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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.
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 repre sented 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).
The Court further held that the fact that “appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of Federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. Labor Board v. Fainblatt, 306 U.S. 601, 606 et seq" (317 U.S. at 127–128).
Each of these decisions is replete with citations to additional authority supporting the power of Congress to regulate activities which themselves may be deemed intrastate in character but which burden or obstruct interstate commerce, and subsequent decisions reinforce this doctrine. E.g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 229–35 (1948); United States v. Women's Sportswear Mfctr's Assn., 336 U.S. 460, 464 (1949); United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 539-53 (1944) ; Polish Nat. Alliance v. N.L.R.B., 322 U.S. 643, 648 (1944). As tersely summarized in the Women's Sportswear case:
“If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze” (336 U.S. at 464).
As made clear by the Darby and Wickard v. Filburn decisions, Congress is not limited under the commerce clause by the size or impact on commerce of any particular enterprise subjected to regulation. It is the aggregate impact on commerce of the regulated activities which is determinative, irrespective of the extent of impact of any specific isolated activity. In Wickard v. Filburn, for example, the farmer planted only 23 acres and the amount of wheat at issue amounted to only 239 bushels. Similarly, in Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946), the Fair Labor Standards Act was applied to a newspaper with a circulation of about 9,000 copies of which only 45 were mailed out of the State in which the newspaper was printed.”
Use of commerce clause to eliminate social evils.-It is abundantly clear that Federal public accommodations legislation can be validly founded on the commerce clause even if the proposed legislation be regarded as directed in large measure at a social evil which might be the subject of State regulation under the police power. In the first place, the social evil has clear economic consequences of which the proposed legislation takes account. Furthermore, as stated in Darby:
"It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the States. Seven Cases v. United States, 239 U.S. 510, 513; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156; United States v. Carolene Products Co., 304 U.S. 144, 147; United States V. Appalachian Electric Power Co., 311 U.S. 377" (312 U.S. at 114-115).
Indeed, the commerce power has been relied upon to reach a variety of noneconomic activities deemed to violate public policy. Most pertinent are cases upholding the barring of racial discrimination by interstate carriers and related public facilities; e.g., Georgia v. United States, 371 U.S. 9 (1962), aff'g 201 F. Supp. 813 (N.D. Ga. 1961); Boynton v. Virginia, 364 U.S. 454 (1960); Henderson v. United States, 339 U.S. 816 (1950); Mitchell v. United States, 313 U.S. 80 (1941). The Interstate Commerce Commission has dealt with the subject on numerous occasions, both in specific proceedings and through a general order forbidding such discrimination. Docket No. MC-C-335, paragraphs 180a (1), 180a (2) (1961). Indeed, the Commission's decisions on matters of racial discrimination date back to such cases as Heard v. Georgia R. CO., 1 I.C.C. 719 (1888), and Councill v. Western & A.R. Co., 1 I.C.C. 638 (1887), and extend to such recent decisions as N.A.A.C.P. v. St. Louis S.F. R. CO., 297 I.C.C. 335, 347–8 (1955).
The Supreme Court has also consistently sustained under the commerce clause statutes having major social objectives. It has upheld legislation forbidding the interstate transportation of lottery tickets as an aid to local enforcement of gambling prohibitions. Lottery cases, 188 U.S. 321 (1903). Regulation
2 It has been suggested in some quarters that public accommodations having a gross annual income below a specified amount be excluded from the proposed legislation. We do not favor such an exclusion. The impact on commerce of relatively small businesses may well vary more with the location and community involved than the actual dollar volume. For example, there may be stops along interstate bus and automobile routes where only small lunch counters or motels are available. The applicability of title II would in all cases depend on the applicability of the statutory criteria which refer to activity or operations related to interstate commerce, and in an enforcement action by the Attorney General he would have to certify under sec. 204 (a) (2) (ii) of title II that "the purposes of this title will be materially furthered by the filing of an action."
designed to insure pure food and drugs has been sustained. Hipolite Egg Co. v. United States, 220 U.S. 45 (1911). The banning of transportation of women in interstate commerce for purposes of prostitution has been upheld. Hoke v. United States, 227 U.S. 308 (1913). The prohibition of interstate transportation of women for immoral purposes has been upheld even where commercial postitution is not involved. Caminetti v. United States, 242 U.S. 470 (1917). Thus, it is apparent that there is no pertinent distinction under the commerce clause between "economic" and "social" legislation.
Effect on commerce clause jurisdiction of 5th and 10th amendments.—The proposed legislation would violate neither the 5th nor 10th amendment to the Constitution. It is beyond challenge at this date that reasonable regulation to meet a public evil does not violate the due process clause. “The Constitution does not secure to any one liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people.” Nebbia v. New York, 291 U.S. 502, 538–39 (1934). See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 43-44 (1936); Chicago Board of Trade v. Olsen, 262 U.S. 1, 40-41 (1923).
In Wickard v. Filburn, the Court rejected the contention that the legislation involved violated the fifth amendment by limiting the use of private property.
"It is of the essence of regulation that it lays a restraining hand on the selfinterest of the regulated and that advantages from the regulation commonly fall to others" (317 U.S. at 129).
President Kennedy's message to Congress referred to some 30 States, the District of Columbia, and numerous cities “covering some two-thirds of this country and well over two-thirds of its people” which have already enacted "laws of varying effectiveness” against discrimination in places of public accommodation (the New York Times, June 20, 1963, p. 16, cols. 3-4). It is clear that State and local antidiscrimination laws do not violate the due process clause of the 14th amendment. Railway Mail Assoc. v. Corsi, 326 U.S. 88 (1945) (New York law prohibiting racial discrimination by labor union upheld against due process clause challenge). See also Bolden v. Grand Rapids Operating Corp., 239 Mich. 318, 214 N.W. 241 (1927); Pickett v. Kuchan, 323 Ill. 138, 153 N.E. 667 (1926); People v. King, 110 N.Y. 418, 18 N.E. 245 (1888) (cases involving public accommodations laws). Patently, Federal legislation based upon the commerce clause is no more subject to attack under the due process clause of the 5th amendment than are such State enactments under the 14th amendment. As observed by the Supreme Court in United States v. Rock Royal Co-operative, 307 U.S. 533, 569–70 (1939):
"The authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the States over intrastate commerce.”
Any argument against the validity of the proposed legislation based upon the 10th amendment is similarly without merit, as shown in the Darby case:
"Our conclusion is unaffected by the 10th amendment which provides : "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the National and State Governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new National Government might seek to exercise powers not granted, and that the States might not be able to exercise fully their reserve powers. * * *
“From the beginning and for many years the amendment has been construed as not depriving the National Government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end" (312 U.S. at 123–24).
We believe that the proposed legislation is well within the granted power of Congress and is a wholly appropriate means to deal with a national problem of great importance.
THE 14TH AMENDMENT
The equal protection clause in section 1 of the 14th amendment provides that: “No State * * * shall deny to any person within its jurisdiction the equal protection of the laws." This prohibition may be enforced by Congress by appropriate legislation under the provisions of section 5 of the amendment.