On August 1, 2013 at the
Townhall.com site, Ann Coulter rightly took Mr. Cable TV news, Bill Reilly, to
the woodshed for a recent statement he made about the former Attorney General
of the United States, United States Senator, and candidate for the presidency,
Robert F. Kennedy. Coulter quotes O’Reilly as saying that RFK was “the guy who was really concerned about
African-Americans . . . .” (My emphasis.)
Coulter devastates the O’Reilly-propagated
mythology, unmasking his ignorance of the facts and exposing the Kennedy
brothers as the scheming politicians they were, pandering to the worst
political racists seen in the Twentieth Century.
What is not well known about RFK, however, is
how as Attorney General of the United States he used the United States’
Constitution’s Commerce Clause to violate the property rights of uncountable
citizens of this country then and now.
In 1964, . . . Congress and the Supreme Court teamed up to use the Commerce Clause as an engine of moral righteousness. [Mr. O’Reilly’s hero, Robert F. Kennedy was the midwife for the birth of this pernicious engorgement of the Commerce Clause.]
The Heart of Atlanta Motel—a privately owned, local establishment—had 216 rooms available to transient guests. Accessible to two interstate highways, the motel solicited business through national advertising and some fifty billboards and highway signs throughout Georgia. The motel served conventioneers from outside Georgia, and about 75 percent of its registered guests were from outside the state. The Heart of Atlanta Motel, however, was physically within the State of Georgia.
Ollie’s Barbecue was a privately owned restaurant in Birmingham, Alabama, catering to a family and white-collar trade, specializing in barbecued meats and homemade pies. It had a seating capacity of 220 and was located on an Alabama state highway eleven blocks from an interstate. Bus stations and a railroad were not far away. Ollie’s Barbecue purchased about half of its food from a local supplier who, in turn, procured it from outside Alabama. Ollie’s Barbecue, however, was physically within the State of Alabama.
Both
Heart of Atlanta Motel and Ollie’s Barbecue had inflexible policies against
accommodating Negroes, the establishments’ owners believing that because the
businesses belonged to them, they could indulge their racist attitudes and
decline to serve whomever they pleased.
For
many years preceding the civil rights movement of the sixties a large number of
people in the United States, Northerners and Southerners alike, rightly
considered racial discrimination ignorant, vile, immoral, and un-American. This
attitude included racism not only in the public sector, as reflected by such
policies as the South’s Jim Crow laws, but in the private sector as well, where
it was not uncommon to find even Northern universities enforcing racial quotas
against Negroes and even Jews.
Following
World War II, gains started to be made against official racial
discrimination at the federal, state, and local levels, and the Supreme Court’s
landmark 1954 school desegregation decision in Brown v. Board of
Education was the spark that ignited the eventually successful organized
civil rights movement.
But
not everything that movement spawned was legitimate, as the Heart of Atlanta
and Katzenbach (Ollie’s Barbecue) cases prove.
Brown
v. Board of Education had invoked the Equal Protection Clause of the
Fourteenth Amendment—“No State[[i]]
shall . . . deny to any person within its jurisdiction the equal protection of
the laws” (my emphasis)—against official, government racial
discrimination.
But
that wasn’t good enough for some people, who had no difficulty ignoring the crucial
distinction between public and private discriminatory conduct. It
wasn’t enough for them—rightly—to attack government racial discrimination.
They insisted on prohibiting and punishing also the private racially
discriminatory choices made by all the Heart of Atlanta Motel– and Ollie’s
Barbecue–type establishments throughout the United States.
This
public-private dichotomy is of utmost importance generally, and all the more so
when racial discrimination is involved. It’s axiomatic that government,
at all levels, must not discriminate racially. However, as irrational and
immoral as private racial discrimination is, the Constitution does not
prohibit it. No more than it bars gigolos from marrying spinsters for their
money, parental indifference to their children’s spiritual needs, or religious
bigotry. Indeed, the very nature of a free country, embodied in its
Constitution, distinguishes between public and private morality.
