The Civil Rights Act of 1964, now celebrating its 50th year, marks an enduring revolution in the way we think about civil rights enforcement under our Constitution. In particular, the act was the first piece of federal legislation that effectively banned wholly private racial discrimination—that is, racial discrimination between two private actors, not involving the government. The act thus proved to be a vital tool to enforce equality and civil rights at a time when private racial discrimination threatened to perpetuate the inequalities created by the slowly deteriorating state-sponsored racial discrimination of Jim Crow. In other words, if private discrimination sought to augment the state-sponsored discrimination of Jim Crow, the Civil Rights Act of 1964 was designed to stop it.
Title II of the act tells the story well. Title II bans racial discrimination in places of public accommodations—privately owned establishments such as hotels and restaurants that nevertheless cater to the public. In enacting Title II, however, Congress ran headlong into a seemingly insurmountable barrier: the requirement under the Fourteenth Amendment that Congress could only ban state-sponsored discrimination. Congress cleverly worked around this barrier, though, by looking to a different authority, the Commerce Clause. The result was a ban on racial discrimination in places of public accommodations, without regard to whether the discrimination resulted from state action, and even without regard to the Supreme Court’s cramped reading of the Equal Protection Clause of the Fourteenth Amendment.
Title II did not stand alone, of course; it was part of a much larger, comprehensive system of federal civil rights legislation. The Civil Rights Act of 1964 itself was comprised of eleven titles altogether, addressing racial discrimination in all different areas of life. Most notably, Title I addressed racial discrimination in voting; Title III banned racial discrimination in public facilities; Title IV banned racial discrimination in public education; Title VI banned discrimination in publicly financed programs; and Title VII banned racial discrimination in employment. Moreover, the Civil Rights Act of 1964 was only the first in a line of federal civil rights acts, including the Voting Rights Act of 1965, the Age Discrimination in Employment Act of 1967, the Fair Housing Act of 1968, the Education Amendments of 1972 (Title IX), and the Age Discrimination Act of 1975, among others.
Many of these civil rights provisions, like Title II, rely on other congressional authorities in the Constitution (and not the seemingly more obvious authorities in the Thirteenth, Fourteenth, and Fifteenth Amendments). Thus, Title II not only cleverly addressed the acute and potentially intractable problem of private racial discrimination, it also showed how Congress might use its entire arsenal of authorities to enforce civil rights.
The Thirteenth, Fourteenth, and Fifteenth Amendments, ratified after the Civil War, during Reconstruction, gave Congress vast new powers to enforce civil rights. In particular, the Thirteenth Amendment gave Congress authority to enforce the amendment’s ban on slavery and involuntary servitude. The Fourteenth Amendment gave Congress authority to enforce the amendment’s prohibition on a state’s denial of equal protection of the laws. (The Fourteenth Amendment also established birthright citizenship, so that anyone born in the United States is automatically a citizen of the United States, overturning Dred Scott v. Sandford. It also prohibited states from denying the privileges or immunities of citizens of the United States and from depriving any person of life, liberty, or property without due process of law.) The Fifteenth Amendment gave Congress authority to enforce the amendment’s ban on discrimination by race, color, or previous condition of servitude in voting. Congress’s authority to enforce the provisions of these amendments was more elastic than the plain terms of the amendments themselves. As a result, congressional enforcement power swept more broadly than, say, just banning slavery; it also included the power to ban the “badges and incidents” of slavery.
In 1875, Congress sought to exercise this vast, new authority by banning racial discrimination in places of “public accommodation.” In the Civil Rights Act of 1875, Congress banned racial discrimination in places such as hotels, restaurants, theaters, and other places that, while privately owned, were generally open to the public. Congress thought that it had sound authority to enact the ban under its enforcement powers in the Thirteenth and Fourteenth Amendments.
But the Supreme Court disagreed. In five separate cases, consolidated under the case title The Civil Rights Cases (1883), the Court ruled that Congress exceeded its enforcement authority under both amendments. The Court said that Congress exceeded its authority under the Thirteenth Amendment because racial discrimination in places of public accommodation was not a “badge or incident” of slavery.
The Court held that Congress exceeded its enforcement authority under the Fourteenth Amendment because racial discrimination in places of public accommodation amounted to private discrimination, not state-sponsored discrimination in violation of the amendment’s demand for equal protection. (The Fourteenth Amendment says, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”) Thus, just eight years after Congress enacted the act, the Court ruled it unconstitutional.
