Earl Warren: The Heart of Atlanta Motel Incorporated, Appellant versus United States et al. In this case, proper jurisdiction is noted. The joint motion for acceleration of oral argument is granted and the case is set for oral argument on Monday, October 5, 1964. We will proceed. Mr. Rolleston.
Moreton Rollesten, Jr.: Mr. Chief Justice, may it please the Court.
Potter Stewart: Is this your only brief one -- joined with a jurisdiction statement?
Moreton Rollesten, Jr.: Yes, Your Honor.
Potter Stewart: Thank you.
Moreton Rollesten, Jr.: The Court had instructed us to file a brief the same time we filed a jurisdiction statement, it's the only brief on either question. This is an appeal from a final judgment in the United States District Court for the Northern District of Georgia, Atlanta Division, which was heard before a three-judge court. On a complaint filed by the appellant herein, he was a plaintiff below, seeking to declare the Civil Rights Act of 1964 un-constitutional and seeking a permanent injunction against the United States and the Attorney General of the United States at that time, Mr. Kennedy, from enforcing that Act against the appellant. The government filed not only an answer for the counterclaim, and in the counterclaim, asked for an injunction out of provisions for the Civil Rights Act against the appellant. The case was heard and decision rendered on the counterclaim of the government and the permanent injunction was granted against the appellant and any officers or agents set forth. We --
Hugo L. Black: Did you initiate your (Inaudible)
Moreton Rollesten, Jr.: Your Honor, we filed a suit in the United States District Court, it was actually received by Judge Hoffman, Chief Justice of the Fifth Circuit, convened a three-judge court on his motion.
Hugo L. Black: That was on the certificate of the government in a case to the (Inaudible)
Moreton Rollesten, Jr.: The government filed such a certificate, on the present judge totally convened the court himself.
Hugo L. Black: (Inaudible)
Moreton Rollesten, Jr.: Before they even asked us about this. Now, the facts in this case are very simple. As a matter of fact, (Inaudible) tried to make it simple. They are made by the pleadings and the answer to the pleadings, and a short stipulation facts, and these generally in briefly are the facts. The Heart of Atlanta Motel Corporate is Georgia Corporation owned a motel in line of name, the Heart of Atlanta Motel. It is the only business that it operates. It's the only business it has in Atlanta. The motel has 216 rooms, it is located in downtown Atlanta and fronting on the Interstate Highway. By stipulation, we agreed that over 75% of all the business, in the form of guests coming from out of the State of Georgia, than most of the convention business is listed out in the State of Georgia, there we have highway billboards on roads in Georgia. There was nothing in the stipulations about a restaurant because we brought the suit in the name of the corporation. The restaurant in the motel is operated by a lessee. The government in their counterclaim included the lessee but later dismissed them because they determined as a matter of fact, after the facets of the act, the lessee was complying with that. But the --
Hugo L. Black: -- what, I didn't get --
Moreton Rollesten, Jr.: The lessee of the restaurant was complying with the Act, they are lessee in our premises. Somewhat in part and end of the case because also the Alabama case far in this one, there is a arresting involved but not in this particular case, but the -- low applicable is interested in -- and applicable to us because eventually it will apply to our restaurant too even though it is a lessee. And I think those all are facts. I think it comes squarely under the law, under the law as proposed by Congress, now, we have attempted to -- and have attacked the constitutionality of Title 2 of the Act, which is probably the accommodation section. Although, our petition to make it perfectly clear, says that the Act itself, the whole Act will fall for the same reason we think Title 2 will fall. Now Title 2 of the Public Accommodation section, it really got two parts in making a difference in this hearing. The one that applies to motel just says, categorically that all motels and all hotels are picked in the state commerce. They do it in a devious way. They say, that these establishments listed here and after which affect the interstate commerce are covered by this Act. And then on the second paragraph list motels as well as a lot of other things, and in this thing, at the end of our list and above paragraph therefore, affects interstate commerce and therefore is covered by the Act. But in substance it says, every motel in the United States, all 65 of them, all affect interstate commerce. The other part of the Act which I referred to a minute ago about a restaurant, says that any restaurant that serves or offers to serve food in Interstate travel, all who serves food to a substantial portion, which it had already moved interstate commerce is covered by the Act. There is a distinction because the restaurant is a factual situation. It's conceivable that you could find in favor of a restaurant in this case and against a motel but not vice versa. Because I believe each restaurant will stand on the factual situation of that restaurant, whether it serves the interstate commerce travelers or where a substantial portion of food passes in commerce, as already passed in commerce which they use if those will stand up. But as to a motel, the portion that we are primarily interested in is the portion that says that all motels regardless, our part of interstate commerce, all affect.
Potter Stewart: Is the word motel defined in the Act?
Moreton Rollesten, Jr.: No sir, it list motels and it list hotels in the Act.
Potter Stewart: No definition of what --
Moreton Rollesten, Jr.: No sir.
Potter Stewart: -- motel is written?
Moreton Rollesten, Jr.: There is all exception which doesn't apply of course if it's realistic. The owner lives in and occupies a resident with five rooms already, then that's not a motel. Now, may I please the Court. This is -- this case has gotten in a hurry and I'm not sure how much of the briefs, the court has had an opportunity to look at, and in a short time allotted to me, it will be hard to cover and I want to take some amount of information approximately half of my time on direct and about a half of it on rebuttal. There are five theories of law that we are to allow in this case. Number one, that the law of the land and any lawyer of the land that have a -- quite whole as this case is, and what the law of the land is and is true is our first one, that is the decision of civil rights cases which was upheld by this Court in 1883. The second proposition --
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Yes.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: White cases, one that just fits your case exactly. You don't have a red head or back tail, it's all white and fits a whole case precisely.
Potter Stewart: We used to call it a blue bottle case, something like that?
Moreton Rollesten, Jr.: We know what we've done. The second proposition is that the Fourteenth Amendment, neither the Fourteenth amendment, in all the constitution, prohibit racial discrimination by an individual. The third proposition, we contend for Civil Rights Act, is an unlawful extension of the power of commerce, out of the Commerce Clause. Number five, we contend that the Act, the Civil Rights Act violates the Fifth Amendment of the constitution. And lastly, it violates the Thirteenth Amendment of the constitution. And we submit gentlemen, that if we can prevail on any theory, any one of those five theories, then this Act has got to pay you. While the Act was biased, what the morals or the reasons of a legislative intents or purposes were as a matter for the people on the other side of the square across First Street and Congress. I will not judge on those, maybe accepting a book. But we're in a court of law, the highest court in this country. And I submit that the only thing really that's be decided here is whether the people in Congress had the right under the law to pass this Act. The fundamental question besides illegal question of a constitutionality there, the fundamental question I submit is whether or not Congress has the power to take away the live of an individual to run his business as he sees fit in the selection and choice of his customs. This is the real and part of the issue. And the fact of alleged civil rights of the Negroes involved is purely incidental, because if Congress can exercise these consultative of the right of individuals, it is possible that there's no limits to Congress' power to appropriate private property and living. Theory number one, the Congress passed an Act in 1875, which is almost identical in Public Accomodation Section of this Act, and in 1883, Congress -- this Supreme Court, held that that Act was unconstitutional. Upon the lengthy decision that the Fourteenth Amendment did not prohibit racial discrimination by an individual where there was no state action involved and then they hastily say that there's no state action in any way involved in this case. This case was brought two hours at the present, signed the bill. The state has nothing to do with it. They did not fight even a print of the court brief as did five other states. And I didn't asked him that.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: They have one just like they had in the Maryland case cited in June.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: An individual under the state -- under that state statute can seek a remedy out of a statute. It has not been applied as being made a public notice that the state and the City of Atlanta will not apply themselves. It's been publicly informed.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Actually, the state doesn't apply it except in the form that we file -- an individual has to swear a warrant for someone abiding the statute and then they'd be tried in state courts. Similar, almost exactly the Maryland statute considered into Bell versus Maryland case. In 1883 decision, which under the American jurisprudence is the Law of the Land until this Court overturns it, they held that the similar Act was unconstitutional. That is true, in 1913, the Butz case came along and said, “Well, they didn't talk about commerce clause at that time. But I don't see how you can get around the language, the Court in that case, when it said that, “Of course, on one will contain that the power to pass this Act, that Civil Rights Act, was contained in the constitution before the adoption of the Fourteenth Amendment.” They start off the opinion that way, so they was no one doubt about it as far until we got the Fourteenth Amendment which you couldn't pass such an Act, to restrain an individual or prohibit him from exercising racial discrimination, as long as the state won't involve. It is my contention that any Supreme Court, when a case goes before, it, it doesn't make any difference what the people thought that enacted the law or what was that theory that people who argued the case before the Court, the Court has to look at the constitution that just stands any amendments to it in regardless of whether we have anything to say about them, as counsel, to consider the pros and cons of a case and apply the law as it is, not how it is, all I can do -- how the people in Congress thought it should be. I've been in the Supreme Court of Georgia many times and when they decided the case -- neither of us, neither the counsel, they never mentioned that there -- and so in the Civil Rights cases, it is my contention that the Court at that time knew that the Commerce clause was sitting there in the constitution. It had been there almost a hundred years and when they decided the case and simply after saying of course, nobody thought it was constitution for -- passed the Fourteenth Amendment, then they said the Fourteenth Amendment did not help it out and in fact, was still unconstitutional.
Byron R. White: Didn't the Court put the commerce clause expressly aside in connection with one of the defendants?
Moreton Rollesten, Jr.: In that case?
Byron R. White: One of the parties? Yes.
Moreton Rollesten, Jr.: Oh Your Honor, I think all they said was that this was not raised in that case as to whether it was applied to put aside as to one of the premise, I don't know. But I'd like to read two portion, I know the Court doesn't like to hear reading much but this opinion because it is, I think is fundamental opinion that the Court has got to consider. And this is a quote, “If these legislations appropriate for enforcing the prohibitions of the amendment, the Fourteenth, it is difficult to see where it is to start.” Why may not Congress with equal show of authority enact the code of laws for the enforcement and vindication of all rights of life living in property? Civil Rights such as again, deemed by the constitution against state aggression cannot be impaired by the wrongful act of individuals unsupported by state authority in the shape of law's customs or judicial or executive proceedings. But the wrongful act of an individual unsupported by as such authorities is simply (Inaudible) wrong.” To pass on to my next theory --
Speaker: (Inaudible)
Moreton Rollesten, Jr.: That's right Your Honor.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: That's true Your Honor. They did in the lower court but they – it is interesting that they changed their approach to the case in this Court. As a matter fact, it was stated Mr. Marshall in the lower court that they did rely on Fourteenth Amendment in open court. But in the briefs in this Court has not relied. And they also backed off from two other theories which I will mention in a minute in which they did not. They have relied strictly on the commerce clause in this case it seems to me in that brief.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: All I am saying is that in the open argument in the lower court they relied on it. In their brief, they said they rely on a single question, that is whether or not, it's a commerce clause is sufficient to give the Congress power to pass that -- that's true in that brief.
Byron R. White: Did they hold the argument in the lower court?
Moreton Rollesten, Jr.: I'm sure it does Your Honor, verbal argument but he -- I think --
Byron R. White: Well if he -- it did --
Moreton Rollesten, Jr.: Mr. Justice Goldberg referring to my brief officially.
