Katzenbach v. McClung Brief Amicus Curiae

    I n  t h e

Ihiprm? CEnurt &t tl|? lu t!^  States
October Term, 1964 

No. 543

N ich o la s  deB . K a tzen b a c h , as Acting Attorney General 
of the United States, et al.,

Appellants,
-v.-

Ol l ie  M cC l u n g , Sb., et al.,
Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
EOR THE NORTHERN DISTRICT OE ALABAMA

BRIEF OF
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC. AS AMICUS CURIAE

J ack  G reen berg  
C o n sta n ce  B a k er  M otley  
J am es M . N abrit , III 

10 Columbus Circle 
New York, New York 10019

C h a r les  L. B la c k , J r.
346 Willow Street 
New Haven, Connecticut



I N D E X
PAGE

A r g u m e n t  ................................................................................................  1

Introduction .......... ....................... -.................................  1
I. Appellees’ Restaurant Is a Place of Public 

Accommodation Within the Meaning of Sec­
tion 201 of the Civil Eights Act of 1964 Reason­
ably Construed With Appropriate Regard for 
the Purposes and Constitutional Power of 
Congress .............................................................  4
A. Ollie’s Barbecue Offers to Serve Interstate

Travelers Within the Meaning of §201 (c) (2) 6
B. There Is No Proof That Ollie’s Barbecue

Does Not Actually “Serve . . . Interstate 
Travelers” ; the Record Tends to Show the 
Contrary ........................................................ 12

C. A Substantial Portion of the Food Served 
by Ollie’s Barbecue Has Moved in Commerce 
Within the Meaning of Section 201(c) (2) .... 14

D. As There Was No Evidence Upon Which
It Might Be Decided Whether Discrimina­
tion at Appellees’ Business Was Supported 
by State Action Within the Meaning of 
§201(d), the Appellee Had No Standing to 
Obtain, and the Trial Court No Equity 
Jurisdiction to Grant, an Injunction Em­
bracing This Provision ..............................  15

E. The Suggested Interpretation Indicated in
This Brief Would Enable the Various Parts 
of the Law to Function in a Complementary 
Manner to Effectuate the Congressional 
Purpose .......................................................... 16



XI

page

II. The Power of Congress to Regulate Commerce 
Among the States Supports Title II of the Civil
Rights Act .........................................................  19

III. Title II Does Not Offend Any Other Constitu­
tional Provisions ..............................................  26
A. A Requirement That Restaurateurs Open 

to the Public Provide Service Without
Racial Discrimination Does Not Violate the 
Fifth Amendment Due Process Clause ...... 26

B. The Thirteenth Amendment Is No Bar to
the Act .......................................................... 27

C. The Tenth Amendment Does Not Invalidate
Title I I ...........................................................  28

T able oe C ases

Cases:

American Communications Assn. v. Douds, 339 U. S.
382 ........................................... ....................................  22

Arver v. United States, 245 U. S. 366 ............................  28

Bailey v. Patterson, 368 U. S. 346 ................................  16
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) .... 17
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 ..........  27
Boynton v. Virginia, 364 U. S. 454 .......... ............ ..11, 23, 27
Brown Holding Co. v. Feldman, 256 U. S. 170.............. 28
Brown v. Maryland, 25 U. S. (12 Wheat.) 419 ..........  28
Burton v. Wilmington Parking Authority, 365 U. S. 715 27

Caminetti v. United States, 242 U. S. 470 .................  24
Champion v. Ames, 188 U. S. 321 ................... ............  23
Civil Rights Cases, 109 U. S. 3 ..................... ..............16, 27
Colorado Anti-Discrimination Com. v. Continental Air 

Lines, 372 U. S. 714 .................................................. 27



District of Columbia v. John E. Thompson Co., 346 
U. S. 100......................................................................  27

Edwards v. California, 314 U. S. 160 ..........................  22

Georgia v. United States, 201 F. Supp. 813 (N. D. Ga.
1961), aff’d 371 U. S. 9 ........ ......................................  17

Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1 ....2,19,20,21,28 
Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 .... 22 
Gober v. Birmingham, 373 U. S. 374 ............................ 15,16

Hammer v. Dagenhart, 247 U. S. 251............................  23
Heart of Atlanta Motel, Inc. v. United States, No. 515,

Oct. Term, 1964 ........... ....... ........... ..... ........... .......... 25
Henderson v. United States, 339 U. S. 816 .................. 27
Hoke v. United States, 227 U. S. 308 ............................  24

Lombard v. Louisiana, 373 U. S. 267 ........................ 15,16

McCulloch v. Maryland, 17 IT. S. (4 Wheat.) 316.......... 2, 28
McDermott v. Wisconsin, 228 U. S. 15 ...........    24
Mitchell v. United States, 313 U. S. 8 0 ......................... 27
Morgan v. Virginia, 328 U. S. 373 ................................  23

N. L. E. B. v. Fainblatt, 306 U. S. 601 ......................... 22, 25
N. L. R. B. v, Jones & Laughlin Steel Co., 301 U. S. 1 24, 26 
N. L. E. B. v. Reliance Fuel Corp., 371 U. S. 234 .......... 2, 22

Peterson v. Greenville, 373 U. S. 244 ......................... 27

Railway Mail Assoc, v. Corsi, 326 U. S. 88.....................  27
Robinson v. Florida, 378 U. S. 153 ............................ 15,16

Slaughterhouse Cases, 83 U. S. (18 Wall.) 3 6 .............. 28
Swift & Co. v. United States, 196 U. S. 375 .................  3

Ill
PAGE



Turner v. Memphis, 369 U. S. 350 ................................3, 27

United States v. Carotene Products, 304 U. S. 144......  20
United States v. Darby, 312 U. S. 100 —.21, 22, 23, 24, 26, 28
United States v. E. C. Knight Co., 156 U. S. 1 .............. 3
United States v. Employing Plasterers Assn., 347 U. S.

186 ...............................................................................  25
United States v. Ferger, 250 U. S. 199......................... 22
United States v. Rock Royal Co-Operative, 307 U. S.

533 ...............................................................................  24
United States v. Sullivan, 332 U. S. 689 ................... 24, 25
United States v. Women’s Sportswear Mfg. Assn., 336 

U. S. 460 ..................................    25

Wickard v. Filburn, 317 U. S. I l l .................................. 22
Willis v. Pickrick,----- F. Supp.------  (N. D. Ga., No.

