Katzenbach v. McClung Supplemental Brief for Appellees

    IN THE

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1964.

No. 543.

NICHOLAS deB, KATZENBAGH, as Acting Attorney General 
of the United States, et al,,

Appellants.
v,

OLLIE McCLUNG, SR., et al.,
Appellees,

Appeal from the United States District Court for the Northern 
District of Alabama,

SUPPLEMENTAL BRIEF 
FOR APPELLEES.

ROBERT McD. SMITH,
JAMES H. FAULKNER, 
WILLIAM G. SOM ERVILLE,

Attorneys for Appellees.

LANGE, SIM PSON, ROBINSON & SOM ERVILLE, 
Exchange Security Bank Building,

Birmingham, Alabama,
Of Counsel.

St. L ouis Law P rinting Co., I nc,. 415 N.. E igh th  Street. C E ntral 1-4477

m  fflfM



INDEX

Page
Statement ....................................................................... 1
Argument ....................................................................    2
Introduction ...................................................................  2

I. The Legislative History Shows That Congress
Neither Could Have Nor Did Make the Finding
Claimed by Appellants ......................................  4
1. There Was Nothing Before Congress to Sup­

port the Finding Claimed ...........................   5
2. No Such Finding Was in Fact M ade............. 11

II. Prior Statutes Provide No Precedent for Title II 16
1. Statutes Regulating Goods or Activities “ In

Commerce” ......................................................  17
(a) Statutes Regulating the Movement of

Goods in Commerce ................................. 17
(b) Statutes Regulating Instrumentalities of

Commerce ..................................................  20
2. Statutes Extending Interstate Regulation to

Commingled Intrastate Activities ................  21
(a) Statutes Regulating “ Local” Activities

in Association With Control of Inter­
state Instrumentalities ............................  21

(b) Statutes in Which “ Local” Activities
Are Reached in Association with Eco­
nomic Regulation of Interstate Commodi­
ties ............................................................  22

(c) Statutes in Which Control of Local Ac­
tivities Is Necessary to the Effective 
Control of the Interstate Movement of 
Harmful Articles ...................................... 27



11

3. Statutes Regulating Local Activities When 
Found on an Ad Hoc Basis to Affect Com­
merce ...............................................................  30

III. A Mere Hypothetically Rational Basis for the
Exercise of Federal Power Is Not Sufficient . . .  37

Conclusion ....................................................    41
Appendix A ................................................................... 43

Oases Cited.
Apex Hosiery Co. v. Leader, 310 U. S. 469, 485, 498 .. 32
Bailey v. Alabama, 219 U. S. at 239...........................  27
Baltimore & 0. R. R. v. I. C. C., 221 IT. S. 612 . . .  .22, 34 
Board of Trade v. Olsen, 262 U. S. 1 ........................23, 24
Cnrrin v. Wallace, 306 U. S. 1, 10........................... 23,24
Duplex Printing Press Co. v. Deering, 254 U. S. 443 12
Federal Trade Commission v. Mandel Bros., Inc., 359 

IT. S. 385, 391 ...........................................................28,35
Heiner v. Donnan, 285 U. S. 312................................... 27
Industrial Ass’n v. United States, 268 U. S. 6 4 .........  33
J. L. Brandeis & Sons v. N. L. R. B., 142 F. 2d 977,

980 (C. A. 8) ............................................................  31
Kentucky Whip & Collar Co. v. Illinois Cent. R. R.,

299 U. S. 334, 352-53 ............................................. 18,19
King v. United States, 344 U. S. 254, 267-76 ............. 30
Kinsella v. United States ex rel. Singleton, 361 U. S.

235 ..............................................................................  38
Lorain Journal Co. v. United States, 342 U. S. 143 . . .  33
Marbury v. Madison, 1 Cranch. 137 ........................... 41
McDermott v. Wisconsin, 228 U. S. 115, 135 .........18,19
Moore v. Mead’s Fine Bread Co., 348 U. S. 115.........  33
Mulford v. Smith, 307 U. S. 38 ...............................23, 24



Ill

N. L. R. B. v. Denver Bldg, and Constr. Trades Conn­
ell, 341 U. S. 675, 683-84 ......................................

NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 
North Carolina v. United States, 325 U. S. 507, 511 . .
Reid v. Covert, 354 U. S. 1 ..........................................
Roland Elec. Co. v. Walling, 326 U. S. 657, 669.........
Second Employers ’ Liability Cases, 223 U. S. 48 . . . .
Shreveport Rate Case, 234 U. S. 342, 353.............22, 24,
Southern Ry. v. United States, 222 U. S. 20 .............22,
Stafford v. Wallace, 258 U. S. 495 ...........................

Tot v. United States, 319 U. S. 463...............................
Townsend v. Yeomans, 301 U. S. 441 ........................
Trop v. Dulles, 356 U. S. 86 ......................................
United States ex rel. Toth v. Quarles, 350 II. S. 11 . . .
U. S. v. Carolene Products Company, 304 U. S. 144 . .. 
United States v. Darby, 312 U. S. 100, 110, 117,

118 .....................................................19,23,25,
United States v. Employing Plasterers Ass’n., 347

U. S. 186 ...................................................................
United States v. Ferger, 250 U. S. 205 ...................... 27,
United States v. Five Gambling Devices, 346 U. S.

411, 446-48, 460 ..................................................17,27,
U. S. v. St. Paul, M. & M. Ry., 247 U. S. 310 .........
U. S. v. Sullivan, 332 U. S. 689, 696............. 19, 27, 28, 29,
United States v. Women’s Sportswear Ass’n, 336

U. S. 460 ...................................................................
United States v. Wrightwood Dairy Co., 315 U. S. 110,

121 .................................................... 23,25,26,
United States v. Yellow Cab Co., 332 U. S. 218 . . .  .32,
Virginian Ry. v. System Federation No. 40, 300 U. S. 

515, 554-57................................................................22,
Wickard v. Filburn, 317 U. S. I l l  ................ 23, 25, 34,

31
40
30
38
19
22

,30
34
24
27
36
39
38
36

40

31
34

34
12
35

32

30
33

35
40



IV

Statutes Cited.
Agricultural Adjustment Act of 1938, 7 U. S. C.,

§§1281 et seq.............................................................23,26
Agricultural Marketing Agreement Act of 1937, 7

U. S. C., §§ 601, 608 ......................................23, 25, 26, 30
Ashurst-Summers Act, 49 Stat. 494 .............................  18
Fair Labor Standards Act of 1938, 29 U. S. C., §§ 201

et seq......................................................................23,26,35
Food and Drug Act of 1906, 34 Stat. 768 ..................  18
Grain Futures Act of 1922, 42 Stat. 998 .................. 23, 35
Interstate Commerce Act, 49 U. S. C., § 13 (4) .......  30
National Labor Relations Act, 29 TJ. S. C. 151 et seq. 31
Robinson-Patman Act, 15 U. S. 0., § 13 (a) ..............  33
Sherman Act, 26 Stat. 209, 15 U. S. C., § 1 et seq........  31
Tobacco Inspection Act, 7 U. S. C., § 511a......... 23,26,35
15U.S. C.,§ 69 ........................................................18,28,35
15 U. S. C., § 70 .............................................................. 18,35
15 U. S. €., § 692 .....................   19
15 U. S. C., § 1172 ...........................................................  18
15 U. S. c., § 1231 ..........    35
18 u. s. a, § 1201 ............................................................ 18
18 U. S. C., § 1301 ...........................................................  18
18 U. S. C., §§ 2312-2317 ................................................. 18
18 U. S. C., § 2421 ...........................................................  18
21 U. S. C., §§ 61-63 .............. ..........................................  36
21U. S. C., § 331 ..................................................... 18,19, 27
21 U. S. C., § 347a ................................................... 25, 26, 35
29 U. S. C., §§ 206, 207 .................................................. 18,19
45 U. S. C., §§ 1-16 ......................................................... 21,35
45 U. S. C., § 51 .............................................................20,22
45 U. S. G, §§ 61-64 ..................................................... 20-22
45 TJ. S. C., §§ 151 et seq................................................. 22, 35
45U.S. C., §157 ................................................   20
49 U. S. C., § 1 ............................................................... 20,22
49 U. S. C., § 26 ...............................................................  35
49 U. S. C., §81...................................................................  20
49 TJ. S. C., § 121 ............................................................27,35



V

Miscellaneous Cited.

Cong. Bee. 6237 (March 26, 1964) ............................... 6
Cong. Bee. 6308 (March 30, 1964) ............................... 12
Cong. Bee. 6832 (April 7, 1964) ..................................  13
Senate Beport No. 308, 81st Cong., 2nd Sess., 1950 

U. S. Code, Cong. News, at 1973 .............................  25



IN THE

SUPREME COURT OF TIE UNITED STATES,
OCTOBER TERM, 1964,

No, 543,

NICHOLAS deB, KATZENBACH, as Acting Attorney General 
of the United States, et a!,,

Appellants,
v,

OLL1E McCLUNG, SR,, et a!,,
Appellees,

Appeal from the United States District Court for the Northern 
District of Alabama,

SUPPLEMENTAL BRIEF 
FOE APPELLEES.

