Vol. 11 No. 7 (July 2001) pp. 339-342.

CIVIL RIGHTS AND PUBLIC ACCOMMODATIONS: THE HEART OF ATLANTA AND McCLUNG CASES by Richard C. Cortner. Lawrence, KS: University Press of Kansas, 2001. 240pp. Cloth $29.95. ISBN 0-7006-1077-4.

Reviewed by Craig R. Ducat, Department of Political Science, Northern Illinois University.

Amid current Supreme Court efforts which hint, it would seem, at returning us to something akin to the jurisprudence of Marie Antoinette that was the fashion of more than a few pre-Roosevelt Court decisions, Richard Cortner's thoughtful and thorough case study of the two decisions upholding the public accommodations provisions of the 1964 Civil Rights Act instead recalls the days of a kinder, gentler Court. HEART OF ATLANTA MOTEL v. UNITED STATES (1964) and KATZENBACH v. McCLUNG (1964), of course, became staples in our teaching of the Commerce Clause the day they were announced. They stand as a bridge linking the study of constitutional powers with civil liberties and depict a vision of American society that propelled the Warren Court. Yet, as Cortner shows, the story is not just about the Court. It is also about those whose advocacy made possible the result for which we, who teach about the Court, give credit.

Long-time teaching of the HEART OF ATLANTA and McCLUNG cases is apt to lead to clich,d understanding. At least, after reading Cortner's book, that was my assessment of my own teaching about them. Who among us has not connected the Heart of Atlanta Motel to the Commerce Clause by way of the many interstate travelers registered to stay there, its proximity to an interstate highway, and the fact that the business had advertised with the purpose of attracting interstate customers? And, by contrast, who has not emphasized that the McCLUNG case turned on the fact that the food sold at Ollie's Barbecue had moved in interstate commerce? Who among us has not pointed out time and again that the Justice Department and Congress chose to play it safe and rest the legislation on the Roosevelt Court's expansive interpretations of the Commerce Clause rather than chance invalidation of the equal accommodation provisions by pinning them to Congress's power to enforce equality through section 5 of the Fourteenth Amendment? All this is familiar enough stuff. And therein lies the insufficiency.

Cortner is as good an historian as he is a political scientist. Appreciation of the issues-and especially of the Court's politics-loses a lot when they are removed from their place in time. As Cortner ably demonstrates, context is everything.

Take, for example, the federal government's reliance upon the Commerce Clause in the first place. It was, and still is, the conventional wisdom that reliance upon Congress's authority to enact corrective legislation under the Thirteenth and Fourteenth Amendments was risky. But how risky? As Cortner shows, it was plenty risky. The stumbling block presented by THE CIVIL RIGHTS CASES (1883), in reaching private acts of discrimination was formidable. True, JONES v. MAYER CO. (1968) neutralized the 1883 decision, but that decision was still three and a half years off when the public accommodations cases were decided in December 1964. By 1968, the Court's composition had changed materially and-from an anti-discrimination viewpoint, at least-quite favorably: Abe Fortas's substitution for Arthur Goldberg may have been a draw, but Tom Clark's replacement by Thurgood Marshall was certainly not. When HEART OF ATLANTA and McCLUNG were decided, however, it was far from clear there were the votes to do the deed. And even if a majority could be had, as Cortner shows, what was wanted was a unanimous Court, not just a majority.

Furthermore, whatever the possible likelihood of abandoning the crabbed interpretation THE CIVIL RIGHTS CASES gave the Thirteenth Amendment, it was far from clear there were even the votes to uphold congressional legislation based on the Fourteenth Amendment that would have made it illegal to use state trespass laws to maintain segregation in privately-owned businesses by characterizing the enforcement of such laws as "state action." In BELL v. MARYLAND (1964), decided less than four months before HEART OF ATLANTA MOTEL and McCLUNG were argued before the Court, a majority of the justices begged off deciding whether the Fourteenth Amendment forbade the application of state trespass laws against black sit-in demonstrators protesting the refusal of service. Three members of the Court dissented from the Court's refusal to reach the issue and went on record upholding the constitutionality of enforcing neutrally written state trespass laws. Even if the six other members of the Court were willing to line up on the other side (and three indicated in a concurring opinion that they were), the fact that the author of the dissent was none other than Justice Black would have created a tacky political situation compounding that of a divided Court.

Cortner deftly shows how the specters of past decisions hung over the disposition of the public accommodations cases. The political imperative that the justices stand shoulder to shoulder in the face of what was expected to be Southern defiance nearly as great as that exhibited in response to BROWN v. BOARD OF EDUCATION (1954), meant that the justice with the most misgivings-in this instance, John Harlan-had to be appeased whatever the cost, since he threatened to crack the united front with a concurring opinion questioning aspects of a too-broad interpretation of the Commerce Clause. In the political posture the Court expected to find itself, concurring opinions from justices on the Left could be tolerated but any on the Court's political Right had to be preempted. And, like the handling of the opinion assignment in the White Primary Case, SMITH v. ALLWRIGHT (1944), it was the better part of political discretion to let a Southerner-this time, Tom Clark-speak for the Court. Cortner's take on the opinion assignment in the public accommodations cases as history repeating itself is probably correct. It was essentially a replay of the strategy Alpheus Mason described when he revealed the maneuvering that resulted in Stanley Reed, rather than Felix Frankfurter, speaking for the Court in the White Primary Case.