Byron R. White: It did.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Yes, I'm sorry.
Hugo L. Black: (Inaudible)
Moreton Rollesten, Jr.: No sir, because they have made the statement in the brief as in this case right here, in this hearing, and they state their claim and that's the words they use on the commerce clause.
Byron R. White: But according to your position of course, all the issues relevant here.
Moreton Rollesten, Jr.: I don't think --
Byron R. White: Just a moment ago, you got some --
Moreton Rollesten, Jr.: I don't think anyone can limit this Court to what issues the Court will consider, just because this is a –- if they claim and stand up all on one theory, that's their privilege. We've got five, we think we can stand it all.
Hugo L. Black: (Inaudible)
Moreton Rollesten, Jr.: Sir, we have taken that.
Hugo L. Black: Before the Congress had relied expressly on the Fourteenth Amendment, and the fact that it is defined in such a way that it relies on the Fourteenth Amendment, could this Court hold a law unconstitutional because an argument was made that the litigant was only depending on the Commerce Clause?
Moreton Rollesten, Jr.: I think this Court has the leeway to consider any portion of the constitution at anytime, any argument. I don't think --
Hugo L. Black: To support the act?
Moreton Rollesten, Jr.: Yes. I don't think Congress can limit the court as to what they try to base the act.
Hugo L. Black: I presume Congress would define it in such a way as to show that it only intended to rely on the commerce clause.
Moreton Rollesten, Jr.: Yes, Mr. Justice Black but --
Hugo L. Black: And it was limiting at cases that would come under the Commerce Clause.
Moreton Rollesten, Jr.: But of course, the constitution is a document of delegated powers originally, and then by amendments they have added things that were prohibited both either to the states or to the Congress, or to the national government, and if any one of those delegated powers would make the unconstitutional and it would be, unless it was prohibited by one of the prohibitions in some of the amendments. I think most of the prohibitions of powers are contained in the amendments.
Hugo L. Black: I follow you on that. But let's suppose that the Congress had specifically stated in its law. We are exercising this power under the commerce clause, we wish a scope to reach no further than the commerce clause would reach. Would you say then that it could be decided or anything except the commerce clause?
Moreton Rollesten, Jr.: Yes sir, because we are not bound by what Congress thinks is a way to pass that act.
Hugo L. Black: But we would be bound by what it has, would we not. Even if it passed one to saying if we want this to reply to nothing except goods that the shift in interstate commerce are -- that would come under that clause, would we not be bound by that?
Moreton Rollesten, Jr.: Your Honor, let me put it this way. Suppose they said that this Act is based on X.Y.Z. to get the commerce clause. And this Act puts a man in jail without any trial, without a trial by jury or he made a trial, and we say that this Act is based on X.Y.Z. in the constitution. Can Congress violate a man's constitutional right by saying, we will base it on something in the constitution that we alone will take out and the Supreme Court of the United States be over terms? I believe, I say no (Voice Overlap). Sir?
Hugo L. Black: Do you think that's an analogous argument?
Moreton Rollesten, Jr.: Maybe not, but I hope to make it that.
Byron R. White: Mr. Rolleston --
Hugo L. Black: I just meant that -- I asked you this question because you've been arguing Fourteenth Amendment. Do you think that Congress did rely on the Fourteenth Amendments or that its definition of what should be the crime is limited to a violation of the commerce clause?
Moreton Rollesten, Jr.: Looking at the record, May it please the Court. The Attorney General at that time in ‘63, before the hearings in ‘64, urged the Congress to limit this Act to those deals when we'd say was an established jurisdiction or established power of Congress under the commerce clause, but in the hearings in 64, there was very little of that and most of the things cited in the brief pertained to the hearings in ‘63. Now the reason I mentioned that is because it is our contention, and I hope to get to that there are no legislative findings of fact in this case and there are no standards setup by which to determine in the motel instance where a motel is subject to this Act.
Byron R. White: It is rather converse, I gather you're suggesting that the government might rely on both the commerce clause and the Fourteenth Amendment. But suppose it was a converse, may the government rely on the commerce clause without some indication that Congress in fact, exerted the commerce power in the enactment of the statute?
Moreton Rollesten, Jr.: Well, may it please the Court. I don't want to try to limit the – the Solicitor General, he said in his brief, but that is all he has said in his brief. And I don't think he can.
Byron R. White: Well he's -- as I read the brief, the government has made a demonstration, at least attempted a demonstration that in fact it affirmatively appears that Congress did rest the statue on the commerce clause, do you disagree with that?
Moreton Rollesten, Jr.: I can't find from the statue itself, unless we're just talking about strictly public accommodation statute that anything contrary to that because they say that a motel has got that commerce and so and so, an arrest in which there is interstate commerce. And therefore, you obviously hit that in a state commerce. And I think that's what they did because surely they would advise and I know they were in the hearings, the existence of this 1883 holding and I'm sure they shied away from the Fourteenth Amendment at that time.
Byron R. White: Well then your position is that in the -- in enacting this statute, Congress did exerted commerce clause.
Moreton Rollesten, Jr.: Oh I'm sure they attempted to. I'm not sure that they said they limit themselves at that time.
Hugo L. Black: Well the testimony under(Inaudible)
Moreton Rollesten, Jr.: There's a Fourteenth –- a substantive reference to the Fourteenth Amendment, yes sir.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: I think so. I think the Court can consider any part of the constitution and amendment said, do and decide anything that comes before this Court. And neither Congress nor counsel of either side can limit this Court in this consideration.
Potter Stewart: (Inaudible)
Moreton Rollesten, Jr.: Yes sir.
Potter Stewart: As part of the period of the government did the arguing only needed this Act was -- in this case, he's arguing only that the Act is constitutional and the constitutional exercise of the Congress -- there's other debate maybe interesting but it isn't going to end with this lawsuit.
Moreton Rollesten, Jr.: I just attempt an answer to the Court's question Your Honor. That's right, I agree with you. I think we have -- I think there are other issues that the Court will have to consider besides the contentions to the Solicitor General, the five different theories that we are proposing. And one -- very simple one, if it's the law of the land is still the law of the land, until this Court changed it.
Arthur J. Goldberg: (Inaudible)
Moreton Rollesten, Jr.: They had to because the commerce clause is in the constitution. They had to consider the whole constitution when they say --
Arthur J. Goldberg: (Inaudible)
Moreton Rollesten, Jr.: Yes sir.
Arthur J. Goldberg: On the Civil Rights –- (Inaudible)
Moreton Rollesten, Jr.: That is my position Mr. Judge Goldberg. In the case they were deciding this Court on, it was handed down on June 22 of this year, in Bell versus Maryland, there was a Maryland trespass law, anti-trespass law, involved and of course, the Court really just sent the case back to Maryland for further decision. But the opinions in and the Court written by three judges on each side, would it – has to read a point up on a lot of our argument in this case because, in Mr. Justice Black's decision, that was joined in by Mr. Justice White and Mr. Justice Harlan, “You three justices have said in substance that the constitution including the Fourteenth Amendment did not prohibit an individual from practicing racial discrimination unsupported by interstate action of itself.
Hugo L. Black: -- Howitzer.
Moreton Rollesten, Jr.: Howitzer. And that is this case exactly, a private individual be elected to refuse to serve and refuse to participate or maybe Civil Rights Act in order to bring the declaratory judgment --
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Yes sir.
Speaker: -- is since that case is (Inaudible)
Moreton Rollesten, Jr.: Well I've realized that Your Honor.
Speaker: That's a private property or (Inaudible) and the question here is whether this attempt to execute private property rights, it will be exercising federal power under the Congress law, will this be valid to exercise with the Congress?
Moreton Rollesten, Jr.: I'll try to make --
Speaker: (Inaudible)
Moreton Rollesten, Jr.: If I may please the Court, I'm going -- I'm really at planning the last tape I was listening, talking about commerce because I want to try to cover these other theories which I say I contend that any one of them is good, the Act will play along those as well as the commerce clause. Of course, if the constitution does not prohibit racial discrimination by an individual, unsupported by any of the Act, and I grant the Court that this Civil Rights Act was passed after this decision in June 6 of 1964. But if the constitution and the Fourteenth Amendment don't prohibit, and Congress gets all of its power to enact any legislation from the constitution, how then can Congress pass an Act which will prohibit racial discrimination by an individual? Article VI of the Constitution says, “Supreme law of this land is the constitution, law is passed pursuant to it in treaties.” Now Congress can't pass any law that's not pursuant to some delegation of power under the constitution, one of them could be the commerce clause. All that came to anything that is prohibited by the constitution and the opinion of it -- that I've just referred to which is a dissenting opinion said that the constitution and the Fourteenth Amendment of itself precisely did not without state action prohibit racial discrimination by an individual.
Hugo L. Black: You did not refer at all, did you, to what Congress could do under the 5th section of the Fourteenth Amendment and under the necessary and public laws of the constitution.
Moreton Rollesten, Jr.: Mr. Justice Black, you made it very clear in the footnotes and that's exactly what you think --
Earl Warren: Mr. Rolleston, you've indicated that you don't intend to get to your argument on the commerce clause until rebuttal. Don't you think that in as much as you both agree that the thrust of this case is under the commerce clause and as much as you're the top side of the case that we ought to hear your argument on the commerce clause before we hear from the Solicitor General?
Moreton Rollesten, Jr.: Mr. Chief Justice, I'll be glad to exceed to the wishes of the Court, if I may comment on the Thirteenth Amendment briefly --
Earl Warren: Yes, you may.
