MR. JUSTICE DOUGLAS, concurring.
Though I join the Court's opinions, I am somewhat
reluctant here, as I was in Edwards v. California, 314 U.S. 160, 177, to rest
solely on the Commerce Clause. My reluctance is not due to any conviction that
Congress lacks power to regulate commerce in the interests of human rights. It
is rather my belief that the right of people to be free of state action that
discriminates against them because of race, like the "right of persons to move
freely from State to State" (Edwards v. California, supra, at 177), "occupies a
more protected position in our constitutional system than does the movement of
cattle, fruit, steel and coal across state lines." Ibid. Moreover, when we come
to the problem of abatement in Hamm v. City of Rock Hill, post, p. 306, decided
this day, the result reached by the Court is for me much more obvious as a
protective measure under the Fourteenth Amendment than under the Commerce
Clause. For the former deals with the constitutional status of the individual
not with the impact on commerce of local activities or vice versa.
Hence I would prefer to rest on the assertion of
legislative power contained in § 5 of the Fourteenth Amendment which states:
"The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article" -- a power which the Court concedes was exercised at
least in part in this Act.
A decision based on the Fourteenth Amendment would have a
more settling effect, making unnecessary litigation over whether a particular
restaurant or inn is within the commerce definitions of the Act or whether a
particular customer is an interstate traveler. Under my construction, the Act
would apply to all customers in all the enumerated places of public
accommodation. And that construction would put an end to all obstructionist
strategies and finally close one door on a bitter chapter in American history.
My opinion last Term in Bell v. Maryland, 378 U.S. 226,
242, makes clear my position that the right to be free of discriminatory
treatment (based on race) in places of public accommodation -- whether
intrastate or interstate -- is a right guaranteed against state action by the
Fourteenth Amendment and that state enforcement of the kind of trespass laws
which Maryland had in that case was state action within the meaning of the
I think the Court is correct in concluding that the Act is
not founded on the Commerce Clause to the exclusion of the Enforcement Clause of
the Fourteenth Amendment.
In determining the reach of an exertion of legislative
power, it is customary to read various granted powers together. See Veazie Bank
v. Fenno, 8 Wall. 533, 548-549; Edye v. Robertson, 112 U.S. 580, 595-596; United
States v. Gettysburg Electric R. Co., 160 U.S. 668, 683. As stated in McCulloch
v. Maryland, 4 Wheat. 316, 421:
"We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
The "means" used in the present Act are in my view
"appropriate" and "plainly adapted" to the end of enforcing Fourteenth Amendment
Appendix] as well as protecting interstate commerce.
Section 201 (a) declares in Fourteenth Amendment language
the right of equal access:
"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."
The rights protected are clearly within the purview of our
decisions under the Equal Protection Clause of the Fourteenth Amendment.
"State action" -- the key to Fourteenth Amendment
guarantees -- is defined by § 201 (d) as follows:
" Discrimination or segregation by an establishment is supported by State action within the meaning of this title if such discrimination or segregation (1) is carried on under color of any law, statute, ordinance, or regulation; or (2) is carried on under color of any custom or usage required or enforced by officials of the State or political subdivision thereof; or (3) is required by action of the State or political subdivision thereof." (Italics added.)
That definition is within our decision of Shelley v.
Kraemer, 334 U.S. 1, for the "discrimination" in the present cases is "enforced
by officials of the State," i. e., by the state judiciary under the trespass
laws. 2 As we
wrote in Shelley v. Kraemer, supra, 19:
"We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.
"These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing."
Section 202 declares the right of all persons to be free
from certain kinds of state action at any public establishment -- not just at
the previously enumerated places of public accommodation:
"All persons shall be entitled to be free, at any establishment or place, from discrimination or segregation of any kind on the ground of race, color, religion, or national origin, if such discrimination or segregation is or purports to be required by any law, statute, ordinance, regulation, rule, or order of a State or any agency or political subdivision thereof."
Thus the essence of many of the guarantees embodied in the
Act are those contained in the Fourteenth Amendment.
