ton's proposal to establish a national bank. He declared that: 'interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.''

Prior decisions invalidating Federal legislation on the ground of conflict with the 10th amendment were overruled, expressly or impliedly, in United States v. Darby, 312 U.S. 100, 123–124. It is clear that legislation enacted by Congress pursuant to a power delegated to the Federal Government by the Constitution cannot be validly attacked upon the ground that it infringes upon rights reserved to the States by the 10th amendment. See Everard's Breweries v. Day, 265 U.S. 545, 558, where the Supreme Court held that—

***** if the act is within the power confided to Congress, the 10th amendment. by its very terms, has no application, since it only reserves to the States 'powers not delegated to the United States by the Constitution.'"

Similarly, speaking of legislation enacted by Congress pursuant to the enforcement clause of the 14th amendment, the Supreme Court has said that State sovereignty cannot, by definition, be invaded by the enactment of a law "which the people of the States have, by the Constitution of the United States, empowered Congress to enact." Ex parte Virginia, 100 U.S. 339, 346.

APPENDIX II

THE LIBRARY OF CONGRESS

LEGISLATIVE REFERENCE SERVICE

THE POWER OF CONGRESS TO PROHIBIT RACIAL DISCRIMINATION IN PRIVATELY OWNED PLACES OF PUBLIC ACCOMMODATION

(By Vincent A. Doyle, Legislative Attorney, American Law Division,

July 3, 1963)

The recent proposals for Federal legislation to prohibit racial discrimination in hotels, theaters, restaurants, stores and similar establishments which hold themselves open to the general public have been based upon the powers given to Congress under the 14th amendment, the commerce clause, or both. Perhaps the first observation to make is that if neither basis is valid combining them would not cure the invalidity. The second observation is that if one basis is invalid its use in combination does not enhance or detract from the validity of the other. Of course if each basis reaches some activities which are beyond the reach of the other, then using the bases in combination could enlarge the scope of the law.

This paper will discuss some of the cases relevant to an assessment of the validity of each basis and the kinds of private establishment which might be reached under it.

THE POWER OF CONGRESS UNDER THE 14TH AMENDMENT1

From the cases thus far decided by the Supreme Court, there is one generalization about the power of Congress which can be made without much fear of challenge. The 14th amendment gives Congress no power to prohibit purely private acts of racial discrimination. Sections 1 and 2 of the Civil Rights Act of 1875 (c. 114 secs. 1 and 2, 18 Stat. 335, 336) provided that all persons "shall be entitled to the full and equal enjoyment of the accommodations, advantages. facilities, and privileges of inns, public conveyances on land and water, theaters. and other places of public amusement; subject only to the conditions and limita

1 Secs. 1 and 5 of amendment XIV provide as follows:

"SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"SEC. 5. The Congress shall have power to enforce, by appropriate legislation, the pro visions of this article."

tions established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude." and punished violations of these rights. However, the Supreme Court held that these sections were unconstitutional as applied to acts of racial discrimination by private persons because under the 14th amendment the power of Congress could reach only State action. Civil Rights Cases, 109 U.S. 3 (1883). This case has never been overruled, nor has the basic premise that the 14th amendment reaches only State action been abandoned. Even as recently as May 20, 1963, in Peterson v. City of Greenville, 373 U.S., the Court stated:

"The evidence in this case establishes beyond doubt that the Kress management's decision to exclude petitioners from the lunch counter was made because they were Negroes. It cannot be disputed that under our decisions 'Private conduct abridging individual rights does no violence to the equal protection clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722; Turner v. City of Memphis, 369 U.S. (id. at 3–4 of the slip opinion).

The holding in the Civil Rights Cases is a hurdle for those who would now use the 14th amendment as a basis for new legislation so similar to that which was declared unconstitutional in 1883. They must conclude that, given a new opportunity to consider the matter in the light of subsequent developments, the Supreme Court would find some link (such as licensing) between the individual proprietor and the State that would transform the proprietor's discriminatory act into "State action." (Cf. the dissenting opinion of Justice Harlan in the Civil Rights Cases and the concurring opinion of Justice Douglas in Lombard v. Louisiana, 373 U.S.- (May 20, 1963)). Although in no case has a majority of the Supreme Court yet found this link in the mere fact that a store or restaurant is licensed by a State to do business, or holds itself open to the public, the acts of some private businesses and organizations have been held to violate the 14th amendment.