Moreton Rollesten, Jr.: -- our court, I will cover in brief therein my theory of the commerce clause and comeback for the final rebuttal. The Thirteenth Amendment simply says that neither slavery nor involuntary servitude shall exist within the United States. Now 50 years ago, this Court in the case of Hughes versus United States, held that involuntary servitude was denounced by the Thirteenth Amendment as of means of condition or compulsory service of one to another, and while that cause means the Thirteenth Amendment. Inside of that amendment was the emancipation of the colored races, it reaches every race and every individual. And there had been other cases which have held that if a person is forced to serve another in business ways that if that involves involuntary servitude prohibited by the Thirteenth Amendment, I've cited cases in the brief. Now I won't read it of course. But all of these cases go to service contracts of one person, performance services in business for another. In our Fifth Circuit Court in 1944 held that even if that person was compensated for it, unless the compensation itself constituted a waiver of their objections. That compensation itself involuntary servitude still violated the Thirteenth Amendment. Of course there are exceptions to it -- it has been held in this Court that involuntary servitude does not mean service in the armed forces although, (Inaudible) disagree with that. And they held that service of a term of -- penalty for a crime of course is not voluntary servitude. But there are eight cases cited here in the -- of the United States Supreme Court, that's a Fifth Circuit Court case and a Seventh Circuit Court case and a case in one of the State's Supreme Courts which have held at service of another, against his will in a business that constitutes involuntary servitude which prohibited on the Thirteenth Amendment. Now may it please the Court as to the commerce clause. Mr. Justice Goldberg made probably the -- one of the most profound statements about the constitution that I've ever read in which I'm not sure that a whole lot of lawyers in this country would agree with me or even with the justices at this time but I think it's still true. In the Maryland case, to quote Mr. Justice Goldberg, “Our sworn duty could do construe the constitution requires however that we read it to effectuate the intent and purpose of the framers.” Not the framers, as if they were sitting in this room that they passed any judgment on what the constitution is supposed to be, but what the framers intended the constitution to be at that time it happened in 1787. If that theory is not so, then the constitution is just like any another law, it could be changed from day-to-day by the Congress and by the courts. The difference between our government and any other government in this world is that we have a constitution that stays at a constitution in the words at its there, unless it is amended -- in a way the constitution provides. Our Constitution is still the same constitution it was in 1787, except the amendments of the people. The people have decided should be added to it. When this Constitution was adopted, the United States was broke. We were in the middle of a depression as we know it. A financial chaos, the securities of this country were practically -- they were selling for 15 as a matter of fact. New York State and New Jersey State were fighting the trade war between each other. The Potomac River out of here was the subject of dispute between Virginia and Pennsylvania and Maryland because of tax and restrictions placed on trade. And the reasons of the Virginia assembly, called the -- the convention call it -- on at an utmost convention, was to talk about trade. They went for five states there so as they said, “Let's go back and get everybody here and call the next one,” and said between 1787 which was the constitutional convention. And the subject of that convention was some way to prop up the United States financially because trade between the states was not going well and that was the real chaos that we were having. And there is the basis of that little old innocuous clause in the constitution which says that the Congress shall have power to regulate trade among the states. The best analysis -- not in my opinion but of historian, the best analysis of the constitution and there are reasons puts adoption and the -- and why it was adopted, it's found in the federalist papers. And in number 11, Alexander Hamilton defied commerce as the free circulation of commodities. And in number 42, James Madison, the other (Inaudible) stated a very material object of this file of commerce clause, was the relief of states which import and export throughout the states, from their proper contributions levied on them by the latter. Where these are limited to regulate the trade between state and state, it must be foreseen their way, would be bound to load the articles of import and export during the passage through their jurisdiction, with duties which would fall on the makers of the latter and consumers of the fall. So what does that mean in our case? We say that the framers of the constitution intended to cover commerce as commerce is known in business fields. And that it was intended to cover the transportation and movement and production of articles -- from agriculture, products of industry, methods of transportation, tariffs between states which we don't have now, thank goodness. And anything else that had to deal with commerce. But as the Birmingham Justice in this case recently said, Tennyson Brook -- unlike Tennyson Brook, commerce has got to come to an end somewhere. And it end sooner or later interstate. It can't go on forever. And commerce means as the framer of the constitution intended to mean, all of the thing they thought about at that time was actual goods in commerce and the transportation of their own. That is true, that Congress and decisions of the Supreme Court have enlarged the commerce power beyond which -- I submit the framer never intended, they never thought it would be. And in this case, it is significant that the commerce power in the three big fields, the way they usually referred to, an antitrust and wage and hour label. In all three of those fields, Congress setup some standard. In any trust field, you've even got to be on in interstate commerce or material effective, but at least to the courts with determination or whether a particular business is in this interstate commerce. They don't say Congress as a matter of fact can say if it's on a court that every business is subject to anti-trust laws. In the wage and hour field, no business is subject to interstate commerce generally speak and unless it has a certain volume of business and they even have two or three different standards of that. But not every business is subject to wage and hour laws. As a matter of fact, the motel and hotel industry specifically excluded from it at this time. And in the labor field, not until just very recently, in the -- in hotel employees case, when the Supreme Court said to the National Labor Relations Board, you cannot exclude as a class, all hotels and motels from your jurisdiction.
William O. Douglas: We're talking here about -- currently about a person moving into interstate commerce.
Moreton Rollesten, Jr.: Yes sir.
William O. Douglas: Driving from Virginia to Atlanta and asking accommodations for a night, now that is in interstate commerce. The person is moving into interstate commerce. You don't treat in your brief that point precisely as I read your brief.
Moreton Rollesten, Jr.: That does have a reference Your Honor.
William O. Douglas: You don't refer to the Mann Act cases?
Moreton Rollesten, Jr.: No sir. Because I don't think this is applicable but even though they use the Mann Act, the interstate commerce actually, that --
William O. Douglas: You said people are not commerce, wasn't it?
Moreton Rollesten, Jr.: There's a holding of United States Supreme Court that says people are not commerce. People engaged in commerce, people take part in commerce but people themselves are not part of the -- are not commerce. And is so -- so been hereby this Court, and never been overruled. And for as that, isn't not a good case to rely.
Hugo L. Black: In which case are you referring to?
Moreton Rollesten, Jr.: It's the mayor etcetera of the city of New York versus M-I-L-N, Miln? Decided in this Court and it's in my brief. But they -- they -- the Supreme Court in that case, people were not part of commerce -- they engage in it, but they are not part of it. Certainly the framers in putting that one clause in the constitution didn't include or intend to include people at that time. But we now made the analogy with the labor cases is that, not every motel, not every hotel is subject to the rulings of the jurisdiction on the National Labor Relations Board. All the Court has held is that the Board cannot exclude them as a class. They look at each case to decide if that particular operation organization is interstate commerce, all material effects interstate commerce just as in the other cases of wage and hour in anti-trust. So we say that in this case, the means adopted -- the commerce clause if you have it, to the end – in the end decide have no race or relation. There's no connection between the two. They have simply -- after being involved in the Civil Rights cases, in 1883, it seems like they have said, “While we came filing this in the constitution, put this on list, do put them on the commerce clause. We've been able to get away with so much else for the commerce clause already.”
Speaker: (Inaudible)
Moreton Rollesten, Jr.: The Triple A case Your Honor?
Speaker: (Inaudible)
Moreton Rollesten, Jr.: I don't think so, may it please the Court. And I say this -- this is my reason of thought. Of course in that case they said, just go to the man raise in the field. He's just one man. He doesn't affect commerce by himself but if you take all the rest of the farmers, they will materially affect commerce. Now, they have got some substance --
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Well, the reliance -- few of all cases, is even more recent case which says if a dealer does -- if all of the rest of the dealers does the same in this deal therefore, we've all in interstate commerce. If you apply that theory, may it please the Court, let me show you how ridiculous, I think that gets to be. Suppose the Airport Barbershop at Dallas International says, “We won't cut the hair of any man who is blonde.” And a man goes up there to get a haircut and he's blonde headed, and he is (Inaudible) and they won't cut it. Now is that barbershop putting a burden on interstate commerce because they won't cut that man's hair? No. But in every barbershop, in every airline terminal, airplane terminal in this country said, they wouldn't. And you've got to presume that they would do just that. Then, all of them place a burden on interstate commerce. And therefore, if you character the extreme, then Congress can't cover every activity, every facet of life because if you take any particular facet of life, even the manufacturer of pencil that a lawyer has to use and say that because every lawyer has got to use a pencil if you're done and do so, and so he's subject to that Act of -- to the power of Congress on the commerce clause. It gets to a ridiculous situation where a Congress then can do anything. And that gets me to another point that I want to make before I stop for rebuttal. This constitution setup powers between the states and the federal government and enumerate -- and in the Tenth Amendment, it reserved to the states all the powers not set forth therein, to the states or the people. And all the reason for the existence of this Supreme Court, may it please the Court, is to maintain the balance of powers between those different governments. And if this Court will let Congress do anything it wants to on the commerce clause, and that's what that argument means. If this Court will let them do anything, then this Court has advocated and there's no reason for the existence of the Supreme Court to adjust and maintain the balance of powers between the various governments in this country. That is the function of the Supreme Court. That is the very reason for its setup in the Constitution, to balance all powers between the two by declaring the Act of a state un-constitutional or declaring the Act of commerce unconstitutional. And if you have the key from that power, there will be no reason for the Supreme Court because congress then can do anything it wants in any facet of our life. I oppose the question which I've tried to answer in rebuttal. The real question in this case, how far can Congress go? What limit is it beyond which Congress cannot go? Is there any limit? Does Tennyson Brook run on forever too? What limit is it that Congress cannot overstep in face?
Hugo L. Black: You haven't discussed it all of the things, it seems to me the most imported for both sides. That is the theory implication. Starting the (Inaudible) given in argument, held on and Mr. Chief Justice used before he became chief justice in three or four cases, various other cases, Congress has not owned any right to regulate interstate commerce itself as the right to regulate local activities, wholly local with interstate, purely intrastate, if the Congress concludes like it is concluded if those would adversely affect the interstate commerce or that they would fail to give it the protection and fostering care which Congress is supposed to giving. It seems to me that you have not touched on that yet. And that for me is a very important part of this case.
Moreton Rollesten, Jr.: And Mr. Justice Black, if you understand that let me say something about it right now. We've cited three cases in this brief. One about the Yellow Cab Company in Chicago, one about Howard Johnson Restaurant on Interstate Highway, and about (Inaudible) in New York State? And the Supreme Court has held that a man who went to Chicago to the railroad terminal and got off the train and got in a taxi cab, that that taxi cab was not involved interstate commerce because commerce that the man was in ceased to stop at the terminal.
Hugo L. Black: That's right, it was not engaged in interstate commerce. And for one reason or another, that case was decided as it was. But it does not have to be actually engaged in interstate commerce. Under the line of cases, actually beginning, was given argument, which I have said, Congress has the right to take care of the interstate commerce to foster it, to care for it and to see that it is not adversely affected in any way, even going so far as to regulate the purely Intrastate Railroad rates in every state in the union.
Moreton Rollesten, Jr.: That's right.
Hugo L. Black: And the -- they resolved the activities of that town.
Moreton Rollesten, Jr.: They have said they can come in --
Hugo L. Black: We can -- the Sullivan case, which I happen to be familiar with, where the druggist had received the drug in his drugstore. All the connection that that drugstore had had with it was the drug after they got into, but was held that because those had moved in interstate commerce. Under the line of decisions which I have just mentioned to you, that Congress had the right to regulate it.
Moreton Rollesten, Jr.: I recognized Your Honor that --
Hugo L. Black: I would not apply it here, that to me -- it seems to me as your point.
Moreton Rollesten, Jr.: I recognize Your Honor that there are a lot of minor cases that you don't -- Congress can't regulate, I think Congress spelled, intrastate activity – duty local activities if Congress thinks that they place that burden on interstate commerce. I will try to hit that in the rebuttal.
Hugo L. Black: You will take that (Inaudible).