The Commerce Clause, to be sure, enters into some of the
definitions of "place of public accommodation" in §§ 201 (b) and (c). Thus a
"restaurant" is included, § 201 (b)(2), "if . . . it serves or offers to serve
interstate travelers or a substantial portion of the food which it serves . . .
has moved in commerce." § 201 (c)(2). But any "motel" is included "which
provides lodging to transient guests, other than an establishment located within
a building which contains not more than five rooms for rent or hire and which is
actually occupied by the proprietor of such establishment as his residence." §§
201 (b)(1) and (c)(1). Providing lodging "to transient guests" is not strictly
Commerce Clause talk, for the phrase aptly describes any guest -- local or
Thus some of the definitions of "place of public
accommodation" in § 201 (b) are in Commerce Clause language and some are not.
Indeed § 201 (b) is explicitly bifurcated. An establishment "which serves the
public is a place of public accommodation," says § 201 (b), under either of two
conditions: first, "if its operations affect commerce," or second, "if
discrimination or segregation by it is supported by State action."
The House Report emphasizes these dual bases on which the
Act rests (H. R. Rep. No. 914, 88th Cong., 1st Sess., p. 20) -- a situation
which a minority recognized was being attempted and which it opposed. Id., pp.
The Senate Committee laid emphasis on the Commerce Clause.
S. Rep. No. 872, 88th Cong., 2d Sess., pp. 12-13. The use of the Commerce Clause
to surmount what was thought to be the obstacle of the Civil Rights Cases, 109
U.S. 3, is mentioned. Ibid. And the economic aspects of the problems of
discrimination are heavily accented. Id., p. 17 et seq. But it is clear that the
objectives of the Fourteenth Amendment were by no means ignored. As stated in
the Senate Report:
"Does the owner of private property devoted to use as a public establishment enjoy a property right to refuse to deal with any member of the public because of that member's race, religion, or national origin? As noted previously, the English common law answered this question in the negative. It reasoned that one who employed his private property for purposes of commercial gain by offering goods or services to the public must stick to his bargain. It is to be remembered that the right of the private property owner to serve or sell to whom he pleased was never claimed when laws were enacted prohibiting the private property owner from dealing with persons of a particular race. Nor were such laws ever struck down as an infringement upon this supposed right of the property owner.
"But there are stronger and more persuasive reasons for not allowing concepts of private property to defeat public accommodations legislation. The institution of private property exists for the purpose of enhancing the individual freedom and liberty of human beings. This institution assures that the individual need not be at the mercy of others, including government, in order to earn a livelihood and prosper from his individual efforts. Private property provides the individual with something of value that will serve him well in obtaining what he desires or requires in his daily life.
"Is this time honored means to freedom and liberty now to be twisted so as to defeat individual freedom and liberty? Certainly denial of a right to discriminate or segregate by race or religion would not weaken the attributes of private property that make it an effective means of obtaining individual freedom. In fact, in order to assure that the institution of private property serves the end of individual freedom and liberty it has been restricted in many instances. The most striking example of this is the abolition of slavery. Slaves were treated as items of private property, yet surely no man dedicated to the cause of individual freedom could contend that individual freedom and liberty suffered by emancipation of the slaves.
"There is not any question that ordinary zoning laws place far greater restrictions upon the rights of private property owners than would public accommodations legislation. Zoning laws tell the owner of private property to what type of business his property may be devoted, what structures he may erect upon that property, and even whether he may devote his private property to any business purpose whatsoever. Such laws and regulations restricting private property are necessary so that human beings may develop their communities in a reasonable and peaceful manner. Surely the presence of such restrictions does not detract from the role of private property in securing individual liberty and freedom.
"Nor can it be reasonably argued that racial or religious discrimination is a vital factor in the ability of private property to constitute an effective vehicle for assuring personal freedom. The pledge of this Nation is to secure freedom for every individual; that pledge will be furthered by elimination of such practices." Id., pp. 22-23.
Thus while I agree with the Court that Congress in
fashioning the present Act used the Commerce Clause to regulate racial
segregation, it also used (and properly so) some of its power under § 5 of the
I repeat what I said earlier, that our decision should be based on the Fourteenth Amendment, thereby putting an end to all obstructionist strategies and allowing every person -- whatever his race, creed, or color -- to patronize all places of public accommodation without discrimination whether he travels interstate or intrastate.