In some cases the Court has found the link in the fact that the private organization was performing what was essentially a governmental function. This was the kind of link that led to the demise of the "white primaries." Smith v. Allwright, 321 U.S. 649 (1944); Terry v. Adams, 345 U.S. 461 (1953). This may also have been the kind of link the Court found in Marsh v. Alabama, 326 U.S. 501 (1946). The town of Chickasaw, a suburb of the city of Mobile, Ala., was a "company town" wholly owned by the Gulf Shipbuilding Corp. Except for the fact that it was privately owned, it was much like any other town, with streets and houses and stores. The company had signs posted in stores reading: "This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted." A member of Jehovah's Witnesses was warned that she could not distribute religious literature without a permit and told that no permit would be issued to her. Nevertheless, she stood on the sidewalk in front of the post office and started distributing her literature. She was asked to leave and refused. A deputy of the Mobile County sheriff, who was paid by the company to act as the town policeman, arrested her for trespass. She was prosecuted and convicted under an Alabama law which makes it a crime to remain on the premises of another after having been warned not to do so. The Court reversed the conviction, indicating that the operation of the town was a public function and that the company's private property rights were not sufficient to justify the State in permitting the company to restrict the fundamental liberties of the townspeople and then use the statutes of the State to enforce those restricions. The Court seemed to be as much concerned with the rights of the residents to read the religious literature as it was with the right of the witness to distribute it. It did say, however, that

"The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." (Id. at p. 506.)

Yet the evil the Court actually reached and struck down was not the restriction established by the private property owner but rather the act of the State enforcing it through its courts. In this respect, the Marsh case resembles Shelley v. Kraemer, 334 U.S. 1 (1948) and Barrows v. Jackson, 346 U.S. 249 (1953).

In Shelley, the Court held that judicial enforcement of a racial restrictive Covenant by injunction was State action prohibited by the 14th amend

In Barrows, the Court held that judicial enforcement of such covenants by assessment of damages was prohibited. Yet in each of these cases the Court cited the principle of the Civil Rights Cases as one firmly embedded in our constitutional law. Mr. Justice Vinson, in Shelley, noted that the 14th amendment "erects no shield against merely private conduct, however discriminatory or wrongful," and said:

"We conclude therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the 14th amendment. So long as the purpose of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there had been no action by the State and the provisions of the amendment have not been violated" (334 U.S. 1, 13 (1948)).

In Barrows, Mr. Justice Minton cited this language with approval. 346 U.S. 249, 253 (1953).

Some have thought that the Court would extend the principle of Shelley and Barrows to the sit-in cases. In those cases, Negroes have been arrested for trespass for remaining at white-only lunch counters after the owners had refused to serve them because of their race and then asked them to leave. Although the Court has reversed several such trepass convictions, it has not used Shelley to support its conclusions. In one case the prohibited State action was found in a city ordinance which required segregation. Peterson v. City of Greenville, 373 U.S. (decided, May 20, 1963). In another the prohibited State action was found in statements by the mayor and superintendent of police to the effect that the city of New Orleans would not permit Negroes to seek desegregated service in restaurants. Although there was no statute or ordinance requiring segregation, the Court held each of these statements to be an “official command which has at least as much coercive effect as an ordinance." Lombard v. Louisiana, 373 U.S. (slip opinion p. 7, dècided May 20, 1963). The existence of the ordinance in the one case and the statements in the other made the private intentions of the property owner irrelevant. Even if the owner would have refused service in the absence of an ordinance the Court's result would not have been changed. No State will be permitted to enforce, by conviction under trespass statutes or otherwise, ordinances or other official commands requiring segregation.

An earlier sit-in case arising in Louisiana was disposed of on the ground that evidence that the defendants sat peacefully in a place where custom decreed they could not sit was not sufficient to convict them of the crime of disturbing the peace as defined in the Louisiana statutes. Garner v. Louisiang (368 U.S. 157 (1961)).

