CIVIL RIGHTS-PUBLIC ACCOMMODATIONS APPENDIX THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, August 23, 1963. : Memorandum to Members of the Senate Committees on Commerce and the Judiciary and the House Committee on the Judiciary: Enclosed is a copy of the report of the committee on Federal legislation of the association on proposed Federal civil rights laws relating to public accommodations. It is contemplated that this report, along with a report on other aspects of the proposed civil rights law now pending in Congress, will be published in due course in our Federal Legislation Bulletin and sent to all Members of Congress in accordance with our customary practice. We are sending this copy of the report to you in advance of such publication, because the public accommodations legislation is before your committees, and we thought that you might find it helpful to have the report at this time. Sincerely yours, FRED N. FISHMAN, Chairman. REPORT ON PROPOSED FEDERAL CIVIL RIGHTS LAWS RELATING TO PUBLIC ACCOMMODATIONS INTRODUCTION This report is addressed to certain bills presently before Congress to eliminate discrimination in public accommodations, and to establish causes of action by private individuals and the Attorney General to prevent such discrimination. We have considered principally the provisions comprising title II of the proposed Civil Rights Act of 1963, introduced by Senator Mansfield and others as S. 1731, 88th Congress, 1st session, and by Representative Celler as H.R. 7152, 88th Congress, 1st session. Senator Mansfield and others have also introduced substantially the same provisions as title II in a separate bill, S. 1732, the proposed Interstate Public Accommodations Act of 1963.1 Other bills dealing with this problem have been introduced by a substantial number of other Senators and Representatives, including S. 1591 introduced by Senators Dodd and Cooper and others, and H.R. 6720 introduced by Representative Lindsay and by others in the same form. S. 1731 and H.R. 7152 were proposed by President Kennedy in a special message to Congress on June 19, 1963, which stated that the public accommodations provisions are designed "to guarantee all citizens equal access to the services and facilities of hotels, restaurants, places of amusement, and retail establishments" (New York Times, June 20, 1963, p. 16, col. 4). Title II of S. 1731 invokes the powers of Congress under both the commerce clause and the 14th amendment of the Constitution, with chief reliance placed upon the commerce clause, and with the operative sections, as introduced, relying solely on the commerce clause. S. 1591 and H.R. 6720 are based upon the 14th amendment, and proposals have been made to amend title II to place greater operative reliance upon the 14th amendment. Title II now provides that all persons shall be entitled "without discrimination or segregation on account of race, color, religion, or national origin, to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, 1 Unless otherwise indicated the references to the proposed legislation in this report refer to title II of S. 1731, the full text of which is attached hereto as an appendix. 1525 and accommodations" of enumerated kinds of "public establishments" if such establishments satisfy specified criteria with respect to activities or operations related to interstate commerce. The denial of or interference with the right to nondiscriminatory treatment is prohibited, and an aggrieved person, or the Attorney General for or in the name of the United States, may institute a civil action for injunctive relief in the Federal district courts. In order for the Attroney General to institute suit, he must certify that he has received a written complaint from the aggrieved person and that in his judgment such person is unable to initiate and maintain appropriate legal proceedings because of lack of adequate financial means or effective representation or risk of economic or other injury. If local laws appear to forbid the discrimination complained of, the Attorney General is required to notify the appropriate State or local officials, and, upon their request, to afford them a reasonable time to act before he institutes an action. In the case of other complaints, the Attorney General is required, before instituting an action, to refer the matter to the Community Relations Service, contemplated by title IV of the bill, to attempt to secure compliance with the statute by voluntary procedures. Compliance with the provisions for action by local officials or the Community Relations Service is not required if the Attorney General certifies to the court that delay would adversely affect the interests of the United States or that compliance with such provisions would be fruitless. SUMMARY We support the proposed legislation and we believe it is validly founded on the commerce clause and also derives substantial constitutional support from the 14th amendment. We believe that Congress