plicable to service stations, hotels, motels, and other establishments serving interstate travelers. Such establishments affect travelers, and, therefore, interstate commerce, in the same manner as restaurants. Just as travelers need food, they must have gasoline and places to sleep. Clearly, discrimination by such establishments severely burdens and restricts interstate travel and may therefore be regulated by the Congress.

In removing impediments to interstate travel, Congress is not limited to forbidding discrimination against interstate travelers alone; it may forbid discrimination against local customers as well. Congress may "choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities," United States v. Darby, 312 U.S. 100, 121. Interstate commerce is burdened if interstate travelers are required to carry with them proof that they are in the course of a trip through more than one State. (See Baldwin v. Morgan, 287 F. 2d 750.) And interstate travel is discouraged if the interstate traveler is aware that those of his race who are not involved in interstate travel are refused service or accommodations in facilities needed by interstate travelers. Congress may eliminate these incidental impediments to interstate travel along with the more direct burdens discussed above, United States v. Darby, 312 U.S. 100; Currin v. Wallace, 306 U.S. 1; Thornton v. United States, 271 U.S. 414; Shreveport Case, 234 U.S. 342.

3. Elimination of adverse effects on the allocation of resources and flow of interstate commerce.-The commerce clause also vests Congress with the authority to deal with conditions which adversely affect the allocation of resources and to eliminate the causes of disputes that may curtail the flow of interstate

commerce.

The Federal Government has, of course, a legitimate interest in the interstate movement of capital and goods, and Congress has frequently acted in furtherance of that interest. Thus, in the Agricultural Adjustment Act of 1933, Congress invoked the commerce power because excessive supplies of farm products caused a disparity between industrial and farm prices and thereby tended to reduce "the volume of interstate and foreign commerce in industrial products." Similarly, the Fair Labor Standards Act speaks of the effect of "labor conditions detrimental to the minimum standard of living necessary for health, efficiency, and general well-being of workers" upon "the orderly and fair marketing of goods in commerce." (See also, the declaration of policy in section 1 of the National Labor Relations Act.)

Experience shows that discrimination, when widely practiced throughout sections of the country, has a markedly adverse effect upon the interstate flow of both capital and goods. Capital is reluctant to invest in the region. Skilled or educated men who will be the victims of discrimination are reluctant to settle in the area even when opportunities are available. The inferior economic position to which general discrimination and segregation relegate a large segment of the population in some regions reduces their purchasing power thus reducing the flow of goods and the incentive to bring capital into the area. It is perfectly apparent that Congress may legislate with respect to such conditions. 4. Elimination of causes of disruption in the flow of interstate commerce.There is a parallel congressional power to eliminate the causes of disputes that may curtail the flow of interstate commerce-power which was recognized and sustained in a number of decisions under the National Labor Relations Act. These decisions show that Congress may, by legislation, deal with labor disputes which halt production or the resale of manufactured goods because, based on the Federal interest in the elimination of obstructions to the free flow of commerce, there is a corresponding power to remove the causes of the disputes which are responsible for these obstructions. (See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1; N.L.R.B. v. Suburban Lumber Co., 212 F. 2d. 829; J. L. Brandeis v. N.L.R.B., 142 F. 2d 977, certiorari denied, 323 U.S. 751; N.L.R.B. v. Reliance Fuel Corp., 371 U.S. 224.)

Disputes involving the racially discriminatory practices of places of public accommodation give rise to picketing and other demonstrations. The picketing and the demonstrations interfere with the sale of goods and thus affect interstate

News media and publications have noted a dramatic reduction in business activity in regions which suffer from the effects of racial discrimination. Thus, the Wall Street Journal of May 26, 1961, pointed out that new construction contracts in the first quarter of 1961 ran 11 percent below the first quarter of 1960 in the six Southern States served by the Atlanta Federal Reserve Bank, while during the same period there was a rise nationally of 0.2 percent.

commerce in precisely the same manner as would labor disputes involving such establishments.

In any discussion of the commerce clause as a source of congressional authority for the public accommodations provisions in title II, it is important to emphasize that the Civil Rights cases, 109 U.S. 3, involved no question concerning congressional power under the commerce clause. In its decision holding the Civil Rights Act of 1875 beyond the power of Congress under the 14th amendment, the Court did not pass upon the power of Congress to enact similar legislation under the commerce clause. It had been argued to the Court that the act was effective at least as to public conveyances, since they were plainly in interstate commerce, but the Court felt that "as the sections in question are not conceived in any such view," the statute could not even be considered under the commerce clause and had to stand or fall on the power of Congress under the 14th amendment (109 U.S. at 19).

