University Press of Kansas o 2001 o 240 pages o $29.95
Reviewed by David E. Bernstein
Title II of the 1964 Civil Rights Act bans discrimination on the basis of race, color, religion, or national origin in public accommodations. The law reflected a growing belief that any establishment that holds itself out as open to the public should not be permitted to discriminate. The Act had broad public support, except in the South.
There were some, however, who advanced principled objections to Title II. Ayn Rand, for example, wrote that "[j]ust as we have to protect a communist’s freedom of speech, even though his doctrines are evil, so we have to protect a racist’s right to the use and disposal of his own property." Philosophical objections to Title II’s regulation of public accommodations, however, were largely drowned out by the argument that it violated "states’ rights."
Several southern businessmen challenged the constitutionality of Title II as exceeding congressional power. Political science professor Richard Cortner’s Civil Rights and Public Accommodations is a workmanlike description of that litigation and reminds us how much is at stake when politics and property rights collide.
Cortner provides many interesting details about the litigation and the litigants. One interesting aspect of the litigation was the Justice Department’s reliance on the Commerce Clause to justify the constitutionality of the law, rather than on the Fourteenth Amendment. That amendment forbids states to deny equal protection of the law, and section 5 suggests that Congress has the primary responsibility of enforcing that prohibition. Arguably, then, Congress also gets to decide what "equal protection of the law" means, including whether states must prohibit discrimination in public accommodations. The 1875 Civil Rights Act contained such a provision, but it was struck down by the Supreme Court eight years later in the Civil Rights Cases. The Court there held that the Fourteenth Amendment didn’t grant Congress the authority to regulate private businesses.
Many scholars believe that the Civil Rights Cases were ripe for reversal in the 1960s had the Justice Department chosen to take that approach. Instead, the government, fearing that the Court might not reverse a long-standing precedent, played it safe by arguing that Congress’s authority to enact Title II arose out of its power to regulate interstate commerce. (Allegedly, interstate commerce was "burdened" if businesses like McClung’s Barbecue could choose whom to serve.)
Once that issue of strategy was resolved, the details of the briefs presented by the government, discussed in detail by Cortner, seem a bit superfluous because the litigation had a foreordained conclusion. It was inconceivable that the "liberal" Warren Court would hold Title II unconstitutional. First, the Court almost never ruled against civil-rights litigants. Second, the Commerce Clause, a bête noire of statists for generations, had already been eviscerated by FDR’s Supreme Court in the 1942 case Wickard v. Filburn. In that case the Court held in part that Congress’s power to regulate "interstate commerce" included the power to prohibit a farmer from growing wheat on his own farm for his family’s private consumption, activity that in the normal sense of things is neither "interstate" nor "commerce." The Court had no interest in reviving the limitations on congressional power inherent in the clause, especially not in a case where its political sympathies clearly lay with the government.
While Cortner discusses the constitutional implications of the Title II litigation, he unfortunately does not consider the broader ramifications of Congress’s decision to regulate public accommodations and seems to accept the idea that the government must regulate private property so as to ensure nondiscrimination in public accommodations. Title II itself was relatively narrow in scope-it doesn’t apply to private clubs, for example. Over the last two decades, however, various states and localities, inspired
by Title II, have passed their own public-accommodations laws, with almost no limitations. In New Jersey, for instance, Little League baseball, a cat fancier’s association, private social clubs, and the Boy Scouts have all been deemed "places of public accommodation" that may not discriminate in any way against a wide range of groups. Alas, Cortner never mentions the way that public accommodations laws have, as the early opponents predicted, broadly impinged on civil society.
After state laws mandating segregation were invalidated, most businessmen desegregated quickly and willingly. Today, the battle in public-accommodations law is primarily over whether private social organizations should be left alone or whether their membership policies should be dictated by the government. Given the importance of autonomous private organizations as a check on the government and as a means of discovering new social and political ideas, the answer should be obvious.
Civil Rights and Public Accommodations provides a sound, if not especially exciting, description of the constitutional litigation over the federal government’s initial foray into the regulation of public accommodations. But if the reader wants to understand the continuing controversy over the effects of that foray, he will have to look elsewhere.
David Bernstein is an associate professor at George Mason University School of Law.