Earl Warren: Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. The fact that the Court is sitting to here -- argument on the day that usually bogged only an opening ceremony or occasion, testifies more forcibly that any words in mind can do, to the importance of the issues being presented today. Civil Rights Act of 1964 is surely the most important legislation enacted in recent decades. It's one of the half-dozen most important clauses, I think. An Act didn't last century. No legislation within my memory has been debated as widely as long or as thorough. Certainly none has been considered more conscientious.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Perhaps the words -- differences of opinion that led to some confusion. Title II as I shall show is addressed to a commercial problem of grave national significance --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: By --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: I wish to emphasize and we'll emphasize repeatedly in my argument, that Title II was addressed to a grave commercial problem, grave at the time the Act was enacted and plainly go through it. Nor should we forget, Mr. Justice Goldberg, that Congress in addressing itself to that commercial problem was also keeping faith with the promise declared by the Continental Congress that all men are created equal. Now the failure to keep that promise lay heavy on the conscience of the entire nation, north as well as south, east as well as west. Nor do I overlook the difficulties of adjustment that accommodation to this Act may require, difficulties that may bear heavier on some regions than upon others. Nor do I overlook the need for a spirit of co-operations and mutual understanding in facing those difficulties. We should solve the problems as one people and thus escape the consequences of the sins of the past, unless we act in the spirit of Lincoln second inaugural, without malice, with charity and perhaps above all without that spirit of false self-righteousness that enables them who are not themselves without fault, to point the finger at their fellows. Happily, the difficulty of the constitutional issues here is not equal to their importance. Title II as we see it, rest upon the powers delegated to Congress by Article I, Section 8, Clause 13 of the Constitution -- Clause 3 of the Constitution, to regulate commerce among the several of states, and upon the power delegated by Clause 17 of the same article, to enact laws that are necessary and proper to effectuate the commerce power. The constitutionality of Title II under those provisions is sustained by principles that are so familiar because they have been enacted over and over again, applied indeed throughout our entire history, going back as Mr. Justice Black has pointed out a moment ago to the opinion of Chief Justice Marshall and given some argument. We do not seek the extension of any existing principles here a fortiori, we invoke no new doctrine. I think it will be helpful if at the beginning, I --
William O. Douglas: I think it is somewhat new, at least as I read the cases to the extent that it involves a requirement that this motel served a local person who hasn't moved in interstate commerce.
Archibald Cox: Well, even that I think in principle Mr. Justice. I should deal with this at more length in the course of my argument. I suggest even that at principle isn't known, the same point was involved in the Safety Appliance Act requiring the equipment put on cars – that weren't moving in interstate commerce. And in a case involving the inspection of cattle, which is also applicable to a cattle that you've never moved out of the state. But I do intend to deal with that point a little more detail if I may later after I've explained the general plan of the statute and the general principles which we think stay in that position. The particular application to this set of facts and to practice of segregation is of course now. The Title II of the Act is printed in our brief in the Heart of Atlantic case, beginning at page 63 that I think it might be useful to go through the plan rather quickly in order to get oriented with respect to the particular provisions. Section 201, you will observe on page 63, declares the right of all persons to full and equal enjoyment of the goods, services, facilities and so forth, of any place of public accommodation as defined in this section, without discrimination by reason of race, color, religion or national origin. Now the term place of public accommodation is then defined in sub-section B of the character of places as listed, and those places are places of publication within the statute. If one of two alternatives is satisfied, either if its operations affect commerce or if discrimination or segregation by it is supported by state action, then sub-section C and D define supported by a state action and affect commerce. The definition of supported by a state action is at the top of page 65, you will note that it follows essentially the language of the Civil Rights Act of 1871. That section is not involved in either of these two cases. The government did not proceed in either case in the lower court and does not proceed here, on the theory that this discrimination is supported by a state action within the meaning of the statutory provision which may or may not be as broad as the meaning in state action under the Fourteenth Amendment. We simply make no argument on that point because we think this application of the statute is clearly brought within the commerce provisions.
Speaker: (Inaudible)
Archibald Cox: Well frankly, I find that alternative so unlikely, that if we were to lose on that ground, I might despair a persuasion in the Court on the other ground because I think that what is so much stronger.
Potter Stewart: There's nothing in this record about state action, is it?
Archibald Cox: There is -- it would seem to me that to reach that question here, one would have to conclude that this definition of the state action, reaches the operation of any restaurant or any motel or hotel, without knowing anything about its relationship to the state. Now conceivably that is true, that seems to me to go even farther that the argument presented in the (Inaudible) cases and we have thought it quite unnecessary in performing our duty to the Court to discuss the issue. Theoretically, I think the Court is free Mr. Justice to go ahead and consider that issue. If it should reach it, we would feel remise and our duty as counselor is not to discuss it, but in our judgment, it's unnecessary if they consider it.
Speaker: How can you conceive if the government (Inaudible)
Archibald Cox: By the case of -- statement was intended to be essentially the same as mine to what the government was not relying on that point because it made no concessions with respect to the meaning of 201 (d) and no concessions with respect to constitution but it hadn't offered any proof on the point, that it wasn't raising it. But certainly it would be proper for the Court under those circumstances I think, and to say, well, the government can't stand on this theory, if it brings another case standing on the theory, we will adjudicate it, but we're not going to prevent them to raise that issue this late.
Speaker: (Inaudible)
Archibald Cox: Again, I think exactly the same as my statement Mr. Justice, if we don't imply anything about the meaning of the Section 201(d).
Speaker: (Inaudible)
Archibald Cox: That's correct.
Potter Stewart: You said that specifically in your brief.
Archibald Cox: I hope the point is clear.
Potter Stewart: To state -- to state our case, if you are likely to state our case on the commerce clause.
Archibald Cox: On the commerce clause.
Potter Stewart: Civil Rights Act cases (Inaudible)
Archibald Cox: That's correct.
William O. Douglas: (Inaudible) that before, you could really appeal to the state actions provisions of the statute, cite now on the Fourteenth Amendment itself. It has to be facts developed which quotes you within the definition?
Archibald Cox: I would think so unless one was prepared to say that the failure of a state to put a stop to something, I meant in the language of 201 (d), that the segregation was carried on under color of any state law, statute, ordinance or regulation. I would think that was an exceedingly difficult point to make. I don't --
William O. Douglas: What if one more uncomfortable?
Archibald Cox: -- because the point may come out in the future but I'm certainly not arguing it here.
William O. Douglas: Was it here more uncomfortable, I gather arguing, if they had a record.
Archibald Cox: Much more.
William O. Douglas: Alright.
Archibald Cox: Much more. And I would have three questions. I would first have the problems, and facts, we don't even know here that this hotel has a license for example. Second, I would have to face the meaning of the statute which is the same language as the Civil Rights Act and therefore perhaps would be said to be enacted with the rubric, and then finally, one would come to the section 5 of Fourteenth Amendment, alright. It seemed to me that there was no need, it seemed to counseling the court below, there's no need to traverse that path.
Speaker: (Inaudible)
Archibald Cox: That's true, because the Birmingham statute as a matter of interest, it was involved in the other cases as now been repealed.
Potter Stewart: Yes, exactly. Because they are the fact you stipulate.
William O. Douglas: As you start your commerce argument, would you just take a minute to -- the apparent inconsistency between 201 (b) and 201 (c) (1)? 201 (b) says that it is a place of public accommodation, if its operations affect commerce. And in C, it says that if is a motel, it does affect commerce. Are we dealing here with a conclusive presumption that a motel --
Archibald Cox: I think the case of a motel, there is in effect, a congressional declaration that its operations affect commerce, if one further point is established Mr. Justice Douglas, and -- 201 (b), refers to any inn, hotel or motel or other establishment, which provides logging to transient guests. And if the particular establishment provides lodging to transient guests and fits that general description, then it is deemed to affect commerce.
William O. Douglas: The fact as I call it in this case was 75% of the transient from out of state -- in other words, would you be making this argument of 100% of the transience for the residents of Georgia?
Archibald Cox: I would. Provided it held itself out -- held itself out to accept a transient guest indiscriminately. Obviously, I have here in this application, a much easier case.
William O. Douglas: (Inaudible) -- sincerely interstate.
Archibald Cox: Oh no! I realize that. It means that the hotel says, we're willing to take anyone and therefore, it may tomorrow or the next day or any other day receive transient guest or it may even if it hasn't done it for many years, if the policy of discrimination is embolic –- it then maybe transient -- could apply to it.
Potter Stewart: General, I don't suppose the -- maybe I'm wrong that the definition of affecting commerce mainly transients, is not exclusive as to what affects commerce. Well, the terms did declare in the year that the motel affects commerce if the service transient guest. Do you think that's to the exclusive -- the exclusive definition of affecting commerce? What if it doesn't serve transient guest?
Archibald Cox: If it doesn't serve transient guest, then I would think that --
Potter Stewart: Do you think Congress is also saying, this is all -- the only kind of a motel that will affect commerce.
Archibald Cox: No. I don't think it's saying that that isn't the only kind of motel that will affect commerce within the meaning of the statute here -- within the meaning of the constitution. (Voice Overlap) I think that's the only kind of hotel or motel to which the statute (Voice Overlap) --
Potter Stewart: Do you think that -- do you think the statue means to limit the applicability of statute?
Archibald Cox: I think that --
Potter Stewart: -- solely the transient motel.
Archibald Cox: I think I have to accept that as a resulting from the statement in subdivision B.
Byron R. White: Is there any motel that serves any accepted tranches?
Archibald Cox: I wouldn't have thought so Your Honor.
Byron R. White: Oh I just -- in apartment house or apartment --
Archibald Cox: But I think the reason for the other establishment affecting transient guest being put in is that to avoid the problem of what is a motel, what is an inn and to reach other establishment. And then in -- again I think, the fact that the particular establishment affects transient guest, tends to link it more closely than it would otherwise be linked to commerce, and therefore to bring it farther within the ambit of federal regulation. Now Mr. Justice White, it says what might in the hotel affect commerce in the constitutional sense even if it didn't accept transient guest. Certainly, it might affect it through a number of courses of relationship. One would be that it received its food from out in the state. Another sense in which it might affect commerce is that it might be a wholly impractical line for Congress to distinguish between Dallas hotels that do receive interstate travelers and those that don't has of any particular time. And of course, the Congress is free to consider the practical problems --
William O. Douglas: But I want to be clear. Let's assume that the government's position is that it's irrelevant whether the transient as long as they are transients or interstate travelers.
Archibald Cox: That's correct. We -- they do -- I find out in this particular case. Now, if I might refer to the remaining provisions of Section 201 (c) in conjunction with Section 201 (b), you will note that the second kind of establishment of place in public -- a second kind of establishment defined as a place for public accommodation is a restaurant, cafeteria, lunchroom or other facility engaged principally in selling food for consumption on the premises and so forth. And C 2 indicates that that kind of establishment is to be determined to affect commerce and therefore, to be a place of public accommodation within the meaning of the prior subsections. If it serves or offers to serve interstate travelers that's not involved in any of these cases, or a substantial portion of the food which it serves or gasoline or other products which it sells has moved in commerce. Subdivision 3 deals with various places of entertainment, in movie theatres, other legitimate theatres to sports arenas and the like. And they are deemed according to C 3 to affect commerce if they customarily present films, performances, athletic teams and so forth, sources of entertainment that move in commerce. Then the fourth division which scarcely concerns us here relates to establishments which are functionally or/and physically interrelated with any of the forgo.
Speaker: Am I right in thinking -- under the statute is wrong, a depart from -- any restaurant, (Inaudible)
Archibald Cox: Provided it sells no gasoline.
Speaker: Provided it sells no gasoline.
Archibald Cox: Yes, you are correct Mr. Justice.
Byron R. White: -- so that Saks Fifth Avenue which deals in all kinds of interstate goods assuming that it cut out its restaurant and they chose not to --
Archibald Cox: Then the statute would not reach it. That's correct.
Byron R. White: Why was that the -- judge discussion.
Archibald Cox: There was -- I don't recall very precisely. I think that one of the practical considerations that Congress undoubtedly would have taken into account -- would have been that there -- a problem of discrimination is much less in the case of that kind of establishment.