II. WHILE THE 14TH AMENDMENT MAY PROVIDE A CONSTITUTIONAL BASIS FOR A FEDERAL LAW PROHIBITING DISCRIMINATION IN ESTABLISHMENTS DEALING WITH THE PUBLIC, ITS ADEQUACY IS SUBJECT TO SIGNIFICANT DOUBTS

Section 1 of the 14th amendment provides that "No State shall *** deny to any person the equal protection of the laws."

Section 5 provides that "Congress shall have power by appropriate legislation to enforce the provisions of this article."

On its face the amendment is aimed at discrimination by a State, and laws enforcing the amendment must therefore be aimed at State action. The 14th amendment is not concerned with private discriminations as such.

The scope of both sections 1 and 5 of the 14th amendment was squarely adjudicated in 1883 in the Civil Rights cases. Section 1 of the Civil Rights Act of 1875 declared that all persons should be entitled to full and equal enjoyment of "the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters and other places of public amusement," and section 2 made it a crime to deny any person such full enjoyment. Actions were brought against a railroad, a theater, and a hotel. The Court held the statute unconstitutional in all three applications on the ground that the power of Congress under the 14th amendment was limited to enforcing the prohibition against State action whereas the statute made "no reference whatever to any supposed or apprehended violation of the 14th, amendment on the part of the States." This supposed distinction between private and governmental action has been consistently observed ever since the decision in the Civil Rights cases. (See, e.g., Shelley v. Kraemer, 334 U.S. 1, 13; Burton v. Wilmington Parking Authority, 365 U.S. 715, 721.)

The proposed public accommodations provisions of the bill, except as they can be rested on the power to regulate interstate commerce, are for this purpose indistinguishable from the legislation held unconstitutional in the Civil Rights cases. Indeed, apart from the fact that the proposed bill would impose no criminal sanctions, the major difference is that the present bill is broader in application. To sustain any of the proposed laws as an exercise of the power of Congress under section 5 of the 14th amendment would require the Supreme Court either to overrule the Cvil Rights cases or distinguish them on grounds destroying their vitality.

Three principle lines of argument in support of a departure from the result reached in the Civil Rights cases have been suggested:

(1) Public segregation, it can be argued with substantial practical and historical force, is the product of and supported by State action; indeed, were it not for the past or present support of State laws and State officials, widespread public racial segregation would not exist. Congress, in preventing unconstitutional State support for public segregation, is not limited in its choice of remedies to dealing with the action of the State officials; it can deal with the customs and usages which are the result of such action. The power to enact "appropriate legislation," the argument would continue, includes the power to enact any law centered upon the evil of State action causing and supporting discrimination; the legislature may take in whatever additional area is necessary to make the prohibition of the evil effective. If Congress finds that the most effective way of eliminating unconstitutional State support for nongovernmental discrimination is to forbid the discrimination itself, then the courts should sustain the measure without further reviewing the congressional determination.

There is no novelty in the argument that the power of Congress to enact legislation implementing the 14th amendment goes beyond the precise boundaries of the substantive prohibition. Section 5 of the amendment, like the "necessary and proper" clause in article I, must carry authority to enact any measure suited to prevent or rectify unconstitutional State action even though it may have wider ramifications. The controlling principle was stated by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 421: "The sound construction of the Constitution must allow the National Legislature that discretion, with respect to which 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." This principle was applied to a prohibitory provision of the Constitution in Everard's Breweries v. Day, 265 U.S. 545, where the Court held that under section 2 of the 18th amendment Congress had power to prohibit the prescription of intoxicating liquor for medicinal purposes although the amendment itself prohibited only the sale of intoxicating liquor for beverage purposes.

The foregoing reasoning would call for overruling the Civil Rights cases in the sense that the public accommodations title of the bill is, as pointed out above, indistinguishable in principle from sections 1 and 2 of the Civil Rights Act of 1875. On the other hand, the argument would present evidence, and call for a decision, upon historical and practical grounds not available in 1883, so that the Court would have a substantial factual and legal justification for reconsidering the question.

(2) A second line of argument suggested is that the action of any business enterprise which holds a "license" from a State is State action for the purpose of the 14th amendment, so that racial discrimination by a licensee is racial discrimination by the State.

At its broadest, this argument would assume that everyone who holds a license has some privilege or franchise from the State and that, therefore, when he conducts his business, he is exercising a State function.