STATEMENT.
On October 5, 1964, the Court granted the parties’ 

Joint Motion to Expedite Briefing and Oral Argument 
providing inter alia for the filing of supplemental briefs 
after oral argument.

This brief is filed pursuant to that order and is sub­
mitted for consideration of the Court both in reply to the 
opening brief of appellants and in response to certain 
questions raised by the Justices during oral argument.

No further statement of the case or of the facts is 
deemed necessary.



-—2 —

ARGUMENT.

INTRODUCTION.

In appellant’s brief and again in the Solicitor General’s 
oral argument, it was stated that appellant’s major prem­
ise is that Congress has the power to regulate intrastate 
activities, not themselves a part of interstate commerce, 
if they have a close and substantial relation to interstate 
commerce. Appellees have repeatedly sought to make 
it clear that they have no quarrel with that premise.

Appellant’s minor premise was to the effect that Con­
gress “had ample basis upon which to find that racial 
discrimination at restaurants which receive from out-of- 
state a substantial portion of the food served, does, in 
fact, impose commercial burdens of national magnitude 
upon interstate commerce”. Brief for Appellants at 26.

It is with appellant’s minor premise as thus stated that 
appellees take issue, on two basic grounds:

1. Congress made no such finding as claimed by 
appellants.

2. There was no ample basis upon which any such 
finding could have been made.

The point from which all argument in this case must 
proceed is that the federal government is one of delegated 
powers. Every statute enacted by the federal congress 
must come within some specific power given under the 
Constitution. In Title II of the Civil Rights Act of 1964, 
Congress purported to exercise power given to it under 
both the Interstate Commerce Clause and the 14th Amend­
ment. The issues in this case present no question under 
the 14th Amendment. If the statute may constitutionally 
be applied to appellees, it must necessarily be because,



•— 3 —

as so applied, it comes within the authority given to 
Congress under the Interstate Commerce Clause. The 
broad principles upon which this issue must be resolved 
are not in substantial dispute in this case. Appellants 
concede that the activities of the appellees sought to be 
regulated by the statute are local and intrastate; that 
they are in no sense in, or a part of, interstate commerce. 
Appellants further concede that in order for the activities 
to be regulated in the manner attempted, there must be a 
finding or showing that they bear a close and substantial 
relation to interstate commerce. Finally, appellants con­
cede that the statute makes no provision for a case-by­
case determination of such a relationship (between dis­
crimination in an individual restaurant and interstate 
commerce) and thus concede one of the principal points 
made in appellees’ opening brief. Nor do appellants argue 
that the conclusive presumption of an effect on commerce 
established under the so-called “food test” is valid. They 
state:

We have no need to argue whether the fact that a 
restaurant serves food which originated in other 
States is a sufficient basis for the regulation. Brief 
for Appellants at 36, 37.

They avoid that argument by attributing to Congress 
a legislative finding to the effect that racial discrimination 
at restaurants serving food, a substantial portion of 
which has previously crossed state lines, imposes a com­
mercial burden upon commerce. Thus, they undertake to 
deny that the food test in Section 201 (c) is intended as 
an evidentiary presumption of an actual effect upon com­
merce and, instead, insist that it is merely a coverage 
provision bringing an individual restaurant within the 
scope of a finding claimed by appellants, in their minor 
premise, to have been made by Congress.

Appellants present no argument on the first point raised 
by appellees, i. e., that no such finding was made. They



are content to rest their case on that point by merely 
urging that formal and explicit legislative findings are 
not required. This hardly meets the question. Appellants 
themselves, in stating their minor premise, necessarily 
make the contention that a finding was made.1 Most of 
their argument, however, is devoted to the second point 
mentioned above, i. e., whether Congress had any basis 
upon which such a finding could be based. In doing so, 
they rely entirely upon the legislative history of the 
statute.

I t is appellees’ contention that the legislative history 
is heavily persuasive in their favor on both of these points. 
It discredits the contention that any such finding was 
made and it is wholly lacking of any support for such a 
finding if one can be assumed.

I. The Legislative History Shows That Congress Neither 
Could Have Nor Did Make the Finding 

Claimed by Appellants.

At the outset, it should be pointed out that appellees 
have never in this case relied primarily upon the legislative 
history. It is the appellants who have done so. Ap­
pellees have taken the position that the structure, arrange­
ment and language of the statute itself are amply persua­
sive that Congress made no such finding as is contended 
by appellants. However, appellees regard their position 
as supported by the legislative history. Moreover, they 
believe that for reasons that will be shown, there was 
nothing before Congress upon which any such finding, 
particularly relating to food which has moved in com­
merce, could have been based.

— 4 —

1 Appellants state that Congress “had ample basis upon which to 
find, that racial discrimination, etc.” Brief for Appellants, at 26.



— 5 —

1. There Was Nothing Before Congress to Support the 
Finding Claimed.

It is well to remember that appellants both in their 
brief and in oral argument have relied almost entirely 
upon certain testimony offered by the proponents of the 
legislation before the Senate Committee on Commerce. 
Significantly, appellants have at no time pointed to any 
testimony before that Committee or any other committee, 
or even in either house of Congress, that related to restau­
rants serving food which has previously crossed state 
lines or the fact that a customer selection practice at any 
such restaurant would in any way result in a burden upon 
commerce (as is specifically claimed by appellants in their 
minor premise).

The history of the legislation that became the Civil 
Eights Act of 1964 does not lend itself to a brief, com­
prehensive summary. Early in the 88th Congress, a large 
number of bills relating to civil rights in various aspects 
were introduced in both houses of Congress. President 
Kennedy had made recommendations concerning legisla­
tion of this type in both February and in June of 1963. It 
was clear from the beginning that a majority of the two 
houses of Congress favored some kind of civil rights 
legislation, but in the earlier stages there was considerable 
disagreement as to the scope of the legislation. Public 
accommodations provisions were included in many of the 
proposed bills, but there was a wide disparity of opinion 
as to what constitutional basis, if any, would support such 
legislation.

At this juncture an administration-sponsored bill was 
sent to the Senate. This was S. 1731. Although S. 1731 
covered the general topics included in the House bill 
ultimately passed, there were substantial differences in 
structure, coverage, language and legislative technique. 
Hearings on S. 1731 were conducted before the Senate



Committee on the Judiciary in 1963. In early 1964, the 
Senate Committee on Commerce conducted hearings on 
S. 1732 which pertained only to public accommodations. 
Its provisions were identical with those in Title II of S. 
1731. It was during the Senate Committee hearings that 
the evidence relied upon by appellants in their brief was 
offered. There was much discussion before the two Senate 
committees of facts relating to the difficulty with which 
Negroes plan trips, as well as to the economic effects of 
riots, demonstrations and boycotts. Significantly, these 
discussions were not directed at restaurants and at no 
time was any consideration given to the movement of food 
across state lines, or a possible burden upon that move­
ment resulting from racial discrimination in restaurants. 
This was not an oversight, for as will be shown, S. 1731 
and S. 1732 did not purport to cover restaurants on the 
basis of a food test like that now contained in the Civil 
Eights Act of 1964. The Senate bills were not passed.

Meanwhile, the House of Representatives was consider­
ing H. E. 7152. After hearings, the House Judiciary Com­
mittee reported the bill out favorably, but H. E. 7152 as it 
reached the House floor was a substitute bill that had not 
been considered by that committee in its emerging form. 
Senator Dirkson, who favored the legislation, later re­
marked in the Senate, “ the bill [H. E. 7152] that is now 
before us did not receive even a one-day hearing before 
the House Judiciary Committee.” Cong. Eec. 6237 (March 
26, 1964). The House of Representatives passed H. E. 
7152 as reported from the committee. It then went to the 
Senate in February of 1964.

In the Senate, Senator Morse tried desperately to have 
the bill submitted to the Senate Committee on the Judiciary 
in order that a legislative history for the benefit of the 
courts could be made. Senator Morse’s motion to this 
effect was defeated and the lengthy debates in the Senate

— 6 —-



7

began. In June of 1964, H. R. 7152 passed the Senate. 
Although the Senate amended certain portions of the bill, 
none of these is pertinent in any way to the issues raised 
in this case. The public accommodations provisions were 
not changed except in respects that are not here material.

When the bill was returned to the House, no further 
amendment was effected. The bill was passed as it left 
the Senate and became the Civil Bights Act of 1964 on 
July 2, 1964.

Significantly, then, the Act that is now before the Court, 
did not receive, in the words of Senator Dirkson, “ even a 
one-day hearing before the House Judiciary Committee”, 
and it received no hearing in any Senate Committee.