Potter Stewart: That is no problem based on the cases which have come here. There's --
Archibald Cox: Oh I didn't mean -- I didn't mean any constitutional problem.
Potter Stewart: No, what I'm saying, I'm simply suggesting that you're suggesting the right answer that this -- the department stores don't -- having to actually presented a problem of discrimination or segregation anywhere, isn't that correct?
Archibald Cox: Well I would say slightly (Voice Overlap) --
Potter Stewart: -- it isn't sleeping facilities and --
Archibald Cox: That's -- those have been -- and entertainment facilities. Those have been the big problem. I wouldn't be prepared to say that there is no problem --
Speaker: (Inaudible)
John M. Harlan: -- case is coming here.
Archibald Cox: Has been the other kind.
John M. Harlan: -- where they -- where -- that the races have been welcomed equally to every place except the lunch counters.
Archibald Cox: And that is what I can get on to it, was the problem that was emphasized before Congress that commercial problems affecting all the states resulting from that kind of discrimination, it was the focal point, though not the exclusive point in the enactment of the statute. I would like and I think it'll be helpful in the long run if I may continue the exposition of the provisions of the statutes. I've noted already 201 (d). 201 (e) simply provides an exemption for private clubs, and we need not concern with it or ourselves with it. 202 is another substantive provision which applies even to retail stores Mr. Justice Harlan in the unlikely event that segregation or discrimination in a retail store is required by state law. I know of none but that section -- I'm simply emphasizing is broader than the public accommodation section. 203 simply declares that no person shall violate the right to equal public accommodations, and that completes the substantive provisions of the statute. The procedural provisions become in part and in the next case and I'd like to revert them to them now. Section 204 authorizes a private suit for enforcement of the right to equal treatment in places of public accommodation but there are number of things that should be noted about it. In the first place, any such private action must be referred to a state agency if there is a state agency empowered to prevent discrimination in such a place. And even if there is none, it may be stayed for reference to the Community Relation Service, an agency intended to -- by persuasion to induce voluntary compliance in the elimination of discrimination before it goes to judgment. Furthermore, and this is most important. You will note that the action that may be brought at the bottom of page 65 is a civil action for preventive relief. There is no right in any private person or anyone else to bring an action for damages and a fortiori, there is no provision for criminal prosecution. This is emphasized when one comes to Section 206 which authorizes the suit by the Attorney General which was instituted by a counterclaim in this heart of the claimant case. For he has authorized when he finds a pattern or practice of resistance to the full enjoyment of any of the right secured by this title, to bring a civil action requesting such preventive relief as he deems necessary. And the limitation of the statute to preventive relief is emphasized in Section 207 (a) over -- on 207 (b) over on page 69, which provides that the remedies provided in this title shall be the exclusive means of enforcing the rights based on this title. The only question on the merits in either of these cases is the constitutionality of the substantive provisions of Title II particularly to those impinging first on inns, hotels, motels, like places offering accommodations to transient guest. And then second, those applicable to restaurants and other eating places which receive a substantial portion of the food served in interstate commerce. As I've said, we think that the constitutionality of both provisions rest squarely upon the commerce power aided by the necessary in profit clause. But the major premise of our argument is the familiar role that the powers delegated to Congress by the commerce and necessary in profit clauses, authorized Congress to regulate local activities, at least activities that are local when separately considered. Even though they are not themselves, intestate commerce, if they have such a clause in substantial relation to commerce that their regulation may be deemed appropriate or useful to foster or promote such commerce or to relive it of burdens and obstructions. The minor premise of our argument is that Congress to which the economic question does raised is primarily committed at ample bases upon which defined that racial discrimination in inns, in the one case -- inns and motels in the one case, restaurants in the other, does in fact constitute a source of burden or obstruction to interstate commerce. And of course from those premises, the conclusion would follow that this is a legitimate exercise of power under the commerce clause.
William J. Brennan, Jr.: You are not arguing, I think of what you just said that Congress by definition stand an effect, in fact, to include this Court objective law that the record to see the legislative, to see whether in fact Congress had sufficient basis for the exercise of the Congress power because the Court --
Archibald Cox: I would put it in this -- the answer -- direct answer is no. And I would state the principle. It's cited in my brief at a number of cases and I shall refer to it a little bit later. But I would say that the principle is that if the person challenging the act of Congress, can show that there is no rational basis for a practical factual conclusion that this thing that it did. I hear the prohibition of racial discrimination or segregation in certain places linked to commerce, that it had no tendency, could not reasonably be found to have a tendency to foster or promote commerce or to relieve it of burdens or obstruction. Then this Court should invalidate. Now I don't think that it is simply a matter of looking at the record before Congress, unquiet the Tenth and do stand on the record made before Congress here. But I should point out that under many, many decisions, the question is simply whether the fact do exist -- or might exist and the presumption is that they do and there is no need for Congress or a state legislature to make any such record indeed that's been held with respect to both in case cited in my brief. But here, the record was made and we do cited, and we think that these show that there was ample basis for concluding that this segregation in all these kinds of establishment did create -- was creating a grave national problem.
Hugo L. Black: The matter of fact, I presume most legislation in the country is in fashionable state and national without findings by Congress.
Archibald Cox: Oh yes.
William J. Brennan, Jr.: And without hearings frequently.
Archibald Cox: That's true.
William J. Brennan, Jr.: It's a question of whether they have the power and the constitution if that's the law, not whether to make money.
Archibald Cox: That's right. And the question -- the fact at findings are not necessary, it was held by this Court in the Carolene Products case, the fact that there need be no hearings, no legislative investigation was held. I think the case is Grovey against Townsend, somebody against Townsend coming through one of the southern states involving tobacco legislation.
John M. Harlan: Of course it's also true, so I think Congress is exercising its power on the commerce clause, particularly blindfold extension to preconceived notions of commerce power, has been at pains not only to make a substantial legislative record, evidentiary record, but to include in the statute, elaborate legislative finding and the bill that was proposed by the justice department, threshold bill, proposed by Congress -- proposed to the Congress did paying such findings –-
Archibald Cox: But I don't that think the change in the form of the bills. I give shall argue at more length in the second case where this argument is interjected by the appellees, I was going to try to lay out the general foundation for what was done in this case and come to these specific objections later, but I think that it's quite that the record was made here Mr. Justice Harlan. I think it's apparent from the statute as I will argue that there was no shift in the congressional analysis, I would also say that although the practice in recent years has been to make both record and has often been to make the findings that the practice as Chief Justice Stone pointed out in United States against Darby has often been the other way or probably more often than it has been this way and certainly this Court has made it playing over and over again that the findings are not the prior. The findings make it a lot easier for the Solicitor General, I agree.
William J. Brennan, Jr.: (Inaudible) -- alright but this idea of making findings was state or federal, largely started sometimes ‘30s --
Archibald Cox: During the 1930s, the president, I think went back to early Elizabethan recitals of whereas is. In the intervening period, it wasn't done and of course as Justice Black said, it is just almost never done. I think one could almost say without fear of contradiction is never done in state legislation. It's somewhat a short-term --
William J. Brennan, Jr.: -- they don't even take recorded hearings in the -- well --
Archibald Cox: No.
Speaker: (Inaudible)
Archibald Cox: Well I don't -- I really don't think I need consideration at the point Mr. Justice.
Speaker: (Inaudible)
Archibald Cox: It may be. The difficulty is that we all know that one of the basic unspoken predicates of the agreement on the constitution involved to some acceptance that the national government had no concern with slavery and I hesitate to agree with you for two reasons. One is that, it seemed to me there might be some room for argument on that. The second one is, I think it is very dangerous to say that anything Congress can do under the commerce clause today, that is a regulation of any specific person or local activity that it may reach today, it could have reached on -- in 1789 and conversely, that anything it couldn't reach at 1789, it can't reach today because while the principles are constant. But what we are concerned with today is the free-flow of goods as this counsel suggested quoting from the federal. And what we're concerned with the -- is the application of principle laid down by Chief Justice Marshall just a few years later. Still the facts change, things affect in the interstate commerce today that may not have affected earlier. Therefore, I prefer to confine myself to what affects commerce now as to the other, it may or may not be true. I do think that the principles are constant that we invoke no new principle.
Hugo L. Black: Do they comply with that thought, Marshall statement, that the end be legitimate and so forth, the end is legitimate.
Archibald Cox: That if the end is legitimate and the means are reasonably adapted to (Voice Overlap) --
Hugo L. Black: It cannot be said that it's illegitimate end and try to carry out a policy which the constitution demands.
Archibald Cox: Nor can it be said here that the prohibition of segregation in this establishment is not a means reasonably adapted to freeing interstate commerce from obstructions and burdens, the permissible objective that Your Honor refers to. After the recess, I'll turn directly to the factual evidence bearing upon the appropriateness of the means to the end.
Earl Warren: (Inaudible)
Archibald Cox: Thank you Mr. Chief Justice --
Earl Warren: (Inaudible)
Archibald Cox: I see no reason, if I understand Your Honor's question to suppose that the Fourteenth Amendment and Section 5 thereof, were intended to curtail the power that Congress would have under Section 3, the appropriate clauses, to deal with things that were obstructions to interstate commerce.
Speaker: (Inaudible)
Archibald Cox: No. It would deal with the -- it would deal with the things that were obstructions to interstate commerce under the commerce clause.
Speaker: Commerce clause?
Archibald Cox: Yes. And I'm not sure that I understood Your Honor's question. Maybe if I could restate what I --
Speaker: My question is whether (Inaudible)
Archibald Cox: Yes.
Speaker: (Inaudible)
Archibald Cox: Yes. My answer would be no, that the fact that the power that Congress was given in the Fourteenth Amendment was limited to the implementation inforcement of the requirements of that amendment. It does not seem to me to imply that the power that was given in other parts of the constitution earlier to deal with obstructions to commerce whether local or in-commerce had been curtailed. I see no reason in interpreting the Fourteenth Amendment to suppose that the role expressio unius exclusio alterius applied. It would seem to me that indeed, I wonder Mr. Justice whether that is --
Speaker: (Inaudible)
Archibald Cox: Well, perhaps not. Isn't the argument very similar to that?
Speaker: (Inaudible) -- they rejected the Fourteenth Amendment which deals (Inaudible)
Archibald Cox: Well, part of my answer must be to repeat what I said a moment ago that it doesn't seem to me that one should draw from the conclusion that Congress was given an additional power and intent to curtail its power to enact legislation which it appears in fact rating the legislation to be reasonably adapted to dealing with a commercial problem. Now, so far as what was the dominant motivation here goes, what was the constitutional theory on which the Congress or different congressmen acted goes, I suggest that that is irrelevant. My own inference knowing something about the legislative history would be that Congress accepted the advice that it was not -- while each congressman must satisfy himself that he was -- he's doing his duty of conforming to the constitution that there was no occasion for Congress to commit itself to any particular theory. That so far as -- that had to be decided, that was something for the government to do or anyone else to do including the Court in determining the constitutionality of the legislation. I think that's the fact. I don't pitch my case upon it because I don't think that it's a proper inquiry for the Court to do more than -- look at the legislation, to inquire whether this is a useful, appropriate, necessary in that sense necessary way of dealing with a commercial problem if it is --
Speaker: What was the dominant purpose of the Mann Act?