No doubt discrimination by a licensee is State action for the purpose of the 14th amendment where the license granted by State authority gives the holder some special privilege to conduct a business on public property for the benefit of the public. This is true, for example, of transit lines and bus companies using the public thoroughfares for private profit. Bowman v. Birmingham Transit Co., 280 F.2d 531. Furthermore, if the license carries a complete or partial monopoly, the State that confers the benefit probably has a duty to see that it is used without racial discrimination in the service of all those members of the public for whom it purports to be intended.

But it may be doubted whether every one of the hundreds of different kinds of businessmen, each of whom holds a license from a State, is acting as the State so that the State is constitutionally responsible for his conduct. The license is frequently, and perhaps usually, no more than a means of obtaining revenue or of maintaining health, safety, or other standards, and is not a method of charging a business with duties to the public or with performing governmental functions. Moreover, treating licensees as State agencies would raise substantial and troublesome questions as to the applicability of other 14th amendment inhibitions, such as the due process clause, to establishments heretofore regarded as generally immune from such strictures.

(3) A third suggestion, which has been made in various forms, is that discrimination by any "business affected with a public interest" violates the 14th amendment. The phrase "business affected with a public interest" has no definite meaning. It was at one time used to describe businesses which could be made the subject of detailed State regulation without giving rise to valid objections based on the due process clause. It has fallen into disuse in constitutional law except as revived by some of the current constitutional debate over civil rights legislation. It is not at all clear that the doctrine can be transmuted into affirmative support for sustaining the bill under the 14th amendment.

In appraising the degree of likelihood that the Civil Rights cases would not be followed, three sets of circumstances ought to be kept in mind:

(1) The Civil Rights cases were decided 80 years ago and have never been questioned in subsequent opinions of the Court. An expansion of the concept of

State action has occurred, but the basic 14th amendment distinction between governmental and private action has been consistently observed down to the present day.8

(2) In the recent "sit-in" cases, the Court, though asked to adopt the broad interpretation of the 14th amendment, carefully avoided basing its decisions upon any ground casting doubt upon the basic distinction between governmental and private action.

(3) The problem here is very different from the constitutional decisions confronting the New Deal Congresses of the 1930's. The early decisions that would have invalidated such laws as the Wagner Act, the Fair Labor Standards Act, and the Guffey Act had been the subject of widespread criticism by legal scholars; the Court had been sharply divided in those cases and there was an opposing line of decisional authority supporting constitutionality. This was especially true with respect to the Commerce Clause cases. No comparable conditions exist with respect to the 14th amendment.

All of this, of course, is not to say that the Court would necessarily invalidate public accommodations provisions based upon the 14th amendment. In fact, many authoritative legal commentators have expressed the view that the Civil Rights cases would no longer be followed by the Supreme Court. Unless and until this occurs, however, the 1883 cases remain the law.

It thus clearly emerges that there would be serious problems in enacting a public accommodations bill exclusively under the authority of the 14th amendment. Such a step would jeopardize civil rights by taking an unnecessary risk of unconstitutionality. The commerce clause is available as an additional and, it is believed, an unexceptionable and unchallengeable source of power. In recognition of these factors, the administration's bill draws upon both the commerce clause and the 14th amendment as the basis of congressional authority.

III. COVERAGE OF AN EQUAL PUBLIC ACCOMMODATIONS LAW BASED ON THE 14TH AMENDMENT WOULD, UNLESS OTHERWISE DEFINED, BE VAGUE AND UNCERTAIN, WHEREAS LEGISLATION BASED ON THE COMMERCE CLAUSE WOULD BE INTERPRETED IN THE LIGHT OF FAMILIAR PRECEDENTS UNDER THE FAIR LABOR STANDARDS AND NATIONAL LABOR RELATIONS ACTS

Because the Constitution delegates authority in broad and general terms, leaving it to Congress and the courts to work out an exact application, the precise scope of any statute is bound to be uncertain for sometime if its coverage is defined solely in terms of the constitutional limits of congressional power. Thirty years ago an equal public accommodations law framed in terms of the effect of individual enterprises upon interstate commerce might well have been as indefinite in its scope as a law based upon the 14th amendment. Today, however, the coverage of an equal public accommodations law framed in terms of the effect of an enterprise upon interstate commerce is quite clear.