As
much as victims of racial discrimination had a constitutional right to
nondiscriminatory treatment by their government, and a moral
right to it from other individuals, those rights were not the same. To
attempt a synthesis of the two—to hold that the Constitution required private
individuals to eschew racial prejudice—was, in effect, to make government the
arbiter of private morality. It was also to erase the difference between public
and private conduct, to compel some people to fulfill the aspirations of others
(however legitimate) and, in so doing, to ignore the fact that it is a contradiction
to try vindicating supposed “rights” by violating the actual rights of others. Let alone to sacrifice the private values
and choices of some to the collective’s moral philosophy—let alone by applying the
compulsive force of statist government.
None
of these distinctions, however, or anything else, prevented some militant
antidiscrimination forces from attempting to convert Negroes’ moral rights
into their constitutional rights concerning the use of other people’s private property.
How could they accomplish that?
Since
the antidiscrimination forces couldn’t use the Fourteenth Amendment against the
motel and restaurant (no state was denying equal protection or due
process), they tried another tactic. Instead of relying on the Constitution, they sought to enact a
federal statute.
Thus,
in the early sixties a broad-based federal Civil Rights Act was proposed. It was
to be based on not the Fourteenth “state action” Amendment, but on an entirely
different constitutional provision, the Commerce Clause.
One
section of the proposed act was intended to prohibit private racial
discrimination in a wide range of so-called public accommodations. Motels and
restaurants, for example.
Although
the bill had many congressional supporters, there were serious reservations
about whether Congress could legitimately reach the private
racially discriminatory practices of local business establishments.
Senate hearings in 1963 spotlighted the problem:
Attorney General [Robert] Kennedy: We base this [proposed
legislation] on the commerce clause.
Senator [Almer] Monroney: . . . many of us are worried about the use the
interstate commerce clause will have on matters which have been for
more than 170 years thought to be within the realm of local control
under our dual system of State and Federal government [federalism].
Senator Monroney: I strongly doubt we can stretch the interstate
commerce clause that far . . . .
Senator Monroney: If the court decisions . . . mean that a business,
no matter how intrastate in its nature, comes under the interstate commerce
clause, then we can legislate for other businesses in other fields in addition
to the discrimination legislation that is asked for here.
Attorney General Kennedy: If the establishment is covered by the commerce
clause, then you can regulate; that is correct . . . .
Senator [Strom] Thurmond: Mr. Attorney General, isn’t it true that all of
the Acts of Congress based on the commerce clause . . . were primarily designed
to regulate economic affairs of life and that the basic purpose of this bill is
to regulate moral and social affairs?
Attorney General Kennedy: . . . I think that the discrimination that is
taking place at the present time is having a very adverse effect on our
economy.
Even though Kennedy was trying to invoke the Commerce Clause as
the justification for the “public accommodations” section of the Act, he and
the senators knew better:
Attorney General Kennedy: Senator, I think that there is an injustice that
needs to be remedied. We have to find the tools with which to remedy that
injustice . . . .
Senator [John Sherman] Cooper: I do not suppose that anyone would
seriously contend that the administration is proposing legislation,
or the Congress is considering legislation, because it has
suddenly determined, after all these years, that segregation is a
burden on interstate commerce. We are considering legislation because
we believe, as the great majority of people in our country believe,
that all citizens have an equal right to have access to goods, services,
and facilities which are held out to be available for public use and
patronage.
Senator [John] Pastore: I believe in this bill because I believe in
the dignity of man, not because it impedes our commerce. I don’t think any man
has the right to say to another man, you can’t eat in my restaurant because you
have a dark skin; no matter how clean you are, you can’t eat in my restaurant.
That deprives a man of his full stature as an American citizen. That shocks me.
That hurts me. And that is the reason why I want to vote for this law. Now it
might well be that I can effect the same remedy through the commerce clause.
