"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. 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.)
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. (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.
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.”
 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.”
 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).
 Hearings before the Senate Committee on Commerce on S. 1732, 88th Cong. 1st Sess., parts 1 and 2.
 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.