The book is also rich in its portrayal of the flesh and blood individuals who owned and operated the Heart of Atlanta Motel and Ollie's Barbecue. As Cortner reminds us, there were those-quite unlike Lester Maddox-who fought the good fight over the constitutionality of the law by invoking the Tenth Amendment and property rights rather than by brandishing a pickaxe handle. Also, Cortner's treatment of the Justice Department's attempts to ensure that the best possible case was selected to test the constitutionality of the statute recalls Clement Vose's portrayal of the blind-siding of the NAACP in its effort to successfully challenge the constitutionality of enforcing restrictive covenants.

There were many persuasive arguments for choosing the Commerce Clause as the basis for the Court's decision, not just by default, but because there was a strong case to be made for it on its merits. It was not just a matter of asserting that Congress could legislate equal access to places of public accommodations because people moved across state lines and Congress therefore had the power, but because-to put it bluntly -discrimination was bad for business. As Cortner summarizes the depressant effects of racial discrimination on commercial activity: (1) "[t]he scarcity of accommodations for blacks ... reduced their interstate travel"; (2) "racial discrimination in hotels and motels ... adversely affected interstate commerce ... by imposing restrictions on the market for interstate products, a market that would substantially expand if ... racial discrimination ... w[as] removed"; (3) "racial discrimination ... [in] places of public accommodations also produced protests, demonstrations, and disputes ... and these disputes ... reduc[ed] ... business activity ... [and] the demand for goods and products from interstate commerce"; and (4) "the pervasiveness of racial discrimination ... retarded th[e] region's economic growth to the detriment of the national economy as a whole ... [since] [b]usinesses that might have relocated in the South ... had declined to do so."

Demonstrating the applicability of these arguments, Solicitor General Archibald Cox hammered away at the relevance of the Roosevelt Court's interpretation of the Commerce Clause, as reflected in such cases as N.L.R.B. v. JONES & LAUGHLIN STEEL CORP. (1937), UNITED STATES v. DARBY (1941), and WICKARD v. FILBURN (1942), pointing out that crossing state lines was not all there was to it. It was a matter of racial discrimination's burdensome effect on interstate commerce, even when the conduct that generated those burdens appeared to be entirely intrastate. The Court had accepted this principle of interpreting the Commerce Clause as far back as THE SHREVEPORT RATE CASE (1914)-more than two decades before there was a Roosevelt Court.

At first glance, Cortner's study may appear to be just a nostalgic look back at the days of the Commerce Clause at high tide. But, as he makes apparent near the end of the book, the Justice Department's advocacy and the Supreme Court's disposition of the public accommodations cases stand in sharp contrast to the work of the present Court. Recent decisions striking down both the Gun-Free School Zones Act of 1990 and the Violence Against Women Act and the Court's relish in bandying the Eleventh Amendment about as a club to fend off federal protection for state workers and the disabled eerily recalls the dual federalist arguments pressed by Southern segregationists bent on preserving racial discrimination.

In this, Cortner credits the current majority with being heir to the sort of constitutional approach that prompted Justice Harlan to force Congress and the Court to expressly link the public accommodations provisions of the 1964 Civil Rights Act to specific, real economic effects of racial discrimination rather than settling for general attribution of their macroeconomic effects.

Cortner sees recent decisions such as UNITED STATES v. LOPEZ (1995) and UNITED STATES v. MORRISON (2000)-the cases that invalidated the two pieces of legislation just mentioned-as "decisions [which] may in the long run be viewed as healthy reminders that we live under a constitutional system that imposes limitations on the exercise of governmental power that may not be exceeded even when the power being exercised derives from the Commerce Clause." In this, Cortner adopts a more benign view of the federal system than I share, and he articulates a generosity toward the current Court majority that is more than I can indulge.

Cortner's case study of the HEART OF ATLANTA and McCLUNG cases is well researched, carefully written, and even-handed. It bends over backwards to be fair. To those of us long familiar with Richard Cortner's work, this comes as no surprise. It's the story of another job very well done.

CASE REFERENCES:

BELL v. MARYLAND, 378 U.S. 226 (1964).

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954),

THE CIVIL RIGHTS CASES, 109 U.S. 3 (1883).

HEART OF ATLANTA MOTEL v. UNITED STATES, 379 U.S. 241 (1964).

JONES v. MAYER CO., 392 U.S. 409 (1968).

KATZENBACH v. McCLUNG, 379 U.S. 294 (1964).

N.L.R.B. v. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1 (1937),

THE SHREVEPORT RATE CASE, 234 U.S. 342 (1914).

SMITH v. ALLWRIGHT, 321 U.S. 649 (1944).

UNITED STATES v. DARBY, 312 U.S. 100 (1941),

UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).

UNITED STATES v. MORRISON, 529 U.S. 598 (2000).

WICKARD v. FILBURN, 317 U.S. 111 (1942).

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Copyright 2001 by the author, Craig R. Ducat.