Since appellants in this case rely upon evidence ad­
duced in the hearings before the Senate committees and 
since appellees deny that there was any evidence offered 
there to support any “ finding” of the type claimed by ap­
pellants to have been made, it is appropriate, if not neces­
sary, to take a closer look at the Senate bill as it was 
written when those hearings were conducted.

S. 1731 and 1732 were alike except that the latter per­
tained only to Title II. They were conceived on a dif­
ferent basis from H. K. 7152. Sections 201 and 202 of 
S. 1731 are attached as an appendix to this brief.2 Sec­
tion 201 of Title II of the Civil Rights Act of 1964, 
formerly H. R. 7152, appears as an appendix to appel­
lant’s jurisdictional statement.

When the two are laid side by side a number of ma­
terial differences are immediately apparent. While a 
detailed analysis of these differences would unduly 
lengthen this brief and still fail to eliminate the necessity

2 The only difference between § 1732 and Title II of § 1731 was 
section numbers. Only § 1731 is copied herein.



for actual comparison, a few general observations as to 
the differences may be helpful:

First, S. 1731 contained specific legislative findings in 
Section 201. There are no findings in Title II of the Civil 
Eights Act of 1964.

Second, the findings in S. 1731 were primarily devoted 
to interstate commerce, but also included a finding re­
lating to the 14th Amendment. This is in Section 201(h).

Third, none of the findings in Section 201 of S. 1731 
related specifically to restaurants. The only reference to 
restaurants in the entire section was in Section 201(g) 
which was directed at an alleged difficulty encountered 
by business organizations in obtaining the services of 
skilled workers in the professions. This was in no way 
related to the matter of customer selection in a restaurant 
using food from out of state or the movement of food 
at all.

Fourth, retail establishments were specifically men­
tioned in Section 201(e) in connection wfith the movement 
of “ goods sold” , but restaurants, obviously treated hi 
the bill as something different from a retail establish­
ment, were not mentioned in that subsection.

Fifth, the term “ public accommodations” to categorize 
the covered establishments was not used in S. 1731 as 
was done in the Act finally passed by Congress. Thus 
there is no counterpart to Section 201(b) of the Civil 
Eights Act of 1964.

Sixth, there is no “ state action” criterion of coverage 
in S. 1731, as is the case in the statute itself. Thus, while 
power under the 14th Amendment was invoked generally 
as evidenced by the findings, S. 1731 did not contemplate 
the 14th Amendment as a separate criterion of coverage.

Seventh, S. 1731, unlike the present statute, covered 
retail stores and other places “ which keep[s] goods for



9

sale.” Sec. 202(a)(3). This explains the reference in 
the findings to retail establishments and the flow of goods 
in the interstate market.

Eighth, restaurants are included in Section 202(a)(3), 
but in a different generic sense from retail shops, etc. 
The latter category is followed by a reference to ‘ ‘ other 
public place which keeps goods for sale” , whereas res­
taurants, etc., are followed by a reference to “ other pub­
lic place engaged in selling food for consumption on the 
premises” (Emphasis supplied).

Ninth, in S. 1731 there was no separate interstate com­
merce test for restaurants as such. 202(a) (l)(i) of that 
bill related to goods, services, etc., “ provided to a sub­
stantial degree to interstate travelers.” Thus it was 
similar to Section 201(c)(2) of the present statute (al­
though not employing the concept of “ offers to serve” 
and therefore both far clearer and more restricted). 
Section 201(a) (3) (ii) applied where “ a substantial por­
tion of any goods held out to the public by any such 
place or establishment for sale, use, rent or hire has 
moved in interstate commerce.” This subsection made no 
reference to the food served by a restaurant but only 
to the sale of “ goods” which, as noted above, is treated 
separate from “ food” in paragraph 202(a)(3).

Finally and significantly, under Section 202(a) (3) (iii) 
(of S. 1731 and S. 1732), there was a provision bringing 
an establishment within the Act if “ the activities or 
operations of such place or establishment otherwise sub­
stantially affect interstate travel or the interstate move­
ment of goods in commerce.” This provision necessarily 
contemplated the determination of an actual effect upon 
interstate commerce in each individual case. This, of 
course, might be applicable to a restaurant. In fact, 
except for a restaurant serving interstate travelers to a 
substantial degree, it would be the only way a restaurant 
would be covered under the Senate bills.



From the above (and certainly other differences can 
be noted), it is apparent that the Senate committees 
considering S. 1731 and S. 1732 were not confronted with 
a proposed statute that in any respect relied upon a 
restaurant’s mere serving of food that has crossed state 
lines to bring it under the statute. Understandably 
there was no reason for any such consideration on the 
part of the two Senate committees. No evidence on the 
point was offered because the proposed legislation simply 
was not oriented in that direction.

Under S. 1731 a restaurant would have been covered if 
its services, facilities, etc., were provided to a sub­
stantial degree to interstate travelers. Certainly there 
was evidence before the committees that interstate travel 
of persons was impeded by discriminatory practices in 
those facilities actually serving interstate travelers. Un­
der Section 202(a) (3) (iii), a restaurant might also be 
brought within the coverage of the Act if its activities 
or operations in fact substantially affected interstate 
travel or the interstate movement of goods in commerce 
“ otherwise.” But this required an ad hoc determination 
of an effect on commerce in each individual case as is the 
case under the National Labor Belations Act.

There can be no argument that a particular restaurant 
might well have come within that coverage in a given 
case upon the authority of some of the National Labor 
Belations Board decisions. However, this is quite a dif­
ferent thing from saying there was a finding on the part 
of Congress that the racial policies of restaurants serving 
food which has moved in commerce has a burdensome com­
mercial effect on interstate traffic.

The point here is that all of the testimony from Under 
Secretary Roosevelt, Attorney General Kennedy and others 
before the Senate Committee on Commerce, must be con­
sidered in the contest of the proposed legislation before 
the Committee. It is an unwarranted distortion of the

— 10 —



11 —

facts to say, as do appellants, that Congress had “ ample 
basis upon which to find” that customer selection at res­
taurants serving food which has crossed state lines places 
a commercial burden upon interstate commerce. In truth, 
there was no reason for an inquiry along this line and 
the matter was not even before either congressional com­
mittee.

2. No Such Finding Was in Fact Made.
Not only does the legislative history show that there 

was no “ ample basis” for any such finding, but also that 
no such finding was made.

Aside from the fact that no formal findings were in­
cluded in H. R. 7152 as was the case in S, 1731,3 neither 
the provisions of Title II of the Civil Rights Act of 1964, 
nor the legislative history lends any support to the con­
tention of appellants that such a finding was made.

Whether Congress made any such finding is, funda­
mentally, a matter of its intention. Appellees have at 
all times contended that the statute on its face shows no 
such finding and, indeed, persuades strongly to the con­
trary. The definition of “ place of public accommodation” 
under Section 201 (b) of the Act, uses the language “ if 
its operations affect commerce”. These words are not 
followed by any such language as “ as hereinafter further 
defined” or any other language that indicates that the 
words, “ affect commerce” should be given any meaning 
other than a normal one. Later, in Section 201 (c), it 
is provided, of course, that a restaurant’s operations do 
affect commerce if a substantial portion of the food which 
it serves has moved in commerce. It is difficult to see 
why Congress would have employed the language and 
arrangement of the statute if it had intended to base

3 The importance and, in some instances, the necessity for specific 
findings, is discussed in a later portion of this brief.



— 12 —

coverage upon a finding of the type urged by appellants. 
It would have been far more simple and more direct to 
have included an additional line in Section 201 (b) (2) 
and eliminate the necessity for Section 201 (c) (2) en­
tirely. Certainly the statute on its face discloses no in­
tention to make any such determination as is relied upon 
by appellants.

In any event, the most that could be said to support 
appellants is that the statute itself is not clear insofar as 
Congress’ intention in this regard is concerned. Under 
these circumstances, it is appropriate to inquire whether 
the legislative history throws any light upon the point.

In determining the intention of Congress, this Court 
has often recognized that remarks made by individual 
congressmen or others, either in committee hearings or 
on the floor of Congress, are not reliable guides as to 
congressional intent. Nothing said before the Senate 
Committee on Commerce could therefore throw any light 
upon congressional intent with respect to the particular 
point of whether Congress made any determination or 
finding as is contended in appellant’s minor premise. 
This is, of course, particularly true where the bill before 
a committee was an entirely different one from that 
finally enacted into law. Committee reports are frequently 
looked to by the courts in determining what Congress 
intends. Duplex Printing Press Co. v. Deering, 254 U. S. 
443. As shown, there was no committee report on this 
bill. Under these circumstances, it is appropriate to look 
to the statements of the floor managers during congres­
sional debate. U. S. v. St. Paul, M. & M. Ry., 247 U. S. 
310. Senator Humphrey was the admitted commander 
of the forces seeking passage of the bill. He was sup­
ported by various other senators characterized as “cap­
tains”, each assigned to a separate title of the bill. Senator 
Magnuson was a captain to whom Title II was assigned. 
Cong. Bee., 6308 (March 30, 1964).



