By Will Parker
Title II of the Civil Rights Act of 1964 banned racial discrimination in a variety of businesses deemed “public accommodations.” These ranged from “inns, hotels, and motels” and “restaurants and cafeterias” to “theaters and motion picture houses.” The passage of the act was a result of the “vast and sustained public outcry” of the black civil rights movement that reached a fever pitch around the late 1950s and early 1960s (Oddo 341). The law has often received praise for its effectiveness in decreasing discrimination against blacks. Civil rights historians Melvin Urofsky and Paul Finkelman said it had a “profound impact in many areas” (2: 807). In much of the press, analysis of the act is similarly positive. For example, in the hubbub surrounding the 50th anniversary of President Kennedy’s assassination Azmat Khan of Al-Jazeera America credited Kennedy with helping “pave the way for the Civil Rights Act of 1964” as part of a civil rights record which Khan counts among Kennedy’s “greatest legacies.” Even in an article re-considering Kennedy’s civil rights legacy, he is begrudgingly praised for his work in passing the act (Milner). Before it reached this widespread modern acceptance, however, the act underwent two major legal challenges. In the 1964 cases Heart of Atlanta Motel v. United States and Katzenbach v. McClung, both of which revolved around the supposed illegality of the “public accommodations” section of Title II of the act, the Supreme Court upheld the law (Urofsky and Finkelman 2: 807). Interestingly, however, 81 years before, in the 1883 Civil Rights Cases, a federal law with very similar language to Title II was rejected by the Supreme Court for being unconstitutional (Urofsky and Finkelman 1: 482). This reversal in constitutional interpretation came about as a result of several cases which increased the power of the Commerce Clause of the Constitution and because of a change in national opinion about racial equality in the years between 1883 and 1964.
The Civil Rights Act of 1964 and the Supreme Court
First, a little background on the Supreme Court cases and constitutional clauses tied up with Title II of the Civil Rights Act of 1964. In the first case, Heart of Atlanta Motel v. United States, which involved a whites-only Atlanta hotel, “the Court upheld congressional power under the Commerce Clause, the Equal Protection Clause and Section 5 of the Fourteenth Amendment” (Urofsky and Finkelman 2: 807). The Commerce Clause comes from Section 8 of Article I of the U.S. Constitution, and grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The 14th Amendment attempts to ensure that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 5 of the 14th Amendment grants Congress the power to enforce the amendment. Supreme Court Justice Clark said in his Heart of Atlanta majority opinion that, with the Commerce Clause as justification, “Congress possessed ample power” to outlaw discrimination in public accommodations (Urofsky and Finkelman 2: 807). As Urofsky and Finkelman point out, “the record clearly showed that the hotel advertised along interstate highways, that it catered to conventions, and that approximately 75 percent of its registered guests came from out of state” (2: 807).
The second case served to hammer home the court’s stance. In Katzenbach v. McClung, the Supreme Court defended the law’s provisions regarding the enforced desegregation of restaurants. The case involved a violation of Title II of the Civil Rights Act of 1964 by Ollie’s Barbecue. The Birmingham, Alabama, restaurant refused to seat black customers in its dining area. Instead, it offered them a take-out service (“Katzenbach v. McClung (No. 543)”). In contrast to the Heart of Atlanta Motel, Ollie’s Barbecue “did not solicit interstate business,” “was not located near an interstate road or bus or train connections,” and “served primarily local customers” (Urofsky and Finkelman 2: 807). The restaurant did buy almost half its food from out of state, however, and the Court decided that “discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes” and thus could be regulated under the Commerce Clause (“Scope of Congressional Power” 575).
The Civil Rights Act of 1875 and the Supreme Court
The Civil Rights Cases, with their opposite result to Katzenbach and Heart of Atlanta Motel, arose in response to the Civil Rights Act of 1875, one of the last laws passed during Reconstruction (Urofsky and Finkelman 1: 481). The similarities between the 1875 act and Title II of the Civil Rights Act of 1964 are striking. The 1875 law prohibited “racial discrimination in public places” which it defined as including “inns,” “theaters,” “conveyances on land and water,” and “places of public amusement” (Civil Rights Act of 1875 PBS). The act stirred up a furor among some Americans concerned with social mores in common spaces like railroads. Tennessee’s state legislature, for example, quickly “enacted its own law abolishing the state common law right of equal access to public accommodations and transportation” (Lopez 10). Unsurprisingly, the Civil Rights Act of 1875 soon faced 5 different suits, which the Court then combined into one hearing and ruling (Urofsky and Finkelman 1: 481). The government defended the law on the grounds of the 14th amendment, with its guaranteed equality of citizenship rights, and, especially, Section 5’s enforcement clause. However, in his majority opinion, Justice Joseph Bradley “decided to deny that Congress had any affirmative powers under the amendment” (Urofsky and Finkelman 1: 482). Instead, Bradley wrote, Congress could only act in response to state legislation that curbed fundamental black rights, not against “private discrimination.” As Urofsky and Finkelman write, “the Court in one stroke severely restricted congressional power under the Fourteenth Amendment to protect the freedmen and left their fate to the states and the courts” (1: 482).
Though Title II of the 1964 Civil Rights Act had almost exactly the same language as the 1875 Civil Rights Act which was struck down, the Court upheld it. Why the great change? One reason is legal developments with regard to the Commerce Clause of the U.S. Constitution that took place in the intervening years.