Justice Harlan wrote a full-throated dissent, taking the majority to task for ignoring the true purposes of the Thirteenth and Fourteenth Amendments and pulling the curtain back on the Court’s uneven treatment of congressional authority here and in other cases. In particular, Justice Harlan wrote that the Court gave an unduly cramped reading to congressional authority in the new amendments, and one that flew in the face of the amendments’ purposes. “Constitutional provisions, adopted in the interest of liberty and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom and belonging to American citizenship have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law.” Justice Harlan also criticized the Court for its double standard, reading congressional authority broadly when Congress previously acted to protect slave-owners, but reading congressional authority narrowly when Congress now sought to protect civil rights.
The Court’s ruling in The Civil Rights Cases dealt a major blow to Congress and its efforts to protect civil rights. (The blow was a second one. The Court landed its first major blow in an earlier case, The Slaughterhouse Cases (1873), which read an unduly narrow “privileges or immunities” clause in the Fourteenth Amendment.) It closed the door on two of the most obvious sources of authority for Congress to outlaw racial discrimination in public accommodations. And after the Civil Rights Act of 1875, Congress did not enact another civil rights law for 80 years.
The Civil Rights Act of 1964
Then, in June 1963, President Kennedy announced on national television that he would send proposals to Congress to eliminate racial segregation in public accommodations. But President Kennedy’s proposals did not come out of the blue. Instead, they came amid increased violence aimed at Freedom Riders and lunch counter sit-in demonstrators. They came amid rising incidents of abhorrent violence directed at blacks and civil rights leaders. And they came on the heels of the internationally televised violence unleashed by Eugene “Bull” Connor upon the peaceful demonstrators in Birmingham, Alabama, earlier that spring. Against this backdrop, by June 1963, an increasing number of labor unions, churches, and civic organizations had joined the civil rights movement in calling for a government response. President Kennedy, fearful that racial violence could spin out of control, finally responded with his proposals.
President Kennedy’s announcement was framed by events at the Supreme Court, too. The Supreme Court, in its 1962 Term, considered six lunch counter sit-in cases in which black criminal defendants challenged their state-court convictions for trespass or breach-of-the-peace under the Fourteenth Amendment Equal Protection Clause. The Court ruled that the convictions were based on government action (thus satisfying the state-action requirement that was central to the Court’s holding in The Civil Rights Cases), either because local law mandated racial segregation in restaurants, or because local officials ordered the defendants’ arrests, or both. The Court ruled further that the government action violated the Equal Protection Clause. On May 20, 1963, the Court reversed the convictions in all of these cases. But even if state-sponsored discrimination was illegal, no federal law yet prohibited private discrimination. That is what President Kennedy’s proposal was aimed at.
President Kennedy’s legislation prompted a constitutional debate over congressional authority to enact the prohibition on racial discrimination in public accommodations. The debate included some of the same arguments over congressional authority under the Thirteenth and Fourteenth Amendments to enact the Civil Rights Act of 1875, rehearsed in The Civil Rights Cases. In particular, opponents of the legislation argued that a ban on racial discrimination in places of public accommodation was aimed at private behavior, not state action; and they said that such a ban would run headlong into the Court’s holding in The Civil Rights Cases. Supporters, on the other hand, recognized that racial discrimination was undoubtedly a “moral issue,” cutting to the core of human dignity and the Fourteenth Amendment’s demand for equality; and they saw a congressional ban on racial discrimination in places of public accommodation as an important public and national moral statement on the issue—a statement issued most appropriately under the Fourteenth Amendment. But they could not be sure that the Court would overrule or distinguish The Civil Rights Cases and its requirement for state action.
So supporters made a bold and innovative move. They turned to a different source of congressional authority, which did not depend on state action: the Commerce Clause. The Commerce Clause, in Article I, Section 8, of the Constitution, authorizes Congress to regulate activity that has a substantial effect on interstate commerce. Without detracting from the moral force of the legislation (and turning the problem into a mere economic matter), supporters of the administration’s bill argued that racial discrimination in places of public accommodation did just that—affected interstate commerce. They also argued that sit-ins and demonstrations, themselves a response to racial discrimination, had a substantial effect on interstate commerce. The Supreme Court had previously upheld congressional authority to enact “moral legislation” under the Commerce Clause—so long as the regulated activity had a substantial effect on interstate commerce. If the Supreme Court upheld this kind of legislation before, there was no good reason why Congress should not similarly have authority to enact this legislation now.