should rely on both constitutional provisions, since we regard the commerce clause and the 14th amendment as complementary and not competitive sources of congressional power. THE COMMERCE CLAUSE Article I, section 8, clause 3, of the Constitution confers upon Congress the power "To regulate commerce *** among the several States ***." The commerce clause has repeatedly been held by the U.S. Supreme Court to empower Congress to reach and control activity which affects interstate commerce and to remove burdens on such commerce whether or not a particular activity or transaction embraced by the legislation is itself interstate in character. Even if an activity or transaction considered in isolation is both intrastate in character and insubstantial in its impact on interstate commerce, Congress may legislate with regard to the aggregate impact or burden on interstate commerce of all such activities or transactions. The power reaches not only activities which are purely "commercial" in nature, but, in furtherance of particular public policies, can be, and has been, used to reach noncommercial activities. In our opinion, under these principles, each fully supported by authority, the proposed public accommodations law would be a valid exercise of the power of Congress under the commerce clause. Effect of discrimination on interstate commerce.-Title II contains proposed legislative findings that discriminatory acts (a) make unavailable to Negro interstate travelers goods and services which are available to others; (b) make adequate lodgings for Negro interstate travelers difficult to obtain and inconvenient to reach; (c) require Negro interstate travelers to detour to find adequate eating places; (d) restrict the audiences of interstate entertainment industries and thus burden interstate commerce; (e) have led to the withholding of patronage from retail establishments by those affected by such acts and inhibit and restrict the normal distribution of goods in the interstate market; (f) drive conventions away from cities where discriminatory practices prevail; and (g) reduce the mobility of the national labor force and deter the interstate movement of industries. We believe that these findings that discrimination in public accommodations burdens and obstructs interstate commerce are manifestly reasonable for Con. gress to make. Such findings help to lay the proper foundation for legislation intended to deal with the problem as found to exist by Congress and will be given great weight when the constitutionality of the proposed legislation is under attack. See Block v. Hirsh (256 U.S. 135, 154 (1921)); Borden's Co. v. Baldwin (293 U.S. 194, 209 (1934)); Communist Party v. Subversive Activities Control Board (367 U.S. 1, 94 (1961)). Precedents under commerce clause support proposed legislation.-The validity of the proposed legislation as an exercise of the commerce power is clear from the decisions of the U.S. Supreme Court in N.L.R.B. v. Jones & Laughlin Steel Corp. (301 U.S. 1 (1936)), United States v. Darby (312 U.S. 100 (1941)) and numerous other cases. In the Jones & Laughlin case, the Court sustained the constitutionality of the National Labor Relations Act under the commerce clause. The Court held that, irrespective of respondent's contention that its manufacturing activities represented a break in the "stream of commerce," Congress could legislate "to protect interstate commerce from the paralyzing consequences of industrial war" (301 U.S. at 41). The Court summarized the course of relevant authority as follows: "The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a 'flow' of interstate or foreign commerce. Burdens and obstructions may be due to injurious action springing from other sources. The fundamental principle is that the power to regulate commerce is the power to enact 'all appropriate legislation' for 'its protection and advancement' (The Daniel Ball, 10 Wall. 557, 564); to adopt measures 'to promote its growth and insure its safety' (Mobile County v. Kimball, 102 U.S. 691, 696, 697); 'to foster protect, control and restrain.' Second Employers' Liability Cases, supra [223 U.S.] page 47. See Texas & N.O. R. Co. v. Railway Clerks, supra [281 U.S. 548]. That power is plenary and may be exerted to protect interstate commerce 'no matter what the source of the dangers which threaten it.' Second Employers' Liability Cases, page 51; Schecter Corp. v. United States, supra [295 U.S. 495]. 