As a part of his formal opening speech in favor of 
H. R. 5172, Senator Humphrey offered in support of his 
argument on constitutionality of Title II the legal opin­
ion of some 22 eminent lawyers from whom he had re­
quested an opinion. Since their opinion was relied upon 
by Senator Humphrey and since the opinion necessarily 
was based upon the writers’ conception of the applica­
tion and effect of Title II, what was said in that opinion 
may appropriately be examined in discerning a congres­
sional intent with respect to the claimed finding. The 
opinion was fully adopted and approved by Senator 
Humphrey and the other principal managers of the bill 
in the Senate.

The opinion dated March 30, 1964, addressed to Sena­
tors Humphrey and Kuchel, is signed by Messrs. Harrison 
Tweed and Bernard G. Segal and joined in by 20 other 
eminent lawyers. It states:

With respect to title II, the congressional authority 
for its enactment is expressly stated in the bill to 
rest on the commerce clause of the Constitution and 
on the 14th amendment. The reliance upon both 
these powers to accomplish the stated purpose of title 
II is sound. Discriminatory practices, though free 
from any State compulsion, support, or encourage­
ment, may so burden the channels of interstate com­
merce as to justify legally, congressional regulation 
under the commerce clause. On the other hand, con­
duct having an insufficient bearing on interstate 
commerce to warrant action under the commerce 
clause may be regulated by the Congress where the 
conduct is so attributable to the State as to come 
within the concept of State action under the 14th 
Amendment. Cong. Rec. 6832 (April 7, 1964). (Em­
phasis supplied.)

It is submitted that the above language clearly con­
templates that discriminatory practices “ may”, in an in-



— In ­

dividual case, sufficiently burden commerce to justify con­
gressional regulation under the commerce clause but that 
on the other hand, it “ may” not. Appellees have pre­
viously taken the position that the inclusion of a 14th 
Amendment aspect by use of the “ state action” test in and 
of itself indicates that no overall congressional finding of 
an aggregate commercial effect was made. The above 
language confirms this. The ultimate question is what the 
Congress intended with respect to any such finding. With 
the explanation of the Act made by Senator Humphrey 
and the other captains supporting him and with the above 
legal opinion before them, it can hardly be stated that the 
members of the Senate were even conscious of any finding 
of the type imagined by appellants.

Senator Magnuson made a lengthy address on the floor 
of the Senate specifically as to Title II. His role as self- 
described was to expand inquiry as to the constitutionality, 
wisdom, intent and effect of Title II. Cong. Rec. 7169 
(April 9, 1964). One of the reasons for doing this, he said, 
was to build a legislative history to aid the courts, ibid. At 
the beginning of his remarks, he informed the Senate that 
the provisions of Title II in H. R. 7152 were “ very sub­
stantially like that” considered by the Committee on Com­
merce, ibid. So saying, he announced that he would ‘ ‘ draw 
upon the facts, convictions and ideas developed in the 
course of those hearings in discussing the need for such 
legislation, the power of Congress to act in this field, and 
the intended application of the terms of this bill.” Ibid.

Thus, he started by equating the “ intended application” 
of H. R. 1752 to the Senate bill which, as we have shown, 
did not include a food test for restaurants. In his remarks, 
he listed what he referred to as “ serious economic bur­
dens, resulting from discriminatory practices in establish­
ments dealing with the general public.” His enumeration 
of “ burdens” was largely patterned on the proposed find-



■— 15 —

ings contained in S. 1731. Again, there was no mention of 
a determination that discrimination in restaurants serving 
food which has crossed state lines is a burden upon inter­
state commerce. The burdens referred to by Senator Mag- 
nuson might have supported the interstate traveler test 
or the entire application of the statute to motels and hotels, 
but it in no way even purported to apply to restaurants on 
the basis of a food test, Cong. Rec. 7173 (April 9, 1964).

Finally, in his section-by-section analysis of the present 
statute, Senator Magnuson, after noting that Section 
201 (b) defines certain establishments as places of public 
accommodations “ if their operations affect commerce,” 
explained Section 201 (c) as follows:

Section 201 (c) provides the criteria- for determining 
whether the operations of an establishment affect com­
merce. Cong. Rec. 7175 (April 9, 1964). (Emphasis 
supplied.)

Appellees have never contended that Congress did not 
intend the serving of food which has crossed state lines 
to be a “ criterion” for determining an effect on com­
merce. Indeed, they have at all times objected to that 
means on the grounds that the criterion thus legislated 
was a conclusive presumption of the specific fact that 
alone could give Congress power over the particular estab­
lishment. Certainly Senator Magnuson’s remarks are not 
consistent with a congressional declaration in the terms 
of, or even resembling the finding claimed by appellants.

The legislative history of this statute is voluminous. 
While we have not counted the pages of the Congressional 
Record in 1963 and 1964 which are devoted to the civil 
rights proposals that finally emerged as the present stat­
ute, it is safe to say that they number in the thousands. 
It is indeed strange that throughout those thousands of 
pages there is not, so far as appellees can find, a single 
word of testimony relating to the specific finding claimed



16

by appellants, i. e., that discrimination in restaurants 
serving food which has crossed state lines has a substan­
tial and close effect on interstate commerce. On the other 
hand, the legislative history is replete with references to 
National Labor Relations Board cases where it has been 
determined on an ad hoc basis that a specific labor dis­
pute would affect commerce. The legislative history in 
this instance is not clear on many things, but to appellees 
it seems abundantly clear that the members of Congress 
intended that, insofar as a restaurant was concerned, there 
must be an actual effect upon commerce determined by 
the courts. If this be true, then the invalidity of the con­
clusive presumption as to the food served renders Title II 
unconstitutional as to appellees.

II. Prior Statutes Provide No Precedent for Title II.
The appellants’ brief relies heavily upon prior statutes 

and prior decisions of the Court which involve the regula­
tion of “ intrastate” or “ local” activities under the com­
merce power. Their contention thus appears to be simply 
that since it has been done before, it can be done here. 
Our reply is twofold. First, merely because a particular 
“ local” business may be reached by the federal commerce 
power for one purpose plainly does not demonstrate that 
even the same business may be reached for other purposes 
and in regard to other activities. Secondly, an analysis of 
past legislation and decisions involving the commerce 
power demonstrates that the present statute, insofar as it 
applies to appellees by virtue of the anterior movement of 
food through commerce, departs markedly from any prior 
statute sustained as an exercise of the commerce power.

It has been said that no commerce-power legislation reg­
ulating activities “ local” in nature has been sustained by 
this court unless those local activities are in commerce, are 
found to affect commerce, or are so commingled with ac­
tivities in interstate commerce that their regulation is



— 17 •—

necessary to achieve the regulation of those interstate. See 
both the court’s opinion and the dissenting opinion in 
United States v. Five Gambling Devices, 346 U. S. 411,
446-48, 460. So far as we are able to determine, this still 
holds true. Title II of the present statute, insofar as per­
tinent here, is incapable of being regarded as within the 
scope of any of the other statutes or decisions. For the 
purpose of so showing, and for the subsidiary purpose of 
showing the existence of factual determinations of an 
“ effect” on commerce by the regulated activity where such 
effect was the source of the commerce power, we shall at­
tempt to review those prior statutes and decisions.

1. Statutes Regulating Goods or Activities “ In Com­
merce.”

Statutes of this sort include, of course, the regulation 
of the actual movement of particular articles and persons 
between the states as well as the instrumentalities by 
which that movement is effectuated. And due to the local 
orientation of our society until relatively recent years, 
this was the chief area in which the commerce power 
needed to be exercised. This, of course, is the most ele­
mental use of the commerce power, for it comes within 
the express terms of the constitutional grant. And since 
it does, there is no need of a finding of the existence of an 
effect on commerce or other auxiliary source of power.