But I like to feel that what we are talking about is a moral issue, an
issue that involves the morality of this great country of ours.[ii]
(My emphasis.)
This
scheme of curing the moral failings of private citizens, by an even more
tortured interpretation of the Commerce Clause than already existed under the M’Culloch-Gibbons-Wickard axis of cases,
found its way into a Senate Hearing Report:
The primary purpose of . . . [the “public accommodations”
section of the Civil Rights Act], then, is to solve this problem, the deprivation of personal dignity that surely accompanies denials of equal access
to public establishments. Discrimination is not simply dollars and cents,
hamburgers and movies; it is the humiliation,
frustration and embarrassment that a person must surely feel when he is
told that he is unacceptable as a member of the public because of his race or
color. (My emphasis.)
This
was, of course, a confession that the Commerce Clause was being stretched
beyond any legitimate meaning, which was not a secret to most members of
Congress. Indeed, they were not the only ones having serious reservations about
extending federal Commerce Clause power so far as to control the private racial
choices made by local business establishments. One of America’s most
distinguished constitutional law authorities, Professor Gerald Gunther,
informed the Department of Justice, unequivocally, that use of the Commerce
Clause to bar private racial discrimination in local places of “public
accommodation” would be unquestionably unconstitutional:
The commerce clause “hook” has been put to some rather strained
uses in the past, I know; but the substantive content of the commerce clause
would have to be drained beyond any point yet reached to justify the simplistic
argument that all intrastate activity
may be subjected to any kind of national regulation merely because some formal
crossing of an interstate boundary once took place . . . . The aim of the
proposed antidiscrimination legislation, I take it, is quite unrelated to any
concern with national commerce in any substantive sense. It would, I think,
pervert the meaning and purpose of the commerce clause to invoke it as the
basis for this legislation.[iii]
Despite
the reservations of many knowledgeable people, the Civil Rights Act of 1964 was
enacted, resting on the power granted to Congress in the Commerce Clause of Article
I, section 8. Soon the constitutionality of the Act’s “public accommodations”
section was before the Supreme Court of the United States.
The
question for the Court in Heart of Atlanta and Katzenbach was the
same: Did Congress exceed its constitutionally delegated powers under the
Commerce Clause when it compelled the private owners of local businesses to
serve customers whom they declined to serve for racially motivated reasons?
With
the ghosts of John Marshall and Robert Jackson looking over their shoulders,
the nine Justices of the Warren Court unanimously upheld the “public accommodations”
section of the Act as a constitutionally acceptable exercise of Congress’s
power under the Commerce Clause.
To
reach that result, the Court relied on earlier cases in which it had allowed
Congress to regulate such aspects of business as the sale of products, wages
and hours, labor relations, crop control, and more—all because those aspects
had some connection, no matter how tenuous, with interstate commerce.
Those
precedents, together with the motel’s and restaurant’s albeit tenuous relationships
with interstate commerce—through the former’s customers and the latter’s food
purchases—were deemed sufficient by the Court to allow Congress to impose the
Act’s “public accommodations” prohibition on the two privately owned local
businesses. The Court’s rationale in both Heart of Atlanta and Katzenbach,
though lengthy, speaks for itself:
These exclusionary practices were found to be nationwide, the Under Secretary of Commerce testifying that there is “no question that this discrimination in the North still exists to a large degree” and in the West and Midwest as well. * * *
This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler’s pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. * * *
This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his “belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations.” We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel. (Heart of Atlanta Motel, Inc. v. United States)
In Katzenbach v. McClung, the Court stated that Article I, s 8, cl. 3, confers
upon Congress the power “to regulate Commerce * * * among the several States”
and Clause 18 of the same Article grants it the power to make “all Laws which
shall be necessary and proper for carrying into Execution the foregoing Powers.” * *
* This grant, as we have pointed out in Heart of Atlanta Motel ”extends to
those activities intrastate which so affect interstate commerce, or the
exertion of the power of Congress over it, as to make regulation of them
appropriate means to the attainment of a legitimate end, the effective
execution of the granted power to regulate interstate commerce.”
