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.2

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."

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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.

The findings in title II of S. 1731 rely on the 14th amendment, as well as the commerce clause, in section 201 (h) and (i), which provide:

"(h) The discriminatory practices described above are in all cases encouraged, fostered, or tolerated in some degree by the governmental authorities of the States in which they occur, which license or protect the businesses involved by means of laws and ordinances and the activities of their executive and judicial officers. Such discriminatory practices, particularly when their cumulative effect throughout the Nation is considered, take on the character of action by the States and therefore fall within the ambit of the equal protection clause of the 14th amendment to the Constitution of the United States.

"(i) The burdens on and obstructions to commerce which are described above can best be removed by invoking the powers of Congress under the 14th amendment and the commerce clause of the Constitution of the United States to prohibit discrimination based on race, color, religion, or national origin in certain public establishments."

S. 1591 and H.R. 6720 are based exclusively on the 14th amendment. S. 1591 provides relief against discrimination in public accommodations "conducted under a State license," and H.R. 6720 provides relief against discrimination in businesses "authorized by a State."

Consideration of a 14th amendment basis for public accommodations legislation must begin with the Civil Rights cases, (109 U.S. 3 (1883)). The Supreme Court there held that sections 1 and 2 of the Civil Rights Act of 1875, which purported to prohibit discrimination in "inns, public conveyances on land or water, theaters, and other places of public amusement," were unconstitutional because directed at individual rather than State action :

"It is State action of a particular character that is prohibited (by the 14th amendment). Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws" (109 U.S. at 11).

It is hardly likely that the "State action" requirement of the Civil Rights cases will be overruled, particularly in view of such recent pronouncements by the Court as in Burton v. Wilmington Pkg. Auth., 365 U.S. 715, 722 (1961): "It was clear, as it always has been since the Civil Rights cases, supra, that 'Individual invasion of individual rights is not the subject matter of the amendment' ***"

The principle of the Civil Rights cases, however, does not prevent application of the proposed legislation to the areas of discriminatory activity which are already subject to the congressional power granted by the 14th amendment; namely, activity which is not purely "individual invasion of individual rights" but involves the State sufficiently to bring the amendment into play. Indeed, the majority of the Court in the Civil Rights cases addressed itself only to the lack of any requirement of State action under the 1875 act and did not consider what degree of State participation is required to support the applicability of the 14th amendment, stating:

"It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.

"An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the 14th amendment on the part of the States" (109 U.S. at 13-14).

The concept of "State action" under the 14th amendment has undergone considerable expansion in recent years. Thus, the prohibitions of the 14th amendment extend to State judicial enforcement of racially restrictive covenants among private persons. Shelley v. Kraemer, 334 U.S. 1 (1948). The enforcement of State trespass statutes against Negroes for refusing to leave a lunch counter has been held to be barred by the 14th amendment where there is a local segregation ordinance. Even if the exclusion is based on the store manager's own decision, the equal protection clause is applicable because the existence of the ordinance is deemed to remove his decision from the sphere of private choice. Peterson v. Greenville, 373 U.S. 244 (1963). Where local officials in the absence of an ordinance publicly state that Negroes would not be permitted to seek desegregated lunch counter service, the situation is considered the same from the standpoint of the 14th amendment as if there were such an ordinance. Lombard v. Louisiana, 373 U.S. 267 (1963). Lessees operating

restaurants in a municipal airport and in an automobile parking building operated by a State agency have also been held subject to the 14th amendment. Turner v. Memphis, 369 U.S. 350 (1962); Burton v. Wilmington Pkg. Auth., 365 U.S. 715 (1961). In these and other situations, the application of the 14th amendment is no longer in doubt, and such decisions suggest that there may well be further expansion of what constitutes "State action" under the amendment when other factual situations come before the Court.

The reliance upon the granting of a State license or authorization in S. 1591 and H.R. 6720 for 14th amendment coverage may rest in part upon a portion of the dissenting opinion of the first Mr. Justice Harlan in the Civil Rights cases. In the course of his discussion of discriminatory treatment in places of public amusement as a vestige of slavery which could be barred by Congress under the 13th amendment, he stated:

"The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction. A license from the public to establish a place of public amusement, imports, in law, equality of right, at such places, among all the members of that public. This must be so, unless it be-which I deny that the common municipal government of all the people may, in the exertion of its powers, conferred for the benefit of all, discriminate or authorize discrimination against a particular race, solely because of its former condition of servitude." 109 U.S. 41. Similarly, in his discussion of the 14th amendment, he wrote: "What I affirm is that no State, nor the officers of any State, nor any corporation or individual wielding power under State authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in those rights, because of their race, or because they once labored under the disabilities of slavery imposed upon them as a race.' 109 U.S. 59.