(a) Statutes Regulating the Movement of Goods in 
Commerce. Statutes of this character regulate the actual 
movement of articles and persons across state lines (in­
cluding whether they may be moved at all and, corol- 
larially, the conditions upon which they may be moved). 
In the main, such regulations are directed at specific 
articles or specific practices in respect to articles (or 
persons) which Congress deems deleterious in and of 
themselves. Just as the states for similar reasons may 
outlaw them locally, so can Congress deny them the use



18 —

of the channels of interstate commerce through its “ power 
to keep the channels of such commerce free from the 
transportation of illicit or harmful articles.” McDermott 
v. Wisconsin, 228 U. S. 115, 128, (with regard to the Food 
& Drug Act of 1906, 34 Stat. 768). Such statutes there­
fore purport to regulate personal conduct only insofar 
as the conduct relates specifically to an article which 
moves or is intended for movement in commerce. Their 
application is expressly limited accordingly. Thus, the 
act regulating traffic in lottery tickets requires that they 
be “ carried in interstate or foreign commerce” (18 
U. S. 0., §1301); the Mann Act applies only to one who 
“ transports in interstate . . . commerce . . . any woman” 
or who “ obtains any ticket” for such transportation (18 
U. S. C., §2421); stolen property must be transported in 
or be a part of interstate commerce (18 U. S. C., §§2312- 
2317); the Gambling Devices Act. requires transportation 
of the device “ to any place in a state . . . from any 
place outside of such state” (15 U. S. C., §1172); the 
Kidnapping Act requires transportation of the person “ in 
interstate commerce” (18 U. S. 0., §1201); the Fur Prod­
ucts Labeling Act and the Textile Fiber Products Act 
apply only to such products introduced or manufactured 
for introduction into or sold in commerce between states 
(15 IT. S. C., § 69 ; 15 U. S. 0., § 70); the Fair Labor Stand­
ards Act applies only to an employee “ who is engaged 
in commerce or in the production of goods for commerce” 
(29 U. S. C., §§206, 207); the Federal Food, Drug and 
Cosmetic Act applies only to such articles as are intro­
duced or received in interstate commerce (21 U. S. C., 
§331); and the Ashurst-Summers Act (49 Stat. 494) ap­
plied only to prison-made goods to be shipped or trans­
ported in interstate . . . commerce,” see Kentucky Whip 
& Collar Co. v. Illinois Cent, R. R,, 299 U. S. 334.

True, some of these statutes and others like them reach 
“ local” conduct at either extremity of the injurious ar­
ticle’s interstate journey. Thus, the Mann Act proscribes



19 —

the purchase of tickets for the prohibited transportation; 
the Fur Products Labeling1 Act reaches the manufacture 
and sale of the article which will be or has been shipped 
interstate (15 U. S. C., § 692); the Food, Drug and Cos­
metic Act reaches acts resulting in misbranding of the 
articles done subsequent to the interstate movement and 
before their sale to the ultimate consumer (21 U. S. C., 
§ 331 (k)); and the Fair Labor Standards Act of 1938 regu­
lates the wages and hours of employees engaged in the 
manufacture of articles destined for shipment in inter­
state commerce (29 U. S. C., §§ 206, 207). But in all such, 
cases the regulated activity must be directly related to 
the articles which are intended for or have moved in 
interstate commerce. Congress having deemed the article 
or its movement injurious it can, by virtue of its power 
to exclude it altogether, restrict its movement except on 
prescribed conditions. The power is over the particular 
article, not the “ local” activity itself. Thus, it was said 
of the convict-goods act, “ as the Congress could prohibit 
the interstate transportation of convict-made goods . . . 
the Congress could require packages containing convict- 
made goods to be labeled . . . ”4; of the Fair Labor 
Standards Act, “ The obvious purpose of the act was not 
only to prevent the interstate transportation of the pro­
scribed product, but to stop the initial step toward trans­
portation, production with the purpose of so transporting 
i t” 5; of the Food, Drug and Cosmetic Act, “ Congress 
may determine . . . the means necessary to make its 
purpose effectual in preventing the shipment in interstate 
commerce of articles of a harmful character, and to this 
end may provide the means of inspection, examination, 
and seizure.” 6

4 Kentucky Whip & Collar Co. v. Illinois Cent. R. R., 299 U. S. 
334, 352-53. '

5 United States v. Darby, 312 U. S. 110, 117 (emphasis added), 
and see Roland Elec. Co. v. Walling, 326 U. S. 657, 669.

6 McDermott v. Wisconsin, 228 U. S. 115, 135. And see 
United States v. Sullivan, 332 U. S. 689, 696.



— 20 —

Contrastingly, Congress has not in Title II sought to 
restrict the interstate movement of food; it did not and 
could not regard food or its movement injurious; and the 
proscribed “ local” activities have no connection, either 
logically or on the face of the statute, with the article 
which has moved in commerce.

(b) Statutes Regulating Instrumentalities of Commerce.
The other principal area of federal commerce clause regu­
lation of acts shown to be in commerce is, that over in­
strumentalities of interstate commerce. Like those regu­
lating specific articles or their movement, these statutes 
in the main are by their terms applicable only to instru­
mentalities actually engaged in interstate commerce. Thus, 
the Interstate Commerce Act is limited to “ common car­
riers engaged in the transportation . . .  [of commodities 
or persons] from one state . . .  to any other state,” (49 
U. S. C., § 1); the Railway Labor Act is limited to a 
“ carrier” which is “ subject to the Interstate Commerce 
Act,” (45 U. S. C., §157, First); the Hours of Service 
Act of 1907 regulates “ common carriers, their officers, 
agents and employees, engaged in the transportation of 
passengers or property . . . from one state . . .  to any 
other state,” (45 U. S. C., §§61-64); the act regulating- 
bills of lading applies to bills of lading “ issued . . .  for 
the transportation of goods . . . from a place in one 
state to a place in another state” (49 U. S. C., § 81); and 
the Employers’ Liability Act of 1908 applies only to a 
“ common carrier by railroad while engaging in commerce 
between any of the several states,” and to injury to an 
employee “ while he is employed by such carrier in such 
commerce” (45 U. S. C., § 51).

The primary design and purpose of the above statutes 
and others like them thus is to embrace chiefly articles 
or activities in interstate commerce. Insofar as pertinent 
here, Title II in design and purpose embraces purely local 
activities only.



— 21 —

2. Statutes Extending Interstate Regulation to Com­
mingled Intrastate Activities.

When Congress has undertaken to regulate predom­
inantly interstate traffic and activities, as in statutes of 
the above sort, it often has been necessary to extend the 
reach of a particular regulation to include also “intra­
state” activities or commodities. This has been done oidy 
where the “local” activities are so intermingled with the 
interstate that separation is impractical or impossible, and 
their regulation therefore, is necessary to make the inter­
state regulation effective. Moreover, in many such in­
stances the interrelationship, either physically or eco­
nomically, between the “intrastate” and the “interstate” 
has been so close that practically and rationally both are 
actually “in commerce,” and the decisions have so con­
sidered them. This essentially has been the basis for the 
extension of interstate regulation to otherwise “local” 
activities in three principal types of regulatory statutes: 
(1) those regulating instrumentalities of interstate com­
merce; (2) those establishing economic regulation of 
particular commodities produced for and sold in interstate 
commerce; and (3) those prohibiting or regulating inter­
state traffic of particular articles having dangerous or 
otherwise deleterious propensities. Some examples, not 
intended to be exhaustive, of statutes having “local” ap­
plication in this context are set out below.

(a) Statutes Regulating “ Local” Activities in Associa­
tion With Control of Interstate Instrumentalities. A rail­
road or other instrumentality of commerce which is en­
gaged in both interstate and intrastate commerce has been 
subjected to federal regulation in respect to “ intrastate” 
matters when they cannot practically be separated from 
interstate activities for purposes of regulation. This was 
the basis for applying the Safety Appliance Act, 45 
U. S. C., §§ 1-16, to trains moving intrastate over the line



— 22 —

of an interstate carrier, in Southern Ey. v. United States,
222 U. S. 20; the Hours of Service Act, 45 U. S. C., §61, 
to employees whose duties included both dealing with 
trains moving in interstate and those moving in intra­
state commerce, in Baltimore & 0. R. R. v. 1, 0. C., 221 
U. S. 612; the Railway Labor Act, 45 U. S. C., §§151 
et seq., to an interstate carrier’s “ back shop” employees 
wmrking on equipment used in the carrier ’s transportation 
service, 97% of which was interstate, in Virginian Ry. v. 
System Federation No. 40, 300 U. S. 515, 554-57; the Em­
ployers’ Liability Act of 1908, 45 IT. S. C., §51, to an 
injury to the interstate employee of an interstate carrier 
although the injury is caused by an intrastate employee, 
in Second Employers’ Liability Cases, 223 IT. S. 48. The 
same consideration was paramount in applying the Inter­
state Commerce Act, 49 U. S. C., § 1 et seq., in Shreveport 
Rate Case, 234 U. S. 342, 353, to the intrastate rates of an 
interstate carrier which discriminated against the car­
rier’s interstate traffic and consequently injuriously af­
fected interstate commerce, since federal regulation can 
be employed to “ prevent the common instrumentalities of 
interstate and intrastate commercial intercourse from 
being used in their intrastate operation to the injury of 
interstate commerce.” In that case, the adverse effect 
upon commerce was found judicially. Id., 234 IT. S, at 
346. Thus, in each of these statutes “ intrastate” activ­
ities were reached only when the carrier was engaged in 
interstate commerce and when the intrastate activities 
were inextricably bound to those obviously interstate.