9028; September 4, 1964) ........    3

Other Authorities:

Hearings Before Joint Subcommittee No. 5 of the 
House Committee on the Judiciary, 88th Cong., 1st 
Sess., ser. 4, pt. 1 (1963) ...........................................7-8,18

Minority Report, H. R. Rep. No. 914, 88th Cong., 1st 
Sess. 79 (1963) ...........................................................  8

110 Cong. Rec. 1456 (Daily Ed., Jan. 31,1964)......   9
110 Cong. Rec. 1901 (Daily Ed., Feb. 5, 1964) ....    9
110 Cong. Rec. 7177 (Daily Ed., Apr. 9, 1964) ............. 11

iv
PAGE



I n  t h e

gnifiruittu (fliinrt nf tip United States
October Term, 1964

No. 543

N ich o la s  deB . K a tzen b a c h , as Acting Attorney General 
of the United States, et al.,

Appellants,
----Y.----

Ollie  M cClung , Sr ., et al.,
Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
POE THE NORTHERN DISTRICT OP ALABAMA

BRIEF OF
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC. AS AMICUS CURIAE

ARGUMENT

Introduction

Proponents and opponents alike agree that the Civil 
Rights Act of 1964 is one of the most significant legislative 
enactments in our history. Both Houses of Congress sub­
jected it to lengthy and exhaustive hearings, debate, and 
controversy, and finally passed it by large majorities. Much 
of the lengthy consideration and debate focused on the part 
of the Act involved in this case, Title II providing for “In­
junctive Relief Against Discrimination in Places of Public 
Accommodation.” We think it appropriate to say of this 
law, as Chief Justice Marshall said of the bill incorporating 
the bank of the United States, that i t :



2

. . . did not steal upon an unsuspecting legislature, 
and pass unobserved. Its principle was completely 
understood, and was opposed with equal zeal and 
ability. After being resisted, . . .  in the fair and 
open field of debate . . . with as much persevering- 
talents as any measure has ever experienced, and 
being supported by arguments which convinced minds 
as pure and intelligent as this country can boast, it 
became a law. . . .  It would require no ordinary share 
of intrepidity to assert that a measure adopted under 
these circumstances was a bold and plain usurpation, 
to which the constitution gave no countenance.1

Yet, appellees, with extraordinary intrepidity, have sum­
moned arguments rejected by Congress and have persuaded 
a Court of the United States that the public accommoda­
tions law is an exercise of “naked power” by the Congress 
unsanctioned by the Constitution.

The importance of such a case is manifest. The desira­
bility of promptly determining this issue has been recog­
nized. We submit below that Congressional power to enact 
this law under the power to “regulate Commerce . . . among 
the several States” can be sustained by settled and conven­
tional constitutional doctrine reflected in decisions as old 
as Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1, and as recent as 
N. L. R. B. v. Reliance Fuel Corp., 371 U. S. 234. Indeed, in 
light of the precedents, the commerce issue cannot be re­
garded as difficult or close.

We shall also discuss a more subtle danger lurking behind 
appellees’ frontal, and perhaps premature,2 attack on the

1 McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316, 401.
2 We recognize that the issues of justiciability and equity juris­

diction raised by the United States involve substantial questions 
which may well necessitate reversal of the judgment below inde­
pendent of the constitutional and statutory issues. Because of time



3

Civil Eights Act. This danger is that the force and ef­
fectiveness of the Act may be weakened, even temporarily, 
by a restrictive construction.3 Compare the “Sugar Trust 
Case,” United States v. E. C. Knight Co., 156 U. S. 1, with 
Swift <& Co. v. United States, 196 U. S. 375. Even an inad­
vertent or implied restriction on the coverage of the Act 
could cripple it immeasurably, by undermining the pattern 
of voluntary compliance which has emerged in many locali­
ties as well as by its effect on enforcement proceedings in 
lower courts. This danger is acute here because neither the 
United States nor any person aggrieved by discrimination 
has made an effort to present facts establishing that ap­
pellees’ restaurant is covered by the Civil Eights Act.4 
The only evidence of coverage was presented by the appel­
lees themselves, and they naturally had no interest in de­
veloping any facts pertaining to coverage which would 
undercut their constitutional theories. Despite this, it does

limitations this brief is limited to a discussion of the paramount 
issues of constitutionality and interpretation.

There is a substantial public interest in prompt resolution of 
the issues of constitutionality, and since the Act is clearly valid 
under settled principles, there is no compelling reason for post­
poning decision. Cf. Turner v. Memphis, 369 U. S. 350. Further 
guidance to the lower courts on questions of interpretation of the 
Act—again where the congressional purpose is manifest—is also 
plainly desirable and appropriate notwithstanding the procedural 
difficulties in this case. Rules of self-restraint applicable to de­
cisions of constitutional issues do not apply with equal force to 
statutory interpretation, because Congress can rectify any error of 
interpretation.

3 Already some judges have construed the Act so restrictively
as to remove most restaurants from coverage. See the special con­
curring opinion of Circuit Judge Bell with Judge Hooper in 
Willis v. PickricJc, ——- F. Supp.----- (N. D. 6a., No. 9028; Sep­
tember 4, 1964) ; earlier proceedings reported at 231 F. Supp. 396.

4 Consistent with its view that there was no equity jurisdiction 
and no justiciable controversy, the United States made no investi­
gation of this restaurant, and presented no witnesses or exhibits.



4

plainly appear from the record that “Ollie’s Barbecue” 
is a “place of public accommodation” as defined in Section 
201 of the Act. The case properly presents an occasion 
for application and interpretation of the Act.

I.

Appellees’ Restaurant Is a Place of Public Accommo­
dation Within the Meaning of Section 201 of the Civil 
Rights Act of 1964 Reasonably Construed With Appro­
priate Regard for the Purposes and Constitutional 
Power of Congress.

All parties agree, and the evidence is conclusive, that 
Ollie’s Barbecue is a “restaurant . . . principally engaged 
in selling food for consumption on the premises,” and is one 
of the types of facilities mentioned in Section 201(b)(2) 
of the Act. Equally undisputed, this restaurant “serves the 
public” (§201(b)). No one contends that the restaurant is 
excepted from the Act as a “bona fide private club or other 
establishment not open to the public” (§201(e)). There is 
clear proof that appellees deny to Negroes (including cus­
tomers, potential customers and employees) “the full and 
equal enjoyment of the goods, services, facilities, privileges, 
advantages, and accommodations” of the establishment by 
discrimination and segregation on the ground of race and 
color.5

5 Both appellees testified to their policy of refusing Negroes 
food service except at a take-out counter for Negroes (Tr. 34, 60, 
et seq.). They mentioned several occasions when Negroes had been 
denied table or counter service on racial grounds (Tr. 43, 60). 
Ollie Me Clung, Sr. acknowledged that Negro employees were segre­
gated from white employees when eating on the premises (Tr. 57). 
(The reference in §201 (a) to “all persons” is surely broad enough 
to cover employees as ŵ ell as customers.)