Legal Development of the Commerce Clause
The Commerce Clause’s power was initially established in 1824 in the case Gibbons v. Ogden. Prior to the case, “it was common for states to legislate in matters that touched on commerce between states, and it was not clear whether navigation or transportation should be deemed ‘commerce’” (Presser). Gibbons v. Ogden involved a New York steamship monopoly granted to Aaron Ogden by the New York state legislature; Thomas Gibbons was running steamships in competition with Ogden under a federal law (Presser). At question was whether the federal government had a right to regulate commerce that took place within a state. Interestingly, Chief Justice John Marshall and the majority of the court ruled in favor of Gibbons and the federal law’s legitimacy (Presser). Marshall went on to say that it was incorrect to “contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument” (Presser). Thus, Marshall’s ruling in Gibbons v. Ogden strengthened the Commerce Clause and the federal government.
The second major case of importance in the history of the Commerce Clause came in 1895, this time with a contrary weakening effect. In United States v. E.C. Knight, the Court, led by Chief Justice Melville Fuller, ruled that the federal government could not regulate the manufacturing of the massive American Sugar Refining Company under the Sherman Act (McBride). The Commerce Clause, the court ruled, “only permitted federal regulation of the buying, selling, and transportation of goods between states” (McBride). This case, coming only 12 years after the Civil Rights Cases, shows a generally constructionist interpretation of the Constitution, an interpretation that would be difficult to reconcile with the broad powers attributed to federal government under the Commerce Clause 70 years later in Heart of Atlanta Motel v. United States.
The legal gap between E.C. Knight and Heart of Atlanta was bridged by another landmark case, this time in 1937. The case, National Labor Relations Board v. Jones & Laughlin Steel Corp., arose after the 1935 Labor Relations Act allowed the federal government to intervene in labor-management disputes (“NLRB”). When the NLRB charged Jones & Laughlin Steel Corporation with discriminating against union-member employees (“NLRB”) and the corporation failed to come into compliance with the board, the case went to court. The defendants at the corporation stated that “the [1935 Labor Relations Act] is in reality a regulation of labor relations, and not of interstate commerce” (“National Labor Relations Board”). However, the Court found that “the Act was narrowly constructed so as to regulate industrial activities which had the potential to restrict interstate commerce” (“NLRB”). The court’s decision indicated that the power granted by the Commerce Clause extended beyond traditional regulation of trade and navigation if the activities in question were likely to affect interstate commerce.
By 1937, therefore, the Commerce Clause had become a powerful tool of federal power. This may explain its explicit use as a justification for the constitutionality of Title II of the Civil Rights Act of 1964. The act defines places of “public accommodation” as business whose “operations affect commerce.” In contrast, the 1875 Civil Rights Act lacks any mention of regulation of commerce as a justification for the law. Rather, it relies solely upon the 14th Amendment. The act indirectly references the Amendment, declaring that it is the “duty of government in its dealings with the people to mete out equal and exact justice to all.” This defense, as we have seen, was struck down by Justice Bradley and the Court’s insistence that the 14th Amendment could only remedy state injustice, not “private discrimination” (Urofsky and Finkelman 1: 482). The stroke of genius of the 1964 Civil Rights Act, therefore, was its use of the expanded Commerce Clause power forged in cases like Gibbons v. Ogden and National Labor Relations Board v. Jones & Laughlin Steel Corp to legitimize the law.
The Public Opinion Swing
The other central reason for the different verdicts on the constitutionality of federal bans on “private discrimination” was a sea change in national public opinion. It can be difficult to ascertain public opinion during the late 19th century because of a lack of good opinion polling data. However, Urofsky and Finkelman claim that, despite the passage of the Civil Rights Act of 1875, “most white Americans, Northern and Southern, believed in white supremacy” at the time (1: 481). These views were harbored even in the highest ranks of the government: Gideon Welles, Secretary of the Navy at the time, expressed happiness that slavery was abolished, but added “…the Negro is not, and never can be the equal of the White. He is of an inferior race and must always remain so” (1: 481).
In contrast, the views of the government and the nation seemed to have shifted more toward a belief in the equality of the races by 1964. Urofsky and Finkelman hint at this, pointing out that the passage of the 1964 Civil Rights Act “would mark the alignment of all three branches of the federal government in strong advocacy of civil rights” (2: 806). A National Opinion Research Center Study by Mildred A. Schwartz taken on 1963 racial attitudes sheds some light on this as well. Schwartz comments that, comparing the years before to 1963, “The per cent in the North who say they have become more favorable to [black and white] integration is, then, reasonably modest, though greater than the per cent who say that they have become less favorable” (92). Even in the South, Schwartz adds, “a small but important segment of the population admits to having become more approving [of integration]” (92). “New receptivity on the part of many whites” as well as the black civil rights movement (Schwartz 89) seems to have contributed to a more favorable national environment for the Civil Rights Act of 1964.
The Civil Rights Act of 1964 was uniquely well-timed to be able to pass the test of the nation’s highest court. Title II of the act was not the first attempt by the federal government to restrict “private discrimination” in places of “public accommodation,” but it succeeded where the Civil Rights Act of 1875 failed because of its skillful use of the Commerce Clause as a justification for intervention. Granted, the creators of the Civil Rights Act of 1875 did not have that tool as readily available, because the legal precedent established in National Labor Relations Board v. Jones & Laughlin Steel Corp had not yet been laid down. Furthermore, the crafters of the Civil Rights Act of 1875 had to deal with prevalent and embedded racism. Though the Civil Rights Act of 1964 surely dealt with that problem as well, it had the advantage of coming about in a time of growing acceptance of integration and black civil rights. Legal precedent as well as public opinion, then, resulted in the divergent paths of two very similar legislative attempts at reducing racial discrimination.
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