Opponents in Congress pounced. They argued that the Commerce Clause was designed to allow Congress to regulate interstate economic matters, and not as a front for Congress to promote a particular moral vision under the guise of economic regulation. They also argued that a congressional ban on racial discrimination in places of public accommodation trampled on private property rights. In particular, they said that the ban intruded on the right of private business owners to do business, or to decline to do business, with any person they want.
Ultimately, supporters prevailed, and Congress passed Title II of the Civil Rights Act of 1964. Title II stated the ban on racial discrimination affirmatively, as a right of “all persons . . . to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, or national origin.” It defined “any place of public accommodation” broadly, to include all manner of inns and hotels, restaurants, lunch counters, soda fountains, gas stations, theaters, concert halls, and sports arenas that affected commerce, or that were supported by state action. (Title II exempted private clubs that were not, in fact, open to the public.) Title II forbade such discrimination. And it created a private right of action, and authorized the Department of Justice to bring suit, to enforce its provisions.
Title II became an immediate target in the courts. In particular, the owner of the Heart of Atlanta Motel in Atlanta, Georgia, and the owner of Ollie’s Barbecue, in Birmingham, Alabama, brought separate suits arguing that Title II was unconstitutional and seeking injunctive relief. The cases worked their way to the Supreme Court, which heard oral arguments on them together and ultimately upheld Title II in two separate rulings. The Court ruled in Heart of Atlanta Motel, Inc. v. U.S. (1964) that Congress had plenty of authority under the Commerce Clause to ban racial discrimination at the hotel because the hotel catered to interstate travelers and it therefore affected interstate commerce. The Court ruled the same day in Katzenbach v. McClung (1964) that Congress had plenty of authority under the Commerce Clause to ban racial discrimination at Ollie’s Barbecue because a good portion of the food used by the restaurant was imported from out of state, and the restaurant therefore affected interstate commerce. The Court said in both cases that Congress had an impressive legislative record tying racial discrimination in places of public accommodation to interstate commerce. And it flatly rejected the claim that Congress could not ban race discrimination—and enact this kind of “morals” legislation—under the Commerce Clause.
These rulings marked a revolution in the way we think about civil rights enforcement under our Constitution. They mean that Congress, through Title II, can ban any racial discrimination, even purely private racial discrimination, so long as the underlying activity substantially affects interstate commerce. And as we see from these cases, this can be nearly anything. In this way, Title II’s ban is untethered from the constraints on congressional authority under its enforcement power under the Fourteenth Amendment. In other words, Title II, or other, similar legislation based on the Commerce Clause, like Title VII, need not satisfy the state-actor requirement; indeed, it need not even address only the cramped version of equal protection that the Supreme Court has read into the Fourteenth Amendment. Title II can be broader.
Indeed, the courts have recognized this. Courts have applied Title II liberally, to effectuate the goals of Congress, including the goal to eliminate unfairness, humiliation, and insult of racial discrimination in facilities that serve the general public. As a result, courts have certainly struck private discrimination in hotels and restaurants (such as the Heart of Atlanta Motel and Ollie’s Barbecue), but they have also struck private discrimination in bars, casinos, recreational complexes, buses, and more. Title II’s enforcement mechanism allows individuals to bring a claim, and it allows the U.S. Department of Justice to bring a claim, when there is reason to believe that a person has engaged in a pattern or practice of discrimination.
In short, these rulings meant that owners of places of public accommodation could no longer discriminate with impunity. They could no longer shield themselves with the state-actor requirement in the Fourteenth Amendment. And they could no longer perpetuate the slowly dying Jim Crow, even through private (not state-sanctioned) discrimination.
But these rulings did more. They set precedent for Congress to use its entire menu of authorities, not just its enforcement power under the Thirteenth, Fourteenth, and Fifteenth Amendments, to enforce civil rights. As a result, Congress has enacted effective civil rights legislation under the Commerce Clause, the Spending Clause, even the Taxing Clause, and more. This ongoing civil rights movement now touches nearly every area of our lives. And it started with the Civil Rights Act of 1964.
- Why do you think the Civil Rights Act of 1964 was significant? How was it different from previous civil rights acts?
- The Civil Rights Act of 1875 attempted to ban private racial discrimination in public areas but was ruled unconstitutional by the Supreme Court. What do you think changed between 1875 and 1964 to allow the Civil Rights Act of 1964 to avoid the same ruling?
- How did Congress use the Commerce Clause to effect changes under the Civil Rights Act of 1964? Do you think this was appropriate?