5

A restaurant is a place of public accommodation covered 
by the Act “if its operations affect commerce, or if dis­
crimination or segregation by it is supported by State 
action” (§201(b)). In Section 201(c)(2) the Act provides 
that the operations of a restaurant “affect commerce with­
in the meaning of this title” if “it serves or offers to serve 
interstate travelers or a substantial portion of the food 
which it serves, or gasoline or other products which it sells, 
has moved in commerce.” Section 201(d) provides criteria 
for determining whether discrimination or segregation by 
an establishment is “supported by State action within the 
meaning of this title.”

Appellees argued below that their restaurant was covered, 
but only by virtue of §201 (c)(2) relating to the movement 
in commerce of food served. The District Court agreed, 
stating that the issues “require our consideration of only 
that portion of the statute relating to restaurants which 
serve food, ‘a substantial portion’ of which ‘has moved in 
commerce.’ ” The court held that provision unconstitu­
tional. Also, the Court undertook to cast doubt upon the 
validity of the alternative criterion in §201(c)(2) provid­
ing coverage of a restaurant if “it serves or offers to serve 
interstate travelers,” by observing:

No case has been called to our attention, we have 
found none, which has held that the national govern­
ment has the power to control the conduct of people 
on the local level because they may happen to trade 
sporadically with persons who may be traveling in 
interstate commerce. To the contrary, see 'Williams 
v. Howard Johnson’s Restaurant, 268 F. 2d 845 (4th 
Cir. 1959); Elizabeth Hospital, Inc. v. Richardson, 269 
F. 2d 167 (8th Cir. 1959); United States v. Yellow Cab 
Co., 332 IT. S. 218 (1947).



6

Whatever the limitations of its opinion, the order of 
the District Court enjoined the Attorney General from 
enforcing Title II, as a whole, against appellees. It is sub­
mitted below that Ollie’s Barbecue is a place of public ac­
commodation within the Act in that it “offers to serve inter­
state travelers.” Next, it will be demonstrated that appel­
lees failed to establish that they did not actually “serve . . . 
interstate travelers” and that the most logical inference 
from the record is that they do and are covered by this 
criterion as well. Further, it will be urged that the evi­
dence concerning this restaurant establishes that “a sub­
stantial portion of the food which it serves . . . has moved 
in commerce.” Finally, it will be submitted that insofar 
as there was no substantial evidence from which absence of 
state support for segregation as defined by subsection 
201(d) can be ascertained, there was no occasion for a 
ruling on the validity or applicability of this subsection, and 
no justification for the broad injunction.

A. Ollie’s Barbecue Offers to Serve Interstate Travelers 
W ithin the Meaning of § 2 0 1 (c ) (2 ) .

The evidence relevant to the “offer to serve” criterion 
may be summarized briefly. The trial court found that:

5. The restaurant is eleven blocks from the nearest 
interstate highway, a somewhat greater distance from 
the nearest railroad and bus station and between six 
and eight miles from the nearest airport.

6. Plaintiffs seek no transient trade and do no ad­
vertising of any kind except for the maintenance of 
a sign on their own premises. To their knowledge 
plaintiffs serve no interstate travelers.

Ollie McClung, Sr. testified that his restaurant, which 
has ample parking facilities (Tr. 35), is located on a state



7

highway which intersects an interstate highway eleven 
blocks away (Tr. 32) ;6 and that he makes no effort to at­
tract “transients” (Tr. 36).

The restaurant is of course open to the public (including 
Negroes if they will submit to the indignity of segregated 
“take-out” service), and there is no evidence that the general 
offer to serve the public expressed by the existence of an 
open restaurant has been in any way qualified to exclude 
an offer to serve interstate travelers, either passing through 
the City, or at the beginning or end of a journey, or in 
the City on a brief or prolonged stopover during an inter­
state trip.

On this state of the record, the question is whether §201 
(c)(2), construed in the light of constitutional limitations, 
must be read as embodying a requirement that the offer 
to serve be—in some sense—“substantial.”

Appellants submit that nothing in the purpose of the Act, 
its legislative history, or the Constitution requires that 
the statute be construed as if it had read “substantially 
offers to serve.”

Numerous considerations oppose any such reading. First, 
an initial version of the bill contained a substantiality 
requirement as to actual service, but Congress amended 
that version and passed the bill in its present form.7 Dele­

6 The sworn complaint also mentioned a truck route one block 
from the restaurant but asserted that no trade was derived from 
this route (Complaint, jf3).

7 The Bill, as originally introduced in the House by Congress­
man Celler as H. B. 7152, did contain such a limiting requirement 
in Sec. 202(a)(3):

. . .  (i) the goods, services, facilities, privileges, advantages, 
or accommodations offered by any such place or establishment 
are provided to a substantial degree to interstate travelers . . .



8

tion of this requirement carries with it not only the plain 
implication that Congress intended no requirement that 
there be a substantial amount of actual service of interstate 
travelers, but implicates, as well, that there was no intent 
that offers be “substantial.” If it were otherwise the in­
dependent “offer to serve” criterion would make no sense 
as it would refer to a highly unlikely category of restau­
rants; those that make a substantial offer (or effort) to 
serve interstate travelers but actually serve few or none.

Second, the criterion relating to movement of foods in 
commerce is immediately contiguous to the “offers to serve” 
clause and does have an explicit substantiality requirement. 
Congress knew how to say “substantial” when it meant 
to do so.

Third, Congress did desire to cover virtually all restau­
rants, just as it quite clearly wished to cover all hotels, 
motels, etc., by §§201(b)(l) and 201(c)(1), and almost 
all motion picture houses, etc. by §§201 (b) (3) and 201(c) (3). 
The court below correctly assumed that the purpose of Con­
gress was “to put an end to racial discrimination in all 
restaurants,” save only an eccentric (and probably thereto­
fore nonexistent) class of public restaurants refusing to 
admit interstate travelers and serving no substantial por­
tion of food which has moved in commerce. The evidence is 
persuasive that the purpose of Congress was to enact for 
the nation a public accommodations law broadly comparable 
in coverage of restaurants (and hotels, theatres, etc., as

Hearings Before Subcommittee No. 5 of the House Committee 
on the Judiciary, 88th Cong., 1st Sess., ser. 4, pt. 1, at 653 
(1963).

This section of the Act was changed to its present broader form 
after passing through the full House Judiciary Committee. Mi­
nority Report, H. R. Rep. No. 914, 88th Cong., 1st Sess. 79 (1963).



