Legal Battle: Atlanta Motel v. US - Racial Discrimination in Accommodations, Lecture notes of Law

Download Legal Battle: Atlanta Motel v. US - Racial Discrimination in Accommodations and more Lecture notes Law in PDF only on Docsity! ATLANTA MOTEL v. UNITED STATES. 241 Syllabus. HEART OF ATLANTA MOTEL, INC. v. UNITED STATES ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA. No. 515. Argued October 5, 1964.-Decided December 14, 1964. Appellant, the owner of a large motel in Atlanta, Georgia, which restricts its clientele to white persons, three-fourths of whom are transient interstate travelers, sued for declaratory relief and to enjoin enforcement of the Civil Rights Act of 1964, contending that the prohibition of racial discrimination in places of public accom- modation affecting commerce exceeded Congress' powers under the Commerce Clause and violated other parts of the Constitution. A three-judge District Court upheld the constitutionality of Title II, §§ 201 (a), (b) (1) and (c) (1), the provisions attacked, and on ap- pellees' counterclaim permanently enjoined appellant from refusing to accommodate Negro guests for racial reasons. Held.: 1. Title II of the Civil Rights Act of 1964 is a valid exercise of Congress' power under the Commerce Clause as applied to a place of public accommodation serving interstate travelers. Civil Rights Cases, 109 U. S. 3, distinguished. Pp. 249-262. (a) The interstate movement of persons is "commerce" which concerns more than one State. Pp. 255-256. (b) The protection of interstate commerce is within the regu- latory power of Congress under the Commerce Clause whether or not the transportation of persons between States is "commercial." P. 256. (c) Congress' action in removing the disruptive effect which it found racial discrimination has on interstate travel is not in- validated because Congress was also legislating against what it considered to be moral wrongs. P. 257. (d) Congress had power to enact appropriate legislation with regard to a place of public accommodation such as appellant's motel even if it is assumed to be of a purely "local" character, as Congress' power over interstate commerce extends to the regulation of local incidents thereof which might have a substantial and harmful effect upon that commerce. P. 258. (2) The prohibition in Title II of racial discrimination in public accommodations affecting commerce does not violate the Fifth OCTOBER TERM, 1964. Opinion of the Court. 379 U. S. Amendment as being a deprivation of property or liberty without due process of law. Pp. 258-261. (3) Such prohibition does not violate the Thirteenth Amend- ment as being "involuntary servitude." P. 261. 231 F. Supp. 393, affirmed. Moreton Rolleston, Jr., argued the cause and filed a brief for appellant. Solicitor General Cox argued the cause for the United States et al. With him on the brief were Assistant At- torney General Marshall, Philip B. Heymann and Harold H. Greene. Briefs of amici curiae, urging reversal, were filed by James W. Kynes, Attorney General of Florida, and Fred M. Burns and Joseph C. Jacobs, Assistant Attorneys Gen- eral, for the State of Florida; and Robert Y. Button, Attorney General of Virginia, and Frederick T. Gray, Special Assistant Attorney General, for the Common- wealth of Virginia. Briefs of amici curiae, urging affirmance, were filed by Thomas C. Lynch, Attorney General of California, Charles E. Corker and Dan Kaufmann, Assistant Attor- neys General, and Charles B. McKesson and Jerold L. Perry, Deputy Attorneys General, for the State of Cali- fornia; Edward W. Brooke, Attorney General of Massa- chusetts, for the Commonwealth of Massachusetts; and Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Shirley Adelson Siegel, Assistant Attorney General, for the State of New York. MR. JUSTICE CLARK delivered the opinion of the Court. This is a declaratory judgment action, 28 U. S. C. § 2201 and § 2202 (1958 ed.), attacking the constitution- ality of Title II of the Civil Rights Act of 1964, 78 Stat. ATLANTA MOTEL v. UNITED STATES. 245 241 Opinion of the Court. privileges, advantages or accommodations offered or made available to the guests of the motel, or to the general public, within or upon any of the premises of the Heart of Atlanta Motel, Inc." 2. The History of the Act. Congress first evidenced its interest in civil rights legis- lation in the Civil Rights or Enforcement Act of April 9, 1866.' There followed four Acts,3 with a fifth, the Civil Rights Act of March 1, 1875,1 culminating the series. In 1883 this Court struck down the public accommodations sections of the 1875 Act in the Civil Rights Cases, 109 U. S. 3. No major legislation in this field had been enacted by Congress for 82 years when the Civil Rights Act of 1957' became law. It was followed by the Civil Rights Act of 1960.6 Three years later, on June 19, 1963, the late President Kennedy called for civil rights legisla- tion in a message to Congress to which he attached a pro- posed bill. Its stated purpose was "to promote the general welfare by eliminating dis- crimination based on race, color, religion, or national origin in . . . public accommodations through the exercise by Congress of the powers conferred upon it . . . to enforce the provisions of the fourteenth and fifteenth amendments, to regulate commerce among the several States, and to make laws necessary and proper to execute the powers conferred upon it by the Constitution." H. R. Doe. No. 124, 88th Cong., 1st Sess., at 14. 2 14 Stat. 27. 3 Slave Kidnaping Act, 14 Stat. 50; Peonage Abolition Act of March 2, 1867, 14 Stat. 546; Act of May 31, 1870, 16 Stat. 140; Anti-Lynching Act of April 20, 1871, 17 Stat. 13. 4 18 Stat. 335. 71 Stat. 634. 0 74 Stat. 86. OCTOBER TERM, 1964. Opinion of the Court. 