THE POWER & THE PRECEDENT

The Congress shall have power to regulate commerce . . . among the several states.

--Article 1, Section 8, The Constitution of the U.S.

THIS is the interstate commerce clause, the twelve words to which the Kennedy Administration has hitched Title II--the public-accommodations provisions --of its civil rights legislative package.

The Administration argues that segregation in hotels, motels, theaters and the like may be a decided hindrance to interstate travel and to the free movement of goods in interstate commerce. Thus, the Kennedy bill provides that public establishments with any sort of "substantial" interest in interstate commerce should be governed by Title II.

Administration spokesmen can muster plenty of precedent: the interstate commerce clause has long been used to justify all manner of regulatory legislation. In testimony last week, Attorney General Kennedy cited 38 congressional acts sprung from the fertile soil of the clause.

Among them: the Federal Firearms Act, the Atomic Energy Act, the Fair Labor Standards Act, the Automobile Information Disclosure Act, the Communications Acts, the Federal Coal Mine Safety Act, the False Branding or Marking Act, the Federal Trade Commission Act, the Taft-Hartley Act, the Poultry Products Inspection Act, the Plant Quarantine Act and the Securities Exchange Act.

Despite such past extensions of the interstate commerce clause, it has never been used as a basis for civil rights legislation. Critics of the Administration's proposal argue that it would stretch the clause beyond all reasonable bounds, open the door to federal regulation yet undreamed of, produce a tangle of litigation--and still not stop segregation in all privately owned public accommodations. sb Kentucky's liberal Republican Senator John Sherman Cooper has introduced a separate public-accommodations bill, based on the 14th Amendment to the Constitution rather than the commerce clause. Says he: "If we are going to deal with this question, I think it imperative that Congress should enact legislation which would meet it fully and squarely as a right under the 14th Amendment, and not indirectly and partially--as the Administration approach would do. Rights under the Constitution go to the equality of all citizens, the integrity and dignity of the individual, and should not be placed on any lesser ground." But the Administration shies away from such an approach. The reason: the Supreme Court 80 years ago declared unconstitutional a legislative guarantee of equal access to public accommodations which was based on the 14th Amendment. Signed into law on March 1, 1875, the statute provided that "all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude." The law stood for only eight years before being struck down by the Supreme Court. The majority opinion, delivered by Justice Joseph P. Bradley, ruled that the 14th Amendment pertained only to discrimination by state governments. "Individual invasion of individual rights," Bradley wrote, "is not the subject matter of the amendment ... It is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of law, customs or judicial or executive proceedings. The wrongful act of an individual, unsupported by such authority, is simply a private wrong . . ." sb Except for its justification under the interstate commerce clause instead of the 14th Amendment, the Kennedy Administration's Title II of 1963 is essentially the same as the law passed in 1875. The bill presently before Congress provides that "all persons shall be entitled, without discrimination or segregation on account of race, color, religion or national origin, to the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of [certain] public establishments." Opponents of the Administration's approach don't believe that the Supreme Court would overturn a public-accommodations law based on the 14th Amendment.

And in the light of the court's recent record of reversing its old civil rights rulings, disbelief seems justified.

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