9

well) to the public accommodations laws of 30 states and the 
District of Columbia.8

8 In presenting the Bill, Congressman Celler said:
“All we do here is to apply what those 30 States are now 
doing and what the District of Columbia is now doing to 
the rest of the States so that there shall be no discrimination 
in places of public accommodation privately owned. . . . ” 
110 Cong. Rec. 1456 (Daily Ed., Jan. 31, 1964).

The issue was sharply focused when Mr. Willis sought to amend 
Section 201(c) to “strike out the following, ‘it serves or offers to 
serve interstate travelers or’ and insert in lieu thereof the fol­
lowing: ‘a substantial number of the patrons it serves are inter­
state travelers and.’ ” 110 Cong. Rec. 1901 (Daily Ed., Feb. 5, 
1964).

Congressman Celler opposed the amendment:
“This amendment would change that. Instead of being in the 
disjunctive, it would be in the conjunctive, and the Attorney 
General would have to prove two things. First, he would have 
to prove that in a particular restaurant the service is to a 
substantial number of interstate travelers. Not merely to in­
terstate travelers but to a ‘substantial’ number of interstate 
travelers. And, in addition, he would have to prove that a 
substantial portion of the food which is served has moved in 
interstate commerce. That is a proof that is twofold, and it 
makes it all the more difficult for the Attorney General to 
establish that proof. It cuts, as it were, the import of the 
words ‘affect commerce,’ which are on page 43, line 24, in 
half. You have this situation, for example. Whereas, in the 
proposal before us, many restaurants are within the orbit 
of the prohibition of the bill, many of such restaurants would 
not be covered under this amendment. Take, for example, a 
roadside restaurant which sells home-grown food which does 
not come from outside the State. That would not be covered 
under the amendment. Furthermore, a local restaurant which 
serves local people with food coming from all over the United 
States would not be covered under the amendment. Let me 
repeat that.

“We have very significant results here. Instead of having 
all restaurants covered, under this amendment you would elim­
inate the restaurant, for example, a roadside restaurant that 
sells home-grown food. You would also eliminate the local 
restaurant that serves local people with food that comes from 
all over the country. I do not think we want such a situation 
to develop, and for that reason I believe that the whole pur-



10

Fourth, an implied “substantiality” standard would make 
it so difficult for citizens and restaurateurs to know their 
rights as to completely cripple its administration. Of course, 
Title II contains no criminal penalties; its applicability to 
numerous categories of restaurants could be hammered out 
on a case-by-case basis in the courts. To a certain degree 
that is inevitable with any law. But with this law there is 
a clear recognition by Congress that its real effectiveness 
would in some measure depend upon the fact that the people 
of our land are law abiding and will obey the law when it 
is clear and unequivocal. The establishment of the Com­
munity Relations Service (Title X of the Act) to resolve 
disputes concerning the law without litigation (cf. §§204(d), 
205), demonstrates the importance which Congress attached 
to obtaining voluntary compliance and avoiding many 
thousands of lawsuits against individual establishments.

The uncertainties that would befall the law if a substan­
tiality test is read into the “offers to serve” criterion may 
be illustrated by a few questions and examples. Does the 
criterion cover “offers to serve” which are inexplicit as to 
interstate travelers, but are, because of the circumstances 
in which they are made, highly likely to come to the at­
tention of such travelers! Can location be considered so 
that a restaurant would be covered merely by being open 
to the public in the immediate neighborhood of an interstate 
route or terminal absent any actual off-the-premises effort 
to attract such travelers? Would Ollie’s Barbecue be in a 
different position if the state highway it now adjoins is 
made a part of the interstate highway system? Would

pose of covering restaurants would be defeated by this amend­
ment.” (Id. at 1902.) (Emphasis supplied.)

The amendment was rejected at p. 1903. It should be noted that 
this amendment would have entirely deleted the “offer to serve” 
criterion.



11

Ollie’s be covered if: (a) located two blocks from a ter­
minal! (b) listed in a national credit card directory! (c) 
it advertised in a local paper with substantial interstate 
circulation! (d) located in a metropolitan area straddling 
a state line—Texarkana, for example!

We have no doubt of the capacity of the courts to re­
solve these and manifold similar questions which a substan­
tiality requirement would entail. We do doubt and deny 
that the Congress really intended to require a Negro citi­
zen seeking restaurant service to make these calculations 
before he can know his rights.9 This should not be required, 
any more than Bruce Boynton was required to know the 
intercorporate relations between interstate carriers and 
the operator of a terminal restaurant in order to be pro­
tected by the Motor Carriers’ Act. Boynton v. Virginia, 
364 U. S. 454. The Civil Rights Act is also available as a 
defense against criminal charges (§203). The Eighty-eighth 
Congress never envisioned that it was assuring the Negro 
first class citizenship in restaurants only along interstate 
highway routes and in the more or less immediate environs 
of air, bus, rail or sea terminals, and only there after an 
almost inevitable lawsuit.

It is submitted that the “offer to serve” criterion, should 
be given its proper broad scope and construed to cover 
all restaurants save those which by some means explicitly 
and in good faith negative the implied invitation to serve

9 Senator Magnuson, presenting an analysis of Title II, said : 
“Most public eating places would be within the ambit of 

title II because of their connection with interstate travelers 
or interstate commerce. And in some areas, public eating 
places would come within the ambit of title II, because of 
the factor of State action.

“At any rate, it is clear that few, if any, proprietors of 
restaurants and the like would have any doubt whether they 
must comply with the requirements of title II.” 110 Cong. 
Rec. 7177 (Daily Ed., Apr. 9, 1984).



12

the general public, among whom, by definition, are inter­
state travelers.

B. There Is No P roof That Ollie’s Barbecue Does Not 
Actually “Serve . . . Interstate Travelers” ; the 
Record Tends to Show the Contrary.