379 U. S. Bills were introduced in each House of the Congress, embodying the President's suggestion, one in the Sen- ate being S. 17321 and one in the House, H. R. 7152. However, it was not until July 2, 1964, upon the recom- mendation of President Johnson, that the Civil Rights Act of 1964, here under attack, was finally passed. After extended hearings each of these bills was favor- ably reported to its respective house, H. R. 7152 on November 20, 1963, H. R. Rep. No. 914, 88th Cong., 1st Sess., and S. 1732 on February 10, 1964, S. Rep. No. 872, 88th Cong., 2d Sess. Although each bill originally incor- porated extensive findings of fact these were eliminated from the bills as they were reported. The House passed its bill in January 1964 and sent it to the Senate. Through a bipartisan coalition of Senators Humphrey and Dirksen, together with other Senators, a substitute was worked out in informal conferences. This substitute was adopted by the Senate and sent to the House where it was adopted without change. This expedited pro- cedure prevented the usual report on the substitute bill in the Senate as well as a Conference Committee report ordinarily filed in such matters. Our only frame of ref- erence as to the legislative history of the Act is, there- fore, the hearings, reports and debates on the respective bills in each house. The Act as finally adopted was most comprehensive, undertaking to prevent through peaceful and voluntary settlement discrimination in voting, as well as in places of accommodation and public facilities, federally secured programs and in employment. Since Title II is the only portion under attack here, we confine our consideration to those public accommodation provisions. I S. 1732 dealt solely with public accommodations. A second Sen- ate bill, S. 1731, contained the entire administration proposal. The Senate Judiciary Committee conducted the hearings on S. 1731 while the Committee on Commerce considered S. 1732. ATLANTA MOTEL v. UNITED STATES. 247 241 Opinion of the Court. 3. Title II of the Act. This Title is divided into seven sections beginning with § 201 (a) which provides that: "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." There are listed in § 201 (b) four classes of business estab- lishments, each of which "serves the public" and "is a place of public accommodation" within the meaning of § 201 (a) "if its operations affect commerce, or if discrim- ination or segregation by it is supported by State action." The covered establishments are: "(1) any inn, hotel, motel, or other establishment 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; "(2) any restaurant, cafeteria . . . [not here involved] ; "(3) any motion picture house . . . [not here involved]; "(4) any establishment . . .which is physically located within the premises of any establishment otherwise covered by this subsection, or ...within the premises of which is physically located any such covered establishment ... [not here involved]." Section 201 (c) defines the phrase "affect commerce" as applied to the above establishments. It first declares that "any inn, hotel, motel, or other establishment which provides lodging to transient guests" affects commerce per se. Restaurants, cafeterias, etc., in class two affect OCTOBER TERM, 1964. Opinion of the Court. 379 U. S. The Senate Commerce Committee made it quite clear that the fundamental object of Title II was to vindicate "the deprivation of personal dignity that surely accom- panies denials of equal access to public establishments." At the same time, however, it noted that such an objec- tive has been and could be readily achieved "by congres- sional action based on the commerce power of the Con- stitution." S. Rep. No. 872, supra, at 16-17. Our study of the legislative record, made in the light of prior cases, has brought us to the conclusion that Congress possessed ample power in this regard, and we have therefore not considered the other grounds relied upon. This is not to say that the remaining authority upon which it acted was not adequate, a question upon which we do not pass, but merely that since the commerce power is sufficient for our decision here we have considered it alone. Nor is § 201 (d) or § 202, having to do with state action, involved here and we do not pass upon either of those sections. 5. The Civil Rights Cases, 109 U. S. 3 (1883), and their Application. In light of our ground for decision, it might be well at the outset to discuss the Civil Rights Cases, supra, which declared provisions of the Civil Rights Act of 1875 unconstitutional. 18 Stat. 335, 336.- We think that decision inapposite, and without precedential value in determining the constitutionality of the present Act. Unlike Title II of the present legislation, the 1875 Act broadly proscribed discrimination in "inns, public con- veyances on land or water, theaters, and other places of public amusement," without limiting the categories of affected businesses to those impinging upon interstate commerce. In contrast, the applicability of Title II is carefully limited to enterprises having a direct and sub- stantial relation to the interstate flow of goods and peo- ATLANTA MOTEL v. UNITED STATES. 251 241 Opinion of the Court. ple, except where state action is involved. Further, the fact that certain kinds of businesses may not in 1875 have been sufficiently involved in interstate commerce to war- rant bringing them within the ambit of the commerce power is not necessarily dispositive of the same question today. Our populace had not reached its present mobil- ity, nor were facilities, goods and services circulating as readily in interstate commerce as they are today. Al- though the principles which we apply today are those first formulated by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1 (1824), the conditions of transpor- tation and commerce have changed dramatically, and we must apply those principles to the present state of commerce. The sheer increase in volume of interstate traffic alone would give discriminatory practices which in- hibit travel a far larger impact upon the Nation's com- merce than such practices had on the economy of another day. Finally, there is language in the Civil Rights Cases which indicates that the Court did not fully consider whether the 1875 Act could be sustained as an exercise of the commerce power. Though the Court observed that "no one will contend that the power to pass it was con- tained in the Constitution before the adoption of the last three amendments [Thirteenth, Fourteenth, and Fif- teenth]," the Court went on specifically to note that the Act was not "conceived" in terms of the commerce power and expressly pointed out: "Of course, these remarks [as to lack of congres- sional power] do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the States, as in the regulation of commerce with foreign nations, among the several States, and with the Indian tribes . . . . In these cases Congress has OCTOBER TERM, 1964. Opinion of the Court. 