"Constitutionality" in the Name of Morality
By now, much of the
adoration heaped on the three Kennedy brothers has melted under the glare of revelations
about their private lives. Jack’s whoring, Ted’s alcoholism and Chappaquiddick,
Bobby’s post-Jack hand-off dalliance with Marilyn Monroe.
What is not well
known about RFK, however, is how as Attorney General of the United States he
used interpretations of the United States’ Constitution’s Commerce Clause in M’Collum,
Gibson, and Wickard to violate the property rights of uncountable
citizens of this country, ironically wrapping himself in a cheap appeal
to morality.[1]
In 1964, . . . Congress and the Supreme Court teamed up to use the Interstate Commerce
Clause as an engine of moral righteousness.
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, countless Americans, Northerners
and Southerners alike, rightly considered racial discrimination ignorant, vile,
immoral, and un-American. Not only discrimination by government (e.g. , the
South’s Jim Crow laws), but also by private individuals and entities where it
was not uncommon to find even Northerners practicing racial and religious
discrimination against Negroes and 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 largely successful organized Civil Rights Movement.
But not everything
that movement spawned was defensible, 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 shall . . . deny to any person within its
jurisdiction the equal protection of the laws” — against official, government
racial discrimination. (My italics.)[2]
But that wasn’t good
enough for some people, who had no difficulty ignoring the crucial distinction
between public and private discrimination. It was not enough for
them — rightly — to attack government racial discrimination. They
insisted on prohibiting and punishing also
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 is 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, penalizes
parental indifference to their children’s spiritual needs, or punishes 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” of some 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 collectivist 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 Bill of Rights,
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 Interstate Commerce Clause. The ghost of Chief
Justice John Marshall was arisen.)
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, as the record reveals:
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 Interstate 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 affect 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.[3] (My
italics throughout.)
This scheme of reforming
the moral failings of private citizens by an even more tortured interpretation
of the Interstate Commerce Clause than already existed under the M’Culloch-Gibbons-Wickard
axis of cases, found its way into the 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 italics.)
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.[4]
Despite the
reservations of many knowledgeable people, the Civil Rights Act of 1964 was
enacted, resting on the power granted to Congress in the Interstate Commerce
Clause of Article I, section 8. Eventually, 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 Supreme 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:
While the Act as
adopted carried no congressional findings the record congressional record of
its passage through each house is replete with evidence of the burdens that
discrimination by race or color places upon interstate commerce. * * * This
testimony included the fact that our people have become increasingly mobile
with millions of people of all races traveling from State to State; that
Negroes in particular have been the subject of discrimination in transient
accommodations, having to travel great distances to secure the same; that often
they have been unable to obtain accommodations and have had to call upon
friends to put them up overnight . . . and that these conditions had become so
acute as to require the listing of available lodging for Negroes in a special
guidebook which was itself “dramatic testimony to the difficulties” Negroes
encounter in travel.* * *
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 he 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 as a moral imperative Bobby Kennedy, Congress and
the President wanted to remedy that situation, the government justified “public
accommodations” legislation on the basis of the Interstate 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.
Shamelessly and
perversely, all of them engineered the seizure of private property in the name
of holier-than-thou “morality.”
Heart of Atlanta and Katzenbach
raised 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 Interstate Commerce Clause power when a
collectivist-statist Congress chooses to employ it to intervene in matters of
profoundly personal moral choices, using the clause as a tool to sacrifice some
people to the needs of others?
Sadly, the answer is “no.”[5]
[2] Because the
Fourteenth Amendment did not reach federal action, in a companion case
to Brown v. Board of Education involving racial segregation in
District of Columbia public schools the Supreme Court ruled that the Due
Process Clause of the Fifth Amendment, which applied only to the federal
government, possessed “equal protection content.”
[3] See Gerald Gunther, Constitutional
Cases and Materials, 10th ed., p. 203. It is 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 lose 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).
[4] Hearings before the
Senate Committee on Commerce on S[4]. 1732,
88th Cong. 1st Sess., parts 1 and 2.
[5] 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 italics). 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.
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