The criterion of actual service of interstate travelers 
is plainly designed to complement the “offers to serve” 
criterion. As noted above, a substantiality requirement was 
deleted from the Bill in the House Judiciary Committee, 
and an attempt to reintroduce it was defeated on the House 
floor.10 As the appellees sought and obtained an injunction 
against the entire Title II they had the burden of estab­
lishing that they did not fall within this criterion as well. 
The Court found that “to their knowledge plaintiffs serve 
no interstate travelers” (emphasis supplied). The finding 
exactly conformed to the interrogation of Ollie McClung, 
Sr. on direct (Tr. 36):

Q. In your judgment, have you attracted any tran­
sient people or travelers? A. Not to my knowledge, 
Sir.

But there was no evidence that McClung had made any ef­
fort to find out whether occasional interstate travelers con­
sumed some of the over half-million meals he serves an­
nually. McClung claimed many regular customers and to 
know many “by face” (Tr. 35). Though he made quite a 
point of enumerating nonracial reasons why he sometimes 
refused service to customers (persons who had been drink­
ing or used profanit}-; Tr. 48), there was no mention of a 
policy of refusing to serve interstate travelers. Quite 
plainly there was no evidence because there was no such 
policy. The verified complaint sworn by Ollie McClung, 
Sr. alleges (1f3):

10 See Notes 7 and 8, supra.



13

Plaintiffs do no advertising and make no effort to 
attract transient customers. Their trade lias been re­
ceived and retained by virtue of the excellent quality 
of the food and service and the wholesomeness of the 
surroundings (emphasis supplied).

The referent of the word “their” in the last quoted sentence 
seems to be “transient customers” but the passage is not 
unambiguous. At the least, there was no assertion or find­
ing that no interstate travelers were served. If such a claim 
had been proved, the injunction should fall for lack of 
standing insofar as it applies to both of the statutory cri­
teria dealing with interstate travelers. Actually it seems 
probable, viewing the record on balance, that some inde­
terminate and perhaps small number of interstate travelers 
are among McClung’s customers.

Neither the text of the Act nor its legislative history 
supports the notion that the Act is limited to restaurants 
serving a substantial number (or proportion) of interstate 
travelers. The considerations detailed above in discussion 
of the “offers to serve” criterion apply equally to the actual 
service criterion:

(a) A version containing a substantiality requirement 
was amended in committee, and an attempt to insert such a 
rule was defeated on the House floor.

(b) A substantiality rule is explicit in the criterion re­
lating to movement of food in commerce.

(c) Congress did wish to cover almost all restaurants 
and to discourage easy evasion by the three criteria which 
undoubtedly overlap for most establishments.

(d) A substantiality rule would render the Act inadmin- 
istrable, leaving persons who desire its protection in doubt 
as to their rights with respect to any particular place, and



14

thus encouraging experimentation with disobedience pend­
ing a court ruling in every case.

C. A Substantial Portion of the Food Served by 
Ollie’s Barbecue Has M oved in Com merce 
W ithin the Meaning of Section 2 0 1 ( c ) ( 2 ) .

The trial court concluded “as a matter of law, on the 
basis of objective evidence, that a ‘substantial’ portion of 
the food served by plaintiffs has moved in commerce with­
in the meaning of the act.” The evidence amply supported 
this conclusion which can be sustained without gauging 
the ultimate reach of “substantial” in this clause. This is 
no borderline case.

Fifty-five percent (55%) of appellees’ food purchases in 
dollar volume during a recent year was meat (Tr. 39), the 
principal commodity sold and a house specialty. Between 
80 and 90 percent of this meat was purchased in Birming­
ham from one supplier, George A. Horrnel & Co., all of 
whose meat came from outside Alabama. There was no evi­
dence to show the origin of other products sold.

Thus, a substantial “portion” of the food actually served 
at Ollie’s had come from other states. (There is no reason 
to believe that Congress meant the substantiality criterion 
to refer to an external standard, as the words plainly 
refer to a substantial portion of the food served by a par­
ticular establishment. But if there is an external standard, 
the $69,783.00 spent annually by the McClungs to buy out-of- 
state meat is a large and significant amount. Compare this 
amount, for example, with the $10,000 “amount in contro­
versy” requirement for jurisdiction of the District Courts 
over federal question and diversity cases, 28 U. S. C., 
§§1331, 1332.)

There is no basis for a contention that Congress meant 
to limit coverage to restaurants which purchased directly



15

from out-of-state wholesale suppliers. The phrase “has 
moved in commerce” plainly contemplates coverage of busi­
nesses such as appellees’ which purchase from local whole­
salers who, in turn, are supplied with goods from other 
states.

Finally, the definition of “commerce” in §201 (d) is con­
ventional, drawing on the many cases defining commerce 
for constitutional purposes. The definition quite clearly 
covers the shipment of foods from state to state for eventual 
retail sale.

D. As There Was No Evidence Upon W hich It M ight Be 
Decided W hether D iscrim ination at A ppellees’ Business 
Was S upported by State A ction  W ith in  the M eaning of 
% 201(d), the A ppellees Had No Standing to Obtain, 
and the Trial Court No E quity Jurisdiction to Grant, 
an Injunction Em bracing This Provision.

No party to the case has contended that the discrimina­
tion at Ollie’s Barbecue is “supported by state action” as 
that familiar constitutional phrase is given a possibly more 
limited statutory meaning in §201(d).

No evidence negated the possibility that the discrimina­
tion here was “carried on under color of” a regulation en­
couraging segregation like that involved in Robinson v. 
Florida, 378 U. S. 153, which would seem to be embraced 
by §201(d)(l), for example. Neither was there any record 
pertaining to state or local enforcement of the custom of 
segregation within §201(d)(2). Cf. Lombard v. Louisiana, 
373 U. S. 267. As far as this amicus is advised, the Birming­
ham segregation ordinance involved in Gober v. Birming­
ham, 373 U. S. 374, was repealed after that decision, but 
again appellees made no effort to make a record.

It hardly need be said that Congress would have power 
under the fifth section of the Fourteenth Amendment to pro­
scribe segregation practices of the types condemned in the



16

Robinson, Lombard and Gober eases by appropriate means. 
If such state support existed the Act could constitutionally 
be applied. Civil Rights Cases, 109 U. S. 3, 25. If it did not 
exist (and the McClungs, as proponents of the idea car­
ried the burden to show that it did not), then the McClungs 
made no showing of standing to obtain an injunction against 
enforcement of this part of the law. Cf. Bailey v. Patterson, 
368 U. S. 346.

The trial court opinion states that counsel for the United 
States “conceded at oral argument that the State of Ala­
bama, in none of its manifestations, has been involved in 
the private conduct of plaintiffs in refusing to serve food 
to Negroes for consumption on the premises.” We do not 
know the exact nature of the purported concession at the 
unreported oral argument. It may have been merely that 
the government had no evidence of state involvement to 
present and did not rely on the state action criterion in 
arguing about appellees’ proof. In any event, a concession 
of counsel is a plainly insubstantial basis upon which to 
enjoin enforcement of portions of an Act of Congress 
directly predicated upon recent decisions of this Court. 
Certainly, the government did not consent to such an 
injunction.

E. The Suggested In terpretation  Indicated in This 
B rief W'ould Enable the Various Parts o f the 
haw to Function in a C om plem entary Manner to 
Effectuate the Congressional Purpose.