(b) Statutes in Which “Local” Activities Are Reached 
in Association With Economic Regulation of Interstate 
Commodities. Statutes of this sort regulate specific com­
modities, or their sale and movement, in interstate com­
merce. Therefore, the principal thrust in each is the con­
trol of activities purely interstate, and the statutory 
language is drawn accordingly to reach primarily those



— 23 —

transactions which are in commerce. Thus, they basically 
are economic regulations of activities in interstate com­
merce. In their application it is recognized that in order 
to achieve the major objective of the statute—control of 
the movement of the regulated commodity in interstate 
commerce—it sometimes is necessary to extend the control 
to goods which themselves do not actually move inter­
state. In every instance, however, the extension of regu­
lation to the “ local” activities is predicated upon the fact 
that those activities are so interwoven either physically or 
economically with the interstate flow that to treat them 
separately would be impossible practically and would im­
pair or destroy the effectiveness of the regulation of 
interstate activities. Indeed, in most cases where this has 
been done the “ local” activity as a practical matter was 
but a part of the interstate flow of the regulated com­
modity. In each instance control of “ intrastate” matters 
was merely a necessary incident of effective control over 
interstate elements to which the statute was primarily 
directed.

Statutes and decisions in which “ intrastate” affairs 
have been subjected to regulation on this basis include the 
Grain Futures Act of 1922, 42 Stat. 998, Board of Trade v. 
Olsen, 262 U. S. 1; the Agricultural Marketing Agreement 
Act of 1937, 7 U. S. C., § 608c, United States v. Wright- 
wood Dairy Co., 315 U. S. 110; the Tobacco Inspection Act, 
7 IT. S. CL, § 511a; Currin v. Wallace, 306 IT. S. 1; the Agri­
cultural Adjustment Act of 1938, 7 U. S. C., §■§ 1281 et seq., 
Mulford v. Smith, 307 IT. S. 38, Wickard v. Filburn, 307 
IT. S. I l l ;  and the Fair Labor Standards Act of 1938, 29 
IT. S. C., §§ 201 et seq., United States v. Darby, 312 IT. S. 
100.

The Grain Futures Act of 1922 regulated transactions 
in grain futures at the Chicago Board of Trade, the in­
termediary through which grain moving on through bills 
of lading from other states through Chicago to destina­



— 24 —

tions outside of Illinois was sold; thus, the statute applied 
only to transactions in commodities in actual interstate 
transit. Not only were the regulated activities “ such an 
incident of that [interstate] commerce, and so intermingled 
with it,” Board of Trade v. Olsen, 262 U. S. 36, but in­
deed, like the activities regulated in the Stockyards & 
Packers Act of 1921, and Stafford v. Wallace, 258 IT. S. 
495, they “ cannot he separated from the [interstate] move­
ment to which they contribute, and necessarily take on 
its character.” Id., 262 U. S. at 35. And, although the 
regulated activities thus were “ in” commerce, quite de­
tailed statutory findings of their effect upon the interstate 
movement of the commodity nevertheless were made byi 
Congress and relied upon by the court. Id., 262 U. S. 
at 4-5, 10-15, 37.

Similarly, the Tobacco Inspection Act of 1935, which 
likewise was directed at a single, predominantly inter­
state commodity in providing for inspection and grading 
of leaf tobacco at auction warehouses, was chiefly the 
regulation of “ sales in interstate or foreign commerce . . . 
subject to congressional regulation.” Currin v. Wallace, 
306 IT. S. at 10. Consequently, the basis for extending 
the regulation in respect to some intrastate sales was 
simply because “ [t]he fact that intrastate and interstate 
sales are commingled on the tobacco market does not frus­
trate or restrict the congressional power to protect and 
control what is committed to its own care,” citing Shreve­
port Rate Case, supra. Id., 306 IT. S. at 11.

The Agricultural Adjustment Act of 1938, and Mulford 
v. Smith, 307 IT. S. 38, presented the same situation, where 
the dominant aim and impact of the economically directed 
legislation was in respect to commodities moving in inter­
state commerce—which “ constitutes interstate commerce” , 
Id., 307 IT. S. at 48—and locally destined tobacco was 
subjected to regulation only insofar as it was so inter­



— 25

mingled physically with that sold interstate that “ [reg u ­
lation, to he effective, must, and therefore may constitution­
ally, apply to all sales.” Id., 307 U. S. at 47. Similarly, 
in Wickard v. Filburn, 317 U. S. I l l ,  the local disposition 
of wheat was so commingled economically with the inter­
state movement of the commodity that its regulation too 
was necessary to effectuate the major economic purpose of 
control over the interstate movement.7 The Agricultural 
Marketing Agreement Act of 1937, 7 IT. S. C. § 608c, which 
was directed at regulation of the price of milk moving- 
in interstate commerce, could regulate also the price of 
intrastate milk found to directly affect interstate commerce 
in milk since the “ national power to regulate the price 
of milk moving interstate . . . extends to such control 
over intrastate transaction as is necessary and appropriate 
to make the regulation of the interstate commerce effec­
tive.” United States v. Wrightwood Dairy Co., 315 U. S. 
110, 121. And the Fair Labor Standards Act may be 
applied to employees engaged in producing both interstate 
and intrastate goods. United States v. Darby, 312 IT. S. 
100, 118.8 For the same reason, federal control of interstate 
sales of colored oleomargarine was extended by amendment 
in 1950 (64 Stat. 20, 21 U. S. C., §347) to intrastate sales 
precisely because “ [t]he regulation of the whole is neces­
sary in order to provide effective regulation of that part 
which originates from outside the state of consumption. ” 9

7 “ [A] factor of such volume and variability as home-consumed 
wheat would have a substantial influence on price and market con­
ditions . . . [and] if wholly outside the scheme of regulation would 
have a substantial effect in defeating and obstructing its purpose to 
stimulate trade therein at increased prices.” Wickard v. Filburn 
317 U. S. at 138, 139.

8 “ f l ] t  would be practically impossible, without disrupting manu­
facturing businesses, to restrict the prohibited kind of production 
to the particular pieces of lumber, cloth, furniture or the like which 
later move in interstate rather than intrastate commerce”. United 
States v. Darby, 312 U. S. 100, 118.

9 Senate Report No. 308, 81st Cong., 2nd Sess.; 1950 U. S. 
Code, Cong. News, at 1973.



— 26 —

Since in each, of the above statutes the subject of the 
regulation was predominantly activities and commodities 
actually in interstate commerce, a legislative finding of 
its effect on commerce would seem unnecessary. Yet each 
contains such a statutory finding.10 And in some, as the 
milk price control statute involved in United States v. 
Wrighlwood Dairy Go., 315 U. S. 110, it was required addi­
tionally that the effect be determined in administrative 
proceedings subject to judicial review. Id., 315 IT. S. at 116.

With respect to the Fair Labor Standards Act in its 
application to employees not “ engaged” in but producing 
goods for commerce, it has been already noted that (1) 
it was an exercise of the power to prevent the introduction 
of the goods into interstate commerce and applied only to 
activities directly connected with the preparation of those 
goods for commerce, and (2) it applied to “ local” activi­
ties only if there is a physical mingling of work on inter­
state and intrastate articles. Unlike Title II, which like 
anti-trust and labor legislation is directed at the activities 
themselves which might affect the flow of commerce gen­
erally, the Fair Labor Standards Act points to the goods 
themselves. There, the commerce power was invoked on 
and derived from that basis. Accordingly, the volume of 
interstate movement and the effect on commerce in general 
is not important; an employee might be covered if one or 
two per cent of the articles he has worked on move inter­
state. Pointing up this distinction further is the fact that 
the Fair Labor Standards Act is based upon the future 
movement of the particular article worked on; conse­
quently, an employee can be covered one week and not the 
next.

10 Tobacco Inspection Act, 7 U. S. C., § 511a; Agricultural 
Adjustment Act, 7 U. S. C., § 1311, 7 U. S. C., § 1331; Agricultural 
Marketing Agreement Act, 7 U. S. C., § 601; Fair Labor Stand­
ards Act, 29 U. S. C., § 202; colored oleomargarine act, 21 U. S. C., 
§ 347a.



— 27 —

(c) Statutes in Which Control of Local Activities Is 
Necessary to the Effective Control of the Interstate Move­
ment of Harmful Articles. The other area in which “ local” 
activities have been subjected to regulation is in statutes 
in which Congress has undertaken the control or prohibi­
tion of movement in interstate commerce of particular ar­
ticles of injurious character and it has been necessary to 
extend the control to local activities connected with that 
particular article’s movement or use in order to make the 
interstate control effective. Examples of this type of 
“ local” regulation are the Food, Drug and Cosmetic Act, 
21 U. S. C., § 331 (k), U. S. v. Sullivan, 332 U. S. 689, and 
the regulation of interstate bills of lading, 49 U. S. C., § 121, 
United States v. Ferger, 250 U. S. 205. See also the dis­
senting opinion of Mr. Justice Clark in United States v. 
Five Gambling Devices, 346 U. S. 441, 460-463, regarding 
the power to require manufacturers of gambling devices 
to report both interstate and intrastate sales in order to 
effectively control those made interstate.

