cases, 109 U.S. 3, is therefore irrelevant. In declaring unconstitutional the Act of 1875 (which prohibited discrimination in "inns, public conveyances on land or water, theaters, and other places of public amusement," 18 Stat. 335, 336), the Court did not consider whether the Act would have been constitutional if Congress had attempted to exercise its commerce power; for, as the

See amended notice of appeal (R. 83): "The sole question presented by the appeal is the constitutionality of the Civil Rights Act of 1964."

Court noted, the statute was "not conceived in any such view" (id. at 19).10 The Court's observation that "[o]f course, no one will contend that the power to pass it was contained in the Constitution before adoption of the last three amendments" (id. at 10), was directed to the statute as it came before the Court, a law covering many local inns, public conveyances and theatres without regard to their relation to interstate commerce and therefore obviously conceived in a different view. The holding of the Civil Rights Cases, therefore, is necessarily limited to the proposition that, in the circumstances presented, the Act could not be sustained under the Thirteenth and Fourteenth Amendments." This limitation is made entirely clear by the subsequent decision in Butts v. Merchants & Miners Transp. Co., 230 U.S. 126, where it was argued that the Act of 1875 should be held valid as applied to a vessel under the exclusive admiralty jurisdiction of the United States. The Court rejected the contention on the ground that the Civil Rights Cases had held that the provisions of the 1875 Act received "no support from the power of Congress to regulate interstate commerce because, as is shown by the preamble and

10 The point was barely noted by counsel as we will explain in more detail in our brief in Katzenbach v. McClung, No. - this Term.

11 We refer to "the circumstances presented" because the Court, in the Civil Rights Cases, expressly assumed the availability of a State remedy for the discrimination covered by the federal statute (109 U.S. at 19, 24-25). We also wish to point out that in stressing the commerce power in the instant brief-a power which we believe to be clearly and completely dispositive of the case-we imply no suggestion that the Act may not be sustained as an exercise of the power conferred by Section 5 of the Fourteenth Amendment.

by their terms, they were not enacted in the exertion of that power * **"' 230 U.S. at 132. The 1964 Act explicitly relies upon the power of Congress to regulate interstate commerce. As we now show, the Act plainly represents a permissible exercise of that power. Thereafter, we take up the arguments under the Fifth and Thirteenth Amendments.

I

TITLE II OF THE CIVIL RIGHTS ACT OF 1964, BOTH IN ITS GENERAL PLAN AND AS APPLIED TO PETITIONER, IS A VALID EXERCISE OF THE POWER OF CONGRESS TO REGULATE INTERSTATE COMMERCE

* * *

Article I, Section 8, clause 3, of the Constitution confers upon the federal Congress power "to regulate Commerce among the several States." In arguing that the commerce power is broad enough to sustain both the general plan of Title II and also its specific application to petitioner, we invoke no novel constitutional doctrine and seek no extension of existing principles. The constitutionality of Title II, under the commerce clause, is established by five established rules. All five are a familiar part of our constitutional history.

First. The delegation to Congress of power to regulate commerce among the several States "authorizes all appropriate legislation for the protection or advancement of either interstate or foreign commerce" (The Daniel Ball, 10 Wall. 557, 564), and "to promote its growth" (Mobile County v. Kimball, 102 U.S. 691, 696, 697). This principle, established many years ago, has been frequently reiterated. E.g., Labor

Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37. Interstate commerce, needless to say, includes interstate travel by men and women. Edwards v. California, 314 U.S. 160.12

Second. The power of Congress to promote commerce among the States includes the power to regulate local activities-in the State of destination as well as the State of origin-which might have a substantial and harmful effect upon interstate com

12 "[I]t is settled beyond question that the transportation of persons is 'commerce,' within the meaning of" the commerce clause. Edwards v. California, 314 U.S. 160, 172. "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 * Caminetti v. United States, 242 U.S. 470, 491. "Commerce among the States consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, *** as well as the purchase, sale and exchange of commodities." Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 203. To the same effect, see United States v. Hill, 248 U.S. 420, 423; Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 218-219; Hoke v. United States, 227 U.S. 308, 320. Accord: Mitchell v. United States, 313 U.S. 80; Henderson v. United States, 339 U.S. 816; Boynton v. Virginia, 364 U.S. 454; Morgan v. Virginia, 328 U.S. 373; Hall v. De Cuir, 95 U.S. 485.

Moreover, "[i]t is inmaterial whether or not the transportation is commercial in character. See Caminetti v. United States, supra." Edwards v. California, supra at 172 n. 1.

While, as appellant says, Mr. Justice Barbour in Mayor of New York v. Miln, 11 Pet. 102, 136, decided in 1837, suggested that only goods and not persons are "the subjects of commerce" within the constitutional provision, that decision-insofar as it may have held any such thing-was overruled in the Passenger Cases, 7 How. 283, and in Henderson v. Mayor of New York, 92 U.S. 259. Indeed, the suggestion in Miln was quite inconsistent with the broad language of Gibbons v. Ogden, 9 Wheat. 1.

merce. "Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control." Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37. "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 Manufactrers Ass'n., 336 U.S. 460, 464. "The power of 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 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." United States v. Darby, 312 U.S. 100, 118-119 (per Mr. Chief Justice Stone).

Third. The power of Congress to regulate activities. affecting interstate commerce is not to be determined by looking only at the quantitative effect of the individual activities of the person or enterprise immediately involved in litigation. "Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce." Labor