379 U. S. power to pass laws for regulating the subjects speci- fied in every detail, and the conduct and transactions of individuals in respect thereof." At 18. Since the commerce power was not relied on by the Gov- ernment and was without support in the record it is under- standable that the Court narrowed its inquiry and excluded the Commerce Clause as a possible source of power. In any event, it is clear that such a limitation renders the opinion devoid of authority for the proposi- tion that the Commerce Clause gives no power to Con- gress to regulate discriminatory practices now found substantially to affect interstate commerce. We, there- fore, conclude that the Civil Rights Cases have no rele- vance to the basis of decision here where the Act ex- plicitly relies upon the commerce power, and where the record is filled with testimony of obstructions and restraints resulting from the discriminations found to be existing. We now pass to that phase of the case. 6. The Basis of Congressional Action. While the Act as aaopted carried no congressional findings the record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. See Hearings before Senate Committee on Commerce on S. 1732, 88th Cong., 1st Sess.; S. Rep. No. 872, supra; Hearings before Senate Committee on the Judiciary on S. 1731, 88th Cong., 1st Sess.; Hearings before House Subcommittee No. 5 of the Committee on the Judiciary on miscellaneous proposals regarding Civil Rights, 88th Cong., 1st Sess., ser. 4; H. R. Rep. No. 914, supra. 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 dis- ATLANTA MOTEL v. UNITED STATES. 255 241 Opinion of the Court. sary to interfere, for the purpose of executing some of the general powers of the government. [At 194-195.] "We are now arrived at the inquiry-What is this power? "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are pre- scribed in the constitution. . . . If, as has always been understood, the sovereignty of Congress . . . is plenary as to those objects [specified in the Con- stitution], the power over commerce ... is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their con- stituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments. [At 196-197.]" In short, the determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether the activity sought to be regulated is "commerce which concerns more States than one" and has a real and substantial relation to the national interest. Let us now turn to this facet of the problem. That the "intercourse" of which the Chief Justice spoke included the movement of persons through more OCTOBER TERM, 1964. Opinion of the Court. 379 U. S. States than one was settled as early as 1849, in the Pas- senger Cases, 7 How. 283, where Mr. Justice McLean stated: "That the transportation of passengers is a part of commerce is not now an open question." At 401. Again in 1913 Mr. Justice McKenna, speaking for the Court, said: "Commerce among the States, we have said, consists of intercourse and traffic between their citi- zens, and includes the transportation of persons and prop- erty." Hoke v. United States, 227 U. S. 308, 320. And only four years later in 1917 in Caminetti v. United States, 242 U. S. 470, Mr. Justice Day held for the Court: "The transportation of passengers in interstate commerce, it has long been settled, is within the regu- latory power of Congress, under the commerce clause of the Constitution, and the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question." At 491. Nor does it make any difference whether the transporta- tion is commercial in character. Id., at 484-486. In Morgan v. Virginia, 328 U. S. 373 (1946), Mr. Justice Reed observed as to the modern movement of persons among the States: "The recent changes in transportation brought about by the coming of automobiles [do] not seem of great significance in the problem. People of all races travel today more extensively than in 1878 when this Court first passed upor, state regulation of racial segregation in commerce. [It but] empha- sizes the soundness of this Court's early conclusion in Hall v. DeCuir, 95 U. S. 485." At 383. The same interest in protecting interstate commerce which led Congress to deal with segregation in interstate ATLANTA MOTEL v. UNITED STATES. 257 241 Opinion of the Court. carriers and the white-slave traffic has prompted it to extend the exercise of its power to gambling, Lottery Case, 188 U. S. 321 (1903); to criminal enterprises, Brooks v. United States, 267 U. S. 432 (1925); to deceptive prac- tices in the sale of products, Federal Trade Comm'n v. Mandel Bros., Inc., 359 U. S. 385 (1959); to fraudulent security transactions, Securities & Exchange Comm'n v. Ralston Purina Co., 346 U. S. 119 (1953); to misbrand- ing of drugs, Weeks v. United States, 245 U. S. 618 (1918); to wages and hours, United States v. Darby, 312 U. S. 100 (1941); to members of labor unions, Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937); to crop control, Wickard v. Filburn, 317 U. S. 111 (1942); to discrimination against shippers, United States v. Baltimore & Ohio R. Co., 333 U. S. 169 (1948); to the protection of small business from injurious price cutting, Moore v. Mead's Fine Bread Co., 348 U. S. 115 (1954); to resale price maintenance, Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U. S. 386 (1964), Schweg- mann v. Calvert Distillers Corp., 341 U. S. 384 (1951); to professional football, Radovich v. National Football League, 352 U. S. 445 (1957); and to racial discrimina- tion by owners and managers of terminal restaurants, Boynton v. Virginia, 364 U. S. 454 (1960). That Congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid. In framing Title II of this Act Congress was also deal- ing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Con- gress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong. OCTOBER TERM, 1964. Opinion of the Court. 379 U. S. do not violate the Due Process Clause of the Fourteenth Amendment. Perhaps the first such holding was in the Civil Rights Cases themselves, where Mr. Justice Brad- ley for the Court inferentially found that innkeepers, "by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them." At 25. As we have pointed out, 32 States now have such pro- visions and no case has been cited to us where the attack on a state statute has been successful, either in federal or state courts. Indeed, in some cases the Due Process and Equal Protection Clause objections have been specifi- cally discarded in this Court. Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28, 34. n. 12 (1948). As a result the constitutionality of such state statutes stands unques- tioned. "The authority of the Federal Government over interstate commerce does not differ," it was held in United States v. Rock Royal Co-op., Inc., 307 U. S. 533 (1939), "in extent or character from that retained by the states over intrastate commerce." At 569-570. See also Bowles v. Willingham, 321 U. S. 503 (1944). It is doubtful if in the long run appellant will suffer economic loss as a result of the Act. Experience is to the contrary where discrimination is completely obliterated as to all public accommodations. But whether this be true or not is of no consequence since this Court has spe- cifically held that the fact that a "member of the class which is regulated may suffer economic losses not shared by others . . . has never been a barrier" to such legis- lation. Bowles v. Willingham, supra, at 518. Likewise in a long line of cases this Court has rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty. See District of Columbia v. John R. Thompson Co., 346 U. S. ATLANTA MOTEL v. UNITED STATES. 261 241 Opinion of the Court. 100 (1953), and cases there cited, where we concluded that Congress had delegated law-making power to the Dis- trict of Columbia "as broad as the police power of a state" which included the power to adopt "a law pro- hibiting discriminations against Negroes by the owners and managers of restaurants in the District of Columbia." At 110. Neither do we find any merit in the claim that the Act is a taking of property without just compensa- tion. The cases are to the contrary. See Legal Tender Cases, 12 Wall. 457, 551 (1870); Omnia Commercial Co. v. United States, 261 U. S. 502 (1923); United States v. Central Eureka Mining Co., 357 U. S. 155 (1958). We find no merit in the remainder of appellant's con- tentions, including that of "involuntary servitude." As we have seen, 32 States prohibit racial discrimination in public accommodations. These laws but codify the common-law innkeeper rule which long predated the Thirteenth Amendment. It is difficult to believe that the Amendment was intended to abrogate this principle. Indeed, the opinion of the Court in the Civil Rights Cases is to the contrary as we have seen, it having noted with approval the laws of "all the States" prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way "akin to African slavery." Butler v. Perry, 240 U. S. 328, 332 (1916). We, therefore, conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Consti- tution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in inter- state commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Con- gress not with the courts. How obstructions in commerce OCTOBER TERM, 1964. Appendix to opinion of the Court. 379 U. S. may be removed-what means are to be employed-is within the sound and exclusive discretion of the Congress. It is subject only to one caveat-that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. We cannot say that its choice here was not so adapted. The Constitution requires no more. Affirmed. APPENDIX TO OPINION OF THE COURT. "TITLE 11-INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC AC- COMMODATION "SEC. 201. (a) 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, with- out discrimination or segregation on the ground of race, color, religion, or national origin. "(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action: "(1) any inn, hotel, motel, or other establishment 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; "(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail estab- lishment; or any gasoline station; ATLANTA MOTEL v. UNITED STATES. 265 241 Appendix to opinion of the Court. is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security. "(b) In any action commenced pursuant to this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, and the United States shall be liable for costs the same as a private person. "(c) In the case of an alleged act or practice prohibited by this title which occurs in a State, or political subdi- vision of a State, which has a State or local law prohib- iting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pend- ing the termination of State or local enforcement proceedings. "(d) In the case of an alleged act or practice prohib- ited by this title which occurs in a State, or political sub- division of a State, which has no State or local law prohibiting such act or practice, a civil action may be brought under subsection (a): Provided, That the court may refer the matter to the Community Relations Service established by title X of this Act for as long as the court believes there is a reasonable possibility of obtaining voluntary compliance, but for not more than sixty days: Provided further, That upon expiration of such sixty- day period, the court may extend such period for an addi- OCTOBER TERM, 1964. Appendix to opinion of the Court. 379 U. S. tional period, not to exceed a cumulative total of one hundred and twenty days, if it believes there then exists a reasonable possibility of securing voluntary compliance. "SEC. 205. The Service is authorized to make a full investigation of any complaint referred to it by the court under section 204 (d) and may hold such hearings with respect thereto as may be necessary. The Service shall conduct any hearings with respect to any such complaint in executive session, and shall not release any testimony given therein except by agreement of all parties involved in the complaint with the permission of the court, and the Service shall endeavor to bring about a voluntary settle- ment between the parties. "SEc. 206. (a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this title, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or prac- tice, and (3) requesting such preventive relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described. "(b) In any such proceeding the Attorney General may file with the clerk of such court a request that a court of three judges be convened to hear and determine the case. Such request by the Attorney General shall be accom- panied by a certificate that, in his opinion, the case is of general public importance. A copy of the certificate ATLANTA MOTEL v. UNITED STATES. 