It may readily be observed that possible constructions of 
the various subsections and clauses more restrictive than 
those urged above will present serious problems in harmo­
nizing the various parts. For example, as noted, an interpre­
tation that only “substantial,” “significant” or “vigorous” 
“offers to serve” were encompassed would leave that clause 
a meaningless duplication of the actual service criterion.



17

It is hard to imagine that Congress wrote a special clause 
for the rare restaurant which made a vigorous effort but 
did not succeed in getting any interstate travelers. Con­
versely, if a substantial number of interstate travelers 
were served, why would Congress bother to provide sepa­
rately for those which made “offers to serve”? That would 
be in contemplation of a null class of restaurants serving- 
substantial numbers of interstate travelers, without offer­
ing to serve them—either actively or by implication.

This amicus suggests that the purposes of Congress in 
enacting the three criteria were to cover virtually all restau­
rants, to close loopholes and prevent easy evasion, and to 
conform the statutory criteria for demonstrating an effect 
on commerce to approved judicial reasoning on the con­
stitutional issue of effect on commerce, in support of its 
underlying judgment that racial discrimination in the res­
taurant business affected commerce and should be regu­
lated.

It is common knowledge that most restaurants would 
probably be covered by all three criteria. Congress obvi­
ously was aware of the pattern of evasion that might fol­
low a law relying on only one of the criteria. The “white 
intra-state” waiting room gambit (cf. Baldwin v. Morgan, 
287 F. 2d 750 (5th Cir. 1861), and Georgia v. United States, 
201 F. Supp. 813 (N. D. Ga. 1961), aff’d 371 U. S. 9), might 
have been merely the prototype of a new chain of “white 
intra-state only” restaurant signs if Congress had let the 
matter rest with the “offers to serve” criterion. But few 
restaurants could be expected to police such a rule. Thus 
the actual service criterion discourages any such attempted 
evasion. The criterion involving movement of food in com­
merce, while not so easy of evasion, does have a “substan­
tiality” test and consequently may frequently involve con­
siderable difficulty, time and expense in proof. In almost



18

any case, such proof might necessitate discovery to ob­
tain information concerning suppliers and purchasing pat­
terns, followed by an elaborate trial with numerous whole­
salers called as witnesses to prove the origin of the food; 
restaurateurs will commonly have no personal knowledge 
of the origin of their foods and will very seldom know of 
such things as seasonal variations in the movement of vari­
ous types of foods about the country. And, of course, a 
Negro traveler or resident standing in front of a restaurant 
with his family wondering if the law required his admission 
would find such a state of the law hopelessly confusing and 
little better than the old order.

It would do incalculable harm if all the efforts to narrow 
the Act which failed in Congress were to be engrafted on 
it by construction.

The relation of the statutory criteria to the constitutional 
reasoning supporting this exercise of the Congressional 
power to “regulate Commerce . .. among the several States” 
will appear below. Also, of course, all the arguments that 
demonstrate the reasonableness of the proposed construc­
tions tie in with the constitutional questions concerning 
what Congress might reasonably be empowered to do. But 
it should be noted that Congress deleted from the bill a 
broad criterion for coverage which would have required 
that a litigant prove that an offending restaurant’s opera­
tions affected travel or the movement of goods.11

11 See Section 202(a) (iii) of H. R. 7152 (discussed in n. 7 above) 
providing for coverage i f :

“ (iii) the activities or operations of such place or estab­
lishment otherwise substantially affect interstate travel or the 
interstate movement of goods in commerce, . . . ” (Hearings 
Before Subcommittee No. 5 of the House Committee on the 
Judiciary, 88th Cong., 1st Sess,, ser. 4, pt. 1, at 653 (1963).)

The deletion of this provision and insertion of the present criteria 
was an expansive thrust by Congress and a recognition that ad­
ministration of the Act would be made difficult by the requirement 
of having to make such a record.



19

II.
The Power of Congress to Regulate Commerce Among 

the States Supports Title II of the Civil Rights Act.

First, a few general principles. In 1824 Chief Justice 
Marshall wrote that commerce was “a general term, appli­
cable to many objects,” that it “undoubtedly, is traffic, but it 
is something more; it is intercourse. It describes the com­
mercial intercourse between nations, and parts of nations, 
in all its branches, and is regulated by prescribing rules 
for carrying on that intercourse.” Gibbons v. Ogden, 22 
U. S. (9 Wheat.) 1, 189-190. The vast power granted was 
recognized:

It is the power to regulate; that is, to prescribe the 
rule by which commerce is to be governed. This power, 
like all others vested in Congress, is complete in itself, 
may be exercised to its utmost extent, and acknowl­
edges no limitations, other than are prescribed in the 
Constitution (22 U. S. (9 Wheat.) 1, 196).

And Chief Justice Marshall, the champion of judicial re­
view, added:

The wisdom and discretion of Congress, their iden­
tity with the people, and the influence which their con­
stituents possess at election, are, in this as in many 
other instances, as that, for example, of declaring war, 
the sole restraints on which they have relied, to secure 
them from its abuse. They are the restraints on which 
the people must often rely solely, in all representative 
governments (22 U. S. (9 Wheat.) 1, 197).

The rules governing exercise of the commerce power 
stated in Gibbons v. Ogden, supra, are still vital today. Con­



20

gress is barred from regulation only of “that commerce 
which is completely internal, which is carried on between 
man and man in a state, or between different parts of the 
same state, and which does not extend to or affect other 
states.” (Ibid, at 194; emphasis supplied.) That com­
merce which does “affect other states” is within the regula­
tory power of Congress.

Before proceeding to the particulars of this case, and the 
reasoning supporting this particular regulation we discuss 
two matters argued by appellees which apparently furnish 
some of the basis for the opinion below. First, Title II  has 
been criticized because Congress inserted no findings in the 
Act that regulating intrastate activities was necessary. 
Second, the Act is criticized because Congress provided 
restaurateurs no administrative or judicial forum to liti­
gate whether racial discrimination in their facility affected 
commerce among the states.

To the former objection one may say, as this Court did 
in United States v. Carotene Products, 304 U. S. 144, that 
the Act carries a presumption of constitutionality, and a 
presumption that Congress has acted rationally whether 
or not it sets out “findings” :

Even in the absence of such aids the existence of 
facts supporting the legislative judgment is to be pre­
sumed, for regulatory legislation affecting ordinary 
commercial transactions is not to be pronounced un­
constitutional unless in the light of the facts made 
known or generally assumed it is of such a character 
as to preclude the assumption that it rests upon some 
rational basis within the knowledge and experience of 
the legislators (304 U. S. at 152).

