Civil Rights and Public Accommodations: The Heart of Atlanta Motel and McClung Cases
by Richard C. Cortner
University Press of Kansas * 2001 * 240 pages * $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. …