The Court found another kind of link with the State in the discriminatory act of a private restaurant operator in Burton v. Wilmington Parking Authority (365 U.S. 715 (1961)). This involved the refusal of service to a Negro by a private restaurant operator on premises leased from an agency of the State of Delaware. The restaurant was located in a building constructed with public funds and used for a public purpose, that is, a municipal parking facility. The restaurant was one of several leased areas in the facility which the Court found to be an "indispensable part of the State's plan to operate its project as a selfsustaining unit" (id. at pp. 723-724). The opinion by Mr. Justice Clark very carefully pointed out that the Court's conclusions in this case could not be considered "universal truths on the basis of which every State leasing agreement is to be tested" (id. at p. 725). In defining the limits of its inquiry, the Court stated:

** what we hold today is that when a State leases public property in the manner and for the purpose shown to have been the case here, the proscrip tions of the 14th amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself" (id. at p. 726).

If the Court is this reluctant to find a State action link in all State leasing agreements, what indication is there that the Court would be any more willing to find such link in State licenses? In the case of State licenses in the nature of a franchise, the monopolistic or semimonopolistic kind of license given to public utilities, common carriers, and the like, the link is unquestionably there. No privately operated transit system or electric light company could discriminate without violating the prohibition of the 14th amendment. Sec e.g. Public Utilities Commission v. Pollak (343 U.S. 451 (1952)). (Although this dealt with Federal action, and did not involve race, the principles involved are similar to

those concerned with State action involving racial discrimination. In Boman v. Birmingham Transit Co. (280 F. 2d 531 (1960)), the rules of a bus company requiring segregated seating were held to be a State act. The Court, however, considered two factors: (1) The company operated under a franchise from the State and thus differed from an ordinary corporation; (2) a city ordinance had authorized the company to issue rules for seating of passengers and had made willful refusal to obey a reasonable request of the bus operator relating to seatng a breach of the peace.)

With respect to businesses like restaurants, for which, if any license at all is required, there is no need for a showing of public convenience and necessity but simply the payment of an annual tax, the Supreme Court has not yet found the link which would transform the discriminatory act of the business into an act of the State and therefore a prohibited one.

The Court of Appeals for the Fourth Circuit considered the license argument in 1959 and rejected it. Williams v. Howard Johnson's Restaurant (268 F. 2d 845 (4 cir. 1959)), involved a restaurant's refusal to serve a Negro solely because of his race. The plaintiff conceded that there was no State statute which required The proprietor to refuse him service but pointed to the statutes which required segregation of the races in carriers and by persons engaged in the operation of paces of public assemblage. He also emphasized the long-established local "stom of excluding Negroes from public restaurants and contended that the acquiescence of the State in these practices amounted to State action violative of the provisions of the 14th amendment. Another theory on which the plaintiff argued was that since the State licensed the restauranat it had a positive duty to prohibit racial discrimination in the use and enjoyment of its facilities. The court stated that unless these discriminatory acts were performed in obedience to some positive provision of State law there would be no basis for a comlaint. The court concluded that the restaurant was at liberty to deal with sich persons as it might select. (The court also rejected the theory that the discrimination was forbidden because the restaurant was engaged in interstate commerce. This theory will be mentioned subsequently under the Commerce (lause.)

Although the Supreme Court continually emphasizes that no inferences may be drawn from a denial of certiorari, there are two cases it had an opportunity to consider but did not which should be mentioned. In Gordon v. Gordon (332 Mass, 197, 124 N.E. 2d 228, cert. denied, 349 U.S. 947 (1955)), a will provided for revocation of a testamentary gift to any child who married a person not born in the Jewish faith. The lower court entered a decree revoking a gift to a son who married a Catholic girl. The Supreme Judicial Court of Massachusetts upheld the decree against arguments, based on Shelley v. Kraemer and Barrows v. Jackson (both supra), that court enforcement of such a discriminatory will provision violated the 14th amendment. A discriminatory will provision was also involved in In re The Girard College Trusteeship (391 Pa. 434, 138 A. 2d 844 (1958)). Girard's will established a trust for a private school for white male orphans and named the city of Philadelphia as trustee. Ultimately The trust was administered by a city board established by State statute. When it first considered this case the Supreme Court held that under these circumstances the 14th amendment prohibited denial of admission to a Negro male orphan because of his race. Thereafter, instead of ordering the public trustees to admit qualified Negro applicants, the Pennsylvania orphans court substituted private trustees for the city board of directors. The private trustees continued to deny admission to Negroes. The Supreme Court of Pennsylvania upheld their right to do so. The Commonwealth of Pennsylvania appealed from this decision. The U.S. Supreme Court, in a per curiam opinion, dismissed the appeal and, treating the appeal as a petition for certiorari, denied certiorari. Pennsylvania v. Board of Directors (357 U.S. 570 (1958)). If we were permitted to make an inference from these cases, the obvious one to make is that the State will be permitted to enforce discriminatory wills through its legal processes but not discriminatory racial covenants. However, no inference should be made from a denial of certiorari.