267 241 Appendix to opinion of the Court. and request for a three-judge court shall be immediately furnished by such clerk to the chief judge of the circuit (or in his absence, the presiding circuit judge of the cir- cuit) in which the case is pending. Upon receipt of the copy of such request it shall be the duty of the chief judge of the circuit or the presiding circuit judge, as the case may be, to designate immediately three judges in such circuit, of whom at least one shall be a circuit judge and another of whom shall be a district judge of the court in which the proceeding was instituted, to hear and deter- mine such case, and it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date, to participate in the hearing and deter- mination thereof, and to cause the case to be in every way expedited. An appeal from the final judgment of such court will lie to the Supreme Court. "In the event the Attorney General fails to file such a request in any such proceeding, it shall be the duty of the chief judge of the district (or in his absence, the act- ing chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case. "It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. "SEc. 207. (a) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this title and shall exercise the same without regard OCTOBER TERM, 1964. BLACK, J., concurring. 379 U. S. tion by Art. I, § 8, "To regulate Commerce . . . among the several States . . . ." Thus § 201 (b) of Title II by its terms is limited in application to a motel or restaurant of which the "operations affect [interstate] commerce, or if discrimination or segregation by it is supported by State action." 3 The "State action" provision need not concern us here since there is no contention that Georgia or Ala- bama has at this time given any support whatever to these establishments' racially discriminatory practices. The basic constitutional question decided by the courts below and which this Court must now decide is whether Congress exceeded its powers to regulate interstate com- merce and pass all laws necessary and proper to such regulation in subjecting either this motel or this restau- rant to Title II's commands that applicants for food and lodging be served without regard to their color. And if the regulation is otherwise within the congressional com- merce power, the motel and the restaurant proprietors further contend that it would be a denial of due process under the Fifth Amendment to compel them to serve Negroes against their will.' I agree that all these con- stitutional contentions must be rejected. I. It requires no novel or strained interpretation of the Commerce Clause to sustain Title II as applied in either " This last definitional clause of § 201 (b) together with § 202 shows a congressional purpose also to rely in part on § 1 of the Four- teenth Amendment, which forbids any State to deny due process or equal protection of the laws. There is no contention in these cases that Congress relied on the fifth section of the Fourteenth Amend- ment granting it "power to enforce, by appropriate legislation, the provisions of" the Amendment. 4 The motel also argues. that the law violates the Thirteenth Amendment's prohibition of slavery or involuntary servitude and takes private property for public use without just compensation, in violation of the Fifth Amendment. ATLANTA MOTEL v. UNITED STATES. 271 241 BLACK, J., concurring. of these cases. At least since Gibbons v. Ogden, 9 Wheat. 1, decided in 1824 in an opinion by Chief Justice John Marshall, it has been uniformly accepted that the power of Congress to regulate commerce among the States is plenary, "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." 9 Wheat., at 196. Nor is "Commerce" as used in the Commerce Clause to be limited to a narrow, technical concept. It includes not only, as Congress has enumerated in the Act, "travel, trade, traffic, commerce, transportation, or com- munication," but also all other unitary transactions and activities that take place in more States than one. That some parts or segments of such unitary transactions may take place only in one State cannot, of course, take from Congress its plenary power to regulate them in the national interest.' The facilities and instrumentalities used to carry on this commerce, such as railroads, truck lines, ships, rivers, and even highways are also subject to congressional regulation, so far as is necessary to keep interstate traffic upon fair and equal terms. The Daniel Ball, 10 Wall. 557. Furthermore, it has long been held that the Necessary and Proper Clause, Art. I, § 8, cl. 18, adds to the commerce power of Congress the power to regulate local instrumen- talities operating within a single State if their activities burden the flow of commerce among the States. Thus in the Shreveport Case, Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342, 353-354, this Court recog- nized that Congress could not fully carry out its respon- sibility to protect interstate commerce were its con- stitutional power to regulate that commerce to be strictly limited to prescribing the rules for controlling the things 5 Compare United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 546-547; Board of Trade v. Olsen, 262 U. S. 1, 33-36; Swift & Co. v. United States, 196 U. S. 375, 398-399. OCTOBER TERM, 1964. BLACK, J., concurring. 