The Warren Court: Rightly Decided, but Wrong Rationale

The Warren Court is in many ways an enigma. You have to applaud them for overturning Plessy v. Ferguson in Brown v. School Board which finally ending the “separate but equal” discriminatory practices. This was accomplished using the Fourteenth Amendment’s equal protection clause. However, two cases a decade later, in 1964, the Courts rationale can leave one scratching their head wondering what was the Court thinking. In Heart of Atlanta Motel v. United States and Katzenbach v. McClung the Warren Court rightly upheld the Civil Rights Act of 1964, but did so in a very peculiar fashion. Their decision was consistent with Brown in ending discriminatory practices in the South, but they used the “commerce clause” to reach their verdict instead of applying the Fourteenth Amendment.

The clause in question of the 1964 Civil Rights Act reads: “All persons, shall be entitled to the full and equal enjoyment of the good, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the grounds of race, color, religion, or national origin”. Those facilities include inns, hotels, motels, restaurants, cafeteria, and movie theatres. Congress passed the Act by insinuating discrimination in any of the above mentioned facilities “affects commerce”. That is a reach at best since commerce means the trading of commodities. The Atlanta Motel case applied to lodging and the Katzenbach case applied to restaurants since both refused to serve African-Americans. It is worth noting a similar clause in the 1875 Civil Rights Act was deemed unconstitutional in 1883.

In Atlanta Motel, Justice Clark says “the conditions of transportation and commerce have change dramatically, and we must apply those principles to the present state of commerce”. This is just another way of saying the Court is about to expand the Federal Government’s power. After all, people travelled between states all the time when the Constitution was drafted and at no point was that considered commerce. However, up to the date of this decision the commerce clause had been held constitutional to regulate: gambling (Lottery Case, 1903), insurance (Underwriters case), individual crop control (Wickard v. Filburn, 1942), regulate labor unions (Labor Board v. Jones and Laughlin Steel, 1937), and economic activity including wages and hours (United States v. Darby, 1941). The Court decided that since Congress had a “rational basis” to end discrimination using the commerce clause it was an “appropriate” law. Clark correctly points out “Congress could have pursued other methods” to end racial discrimination (Fourteenth Amendment). Both Justices Douglas and Goldberg concurred with the decision but also correctly add that the Court could have made its decision to end discrimination in both cases via the fifth clause of the Fourteenth Amendment which says: “The Congress shall have power to enforce, by appropriate legislation, the provisions in this article.” The first clause of the Fourteenth Amendment saying everyone has a constitutional right “to be treated as equal members of the community with respect to public accommodations” would be provision enforced by the fifth clause.

In Katzenback, Clark says interstate commerce includes the “movement of persons, goods or information from one state to another.” Clark also contends that Congress has the power to regulate “intrastate activities”. Clark would go on to cite the most controversial commerce clause case, Wickard v. Filburn: Congress has the power to regulate any “substantial economic effect” on interstate commerce. This vague and ambiguous statement has never been clearly defined as to what constitutes “substantial”. The Court merely has to decide whether a Federal law is “rational” to deem it constitutional. Hence, the Court concludes that the law “had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of commerce”. “The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this court” to uphold these laws.

So instead of properly applying the Fourteenth Amendment for its intended purpose: to stop discrimination; the Warren Court decided to further expand the powers of Congress by redefining the commerce clause. What can’t Congress regulate if they have the power to control local businesses for whatever reason they may see fit? Notice the interstate commerce clause has gone from meaning regulating trade among the states to controlling all aspects of economic activity well beyond trade. The Court had other options to decide this case such as reinstating the “privileges and immunities” clause in the Fourteenth Amendment. The Court could have decided that the “liberty” of American citizens was being violated or restricted. However, instead of giving more power and sovereignty back to the people, the Court decided to yield more power to the Federal government.