Public Accommodations on Trial

The Congress shall have power to regulate commerce . . . among the several states.-- U.S. Constitution

Can those few words--the famous commerce clause--empower Congress to blow down private racial barriers in public accommodations across the land? Yes, says Congress, which deliberately invoked the commerce clause for Title II of the Civil Rights Act of 1964. No, cry Southern businessmen, who argue that Congress has stretched the clause far beyond its proper reach. So anxious is the Supreme Court to rule on the first two test cases that last week it took the rare step of hearing oral argument on the first day of a new term. Said Justice John M. Harlan: "It is of the utmost public importance that this question be settled."

Avoiding Trouble. Congress linked Title II to the commerce clause for a crucial reason: the fate of the 1875 Civil Rights Act, which sought to use the 14th Amendment to ban racial discrimination by privately owned inns, theaters and the like. In 1883, the Supreme Court voided that law on the ground that the 14th Amendment applies only to state-enforced--not private--discrimination. Attacking private discrimination through the 14th Amendment would thus require a grotesque stretch for links to "state action," such as the fact that practically every business needs a state license.

By contrast, the Court has long permitted Congress to regulate anything that it claims has "a substantial economic effect on interstate commerce." Thus in 1942 (Wickard v. Filburn), the Court upheld the Agricultural Adjustment Act of 1938 as applied to a farmer who sowed only 23 acres of wheat mostly for home consumption. Reasoning: the combined output of many small farmers affects the total flow of interstate commerce.

The Court has also approved federal regulation that has far more social than economic intent--for example, laws against narcotics, gambling and white slavery. In each case the Government did prove a connection with interstate commerce. Now it aims to do the same with racial discrimination--arguing that 1) discrimination is a burden on interstate commerce; 2) segregated businesses are engaged in such commerce; so that 3) they must desegregate within the meaning of Title II.

"Hogwash." The appeal was brought before the Supreme Court last week by the Heart of Atlanta Motel from an adverse ruling by a three-judge lower federal court. Title II requires the motel to serve Negroes, said that court, because it fronts on an interstate highway, welcomes white transients, advertises in national magazines and gets 75% of its guests from outside Georgia.

Ignoring that evidence, the motel's Owner-Lawyer Moreton Rolleston Jr. proceeded to lecture the Justices: "The argument that this law was passed to relieve a burden on interstate commerce is so much hogwash. It was intended to regulate the acts of individuals." If the commerce clause can be stretched that far, declared Rolleston, "Congress can regulate every facet of life."

Yet the basic question, said Justice Hugo Black, is "whether we can say that Congress was wrong in thinking that to deny hundreds of people a right to stop and spend the night places a burden on interstate commerce that Congress has a right to lift."

Congress was indeed right, said Solicitor General Archibald Cox, citing one statistic after another. From Miami to Washington in 1963, he said, the average distance between motels that accepted Negroes was 141 miles. The bar against Negroes cuts business for hotels, stores, theaters and restaurants throughout the South. When Negroes demonstrate, Southern retail sales are cut by as much as 50%. When whites resist, as in Little Rock, new plants stop coming in. Race discrimination not only "distorts the flow of commerce," argued Cox, but also "prevents it from flowing freely."

Trickle by Trickle. But what could Solicitor General Cox say about Ollie's Barbecue in Birmingham? In that second case of the day, Cox was himself appealing a lower-court decision that found Title II could not constitutionally reach a strictly local restaurant.

"There is no way of saying that an interstate traveler has ever been served at Ollie's," said Birmingham Lawyer Robert Smith. Ollie's does no advertising, seeks no transients, is eleven blocks away from the nearest interstate highway and buys most of its meat from a packing plant in Birmingham (though the plant gets the meat from outside Alabama). If Title II forced Ollie's to serve Negroes, said Smith, the result "would convert the commerce clause into a general welfare power under which Congress could encroach upon personal liberty and property to a degree never heretofore imagined."

Cox stuck to one rebuttal: Ollie's supplies come from out-of-state and do affect interstate commerce. Ollie's "trickle," said Cox, is "representative of hundreds of thousands of trickles, and together they make a great stream." This is "a national commercial problem" requiring the "wisdom and discretion of Congress," said Cox, and Title II is "reasonably adapted to the problem."

Will the Supreme Court agree? Not since 1936 has the Court struck down an act of Congress based on the commerce clause, and the current Court is obviously concerned with Negro rights. Still, there is no such thing as an absolutely sure bet on Supreme Court decisions, but the smart money is betting that the Court will squarely face the issue and rule before Election Day.

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