379 U. S. actually moving in such commerce or the contracts, trans- actions, and other activities, immediately concerning them. Regulation of purely intrastate railroad rates is primarily a local problem for state rather than national control. But the Shreveport Case sustained the power of Congress under the Commerce Clause and the Necessary and Proper Clause to control purely intrastate rates, even though reasonable, where the effect of such rates was found to impose a discrimination injurious to interstate commerce. This holding that Congress had power under these clauses, not merely to enact laws governing inter- state activities and transactions, but also to regulate even purely local activities and transactions where necessary to foster and protect interstate commerce, was amply sup- ported by Mr. Justice (later Mr. Chief Justice) Hughes' reliance upon many prior holdings of this Court extend- ing back to Gibbons v. Ogden, supra.' And since the Shreveport Case this Court has steadfastly followed, and indeed has emphasized time and time again, that Con- gress has ample power to protect interstate commerce from activities adversely and injuriously affecting it, which but for this adverse effect on interstate commerce would be beyond the power of Congress to regulate.7 6 "The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States gen- erally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not nec- essary to interfere, for the purpose of executing some of the general powers of the government." Gibbons v. Ogden, supra, 9 Wheat., at 195. (Emphasis supplied.) 7 See, e. g., Labor Board v. Reliance Fuel Oil Corp., 371 U. S. 224; Lorain Journal Co. v. United States, 342 U. S. 143; United States v. Women's Sportswear Manufacturers Assn., 336 U. S. 460; United States v. Sullivan, 332 U. S. 689; Wickard v. Filburn, 317 U. S. 111; United States v. Wrightwood Dairy Co., 315 U. S. 110; United States v. Darby, 312 U. S. 100; Labor Board v. Jones & Laughlin Steel ATLANTA MOTEL v. UNITED STATES. 275 241 BLACK, J., concurring. The foregoing facts are more than enough, in my judg- ment, to show that Congress acting within its discretion and judgment has power under the Commerce Clause and the Necessary and Proper Clause to bar racial discrimina- tion in the Heart of Atlanta Motel and Ollie's Barbecue. I recognize that every remote, possible, speculative effect on commerce should not be accepted as. an adequate con- stitutional ground to uproot and throw into the discard all our traditional distinctions between what is purely local, and therefore controlled by state laws, and what affects the national interest and is therefore subject to control by federal laws. I recognize too that some isolated and remote lunchroom which sells only to local people and buys almost all its supplies in the locality may possibly be beyond the reach of the power of Congress to regulate commerce, just as such an establishment is not covered by the present Act. But in deciding the constitutional power of Congress in cases like the two before us we do not con- sider the effect on interstate commerce of only one iso- lated, individual, local event, without regard to the fact that this single local event when added to many others of a similar nature may impose a burden on interstate com- merce by reducing its volume or distorting its flow. Labor Board v. Reliance Fuel Oil Corp., 371 U. S. 224; Wickard v. Filburn, 317 U. S. 111, 127-128; United States v. Darby, 312 U. S. 100, 123; Labor Board v. Fainblatt, 306 U. S. 601, 608-609; cf. Hotel Employees Local No. 255 v. Leedom, 358 U. S. 99. There are approximately 20,000,000 Negroes in our country.' Many of them are able to, and do, travel among the States in automobiles. Certainly it would seriously discourage such travel by them if, as evidence before the Congress indicated has been true in the past,1" they should in the 9 Bureau of the Census, 1964 Statistical Abstract of the United States, 25 (18,872,000 Negroes by 1960 census). 10 See, e. g., S. Rep. No. 872, 88th Cong., 2d Sess., 15-18. OCTOBER TERM, 1964. BLACK, J., concurring. 379 U. S. future continue to be unable to find a decent place along their way in which to lodge or eat. Cf. Boynton v. Vir- ginia, 364 U. S. 454. And the flow of interstate com- merce may be impeded or distorted substantially if local sellers of interstate food are permitted to exclude all Negro consumers. Measuring, as this Court has so often held is required, by the aggregate effect of a great num- ber of such acts of discrimination, I am of the opinion that Congress has constitutional power under the Com- merce and Necessary and Proper Clauses to protect inter- state commerce from the injuries bound to befall it from these discriminatory practices. Long ago this Court, again speaking through Mr. Chief Justice Marshall, said: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appro- priate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." M'Culloch v. Maryland, 4 Wheat. 316, 421. By this standard Congress acted within its power here. In view of the Commerce Clause it is not possible to deny that the aim of protecting interstate commerce from undue burdens is a legitimate end. In vipw of the Thir- teenth, Fourteenth and Fifteenth Amendments, it is not possible to deny that the aim of protecting Negroes from discrimination is also a legitimate end.11 The means 11 We have specifically upheld the power of Congress to use the commerce power to end racial discrimination. Boynton v. Virginia, 364 U. S. 454; Henderson v. United States, 339 U. S. 816; Mitchell v. United States, 313 U. S. 80; cf. Bailey v. Patterson, 369 U. S. 31; Morgan v. Virginia, 328 U. S. 373. Compare cases in which the commerce power has been used to advance other ends not entirely commercial: e. g., United States v. Darby, 312 U. S. 100 (Fair Labor Standards Act); United States v. Miller, 307 U. S. 174 (National Firearms Act); Gooch v. United States, 297 U. S. 124 (Federal Kid- ATLANTA MOTEL v. UNITED STATES. 277 241 BLACK, J., concurring. adopted to achieve these ends are also appropriate, plainly adopted to achieve them and not prohibited by the Con- stitution but consistent with both its letter and spirit. II. The restaurant and motel proprietors argue also, how- ever, that Congress violated the Due Process Clause of the Fifth Amendment by requiring that they serve Negroes if they serve others. This argument comes down to this: that the broad power of Congress to enact laws deemed necessary and proper to regulate and protect interstate commerce is practically nullified by the nega- tive constitutional commands that no person shall be deprived of "life, liberty, or property, without due process of law" and that private property shall not be "taken" for public use without just compensation. In the past this Court has consistently held that regulation of the use of property by the Federal Government or by the States does not violate either the Fifth or the Fourteenth Amend- ment. See, e. g., Ferguson v. Skrupa, 372 U. S. 726; District of Columbia v. John R. Thompson Co., 346 U. S. 100; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Nebbia v. New York, 291 U. S. 502. A regulation such as that found in Title II does not even come close to being a "taking" in the constitutional sense. Cf. United States v. Central Eureka Mining Co., 357 U. S. 155. And a more or less vague clause like the require- ment for due process, originally meaning "according to naping Act); Brooks v. United States, 267 U. S. 432 (National Motor Vehicle Theft Act); United States v. Simpson, 252 U. S. 465 (Act forbidding shipment of liquor into a "dry" State); Caminetti v. United States, 242 U. S. 470 (White-Slave Traffic [Mann] Act); Hoke v. United States, 227 U. S. 308 (White-Slave Traffic [Mann] Act); Hipolite Egg Co. v. United States, 220 U. S. 45 (Pure Food and Drugs Act); Lottery Case, 188 U. S. 321 (Act forbidding inter- state shipment of lottery tickets). OCTOBER TERM, 1964. DOUGLAS, J., concurring. 