Archibald Cox: Well I don't think they had to do with (Inaudible) relevant commerce. I think again that --
Speaker: (Inaudible)
Archibald Cox: But I think Mr. Justice, it is the doctrine that has been applied over and over again. It was applied in the McCray case, to the (Inaudible), I think it was applied until there was no discussion in the Labor Board cases.
William O. Douglas: Well, -- unless you've suggested anyway that perhaps that's not subject or legitimate inquiry for us, but what does this record show? Is it necessarily that -- with racial discrimination in this context that was the basic objective of the legislation? Or is it also susceptible or as I thought, you suggested earlier that there are obstructions to commerce and serious obstructions to the free-flow of commerce which they may have a racial basis but that is the evil at which the legislation is saying.
Archibald Cox: Well, I think the record must be admitted to show a very great concern with and with the problem of the effect of discrimination on commerce, a great concern with the fact that it was a national commercial problem. And when you turn to the evidence that was before Congress, you'll find that there was overwhelming evidence to that effect.
William J. Brennan, Jr.: I thought the question was a -– whether the activity had a specific closed and substantial relation in interstate commerce as far as we are concerned.
Archibald Cox: Quite, quite.
William J. Brennan, Jr.: And we're not concerned with the policy of Congress as to segregation, integration –-
Archibald Cox: And of course when Congress was addressing itself to the national commercial problem, it had to take into account other aspects of this. If there are alternative approaches to the problem, then it had to choose between them. And I suppose that there are -- in theory at least, were alternative approaches to the problem. A rigorous enough suppression by the vended obstruction to interstate commerce but clearly, Congress is not required to choose any particular alternative provided if there's not have been a specific innovation of the constitution. Now here -- this was -- I'd like to emphasize and go into it in a little detail, a very real national commercial problem. And the record shows that beyond the peradventure of a doubt. Let me talk about it first in somewhat general terms and then turn specifically to the motels and hotels that are involved here and thereafter specifically since we're looking at the act in general, the general plan of the Act and to the effect upon restaurants and the like. I simply say parenthetically first that of course this general principle that Mr. Justice Clark referred to a moment ago, has been applied to the activities of hotels and motels, and restaurants under numerous statutes, the Sherman Act, to the laws administered by the Federal Trade Commission and the National Labor Relations Act. Now, Congress started with the outstanding fact that I think that of National Life during the past decade perhaps longer, the thrust or the realization for Negroes and in some instances other minorities, of the promise that all men are created equally. We're concerned here with the commercial consequences of which where a nationwide scope and almost incredible proportions. Not unnaturally, much of that pressure that I refer to, was settled on racial discrimination in places of public accommodation of practice that was not confined to any one section of the country or to any particular type of establishment. Congress heard evidence for example, in about two months in the spring and summer -- early summer of 1963, that there were 634 demonstrations in 174 cities and 32 states in the District of Columbia. About a third of those were concerned solely with discrimination in places of public accommodation, others had a broader scope. The effect of those demonstrations picketing, boycotts, other forms of protests, upon business conditions and therefore upon the interstate commerce was dramatic. The Undersecretary of Commerce described the business consequences in considerable detail. But for illustrative purposes, it's enough for me to take what happened in Birmingham in the spring of 1963. In a four-week period extending from the middle of April to the middle of May, department store sales is reported to the Federal Reserve Board were 15% below the level in 1952, in comparable cities, they were rising. Businessman stated that the number of business failures during that period was greater than in the Great Depression of the 1930s. Downtown stores reported that their April sales were off from 40% to 50% during the period of these demonstrations. And the Undersecretary described in his testimony that similar experiences at other times in Savanna, Atlanta, Charlotte, North Carolina and Nashville, Tennessee. Now it's evident that any general downturn in business -- in retail business will, if left unchecked, result in serious disruption of the flow of goods across state lines. If the retailers don't sell, they won't buy. And if they won't buy of the demand for goods flowing in from other states, of course, will be checked, the flow of goods will be dammed up. A top retail executive epitomized the commercial aspects of these demonstrations very effectively. He said this thing has frightening ramifications. It's now become an economic situation affecting the entire community, the whole city and the whole country. I emphasize that he said it was an economic situation affecting the whole country. No less in pardon is the impact to racial discrimination, disputes and other forms of civil unrest, upon the flow of investment and the location of enterprises. The Secretary of Labor who had had a study made before testifying before Congress, summarized the results of the studies made by his department. Industry said, he's discouraged from locating or expanding in communities where equal opportunity does not exist and incidents have taken place are likely to occur. Lack of equal facilities for employees and even the latent possibility of demonstrations often removes the locality from consideration as a site for commercial or industrial expansion. This affect industrial development regionally and nationally by limiting the flexibility and free choice of business and hampering labor mobility. The evidence before the Congressional Committees was replete with specific examples of that general statement by the Secretary of Labor. The most dramatic was the experience in Little Rock, Arkansas. In the two years before the racial crisis in that city, Little Rock could gain ten new plants where it's almost $3.5 million and creating a thousand new jobs. In the next two years, a comparable period, there was no new industry located there employing more than 15 employees. Even industrial development in the whole state of Arkansas seems to have been affected. In the previous two years, they gain business worth $248 million. In the next two years, the volume was cut to $190 million. Now, I have no argument in this case. To argue that the general impact upon interstate commerce of such widespread disputes growing out of racial segregation is alone sufficient to support Title II. Because Title II does, as I pointed out earlier in my argument, also require with respect to each of the kinds of business regulated, some mixes between bank establishment in interstate commerce. What I do say with respect to this general evidence, is two things. First that it shows that the general impact to these disturbances arising out of racial discrimination, was not merely social and morals, and nobody denies that aspect of it, but that it was national and commercial. And second, that the importance of the relationship between any individual establishment, and interstate commerce is made out in accordance with section 201 (c), is to be judged in the light of the fact. That any -- that its practices and any incidents that might occur there, would be part of a complex and interrelated problem affecting interstate commerce when they were added together all over the country. I come now if I may to the specific problem of the relationship between discrimination in hotels and motels in interstate commerce. You'll recall at section 201 (b) and (c), provide that any hotel or motel or like establishment that accepts transient guest, shall be deemed to affect interstate commerce, and through that provision to be a place of public accommodation. The appellant blindly falls in that category, it's not only concededly a motel, but 75% of its guest come from out of state and it advertises out of state. The testimony before Congress provided literally overwhelming evidence, that discrimination by hotels and motels impedes interstate travel. And I suggest that there is no possible doubt since the Edward's case or before the Edward's case that interstate travel by men and women is interstate commerce. We've summarized the testimony in our brief, and I refer to it very shortly here. Again, the Secretary of -- Undersecretary of Commerce, dealt chiefly with the point, he can concluded after studied by the Department of Commerce, not only that interstate travel was made incredibly more difficult for Negroes by which -- by reason of discrimination in hotels or motels, but that its volume as a whole was sharply curtailed by the unavailability of adequate public accommodation. The administrators of the Federal Aviation Agency testified to the same effect. The witnesses -- these witnesses and others, described the problem in some detail and you have the references from our brief. Suffice it to say because I think it epitomizes the point, that on a motor trip between Washington D.C. and Miami, Florida, the average distance that was found between accommodations of reasonable quality open to Negroes was 141 miles. And when we think of the frequency by such we go by other hotels and motels open to everyone, the significance of a three or four-hour drive between the hope of accommodation is very significant indeed. And it further repaired that those accommodations that were available to Negroes were on the whole likely to be small so that after driving three or four hours one might well find no vacancy sign, and have another equally lengthy drive ahead of it. Similar -- I use this only as an illustration, I want to emphasize, similar problems according to the testimony exists in other parts of the country. Segregation in hotels and motels has an even more dramatic effect upon the sites chosen for conventions but of course account for a large volume in interstate travel. Dallas, Texas for example, founded that -- could it benefited very much from the voluntary opening of its hotels to conventions where there was no segregation. At the Atlanta Convention Bureau, within one day after 14 Atlanta hotels desegregated, received commitments -- not fillers but commitments, from organizations expecting over 3000 delegates which would not have gone to Atlanta if segregation were continued to be practiced. Again, New Orleans found the -- an American Legion Convention expecting 50, 000 people transferred to another city because New Orleans could not guarantee equal public accommodations. Finally, this kind of restrain has a most marked effect upon the volume of interstate travel. They won't do to say well –- well, people will go somewhere else. In the first place, it seems to me that that's unlikely, but in the second place of course any practice that distorts the flow of commerce. And it prevents it from going where flowing freely if Congress thinks it's desirable to flow freely, is itself a restraint on interstate commerce, and something within the power of the Congress to deal under the proposition that I stated earlier.
Tom C. Clark: You say that people are commerce.
Archibald Cox: I say that the movement of people from state-to-state, is movement – in commerce, yes, I hesitate a little to say that the people are commerce but it's certainly movement in commerce.
Potter Stewart: Certainly that's what Edwards against California --
Archibald Cox: Squarely whole, squarely --
Potter Stewart: Squarely whole.
Archibald Cox: City, in New York against Miln as shown in one of our two briefs. It was overruled in either the passenger tax cases at the head burning cases, I forgot which one. It's pointed out in the footnote in our brief.
William J. Brennan, Jr.: What code is it?
Archibald Cox: Yes. Well then -- then you may be in somewhat a special category.
William J. Brennan, Jr.: I thought it was distinguished Miln, is that right?
Archibald Cox: Well I understand that it was overruled earlier, the references in our brief. I think Edwards is the first case that can be said squarely to have embraced the proposition that the movement of people across state lines, is interstate commerce.
Speaker: So for certain types of they were Okies and agents? I thought that's the same.
Archibald Cox: Yes, but I take it that, if Okies are commerce, so are other people traveling across state lines. I had intended to indicate the factual evidence relating the restaurants, but in view of the passage of time, perhaps I better save that for the next case, and move on here. Simply to summarize on the factual point, we think there was ample evidence on which Congress could conclude that the racial practices in hotels and motels like places, did have a very substantial effect upon the movement of people in interstate commerce, and that therefore this statute has applied to them is a measure adapted to fraying interstate commerce from restraints and burdens. Now of course once that conclusion is reached, at the size of the establishment is obviously irrelevant and of the Reliance Fuel case determined there. The fact that Congress has prohibited hotels and motels from discriminating against all guests, rather than against interstate guests, does not invalidate the statute to require a traveler to carry a cache, and show that he's interstate, would itself be a burden on Congress. Furthermore, to require the Negro interstate traveler to prove that he was traveling in interstate commerce would itself be a form of discrimination of (Inaudible) as the former practice.
Speaker: (Inaudible)
Archibald Cox: Because this establishment --
Speaker: (Inaudible)
Archibald Cox: That's true. And I think that the --
Speaker: (Inaudible)
Archibald Cox: Yes.
Speaker: (Inaudible)
Archibald Cox: That's true. But I would -- I would make the same argument under the commerce clause. I do want to emphasize that without going over to the Fourteenth Amendment, yes.
Speaker: (Inaudible)
Archibald Cox: This one does, but the statute draws no distinction and I think there is no constitutional distinction.