Thus, in United States v. Ferger, supra, the power to 
prohibit fictitious or forged bills of lading under which 
no goods actually moved interstate was sustained because 
it was necessary to the effective regulation of interstate 
bills of lading and therefore in aid of Congress’ primary 
power over an instrumentality of commerce.

In United States v. Sullivan, supra, it was held that 
Congress’ power to regulate for the ultimate consumer’s 
protection the labeling of drugs moving across state lines 
could be applied to acts resulting in their mislabeling 
done while the drugs were held for sale to the public by 
a retail druggist who had purchased them from the in­
terstate consignee. Under that statute, the Food, Drug 
and Cosmetic Act, 21 U. S. C. § 331, the potentially in­
jurious character of the article itself was the subject of 
the regulation. Consequently, the effectiveness of Con­
gress’ obvious power over its interstate movement would



have been entirely thwarted if the control over its label­
ing had not been extended to the ultimate purchaser. The 
fact of its movement to the retail druggist was not the 
source of any congressional power except in respect to the 
labeling of that particular article.11 Those statutes and 
decisions therefore afford no analogy to what Title II 
attempts to do. Thus, an application of the food-test 
concept of commerce power to the facts in the Sullivan 
case would achieve the remarkable result that Mr. Sulli­
van’s drug store, because of his purchase of several bottles 
of sulfathiazole which previously had moved in commerce, 
could be regulated in any manner whatever irrespective 
of a lack of connection with the injurious quality of the 
drug. Congress could prescribe the seating capacity of 
his establishment, the magazines he could sell, the min­
imum age of customers he could serve. And since the 
government’s position is that mere receipt at some point 
after movement in commerce in itself was the source of 
power in Sullivan, the power to regulate in general the 
activities of the ultimate consumer would be established 
as well. It may be said that such regulation might not 
be reasonable, but appellants have urged Sullivan and 
Mandel as authority for the existence of Congress’ power 
to regulate, not for the reasonableness of its exercise.

Similarly, in oral argument, the Solicitor General, in 
response to a question by the Court, agreed substantially 
that Congress could make it a federal offense to hit one’s 
wife with a baseball bat because the bat had moved in 
commerce. The government necessarily assumed that posi­
tion because under Title I I ’s food-movement test the 
movement of food is tied not to the proscribed activity 
but to the operation generally of restaurants, and even 11

11 See also Federal Trade Commission v. Mandel Bros., Inc., 359 
U. S. 385, 391, which on the same grounds held the requirements 
of the Fur Products Labeling Act, 15 U. S. C., § 69, could be ap­
plied to fur in the hands of a retailer after interstate shipment.



29

the operations of a restaurant might or might not in a 
given case actually affect commerce. To bring that illus­
tration within the context of the Sullivan decision, as­
sume Congress finds that narrow-handled baseball bats 
are injurious to the public and, therefore, prescribes a 
minimum diameter for bats moving in commerce. To 
effectuate this law Congress could prohibit a person from 
whittling the handle of a bat which had moved in com­
merce. That would be the Sullivan case. But could Con­
gress also prohibit this person from hitting his wife with 
the bat? Or, more in accord with the food-movement test 
of Title II, could the government regulate the recipient 
of the bat in conduct which intrinsically is unconnected 
with the bat? This underscores the weakness of the ap­
pellants’ reliance upon dissimilar prior statutes and deci­
sions in which “ local” activities have been reached under 
the commerce power; for, the fact that they have been 
reached as to some activities plainly does not establish 
that they may be similarly reached as to others.

More generally, Title II, insofar as it applies to appel­
lees, is unlike any of the statutes in which “ intrastate” 
activities have been reached because they are commingled 
with those interstate activities or movement to which 
the regulation is principally directed. Other than those 
regulating instrumentalities engaged in commerce, all of 
those statutes significantly were regulations of the inter­
state movement of a particular commodity or of particu­
lar goods. The articles or commodities themselves were 
the subject of regulation. Only those local activities 
which were intrinsically a part of the interstate move­
ment of the commodity or articles were regulated—not 
activities which only affected the interstate flow of goods 
in general. Local activities thus were reached only in 
association with the broader scheme to regulate activities 
actually in commerce, and then only when the control 
of the interstate elements would be defeated without



— 30 —

regulation of the local. In each of the statutes establish­
ing broad economic regulation of a commodity or articles, 
Congress made specific legislative findings of the impact 
of the regulated activities upon the interstate movement 
of the commodity; and where purely intrastate commodi­
ties were expressly made subject to regulation, as was 
local milk in the Agricultural Marketing Agreement Act 
and United States v. Wrightwood Dairy Go., 315 U. S. 
110, provision has been made also for determination in 
individual cases of an effect on the interstate movement 
of that commodity. Title II, on the other hand, regulates 
only local activities which have no intrinsic connection 
with interstate commerce other than their possible effect 
upon the general flow of goods. The Act is not directed 
predominately at interstate activities of which the local 
activity is but an incidental aspect; the regulation of the 
local activity is the sole object of the statute. The Act 
is not an economic regulation of a commodity or the 
regulation of deleterious articles, but a regulation of ac­
tivities in and of themselves. Consequently, the only 
statutes and decisions which bear any similarity to the 
Act are those such as the Sherman Act and the National 
Labor Relations Act which also reach isolated intrastate 
activities but only upon a determination of their effect 
upon the general flow of commerce.

3. Statutes Regulating Local Activities When Found on an 
Ad Hoc Basis to Affect Commerce.

Although there are other statutes12 in which the power 
to regulate local activities is acquired on the basis of an

12 For example, the Agricultural Marketing Agreement Act. 21 
U. S. C., § 608C; United States v. Wrightwood Dairy Co., 315 U. S. 
110; and the Interstate Commerce Act, 49 U. S. C., § 13 (4) ; North 
Carolina v. United States, 325 U. S. 507, 511; King v. United 
States, 344 U. S. 254, 267-76; Shreveport Rate Case, 234 U. S. 
342, 357-59, in each of which an administrative finding of an effect 
on commerce, subject to judicial review, is contemplated.



— 31 —

ad hoc finding of an effect on commerce the primary 
ones are the National Labor Relations Act, 29 U. S. C., 
§ 151 et seq., and the anti-trust statutes. In these stat­
utes, as in the pertinent part of Title II, the object and 
impact of the regulation is in respect to activities which 
might have no connection with interstate commerce other 
than an effect upon its general flow. Consequently, the 
power to regulate such activities always has been made 
dependent upon a determination that the particular ac­
tivity involved in a particular case will have an effect 
on commerce.

In appellees’ initial brief, particularly at pages 14 
through 17, the requirement and practice under the Na­
tional Labor Relations Act of a case-by-case determina­
tion of the effect of a labor dispute or other activity 
upon the flow of commerce is discussed. It was noted 
that the required effect must be prospective, evidence 
of past interstate purchases being only the basis for an 
inference that there will be like purchases in the future. 
See, e. g., N. L. R. B. v. Denver Bldg, and Constr. Trades 
Council, 341 U. S. 675, 683-84; J. L. Brandeis & Sons v. 
N. L. R. B., 142 F. 2d 977, 980 (C. A. 8).

The same determination is a requisite of regulation of 
“ local” conduct under the Sherman Act, 26 Stat. 209, as 
amended, 15 U. S. C., § 1, et. seq. Thus, Section 1 of the 
Sherman Act, 15 U. S. C., § 1, proscribes only combina­
tions or conspiracies “ in restraint of trade or commerce 
among the several states, ’ ’ and Section 2, 15 U. S. C., § 2, 
similarly applies only to persons who monopolize “ trade 
or commerce among the several states.” A section—one 
case, United States v. Employing Plasterers Ass’n., 347 
U. S. 186, illustrates how the existence of a “ restraint” 
of commerce depends upon a factual inquiry of the effect 
of an otherwise “ local” conspiracy upon interstate com­
merce in precisely the manner provided in the Labor



— 32

Relations Act. Tlie government’s complaint in that case 
alleged that a conspiracy constituting a restraint on 60 
per cent of the plastering business in the Chicago area 
adversely affected the otherwise continuing flow of plas­
tering materials from out-of-state origins to Illinois job 
sites. Regarding the averments as charging only a “ local 
restraint” not reached by the act, the district court dis­
missed the complaint. This Court reversed since the gov­
ernment’s allegations of the effect on commerce should 
be “ taken into account in deciding whether the govern­
ment is entitled to have its case tried,” id., 347 U. S. at 
188, and must necessarily be resolved by a factual de­
termination. For, as Mr. Justice Black observed, id., 
347 U. S. at 189:

[I] t goes too far to say that the government could 
not possibly produce enough evidence to show that 
these local restraints caused unreasonable burdens on 
the free and uninterrupted flow of plastering mate­
rials into Illinois. That wholly local business re­
straints can produce the effects condemned by the 
Sherman Act is no longer open to question. [Empha­
sis added.]