379 U. S. Hence I would prefer to rest on the assertion of legisla- tive power contained in § 5 of the Fourteenth Amend- ment 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 construc- tion, 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 strat- egies 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 inter- state-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 Amendment. II. 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 ATLANTA MOTEL v. UNITED STATES. 281 241 DOUGLAS, J., concurring. not to be transcended. But we think the sound con- struction 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 man- ner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitu- tion, and all means which are appropriate, which are plainly adapted to that end, which are not pro- hibited, 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 rights' as well as pro- tecting 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.2 1 For a synopsis of the legislative history see the Appendix to this opinion. 2 See Peterson v. City of Greenville, 373 U. S. 244 (discrimination in restaurant); Lombard v. Louisiana, 373 U. S. 267 (discrimination in restauant); Burton v. Wilmington Parking Authority, 365 U. S. 715 (discrimination in restaurant); Watson v. City of Memphis, 373 U. S. 526 (discrimination in city park); Brown v. Board of Edu- cation, 347 U. S. 483 (discrimination in public school system); Nixon v. Herndon, 273 U. S. 536 (discrimination in voting). OCTOBER TERM, 1964. DOUGLAS, J., concurring. 379 U. S. "State action"-the key to Fourteenth Amendment guarantees-is defined by § 201 (d) as follows: "Discrimination or segregation by an establish- ment is supported by State action within the mean- ing 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.3 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 peti- tioners 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 dis- criminations as they see fit. Rather, these are cases in which the States have made available to such indi- 3 The Georgia trespass law is found in Ga. Code Ann., § 26-3005 (1963 Supp.), and that of Alabama in Ala. Code, Tit. 14, § 426 (1958 Recomp.). ATLANTA MOTEL v. UNITED STATES. 285 241 DOUGLAS, J., concurring. property owner to serve or sell to whom he pleased was never claimed when laws were enacted prohibit- ing 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 rea- sons for not allowing concepts of private property to defeat public accommodations legislation. The in- stitution 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, includ- ing government, in order to earn a livelihood and prosper from his individual efforts. Private prop- erty 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 discrimi- nate 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 accom- 744-008 0-65-25 OCTOBER TERM, 1964. Appendix to opinion of DOUGLAS, J., concurring. 379 U. S. modations legislation. Zoning laws tell the owner of private property to what type of business his prop- erty may be devoted, what structures he may erect upon that property, and even whether he may devote his private property to any business purpose whatso- ever. Such laws and regulations restricting private property are necessary so that human beings may develop their communities in a reasonable and peace- ful 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 Fourteenth Amendment. 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 discrimina- tion whether he travels interstate or intrastate. APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING. (1) The Administration Bill (as introduced in the House by Congressman Celler, it was H. R. 7152). Unlike the Act as it finally became law, this bill (a) con- tained findings (pp. 10-13) which described discrimina- ATLANTA MOTEL v. UNITED STATES. 287 241 Appendix to opinion of DOUGLAS, J., concurring. tion in places of public accommodation and in findings (h) and (i) connected this discrimination to state action and invoked Fourteenth Amendment powers to deal with the problem; and (b) in setting forth the public estab- lishments which were covered, it used only commerce- type language and did not contain anything like the present § 201 (d) and its link to § 201 (b)-the "or" clause in § 201 (b). Nor did the bill contain the present § 202. In the hearings before the House Judiciary Subcom- mittee the Attorney General stated clearly and repeatedly that while the bill relied "primarily" on the Commerce Clause, it was also intended to rest on the Fourteenth Amendment. See Hearings before Subcommittee No. 5, House Judiciary Committee, 88th Cong., 1st Sess., 1375- 1376, 1388, 1396, 1410, 1417-1419. (2) The Subcommittee Bill (as reported to the full House Judiciary Committee). The Attorney General testified against portions of this bill. He reiterated that the administration bill rested on the Fourteenth Amendment as well as on the Commerce Clause: see Hearings, House Judiciary Com- mittee on H. R. 7152, as amended by Subcommittee No. 5, 88th Cong., 1st Sess., 2693, 2700, 2764. But this bill added for the first time a provision similar to the present § 201 (d)-only much broader. See id., at 2656, first full paragraph. (Apparently this addition was in response to the urgings of those who wanted to broaden the bill and who failed to comprehend that the administration bill already rested, despite its commerce language, on the Fourteenth Amendment.) The Attorney General feared that the new provision went too far. Further, the new provision, unlike the present § 201 (d) but like the pres- ent § 202, did not limit coverage to those establishments specifically defined as places of public accommodation; rather it referred to all businesses operating under state OCTOBER TERM, 1964. Appendix to opinion of DOUGLAS, J., concurring. 