The reason for the certainty in coverage of a law based on the commerce clause is that its reach has been tested and defined in the courts over a long period. There are decisions under the National Labor Relations Act dealing with almost every kind of establishment that might be covered under the proposed equal public accommodations law. Although the Fair Labor Standards Act does not apply to retail or service establishments, many of the legal principles and concepts developed under that statute, as well as others regulating commerce, would be useful guides in interpreting the proposed act. A bill based solely upon the 14th amendment would have no such extensive body of legal precedent upon which the courts could draw in determining its scope.

Moreover, it must be remembered that almost every businessman knows or can easily ascertain whether he regularly serves interstate travelers, even though they are only a small percentage of his business; whether his guests

7E.g., Shelley v. Kraemer, 334 U.S. 113; Burton v. Wilmington Parking Authority, 365 US. 715; Terry v. Adams, 345 U.S. 461. See Williams, The Twilight of State Action, 41 Tex. L. Rev. 390. 8 Shelley v. Kraemer, 334 U.S. 113; Burton v. Wilmington Parking Authority, 365 U.S. 715, 721.

Garner v. Louisiana, 368 U.S. 157; Peterson v. City of Greenville, 373 U.S. 244; Shuttlesworth v. Alabama, 373 U.S. 262; Avent v. North Carolina, 373 U.S. 375; Lombard v. Louisiana, 373 U.S. 267.

are transients; whether some of the goods that he sells or equipment that he uses comes, directly or indirectly, from out of State; or whether his operations, like those of an airport taxi service or local bus company, facilitate the movement of persons or goods in interstate commerce. These tests, plus the specific listings in section 202(a) (1) and (2), would advise most enterprises as to whether they were covered by the law. The addition of the word "substantially" in section 202 (a) (3) is intended to rule out a trifling, occasional, and haphazard relation to interstate commerce that would come within the maxim de minimis non curat lex. Moreover, under the bill as proposed, no penal sanction could be imposed except for contempt of court, that is, for continuing to violate the statute after a judicial determination that the establishment was covered by the act. Thus, doubt as to whether a particular establishment is covered would be resolved prior to entry of an enforceable court order and no property owner would be required to act at his peril without knowing whether he is subject to title II.

A bill based only upon the 14th amendment would pose substantial problems in application and lead to untoward results.

Under one 14th amendment proposal, the predominant tests are whether the business (a) deals with the public, and (b) is required, under State law, to have a license. First, it should be recognized that the requirement of a license might well defeat the purposes of the legislation, for it would be simple enough for any State to repeal its licensing laws and find other means of collecting a tax or enforcing regulations.

Moreover, using the existence of a State license as a test of coverage yields irrational results. Thus, in one or more States, a statute based upon State licenses would not reach department stores, supermarkets, hotels, and boardinghouses, drugstore sales of general merchandise, or amusement parks. On the other hand, in another State the list of covered establishments would include dealers in coffins and caskets, dice dealers, feather renovators, legerdemain and slight-of-hand artists, menageries, peddlers and itinerant vendors, and fortune tellers, palmists, and clairvoyants (although some might escape upon the ground that they sold neither facilities nor goods).

That variations in State laws would make licensing an uneven test is borne out by the laws of four States—Alabama, Mississippi, Minnesota, and Pennsylvania-as applied to just nine common businesses dealing with the public. Department stores would be covered in Alabama and Pennsylvania, but not in Minnesota; in Mississippi coverage would be a matter of local option. Amusement parks would be covered in Alabama and Mississippi, but not in Pennsylvania; in Minnesota it would be a matter of local option. Supermarkets would be covered in Pennsylvania, Alabama, and Minnesota. but not in Mississippi. Bowling alleys would be covered in Alabama, but in Pennsylvania, Mississippi, and Minnesota coverage would be a matter of local option.

Not only would one find these anomalous differences between the States, but there would also be incongruities in the treatment of establishments within a single State. For example, supermarkets would be covered in Minnesota but not department stores. Drugstores selling food in Minnesota would be covered, but not those selling general merchandise. Hotels would not be covered in Pennsylvania, although the law would apply to dancehalls. In Mississippi the law would apply to dancehalls and skating rinks but not necessarily to bowling alleys. Such variations may be rational in terms of the revenue and regulatory aims of State licensing laws, but they have no place in national legislation aimed at securing equality of treatment in public places.

Other proposals embrace the same incongruities and appear even more vague. One suggested test of coverage is whether a business is "authorized by a State or a political subdivision of a State." Since the notion of a business authorized by a State does not seem to appear anywhere else in the law, except perhaps to distinguish prohibited businesses from those not prohibited, the meaning is uncertain. The apparent intent is to reach all those businesses whose activities might be regarded as State action for the purposes of the 14th amendment, but