Had the plaintiff argued that the Code of Virginia (1950), title 18. sec. 327. required gregation in the rest iurant the result might have been different. The same plaintiff 's .rging this proposition in a new case

Conclusions on the 14th amendment approach

It is clear from the cases thus far decided by the Supreme Court that it has not yet held that, where a State or one of its political subdivisions exercises no element of coercion upon a business to discriminate, the business is not free to discriminate without violating the prohibitions of the 14th amendment. On the contrary, even when it has found some element of prohibited State action (as in Shelley v. Kraemer), the Court has often commented that individual acts are beyond the reach of the 14th amendment. It is not at all clear, however, whether or to what extent, the Court will depart from or distinguish the holding in the Civil Rights Cases of 1883 when it considers the effect of the 14th amendment on a private business conducted in a State which neither prohibits nor requires discrimination but leaves the businessman free to make his own choice. There are several approaches the Court might take, but before discussing them, there is an important observation to be made about the power of Congress to influence the Court's approach by adopting the proposed legislation.

Under its 14th amendment powers Congress can prohibit no act of discrimination which is not already prohibited by the 14th amendment. In this respect the 14th amendment power differs from the commerce power, a distinction which will be discussed subsequently under the Commerce Clause. Moreover, if the proposed legislation were to be held constitutional, it would give no one, except perhaps the Attorney General, any right of action which he does not already have under the provision of 42 U.S.C. 1983. That is the section which gives a right of action at law or in equity to any person who "under color of any statute, ordinance, regulation, custom, or usage of any State" has been deprived by another person "of any rights, privileges, or immunities secured by the Constitution and laws ***? The rights, privileges and immunities mentioned in this section include the 14th amendment rights to due process and equal protection of the laws. Hague v. Congress of Industrial Organizations, 307 U.S. 496 (1939). If it be constitutional for Congress now to give a right of action to any one discriminated against because of race or color by another "in the conduct of a business authorized by a State" as one bill would do, or by some one who acts as "a proprietor, manager, or employee of any business or business activity affecting the public which is conducted under a State license” as another bill would do. Congress has already given such right of action, though in less specific terms, in 42 U.S.C. 1983.

1. It is conceivable that by reading some of the statements in Mr. Justice Bradley's opinion in the Civil Rights Cases very carefully the Court might, as some have argued it will, in some States reach even Mrs. Murphy's boardinghouse without departing far from his rationale. Examples of such statments are Justice Bradley's acknowledgment that custom can sometimes have the force of law. and his suggestion that if States were not giving a right of action to Negroes against those who deprived them of their rights Congress could adopt corrective legislation. Many observers conclude, however, that the Court will not decide that when Mrs. Murphy segregates, she violates the 14th amendment, at least in those localities where neither the law, nor custom which has the force of law. compels her to segregate.

2. The Court may extend the doctrine of Shelley v. Kraemer (supra). As applied to Mrs. Murphy, this would mean that although she was free to refuse to serve a Negro, the State would not be free to convict him of trespass if he refused to leave. Most commentators feel that this would result in chaos. It would leave Mrs. Murphy free to exercise her common law right to use reasonable force to eject the unwanted customer but would deprive her of any right to call upon the State to help her if she had insufficient force at her disposal. She would be in the same position as the seller of land who incorporated a restrictive covenant in his deed. She would have a right but not legal remedy for its violation.

Whether such extension of Shelley v. Kraemer would be wise or not, its adoption by the Court would give Congress no more power under the 14th amendment to prevent Mrs. Murphy from segregating than it has now to enact a law preventing anyone from entering into a racial restrictive covenant.

3. The Court might extend to Mrs. Murphy the doctrine of Terry v. Adams (supra). That was the case which prohibited the Jaybird Party in Texas, a private club, from excluding Negroes because the function it performed was an integral part of the election process even though not formally recognized by State law. The function the club performed was so much a public function that its private act of discrimination constituted "State action" prohibited by the