379 U. S. Lindsay makes remarks indicating that it is his under- standing that the commerce language portions of § 201 rest only on the Commerce Clause, while the Fourteenth Amendment is invoked to support only § 201 (d). But at p. 1926 Congressman MacGregor, a member of the Judiciary Subcommittee, states, in response to Con- gressman Willis' challenge to the constitutionality of the "transient guests" coverage, that: "When the gentle- man from Louisiana seeks in subparagraph (1) on page 43 [§ 201 (b)(1)] to tightly circumscribe the number of inns, hotels, and motels to be covered under this legisla- tion he does violence to the 1883 Supreme Court decision where it defines the authority of the Congress under the 14th amendment. . . . Mr. Chairman, in light of the 1883 Supreme Court decision cited by the gentleman from Louisiana, and in light of a score of subsequent decisions, it is precisely the legislative authority granted in the 14th amendment that we seek here to exercise." At pp. 1962-1968 there is the discussion surrounding the passage of the Goodell amendment striking the word "encouraged" from § 201 (d) (2) of the bill as reported. Likewise in these pages there is the discussion concerning the Willis amendment to the Goodell amendment: this amendment eliminated the word "fostered." After the adoption of these amendments the custom or usage had to be "required or enforced" by the State-not merely "fostered or encouraged" in order to constitute "state action" within the meaning of the Act. At p. 1964 Congressman Smith of Virginia offered an amendment as a substitute to the Goodell amendment that would have eliminated the "custom or usage" lan- guage altogether. Congressman Celler said in defense of the bill as reported: "[C] ustom or usage is not constituted merely by a practice in a neighborhood or by popular attitude in a particular community. It consists of a practice which, though not embodied in law, receives notice and sanction to the extent that it is enforced by ATLANTA MOTEL v. UNITED STATES. 291 241 GOLDBERG, J., concurring. the officialdom of the State or locality" (pp. 1964-1965). The Smith Amendment was rejected by the House (p. 1967). It would seem that the action on this Smith substitute and the statement by Congressman Celler mean that a State's enforcement of the custom of segregation in places of public accommodation by the use of its trespass laws is a violation of § 201 (d)(2). (4) The House Bill. The House bill was placed directly on the Senate cal- endar.and did not go to committee. The Dirksen-Mans- field substitute adopted by the Senate made only one change in § § 201 and 202: it changed "a" to "the" in § 201 (d) (3). Senator Dirksen nowhere made any ex- plicit references to the constitutional bases of Title II. Thus it is fair to assume that the Senate's understanding on this question was no different from the House's view. The Senate substitute was adopted without change by the House on July 2, 1964, and signed by the President on the same day. MR. JUSTICE GOLDBERG, concurring.* I join in the opinions and judgments of the Court, since I agree "that the action of the Congress in the adoption of the Act as applied here . . . is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years," ante, at 261. The primary purpose of the Civil Rights Act of 1964, however, as the Court recognizes, and as I would under- score, is the vindication of human dignity and not mere economics. The Senate Commerce Committee made this quite clear: "The primary purpose of . . . [the Civil Rights Act], then, is to solve this problem, the deprivation of personal dignity that surely accompanies denials *[This opinion applies also to No. 543, Katzenbach v. McClung, post, p. 294.] OCTOBER TERM, 1964. GOLDBERG, J., concurring. 379 U. S. of equal access to public establishments. Discrimi- nation 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. It is equally the inability to explain to a child that regardless of edu- cation, civility, courtesy, and morality he will be de- nied the right to enjoy equal treatment, even though he be a citizen of the United States and may well be called upon to lay down his life to assure this Nation continues." S. Rep. No. 872, 88th Cong., 2d Sess., 16. Moreover, that this is the primary purpose of the Act is emphasized by the fact that while § 201 (c) speaks only in terms of establishments which "affect commerce," it is clear that Congress based this section not only on its power under the Commerce Clause but also on § 5 of the Fourteenth Amendment.' The cases cited in the Court's opinions are conclusive that Congress could exercise its 'Hearings in Congress as well as statements by administration spokesmen show that the original bill, presented by the administra- tion, was so based even though it contained no clause which resembled § 201 (d)-the so-called "state action" provision-or which even mentioned "state action." See, e. g., Hearings before Senate Com- mittee on Commerce on S. 1732, 88th Cong., 1st Sess., 23, 27-28, 57, 74, 230, 247-248, 250, 252-253, 256, 259; Hearings before Senate Judiciary Committee on S. 1731, 88th Cong., 1st Sess., 151, 152, 186; Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on H. R. 7152, 88th Cong., 1st Sess., 1396, 1410; Hear- ings before House Judiciary Committee on H. R. 7152, as amended by Subcommittee No. 5, 88th Cong., 1st Sess., 2693, 2699-2700; S. Rep. No. 872, 88th Cong., 2d Sess., 2. The later additions of "state action" language to § 201 (a) and § 201 (d) did not remove the dual Commerce Clause-Fourteenth Amendment support from the rest of the bill, for those who added this clause did not intend thereby to bifurcate its constitutional basis. This language and § 201 (d) were added, first, in order to make certain that the Act would cover all or almost all of the situations as to which this Court might hold that § 1 of the Fourteenth Amendment applied. Senator Hart stated that not to do so would "embarrass Congress