Mr. Justice Douglas substantially reiterated this position with respect to the 14th amendment in two recent concurring opinions. Lombard v. Louisiana, 373 U.S. 267, 274 (1963); Garner v. Louisiana, 368 U.S. 157, 184 (1961). In Garner, Mr. Justice Douglas also adverted to the pattern of segregation pursuant to Louisiana custom :

"Though there may have been no State law or municipal ordinance that in terms required segregation of the races in restaurants, it is plain that the proprietors in the instant cases were segregating blacks from whites pursuant to Louisiana's custom. Segregation is basic to the structure of Louisiana as a community; the custom that maintains it is at least as powerful as any law. If these proprietors also choose segregation, their preference does not make the action 'private,' rather than 'State,' action. If it did, a minuscule of private prejudice would convert State into private action. Moreover, where the segregation policy is the policy of a State, it matters not that the agency to enforce it is a private enterprise." 368 U.S. 181. [Emphasis in opinion.] In view of the Lombard decision, it would appear that the practice of segregating public accommodations in many communities to conform to the position taken by local officials would infringe the 14th amendment even in the absence of local laws requiring segregation. The combination of various circumstances, perhaps including elements of local licensing, regulation, official attitude and custom, might in other instances also support the application of the strictures of the 14th amendment. Licensing alone, however, has not thus far been judicially adopted as a basis for invoking the 14th amendment. Moreover, legislation referable to a licensing requirement alone could produce arbitrary variations between communities depending upon the nature and extent of local licensing laws and might exclude various types of public accommodations entirely if licensing of them is abolished or nonexistent in the locality. However, there is no necessity to have the reliance on the 14th amendment so limited.

Over 90 years ago Congress exercised its power under the 14th amendment to provide relief against deprivation of constitutional rights "under color of any statute, ordinance, regulation, custom, or usage of any State or Territory ***" 42 U.S.C. 1983 (originally sec. 1 of the Ku Klux Act of April 20, 1870). See Monroe v. Pape, 365 U.S. 167 (1961). Congress has also employed similar language in imposing criminal penalties for the deprivation of constitutional rights. 18 U.S.C. 242. The Court in the Civil Rights cases adverted with apparent approval to the substantially similar version of this penal statute

then in effect as illustrative of an act which was properly directed against "State action" under the 14th amendment. The Court said:

"This law is clearly corrective in its character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to wit, the words 'any law, statute, ordinance, regulation or custom to the contrary notwithstanding,' which gave the declaratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to State laws, by making the penalty apply only to those who should subject parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any State or Territory; thus preserving the corrective character of the legislation." 109 U.S. 16-17.

Title II of S. 1731 might be amended in similar terms, as has been suggested by some proponents of increased reliance on the 14th amendment, by providing for preventative relief against discrimination in specified kinds of public establishments by any persons acting under color of any law, statute, ordinance, regulation or custom or usage having the force of law, of any State or Territory.3

USE OF MULTIPLE CONSTITUTIONAL SUPPORT

We believe that reliance on both the commerce clause and the 14th amendment in the proposed legislation would be highly advisable. The broadest coverage and the most secure constitutional support can be derived from reliance upon all pertinent sources of power. Much legislation is expressly founded on more than one power of Congress, and the Supreme Court has relied on multiple constitutional support in upholding the validity of various statutes, e.g. Board of Trustees v. United States, 289 U.S. 48 (1933) (Tariff Act of 1922 upheld under power to raise revenues and power to regulate commerce with foreign nations); Ashwander v. T.V.A., 297 U.S. 288 (1936) (Tennessee Valley Authority Act upheld on basis of war, commerce, and navigation powers). See also United States v. Manning, 215 F. Supp. 272 (W.D. La. 1963) (voting registration provisions of Civil Rights Act of 1960 upheld under 14th and 15th amendments). Similarly, in the elimination of discriminatory treatment in public accommodations, the sources of congressional power provided by the Commerce Clause and the 14th amendment are fully compatible, and we believe that both should be invoked by Congress.

POLICY CONSIDERATIONS AND RECOMMENDATION

The course of recent events makes it plain that the demands of the Negro for just treatment are being insistently pressed and that, 100 years after the Emancipation Proclamation, the patients of the Negro with inequality and injustice is at an end. Legislation and judicial decisions have, in recent years, begun to afford redress in numerous respects, but discriminatory treatment in public accommodations open to others remains a continual affront.

We thoroughly endorse the moral and social objectives of the proposed legislation. It is a primary, ancient and honorable function of the law to provide the instruments for the peaceful and just resolution of disputes among men. We believe that it is the responsibility of the bar to support the provision of adequate legal remedies to that end and to encourage the respect for legal processes which can only be fostered among the affected groups by providing vehicles of relief against injustice. In our opinion the proposed legislation would fill the serious need for a means under law to redress a major grievance of the Negro. We approve the individual right of action provided by the bill, but in view of the frequent obstacles to suit by private litigants for relief against discriminatory treatment, we believe that an active, affirmative role by the Federal Government is necessary. Hence, we endorse the provisions in the proposed legislation

Such a provision in the proposed legislation would to some extent parallel the provisions of 42 U.S.C. 1983, supra, but would give the Attorney General a cause of action not afforded by that section.