Speaker: I think the second case does not specify –-
Archibald Cox: The second -- that's true. The second case of course relies on a ground of coverage not present in this case, at least not shown to be present. And that is that we rely on the fact that this is an establishment which receives indirectly on shipments of food in interstate commerce. I wonder Mr. Chief Justice, I might borrow a few minutes from my time in the other case.
Earl Warren: (Inaudible)
Archibald Cox: I will make -- will deal in the McClung case, the next case, with the special arguments made there under the commerce clause since they aren't raised here, I thought it better to postpone. Now I come to the other constitutional objections. Once it is established, that the enactment of Title II is valid under the commerce clause, then of course the arguments based on the Ninth and Tenth Amendments disappear. Because it has been law since Martin and hundreds of lessee and McCulloch and Maryland, that if legislation may be sustained under one of the granted powers then the Ninth and Tenth Amendments do not cut off but would otherwise be the power of Congress. And that proposition was re-enunciated in the Darby Lumber case for unanimous court by Mr. Chief Justice Stone. The argument that Congress violated the Fifth Amendment has equally little merit. Certainly, there's no taking of property for a public use. The regulation of the conduct of a business is not a taking. Appellant say that they will lose profits as a result of this regulation. Experience rather indicates the contrary, but assuming that that is true, and still it is clearly been held that subjecting a man to regulation, otherwise proper along with all other similar businesses does not violate the Fifth Amendment simply because he loses money. Nor does the prohibition of racial discrimination take liberty or property without due process of law. Over and over again, the Court has sustained and enforced statutes prohibiting various forms of racial discrimination. The Bob-Lo Excursion case dealing with the excursion -- on the great lakes, on the case here involving continental airlines, and discrimination in the employment a few years ago, the Thompson case dealing with restaurants in the District of Colombia, the Blanton case dealing with restaurants that were part of the transportation service of a bus line and I could go on and add numerous others. Appellant also argues that the Act violates the Thirteenth Amendment. It's enough to point out that the appellant is a corporation. But surely it would turn the world quite upside down for anyone to seriously suggest that the Thirteenth Amendment was intended to prohibit either Congress or the state governments from guaranteeing Negroes equality of treatment in places of public accommodation. And Alice I think, even at the end of her long journey through the looking glass, would have been surprised to be told that the restaurants, other places of public accommodation in 33 states in the year 1964, held in involuntary servitude, and that the Anglo-American common law for centuries has subjected to slavery, innkeepers, hack man, carriers, (Inaudible), furriers, all kinds of other people, holding themselves out to serve the public. Normally do to say that well, those are businesses affected with the public interest. Because the Thirteenth Amendment abolishes slavery in businesses affected with the public interest, just as might, just anywhere else. Of course the real answer is, that this appellant, even if it were a person could stop holding himself out as a motel willing to do business with the public. And as long as one is free to stop, then, there is no forced labor and no violation of the Thirteenth Amendment. Now the point -- remaining point concerns the Civil Rights cases of 1882. As I have argued, this legislation as applied in this case is valid under the commerce clause, then the standing of that decision is not drawn in question. The Court made it clear that the Act of 1875 was drawn in another view. And I take it the respect in which it was drawn in another view, was that it covered a great many enterprises -- theaters, local public conveyances, which on any facts before the Court or any facts known to Congress, probably did not then affect interstate commerce. In other words, the statute was framed in another view in this instead it was much broader.
Speaker: (Inaudible)
Archibald Cox: Under my -- I would suppose Mr. Justice that a theater which in 1880 had employed only local actors, which had only local scenery, which had only local stage hands if you will in (Inaudible) would not, it certainly wouldn't have affected interstate commerce within the meaning of this statute, and I think it would have been a question of whether it affected interstate commerce in any sense. Now, I expect the very, great many establishments of that kind in that day. And of course, if such an establishment exists today, the Act doesn't reach it. What I'm saying is, if that statute covered a great many things that were not shown anywhere to affect commerce, and that the Court therefore had to consider perhaps two question. One, whether the statute was valid in the broader applications which was presented in the 1882 case, and then later it had to consider which was presented in the Butts case. In a sense the question of separability whether Congress would have wished it to be applied to those places which Congress constitutionally could reach and the Court held that it was not separable, that it had not been addressed to the commercial problem.
Speaker: (Inaudible)
Archibald Cox: Yes sir, the situation.
Speaker: (Inaudible)
Archibald Cox: Well, there's a curious little quirk about then. The facts appeared to be these. The Civil Rights case is of course involved in number of cases. Two or three of them got to the Court several terms back in 1878 term or 1879 term. At that time, a brief was filed by Attorney General Devens and then Assistant Attorney General. And there is in one passage that -- of course they were very short briefs as they were in those days. There is one passage there that alludes to the fact, the Act is being applied to a railroad which would of course, and he said in effect, be subject to regulation under the commerce clause. Then he went on and argued the whole case under the Thirteenth and Fourteenth Amendment. Then that brief was apparently forgotten, as I suppose our brief sometimes are. And when the case came on for argument two years -- four years later, I think, Solicitor General Phillips filed another brief and that's the one that most people look at. And that brief makes no reference to commerce whatsoever. Then of course the Court, as opposed to the conclusion of the opinion -- I won't stop to read it but you will find very close to the conclusion of the majority opinion, a statement that no argument under the commerce clause is pressed upon it. I suggest that I gave at least one of the reasons earlier, now I don't mean to be disingenuous that maybe different views about the commerce clause today than they were then. But I do submit most seriously, that many of these differences are differences in the factual conditions that exist today and not any difference in the principle. Now that's why I suggest that very sincerely -- the print case here falls within the principle laid down by Chief Justice Marshall and Gibbon and ogden and that is virtually as old as the constitution itself.
Earl Warren: (Inaudible)
Archibald Cox: Thank you Mr. Chief Justice.
Moreton Rollesten, Jr.: Mr. Chief Justice and – May it place the Court. The argument counsel today is quite different from the argument Solicitor General made in case of Bell versus Howell. I'd like to read one statement that's reported in your opinion, that the Solicitor General made. The preservation of a free and pluralistic society which seemed to require substantial freedom for private chores in social business and professional associations, freedom of choice means an ability to be wrong as well as right, to be mean as well as noble, to be vicious as well as kind. And even if that deal were questioned, the philosophy of federalism leads an area for the choice to the states and their people. When the state is not otherwise involved, instead of vesting the only power of executive decision in the federal courts -- how did you square that with the argument today --
Byron R. White: What words were involved that the federal court that to say the federal congress?
Moreton Rollesten, Jr.: But his argument today, may it place the Court, is that the Congress had the right to pass this Act about all motels because motels deal in people, and people get to the motels by interstate commerce. And that for all people, that come into that motel or in interstate commerce and be covered. He further says that the real reason that Congress has a right to therefore pass legislation affects all motels and all people is because of the conditions that are arisen in this country that places burdens on interstate commerce. Now, I remember the brief filed in this case by the government talks about the burdens that existed in 1963. But his brief also shows in Atlanta, Georgia that there were 14 major hotels that had already desegregated. As a matter of fact, it shows how much business he says we've gotten in Atlanta that goes ahead and the truth of the matter is, the Heart of Atlanta Motel is the only place in the Atlanta, Georgia that hasn't desegregated voluntarily. Now let's turn the Court in the other way. Suppose the Heart of Atlanta is the only place in Atlanta that doesn't desegregate voluntarily. Does that one motel affect commerce so badly and place such a burden on it that Congress can pass a law? If I had one motel out of 60,000 in the United States as the only one that doesn't desegregate, does that place a burden on Congress -- on interstate commerce? And if the purpose of the passing of the Civil Rights Act was to relieve the burden on interstate commerce -- by virtue of reference to the things that happened in Birmingham and Little Rock and so forth, all of which happened some time ago now thank goodness. If it was to relieve the burden on interstate commerce, has it done so? All the desegregation mostly and the most citizen in the south as occurred before the passage of the Civil Rights Act, there is no mentioned in the brief for an argument of the things that have happened since the passage of the Civil Rights Act. There is no mention of riots in the streets in New York or Rochester or Philadelphia, has the Act accomplished anything? This Court is not here to determine whether Congress acting wisely or not. It is only here to determine where it acted legally within the constitution. Now so to said that there's only -- there's only question, was there a rational basis for the legislative determination based on the burden placed on interstate commerce. We get to the question to Mr. Justice Black posed in the morning, and Mr. Justice Goldberg posed. And I have to come to grips with it to answer. And the question is, can Congress control racial discrimination by an individual where there is no state connection at all and it is none in this case? Then, all laws in the -- on the books of the State of Georgia or in the City of Atlanta, with two exceptions, one of them is anti-trespass law which does not mention race as a ground. It can be used to keep anybody in this courtroom out of a man's place, if he wants to. And the other one is as far as I know they're all about the marriage of races. But if the Congress can pass the law to call all commerce and include all motels, we have to face the issue whether or not one individual is the gauge or whether one individual -- one individual be -- with all other business in that filed such as Reliance Fuel Oil cases, will affect all commerce. And whether or not -- the phrase used by the counsel frequently in his argument about commercial activities is sufficient to give Congress the power to pass regulations on a code of law that effect personal conduct of individuals.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Your Honor, I am absolutely truthful as I should. In my opinion, the argument of counsel and of the government that this is done to relieve a burden on interstate commerce is so much hogwash, that the purpose of Congress was to pass a law which some way or other, they could control discrimination by individuals in the whole United States.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: I agree.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: I agree, that is the reason they passed the Act. But the --
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Yes, Your Honor.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: And I started all my argument -- yes Your Honor. That I did not want to go into the reason why Congress passed Act or whether they're right or wrong, well this is the court of law. We are not arguing a case for general facts as the last half of the argument the government has been, as to whether the facts justify the means adopted by Congress. This is a court of law to decide whether Congress had the right on the constitution, the legal right, not whether it was a good thing to do, whether it's a human thing to do or the kind thing or the moral thing.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Well that's where I was tying to come to grips with your question and Justice Black's question, because I think this is answer, and I will now propose it. The government just quoted to school boy -- familiar quote that all of us know but none of us much understand I think, that all men are created equal. It's in that Declaration of Independence, I don't believe it's in the -- But Chief Justice Duckworth of our Georgia Supreme Court has said, in one sentence, something is clear to me that anything I've ever heard on the subject of all men being created equal. Liberty stops where to extend it, invades a liberty of another. I didn't come here to talk about commerce, I didn't come here to argue the question of whether or not this motel has an effect on commerce certainly everything that happens in this country has an effect on commerce. But I did perceive, I hope that in the writings of memos of this Court there is still the great facet of personal liberty that this Court stands for. This Court under the constitution is the last (Inaudible) of personal liberty, where else can a man go to depend personally. So if you get the old question that you ask, the answer is that commerce has got to stop somewhere with commerce in the sense that a business function is commerce. And that there is power of a commerce clause on the constitution does not go to people. If you don't accept that fundamental, I'm lost. But Mr. Justice Douglas wrote an opinion just recently in a case argued from Atlanta by a friend of mine, in which Mr. Justice Douglas eloquently spoke with the freedom of association in the union job case. Since neither Congress nor the state legislature are going to bridge these rights, they cannot grant the power to private group to bridge in. As I read the First Amendment, it forbids any abridgment by the government whether directly or indirectly. There is -- the opinion to this Court to talk about the freedom of the individual in the Bell case -- to discriminate if he says that's what he wants to do regardless of what Congress says, in the Bell case, provided there is no state action.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: No, regard -- whether or not there's a state statute in that or a state action, not government. In the union job case, to spoke of the freedom of association guaranteed by the First Amendment. The Sixth Amendment says -- the sixth article of the constitution says that only laws passed pursuant to the constitution are valid. And that this Court should -- in an interpretations determine where they are. So unless this Court says that commerce stops with personal living, then there is no end to it.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Yes, Sir.