* * *
[Even if Ollie’s Barbecue] 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.” *
* * [Here, the Court cited Wickard v. Filburn.] The activities
that are beyond the reach of Congress are “those which are completely within a
particular State, which do not affect other States, and with which it is not
necessary to interfere, for the purpose of executing some of the general powers
of the government.” [Here, the Court cited Gibbons v. Ogden.]
This rule is as good today as it was when Chief Justice Marshall laid it down
almost a century and a half ago.
* * *
The power of Congress in this field is broad and
sweeping; where it keeps within its sphere and violates no express
constitutional limitation it has been the rule of this Court, going back
almost to the founding days of the Republic, not to interfere. The Civil Rights
Act of 1964, as here applied, we find to be plainly appropriate in the
resolution of what the Congress found to be a national commercial problem of
the first magnitude. We find it in no violation of any express limitations
of the Constitution and we therefore declare it valid. (My emphasis
throughout.)
In sum, because Negroes were wrongly, indeed immorally, discriminated against by local, private, non-governmental businesses that had
tenuous connections with interstate commerce, and because Congress wanted to
rectify that situation as a moral imperative, the federal legislature justified
“public accommodations” legislation on the basis of the Commerce Clause—even
though United States senators, the attorney general of the United States, and
eminent constitutional law scholars, let alone legal academics and
practitioners, knew very well that the clause was never intended for that
purpose and to use it to rectify a moral wrong was patently unconstitutional.
Even worse, if that’s possible, is that the Supreme Court of the
United States went along with the charade, building on Chief Justice Marshall’s
opinions in M’Culloch and Gibbons, Jackson’s opinion in Wickard,
and like opinions by other justices in the 150 years between McCulloch
and Heart of Atlanta/Katzenbach.
And, ironically, all the players did so in the name of
holier-than-thou” “morality.”
Heart of Atlanta and Katzenbach raise a profoundly important question: If a core
founding principle of this nation is the republican institution of
federalism—as reflected in the delegation of enumerated powers to Congress and
the Tenth Amendment’s reservation of power to the states and its people—are
there any limits to the statutory reach of the Commerce Clause power when
Congress wants to employ it to intervene in matters of profoundly personal
choice, using the clause as a tool to sacrifice some people to the needs of
others?
Sadly, the answer is “no.”[iv]
And so we see
what Bill O’Reilly’s hero helped to created: One of the worst deprivations of
private property in American history, all in the name of collectivist “morality”
with not a nod to the individual rights of property owners.
[i] Because the Fourteenth Amendment did not
reach federal action, in a companion case to Brown involving
racial segregation in District of
Columbia public schools the Supreme Court ruled that
the Due Process Clause of the Fifth Amendment, which applied to the federal
government, possessed “equal protection content.”
[ii] Hearings before the Senate Committee on
Commerce on S. 1732, 88th Cong. 1st Sess., parts 1 and 2.
[iii] See Gerald Gunther, Constitutional Cases
and Materials, 10th ed., p. 203. It’s worth noting that neither the
senators nor Professor Gunther objected to the “public accommodations”
provision of the proposed Civil Rights Act as such. It was fine with them that
private businesses operating locally could be required by the federal Congress
to relinquish their racially motivated choices. As we’ve seen, the opposition
was limited not to the principle at
stake, but rather to the constitutional
basis for the prohibition of private choice, preferring not the Commerce Clause
but rather the Fourteenth Amendment (which could not have applied because of
its state-action requirement).
[iv] Justice William O. Douglas concurred in Katzenbach
v. McClung, confessing that for him there were no limits of any kind on
the scope of the Commerce Clause—not since Congress, according to Douglas, possesses the “power to regulate commerce in the
interests of human rights” (my emphasis). How far that power could
extend is limited only by one’s imagination, and by every real and supposed
moral and other wrong afflicting our nation.