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. Schecter Corp. v. United States, supra. Undoubtedly the scope of this power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national what is local and create a completely centralized government (idem). The question is necessarily one of degree. As the Court said in Chicago Board of Trade v. Olsen, supra [262 U.S.] page 37, repeating what had been said in Stafford v. Wallace, supra [258 U.S. 495]: 'Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause and it is primarily for Congress to consider and decide the fact of the danger and meet it'" (301 U.S. at 36-37). The Court noted that in Chicago Board of Trade v. Olsen, it had upheld the Grain Futures Act of 1922 "with respect to transactions on the Chicago Board of Trade, although these transactions were 'not in and of themselves interstate commerce.' Congress had found that they had become 'a constantly recurring burden and obstruction to that commerce.' Chicago Board of Trade v. Olsen, 262 U.S. 1, 32" (301 U.S. at 35-36). In the Jones & Laughlin case, furthermore, the Court stressed the factor of experience in determining the scope of congressional power over interstate commerce: "We have often said that interstate commerce itself is a practical conception. It is equally true that interferences with that commerce must be appraised by a judgment that does not ignore actual experience. "Experience has abundantly demonstrated, that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife. This is such an outstanding fact in the history of labor disturbances that it is a proper subject of judicial notice and requires no citation of instances" (301 U.S. at 41-42). This emphasis on the relevance of practical experience has clear pertinence to the present question. Similarly, in United States v. Darby, the Supreme Court sustained provisions of the Fair Labor Standards Act barring from shipment in interstate commerce goods produced by employees whose wages and hours of employment did not conform to the requirements of the statute, and prescribing adherence to such requirements with respect to all employees engaged in the production of goods for commerce. In upholding the prohibition on shipment of the proscribed goods in interstate commerce, the Court considered the nature of the commerce power: "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. McCray v. United States, 195 U.S. 27; Sonzinsky v. United States, 300 U.S. 506, 513 and cases cited. "The judicial cannot prescribe to the legislative department of the Government limitations upon the exercise of its acknowledged power.' Veazie Bank v. Fenno, 8 Wall. 533. Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause" (312 U.S. at 115). The power of Congress to forbid the production of goods for commerce unless the prescribed labor standards were met was likewise upheld, and the Court stated: "The power 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 means 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. Cf. United States v. Ferger, 250 U.S. 199. "But it does not follow that Congress may not by appropriate legislation regulate intrastate activities where they have a substantial effect on interstate commerce. See Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 466. A recent example is the National Labor Relations Act for the regulation of employer and employee relations in industries in which strikes, induced by unfair labor practices named in the act, tend to disturb or obstruct interstate commerce. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38, 40; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 604, and cases cited. But long before the adoption of the National Labor Relations Act this Court had many times held that the power of Congress to regulate interstate commerce extends to the regulation through legislative action of activities intrastate which have a substantial effect on the commerce or the exercise of the congressional power over it" (312 U.S. at 118-20). The aggregate impact on commerce of goods produced under prescribed conditions was deemed controlling rather than the volume of any one shipper or producer: "Congress, to attain its objective in the suppression of nationwide competition in interstate commerce by goods produced under substandard labor conditions, has made no distinction as to the volume or amount of shipments in the commerce or of production for commerce by any particular shipper or producer. It recognized that in present-day industry, competition by a small part may affect the whole and that the total effect of the competition of many small producers may be great. See House Report No. 2182, 75th Congress 1st session, p. 7. The legislation aimed at a whole embraces all its parts (cf). National Labor Relations Board v. Fainblatt, supra, 606" (312 U.S. at 123). Again, in Wickard v. Filburn, 317 U.S. 111 (1942), the Court upheld the marketing penalties imposed for noncompliance with the wheat marketing quotas of the Agricultural Adjustment Act of 1938, even with respect to production not intended for commerce but wholly for consumption on the farm. The Court stated that "even if appellee's [the farmer's] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect'" (317 U.S. at 125). The Court's consideration in that case of the power of Congress to stimulate commerce is likewise pertinent with respect to the proposed findings in title II: "The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices" (317 U.S. at 128-129). |