As to the second objection, the congressional power to 
decide when regulating commerce is appropriate has been



21

clear since Gibbons v. Ogden, supra. Congress lias some­
times provided for judicial and administrative determina­
tions of the effect of particular practices on commerce, but 
it has also on numerous occasions made the legislative de­
termination that a particular practice affecting commerce 
must be regulated or prohibited. Mr. Justice Stone wrote in 
United States v. Darby, 312 U. S. 100, 120:

But long before the adoption of the National Labor 
Relations Act this Court had many times held that the 
power of Congress to regulate interstate commerce ex­
tends to the regulation through legislative action of 
activities intrastate which have a substantial effect on 
the commerce or the exercise of the Congressional 
power over it.

In such legislation Congress has sometimes left it 
to the courts to determine whether the intrastate activi­
ties have the prohibited effect on the commerce, as in 
the Sherman Act. It has sometimes left it to an ad­
ministrative board or agency to determine whether the 
activities sought to be regulated or prohibited have 
such effect, as in the case of the Interstate Commerce 
Act, and the National Labor Relations Act, or whether 
they come within the statutory definition of the pro­
hibited Act as in the Federal Trade Commission Act. 
And sometimes Congress itself has said that a par­
ticular activity affects the commerce as it did in the 
present act [Fair Labor Standards Act], the Safety 
Appliance Act and the Railway Labor Act. In passing 
on the validity of legislation of the class last mentioned 
the only function of courts is to determine whether 
the particular activity regulated or prohibited is with­
in the reach of the federal power. See United States 
v. Ferger, 250 U. S. 199 . . .; Virginian R. Co. v. Sys­
tem Federation, R. E. D., 300 IT. S. 515, 533. . . .



22

Darby brings us to the central issue at hand. Can it 
fairly be said, as the Court below held, that Congress could 
not rationally have believed, considering the information 
available, that racial discrimination in virtually all types 
of public restaurants (save only those rare and insulated 
places which serve only local food to local people) affects 
commerce.

We submit but a few of the lines of reasoning which may 
support such a regulation. Congress surely can regulate 
in light of the aggregate effect of numerous enterprises, 
large and small, engaged in a particular practice. Wickard 
v. Filburn, 317 U. S. 11, should settle that. It would be an 
incredible disablement of the Congress to overturn Wickard 
and limit congressional power to regulate components of 
an industry to where it can be demonstrated as to each 
component, to the satisfaction of the courts, that the indi­
vidual practitioner of a prohibited practice has the appre­
hended adverse effect on commerce.

This would be just as true of the non-communist affidavit 
provision of the Taft-Hartley Act (American Communica­
tions Assn. v. Bonds, 339 U. S. 382) or the prohibition 
against counterfeit bills of lading upheld in United States 
v. Ferger, 250 U. S. 199, as it was of the unfair labor prac­
tices condemned in N. L. R. B. v. Fainblatt, 306 U. S. 601, 
606, where the Court held immaterial “the smallness of the 
volume of commerce affected in any particular case.” See 
N. L. R. B. v. Reliance Fuel Corp., 371 U. S. 224.

The Act can be sustained by reference to the congres­
sional power to regulate matters affecting interstate trav­
elers. The movement of persons is “commerce.” Edwards 
v. California, 314 U. S. 160; Gloucester Ferry Co. v. Penn­
sylvania, 114 II. S. 196, 203. Congressional power is not 
dependent on a finding that local practices have completely 
blocked interstate travel, or that the practices have affected



23

the volume of travel. Congress can regulate to promote the 
safety, ease, pleasure and convenience of interstate travel, 
to assure that travel is not embarrassed or disturbed, to 
promote travelers’ “freedom of choice in selecting accom­
modations.” Cf. Morgan v. Virginia, 328 U. S. 373, 381, 383.

Surely if the Congress can compel the humane treatment 
of cattle, sheep and swine by requiring carriers to unload 
them for rest, water and feeding for five consecutive hours 
every twenty-eight hours (Live Stock Transportation Act 
of 1906; 34 Stat. 607; 45 U. S. C. §§71-74), it can promote 
the convenience of human travelers. Cf. Boynton v. Vir­
ginia, 364 U. S. 454. There is no constitutional ground for 
limiting the congressional power to prohibit racial discrimi­
nation to restaurants located within terminals, for other 
accommodations also affect travelers. Interstate travelers 
using common carriers commonly wander from the main 
routes of commerce during stops for business or pleasure 
reasons. Vacationing motorists do the same. Congress is 
empowered to promote the convenience of travel of Negro 
citizens by assuring that public accommodations generally 
are open to them.

The statutory criteria dealing with the movement of foods 
are also directly related to the constitutional power. The 
power of Congress to prohibit the shipment of goods in 
commerce is well established (Champion v. Ames, 188 U. S. 
321), and this is true without regard to the “innocent” 
character of the goods involved. United States v. Darby, 
312 U. S. 100, 116-117, overruling Hammer v. Dagenhart, 
247 U. S. 251. Congress could prohibit the shipment of 
food in commerce for sale in restaurants that practice racial 
discrimination, or the acquisition of goods from the chan­
nels of commerce for such purpose. It did prohibit the 
shipment of goods manufactured under substandard labor 
conditions (United States v. Darby, supra). The fact that



24

tlie one case involves “shipment in” and the other “ship­
ment out” does not diminish the congressional power. Cf. 
McDermott v. Wisconsin, 228 U. S. 115; United States v. 
Sullivan, 332 U. S. 689. The effect of such a drafting of 
the public accommodations law would be to deny to discrimi­
nating restaurateurs access to the great national market in 
foodstuffs in aid of a practice which Congress wants to halt. 
Yet the actual law, drafted so as to be much more manage­
able administratively, and so as to fasten the regulation 
directly upon the discriminator serving food which has 
moved in commerce, accomplishes exactly the same thing. 
There is no interest to be served by requiring Congress to 
use an awkward method rather than a direct method for 
controlling an evil it has power to prohibit.

And, of course, it is no valid objection to a regulation 
or prohibition of commerce that Congress is partly, or even 
primarily concerned with fostering the public good or 
morality. Hoke v. United States, 227 U. S. 308; Caminetti 
v. United States, 242 U. S. 470; United States v. Darby, 
supra, at 116; United States v. Rock Royal Co-Operative, 
307 U. S. 533, 569.