Speaker: (Inaudible) along the highway have no place to stop, no place to spend the night. What is your arguments to say that that wouldn't likely to create burden on commerce?
Moreton Rollesten, Jr.: We all have to go aside the record to answer that I think.
Hugo L. Black: But I'd like to have it answered --
Moreton Rollesten, Jr.: Yes.
Hugo L. Black: -- Indirectly. So, as far as I'm concerned, that is a crucial issue here as to whether you've can -- we can say that Congress are wrong in thinking, depriving a life -- a segment of people, the right to stop at night has an interesting summary, whether they had a right to pay that that was -- put a burden on commerce that Congress –-
Moreton Rollesten, Jr.: Mr. Justice Black, I wish I had end up to the people to -- committee that took the testimony on whether that's a factual situation --
Hugo L. Black: But I've --
Moreton Rollesten, Jr.: I probably--
Hugo L. Black: I read the facts in your case that was having a motel, right along the highway is unreasonable in this case, people go up and down all over the country, down that highway, no motel is there and I understand your position. Do you believe that the (Inaudible) that you have a highway law, 75% of the (Inaudible) comes from that side of the state, one way or the other? And you have advertising asking them to come. So, you'll probably -- in this case, the former opinion, going back to the very beginning of the Century, 19th Century. Whether or not, Congress, we've got a right to say that Congress is fully right in saying that if these people are deprived the right to spend the night on that trip, they would -- that could likely create a burden on the commerce.
Moreton Rollesten, Jr.: Mr. Black -- Justice Black, let me say why I said I'd like to testify.
Hugo L. Black: Yes.
Moreton Rollesten, Jr.: Because I probably know more about personally, the travel of the Negro race than any White man in this room, for the separating for ten years, I've been president of a corporation that owns and operates a Negro motel in Atlanta. And I know for a fact from operating this motel which is widely known, been in every national magazine and publication, a wide distribution in the Negro press. A widely known small motel, very nicely appointed and very adequately run, and I'll tell you that there are not enough customers to fill that motel up every day of the week in an up for 20 rooms in it.
Hugo L. Black: That's in Atlanta?
Moreton Rollesten, Jr.: That's in Atlanta.
Hugo L. Black: Do you travel with any colored people from the southern part of this country back up to Washington?
Moreton Rollesten, Jr.: No I haven't, but my manager of the motel who runs it is the chairman of the Board of the National -- Nationwide Hotel Association and he knows almost firsthand the owners and operators of some 60 Negro motels up and down the East Coast of this country. But in addition to that, most chains -- Holiday Inn has 500 units. They have already segregated before they Act. Howard Johnson has about 400 and they have already segregated before the Act. Quality Court has 600, and in most in half of the states they operate under state law which requires them to desegregate and the rest are male. You take most to the major change of motels in the United States and I know for a fact now, have already desegregated and whoa, before they passed the 1964 Act. And as a matter of fact --
Byron R. White: Why would they be desegregated? Do you have any idea?
Moreton Rollesten, Jr.: In all answers because I think is a matter of policy because of that most of them were national in scope.
Byron R. White: And it had something to do with the stability of the commercial operations?
Moreton Rollesten, Jr.: I'm sure it did. Thirty states of course have laws that cover this subject and they of course had to apply with those laws and whether they had changed that operate in states have did not have a public accommodation law or state law. But as a matter of public policy, it changed and moved with the time if you want to go. So as a matter of fact when Congress passed the Act -- when Congress passed the Act, there was not any shortage of rooms in the United States for colored people to use. There may have been in Atlanta, when the Heart of Atlanta wouldn't, but we're doing it on principle. We started this case two hours after the law was passed on principle that all wouldn't think Congress had the right to do what they did.
Byron R. White: Well is it --
Moreton Rollesten, Jr.: But as a matter of fact, the Congress did not have any out of the form, they would say at that time in 1964, maybe in 1963 when all evidence used this before the Court, really it's in the record. It was given --
Byron R. White: If there weren't an adequate accommodation, would you say there are and were – if there weren't those adequate accommodations, the question would be different?
Moreton Rollesten, Jr.: That's true. In 1963, the act might have had some basis for saying that it was a burden on the interstate commerce.
Byron R. White: So that in 1960 --
Moreton Rollesten, Jr.: But the --
Byron R. White: 1960 --
Moreton Rollesten, Jr.: No.
Byron R. White: -- does involve, would have been on --
Moreton Rollesten, Jr.: I didn't finish, may it please the Court. But the fact that they tried to place people on the commerce and call him a subject of commerce applied in 1963 as well as now, I'll just meet in this argument on facts if I could. As a matter of fact, we're talking about facts that anybody could say it is a fact, well it may not have been a fact that people who testified for the committees, who are they? One man named Roosevelt, who gloried in the name of great father and hadn't done nothing much else especially in this field and a man named Roy Wilkins who's employed by an association to have that deal, was there any mention in any of the docket before this Court about the findings of Senator Russell or what he thought about it, he was on the committee.
Speaker: (Inaudible)
Moreton Rollesten, Jr.: Like all the states would have the right to pass a public accommodation law except for one thing, and that's said so in the brief. I think the inception -- they themselves and if -- they violate the Thirteenth Amendment and except for that, I think the state had the right to pass public accommodations law. Because that is the state exercising police power in the state which the federal government on that to exercise. I say, I like the Thirteenth Amendment for it's -- all of it. Well that's just the state that simplifies something.
Speaker: What about the -- in your statement, what's been the experience of the Heart of Atlanta since the injunction was there as thought?
Moreton Rollesten, Jr.: That's a good question Mr. Justice. The injunction went in effect on August 11. Just to show you what a great market, there is Negro guest traveling in the interstate commerce. We've had three requests in two months. At one time, we were full and had no rooms, the other two times we took, we've had three request and Lord knows this case has been in the papers in every member of the Negro race in the United States knew that we want an injunction to take. Right in the middle of the summer in August which is the biggest travel month, go to American -- hope that American Automobile Association, we had three gifts. None of those three gifts but it refute to the argument that there is a burden on interstate commerce because there's no place for a mistake.
Speaker: What effect did that had on you that if they don't have any of that?
Moreton Rollesten, Jr.: Very simply Your Honor. We run a -- may address but I couldn't go into it otherwise, I don't think. We ran a survey with 5000 guests in the motel. Inside are 5000 drivers, a repeat customer who had been at two times or more and asked them this question, “If a member of the Negro race were using our recreation-films and facilities which consisted two pools on an area of 200 by a 100 and other things in that recreation area, would you use the swimming pool and would you use the recreation area?” And 90% of those people said they would not.
Byron R. White: That's not my question. My question was since you only had two actual occupants since August the 3rd, you wouldn't have any swimming pool with real -- and so that's not the question. It's whether what effect it would since --
Moreton Rollesten, Jr.: It hasn't had any effect, really.
Byron R. White: Not at all.
Moreton Rollesten, Jr.: But the question is whether or not these people would come late as far as an economic effect. But whether it affects us badly on that? It's not the question. It's whether or not the Congress had the right to pass the Act to begin with. It did helped us. Counsel seems to think that the Act was passed for the benefit of the people in Birmingham and Little Rock and other people that did have racial disturbances in the South. There are 43 million White people in the South, and I'll say it for all of them -- so loud that Congress can hear, “Please don't do us any more favors in this for us.”
Hugo L. Black: But it might have --
Moreton Rollesten, Jr.: Atlanta said with the enemies -- with friends like these, who needs enemies? Upon this -- it is -- it's whether or not they have the right to do it not whether they could. Congress can do anything if you -- if this Court does not stop them. But whether they have the right to do what to do is the question.
Hugo L. Black: Do you agree that they have the right to do it? If Congress had a right (Inaudible)
Moreton Rollesten, Jr.: Mr. Justice Black, I don't go quite that far. I say that Congress has a right to remove burden from interstate commerce if it pertains to commerce but I believe that the rights of individuals, the rights of people, the personal liberty of a person to do what he wants to, to run his business is important and more paramount in the commerce of the United States.
Hugo L. Black: (Inaudible) if it does pertain to commerce, then it would create a burden on the discrimination to be practiced, if Congress denied the power to protect commerce because of the fact that alleged to discrimination.
Moreton Rollesten, Jr.: Yes sir, because --
Hugo L. Black: Who did it?
Moreton Rollesten, Jr.: Because there is a paramount duty on Congress to protect the individual liberty over and above trade. And that asset is the crux of the case. This Court it seems to me has got to decide whether or not commerce includes individuals. It's that simple? If it does, then the Act is constitutional. If they don't have the right to (Inaudible) and take over man's liberty to run his business then this Act is unconstitutional.
Hugo L. Black: Do you think of any law on regulating commerce that doesn't affect the individual?
Moreton Rollesten, Jr.: No, but this is different. This is different in (Voice Overlap) -- this is different and it makes people do something.
Hugo L. Black: Based on the ideas that (Inaudible) individual liberty. Every regulation of the (Inaudible) every regulation of the public utility, every other commercial regulation affects the liberty of (Inaudible), so if Congress reaches its conclusion to the best advantage of all to be done.
Moreton Rollesten, Jr.: But every railroad and every public utility is operating on a franchise because they have a monopoly, all virtual monotony. And they are -- the Congress has in title placed restrictions on them, that they would not ordinary place on every human being in the United States.
Hugo L. Black: That's not true with reference to the wage and hour law.
Moreton Rollesten, Jr.: Well they still put it on the basis of volume. They put it on the sides. They don't say every business in United States is under wage and hour law. You've got to have a volume of $500,000 or more in business.
Hugo L. Black: Well that's not what Congress does. If the question on both and that -- but that's immaterial. What you have -- you are asking in effect that the (Inaudible) put back in the rule. The argument in (Inaudible) -- the argument was made there like you are making here that probably regulates Congress for some purpose. You can regulate it to protect child labor, -- the court held it later on --
Moreton Rollesten, Jr.: This means putting back in the constitution that liberty of an individual is more important to interstate of commerce, and that's what I am asking. That's all. My light is on, I'd like to say this much more. The poet Shakespeare once said and it's my favorite quotation. If there is a tide in the affairs of men which taken at the flood, leads on to victim. I say to you that this is the full flood type in this country at this time. From this point on in history, because of issue I'm racing about people. That people of this country will know whether the government exist for the purpose of the preservation of the liberty of people or exists for the purpose of allowing Congress to concentrate power in Congress and in the national government, it's as simple as that. Under the constitution, the decision is yours. You're not responsible for the consequences of the decision but I submit you are responsible that the decision be just.