Beyond a Doubt

THE SUPREME COURT

The U.S. Supreme Court proved last week that, when faced with a matter of truly national urgency, it can make up its mind in a hurry. Little more than five months after enactment of the most far-reaching civil rights act in U.S. history, the court unanimously declared that a key section of that act was constitutional. It thus removed the last doubt about the right of Negroes to equal access to public accommodations anywhere in the nation.

In a legal sense, the court's decision merely reaffirmed a rule of 140 years' standing, holding that the Constitution's commerce clause gives Congress sweeping powers to regulate any activity that even remotely affects commerce among the states. But its potential impact upon U.S. race relations was nonetheless momentous. A Negro can now travel anywhere, stop at any hotel or cafe and be certain that the law, at least, insists that he be served.

"No Limitations." In an opinion written by one of its two Southerners, Texan Tom C. Clark, the court dismissed arguments by Georgia's Heart of Atlanta Motel and Ollie's Barbecue in Birmingham, Ala., that they could not be compelled to accommodate Negroes under the guise of regulating commerce.

Clark noted that ever since 1824 the courts have consistently upheld a rule by Chief Justice John Marshall in a famous case (Gibbons v. Ogden, involving steamboat traffic between New York and New Jersey) that the commerce clause gives Congress a power "complete in itself" that may "be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." The only real test of that power, wrote Clark, is "whether the activity sought to be regulated is commerce which concerns more than one state and has a real and substantial relation to the national interest."

Clark cited testimony before congressional committees which showed that racial discrimination is a nationwide problem, that Negroes are so uncertain of finding accommodations when traveling that it impairs their "pleasure and convenience" and has "the effect of discouraging travel on the part of a substantial portion" of the nation's 20 million Negroes. Observed Clark acidly: "One can hardly travel without eating."

The fact that the main intent of Congress in passing the act was to deal with "what it considered a moral wrong," does not affect its validity under the commerce clause, Clark ruled. In past cases, such as those involving laws against white slavery and gambling, the court has upheld commerce-clause regulations that had more of a moral than an economic intent. Nor is the size of a specific activity relevant. Thus in 1942 the court upheld the Agricultural Adjustment Act of 1938 as applied to a farmer who sowed only 23 acres of wheat to feed his own cattle. The combined output of many small farmers, said the court, affects the total flow of interstate commerce.

Slavery & Servitude. The Supreme Court also rejected arguments that forcing a motel or restaurant owner to serve Negroes amounts to "involuntary servitude" (which, ironically, is prohibited under the anti-slavery 13th Amendment) for the proprietor. Clark cited the ancient common-law rule that inn keepers must serve any well-behaved person, also noted that longstanding public accommodations laws in 32 states have never been successfully challenged.

The court dealt harshly with the claim that a proprietor who cannot choose his customers as he wishes is deprived of property without the due process of law guaranteed by the Fifth Amendment. In a concurring opinion, Justice William O. Douglas cited with approval the following argument: "The institution of private property exists for the purpose of enhancing the individual freedom and liberty of human beings," and is often restricted for just that reason. "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."

This whole line of reasoning was easily applied by the court in the case of the Heart of Atlanta Motel, which fronts on an interstate highway, welcomes white transients, advertises in national magazines, and gets 75% of its guests from outside Georgia. Ollie's Barbecue was a tougher problem, since it is eleven blocks from the nearest interstate highway, does not advertise, seeks no transients. Although it is in a Negro neighborhood and employs 24 Negroes, it serves Negroes only from a take-out counter. Yet Ollie's beef--some $70,000 worth last year--was purchased from a Birmingham wholesaler who imported it from Hormel meat-packing plants outside of Alabama. Racial discrimination, ruled the court, affects the volume of Ollie's business, and therefore the amount of meat it buys.

"We Must Bow." Upon hearing of the decision, Moreton Rolleston, president of the Heart of Atlanta Motel, complained: "This makes possible a socialistic state." Ollie McClung Sr., co-owner of Ollie's Barbecue, declared: "I'm shocked."

Yet, despite their distress, Ollie, 48, and his son Ollie Jr., 24, announced that "as law-abiding Americans, we feel we must bow to this edict." Two hours later, five Negroes walked into Ollie's --which grosses some $450,000 annually--and were served. As for the motel, it had begun accepting Negroes under an earlier federal court order, but only five couples had applied so far--probably because its rates are the highest in Atlanta. And even Rolleston took a philosophical view of the eventual outcome of such race controversies. "With my grandchildren, there won't be any problems at all," he said. "They won't even know there were any."

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