Numerous other arguments support the regulation in­
volved. Among those which have been argued by the United 
States are the power of Congress to cope with the injury 
to commerce caused by racial strife, including boycotts and 
similar demonstrations (cf. N. L. R. B. v. Jones & Laughlin 
Steel Co., 301 U. S. 1); the power of Congress to eliminate 
the artificial restrictions on the market for goods imposed 
by discrimination practices; the power to promote the vol­
ume of travel; and the power to reduce other economic dis­
locations resulting from discrimination in places of accom­
modation. All of these factors were indeed considered by 
the Congress which had much evidence on these matters 
before it, as the United States has demonstrated at length



25

in its brief in this Court in Heart of Atlanta Motel, Inc. v. 
United States, No. 515, October Term 1964.

Finally, it should be reemphasized that the volume of 
commerce affected in the particular case is not determina­
tive of the congressional power (N. L. R. B. v. Fainblatt, 
306 U. S. 601), nor is the partially “local” character of the 
particular operation, United States v. Women’s Sportswear 
Mfg. Assn., 336 U. S. 460, 464 (“If it is interstate com­
merce that feels the pinch, it does not matter how local the 
operation which applies the squeeze”). In United States 
v. Employing Plasterers Assn., 347 U. S. 186, the Court 
was “not impressed” by an argument that the Sherman Act 
“could not possibly apply here because the interstate buy­
ing, selling and movement of plastering materials had 
ended before the local restraints became effective” (347 
U. S. at 189). In that case, as in this one, the products had 
come to rest never again to move in commerce, yet Con­
gress had power to regulate. The application of the Fed­
eral Food, Drug, and Cosmetics Act of 1938 to a retailer 
selling drugs purchased from a wholesaler nine months 
after completion of interstate shipment demonstrates the 
scope of power to deal with local retail transactions. United 
States v. Sullivan, 332 U. S. 689.



26

III.
Title II Does Not Offend Any Other Constitutional 

Provisions.

The District Court concluded its opinion by holding 
that Title II violated appellees’ rights under the due 
process clause of the Fifth Amendment. The Court sum­
marily rejected the appellees’ elaborate argument that the 
law violated the Thirteenth Amendment. The extent of the 
District Court’s reliance upon the Tenth Amendment, which 
was quoted in the opinion, is unclear. We shall discuss these 
provisions in turn.

A. A R equirem ent That Restaurateurs Open to 
the Public P rovide Service W ithout Racial 
D iscrim ination Does Not Violate the Fifth  
A m endm ent Due Process Clause.

If the District Court’s Fifth Amendment holding is taken 
to mean only that the Congress was without power to enact 
the law under the commerce clause, the preceding argument 
is sufficient answer to it. N. L. R. B. v. Jones & Laughlin 
Steel Corp., 301 U. S. 1, 43-47; United States v. Darby, 312 
U. S. 100, 125-126.

But perhaps the argument contends that notwithstanding 
the commerce power, the right to racially discriminate in 
a public restaurant, is a liberty or property right so basic 
and fundamental that it may not be regulated by govern­
ment at all. This argument would, of course, apply equally 
to invalidate all state public accommodations laws under 
the due process clause of the Fourteenth Amendment.

The argument is totally unsupported by precedent. The 
validity under the due process clause of state law requir­
ing equal treatment in public accommodations has always



27

been assumed. Cf. Civil Rights Cases, 109 U. S. 3, 17-18, 
where the Court compared racial discrimination by busi­
nesses open to the public with other “private wrongs” and 
the discriminating businesses were said to be “answerable 
therefor to the laws of the State where the wrongful acts 
are committed.” Even more directly applicable is this 
statement in District of Columbia v. John R. Thompson 
Co., 346 IT. S. 100, 109:

And certainly so far as the Federal Constitution is con­
cerned there is no doubt that legislation which pro­
hibits discrimination on the basis of race in the use 
of facilities serving a public function is within the police 
power of the states.

And see Raihvay Mail Assoc, v. Corsi, 326 U. S. 88, 
directly rejecting a due process objection to a state law 
prohibiting discrimination in employment. Cf. Colorado 
Anti-Discrimination Com. v. Continental Air Lines, 372 
U. S. 714; Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28, 
34.

Actually, the result urged by appellees would be incon­
sistent with a host of decisions of this Court; to name but 
a few: Burton v. Wilmington Parking Authority, 365 U. S. 
715; Turner v. Memphis, 369 U. S. 350'; Boynton v. Vir­
ginia, 364 U. S. 454; Peterson v. Greenville, 373 U. S. 244; 
Henderson v. United States, 339 U. S. 816; and Mitchell 
v. United States, 313 U. S. 80.

B. The Thirteenth A m endm ent Is 
No Bar to the Act.

The McClungs’ elaborate Thirteenth Amendment argu­
ment below is difficult to regard as serious; the District 
Court saw nothing in it. It should be remembered that this 
argument too would invalidate every state public accom-



28

modations law. Actually, if taken seriously, it would pre­
vent almost all economic regulation. It is perhaps sufficient 
to note that the argument never comes to grip with the 
obvious choice open to any proprietor unwilling to obey a 
public accommodations law—but not open to slaves—that 
is, to quit and do something else for a living.

This Thirteenth Amendment claim has an especial irony, 
in that the McClungs purport to assert the rights of their 
employees, most of whom are Negroes. This Court has re­
jected attempts like this one to pervert the meaning of the 
Thirteenth Amendment from the time of its first construc­
tion of the Amendment. Slaughterhouse Cases, 83 U. S. (18 
Wall.) 36, 67-72. Cf. Broivn Holding Co. v. Feldman, 256 
U. S. 170,199; Arver v. United States (Selective Draft Law 
Cases), 245 U. S. 366, 390.

C. The Tenth Am endm ent Does Not 
Invalidate T itle II.

The plenary power of Congress over commerce has been 
plain from the beginning. Gibbons v. Ogden, 22 U. S. (9 
Wheat.) 1,197; McCulloch v. Maryland, 17 U. S. (4 Wheat.) 
316, 407, 421; Brown v. Maryland, 25 U. S. (12 Wheat.) 
419. The Tenth Amendment “states but a truism that all 
is retained which has not been surrendered.” United States 
v. Darby, 312 IT. S. 100, 124. The Amendment does not 
limit the power of Congress to regulate commerce by means 
appropriate to the permitted end. No matter what “doubts 
may have arisen of the soundness of that conclusion” during 
a brief period in the Court’s history, they have been “put 
at rest.” (Id.)



29

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the judgment below should be reversed.

Respectfully submitted,

J ack  G reen berg  
C o n sta n ce  B a k er  M otley  
J am es  M . N abrit , I I I  

10 Columbus Circle 
New York, New York 10019

C h a r les  L. B la ck , J r .
346 Willow Street 
New Haven, Connecticut



38

*