The government’s proof would of course be subject to 
rebuttal by the defendants. In every case in which the 
unlawful activity is local, a similar determination is re­
quired. See, e.g., United States v. Yellow Cab Co., 332 
U. S. 218; United States v. Women’s Sportswear Ass’n, 
336 U. S. 460.

The reason for requiring such a case-by-case determina­
tion is that therein lies the only source of the government’s 
power over the activity. As was stated by Mr. Justice 
Stone in Apex Hosiery Co. v. Leader, 310 U. S. 469, 485, 
498:

[I]n the application of the Sherman Act . . . it is 
the nature of the restraint and its effect on interstate



commerce and not the amount of the commerce 
which are the tests of violation.

This court has since repeatedly recognized that the 
restraints at which the Sherman law is aimed . . . 
are only those which, for constitutional reasons, are 
confined to transactions in or which affect interstate 
commerce [Emphasis added].

It follows that where it is determined that the local 
activity neither is in the course of nor has a demonstra­
bly substantial effect upon trade or commerce between 
the states, it is not subject to the statute. See, e. g., United 
States v. Yellow Cab Co., 332 U. S. 218; Industrial Ass’n v. 
United States, 268 U. S. 64. Of course, when the pro­
scribed activity is actually conducted through the chan­
nels of interstate and is therefore “ in” commerce, it is in 
no sense a “ local” activity, and can accordingly be regu­
lated. See, e. g., Moore v. Mead’s Fine Bread Co., 348 U. S. 
115 (Robinson-Patman Act, 15 U. S. C., $ 13(a) and 13a); 
Lorain Journal Co. v. United States, 342 IT. S. 143.

Quite apparently, in view of its use only of the word 
“ affect” in connection with commerce, the food-movement 
basis of power in Title II was patterned after these de­
cisions under the Labor Relations Act, the Sherman Act, 
and similar statutes. To do so was necessary, in fact, 
inasmuch as this portion of Title II, like the Sherman and 
Labor Relations Acts, seeks to regulate local activities 
neither in commerce nor associated with regulated inter­
state activities. Appellants’ brief cites many decisions 
and statutes invoking the commerce power, but there is 
not one, and we are aware of none, in which an actual 
ad hoc factual determination of the proscribed activity’s 
effect on commerce was not made or provided for when 
that effect was the only source of the government’s power 
to regulate. Their brief cites many Labor Board cases 
and some Sherman Act decisions, but “ [decisions under



— 34 —

this type of legislation give the government no support, 
for no such determination [of the activity’s effect on 
commerce] is required by this Act, and the government 
asserts no such finding is necessary.” United States v. 
Five Gambling Devices, 346 U. S. 441, 447.

In their brief (Br. 55) appellants cite only four cases 
in support of their position that provision for a judicial 
or administrative finding of an effect on commerce is 
unnecessary: Southern Ry. v. United States, 222 U. S. 20; 
Baltimore and 0. R. Co. v. I. C. C., 221 IT. S. 612; Wickard 
v. Filburn, 317 IT. S. I l l ;  and United States v. Ferger, 
250 U. S. 199. All of these cases were discussed above 
and, as was shown there, involve statutes under which 
local activities were reached only because their control 
was associated and mixed with and necessary to the 
effectuation of related interstate activities or commodi­
ties. Indeed, three of cases, Southern Ry. v. United 
States; Baltimore & 0. R. Co. v. I. C. C., and Ferger, in­
volved statutes regulating instrumentalities of commerce 
—the Safety Appliance Act, the Railway Labor Act, and 
the act regulating interstate bills of lading,13 respectively. 
We know of no statute of the type involved in this case 
in which provision for such a finding on a case-by-case 
basis has not been made.

Again, at page 49 of their brief, appellants cite six 
cases for the proposition that legislative findings are 
unnecessary. Three of those—Southern Ry. v. United 
States; Baltimore & 0. R. Co. v. I. C. C., and United 
States v. Ferger—are among those referred to in the 
preceding paragraph and involve statutes regulating in­
strumentalities of commerce. Of course power over such 
instrumentalities is within the express terms of the con­
stitutional grant of the commerce power and findings 
of an effect on commerce are patently unnecessary. The

13 Bills of lading for interstate shipments are “instrumentalities” 
of commerce— United States v. Ferger, 250 U. S. at 204.



— 35 —

others—Virginian Ey. v. System Federation No, 40, 300 
U. S, 515; United States v. Sullivan, 332 U. S. 689; and 
F. T. C. v. Mandel Bros., Inc., 359 IT. S. 385—have also 
been dealt with in this brief and similarly involve stat­
utes regulating activities closely associated with inter­
state movements. Thus, the statute in Virginian Ry. v. 
System Federation was the Hours of Service Act (rail­
roads), regulating instrumentalities of commerce and 
made applicable to employees working on both interstate 
and intrastate equipment. Of course the Sullivan and 
Handel cases both involved statutes regulating the mis­
branding of articles moving interstate. Similarly, all of 
the statutes14 cited in footnote 31 at page 49 of appellants ’ 
brief, for their statement that some statutes contain no 
findings, either regulate instrumentalities of commerce or 
regulate the character of articles moving interstate. On 
the other hand, in every instance in which the existence 
of the commerce power is not apparent upon the face 
of the statute (as it is in the statutes and decisions cited 
by appellants) and the activity regulated thus might 
well be associated from interstate traffic, the factual basis 
upon which the commerce power exists has been made 
to appear either by express legislative findings or on an 
ad hoc basis. As we have noted above, this has been 
true even where the regulated “ local” activity is closely 
associated with and often a part of regulated interstate 
activities. For all of the statutes regulating “ local” ac­
tivities in conjunction with control of commodities and 
their interstate movement have contained such findings.15

14 Railway Labor Act, 45 U. S. C., § 151; Safety Appliance Acts, 
45 U. S. C., § 8, 49 U. S. C., § 26; Bills of Lading Act, 49 U. S. C., 
§ 121; Fur Products Labeling Act. 15 U. S. C., §69; Automobile 
Information Disclosure Act, 15 U. S. C., §1231; Textile Fiber 
Products Identification Act, 15 U. S. C., § 70.

15 As in the Grain Futures Act of 1922, 42 Stat. 998; the To­
bacco Inspection Act, 7 U. S. C., § 511a; t'he Fair Labor Standards 
Act. 29 U. S. C., §202; and the Colored Oleomargarine statute, 21 
U. S. C„ § 347a. '



36 —

And in instances where the local activity is not associated 
thnsly with broader regulation of interstate activities or 
movement (as here, the Labor Relations Act and the 
Sherman Act), the statutes have contained not just legis­
lative findings but uniformly a provision for an ad hoc 
determination of the effect of the activity upon com­
merce; certainly, no such statute has precluded such a 
determination, as does Title II. Perhaps then, the ex­
planation for the absence of express legislative findings 
in older statutes lies in the fact that they mainly regu­
lated only things and activities actually in commerce, 
and only recently with the expansion and increasing com­
plexity of our nation has it been necessary to use the 
commerce power in order to regulate “ local” activities.18

In summary, appellees submit that there is no statutory 
precedent to support the Solicitor General’s position in 
this case; that his reliance upon the prior statutes men- 16

16 Likewise inapposite are the cases—U. S. v. Carolene Products 
Company, 304 U. S. 144, Tozvnsend v. Yeomans, 301 U. S. 441, and 
others—cited in appellants’ brief (Br. 50-53) in support of their 
contention that, absent express legislative findings, the existence of 
facts necessary to sustain the constitutionality of a statute will be 
presumed. In none of those cases was there any question of the 
legislature’s power to legislate. The only constitutional inquiry was 
whether the legislation was a reasonable and necessary exercise of 
that power. In each instance the power—the legislative jurisdiction 
—obviously existed. Thus, Carolene Products involved the federal 
Filled Milk Act (21 U. S. C., § 61-63) prohibiting the shipment 
in interstate commerce of products found to be injurious. That 
statute, like the Mann Act, the Fur Products Labeling Act and 
others, thus regulated only articles moving across state lines, over 
which Congress’ power could not be questioned. The only facts 
presumed were those supporting the legislative “judgment”, 304 
U. S., at 152, in characterizing the regulated products as “injurious”. 
Townsend v. Yeomans involved a state statute regulating commer­
cial transactions within the state. It was enacted under the police 
power which embraces all persons and activities within the state. 
The question involved was only whether the statute was so un­
reasonable that clue process was denied. In the present case ap­
pellees question the power of Congress. No case of which the 
appellees are aware has even intimated that the facts upon which 
this power itself is derived are presumed to exist.



37 —

tioned betrays a recognition of the fatal defect in appel­
lant’s case. None of the statutes is apposite, yet they 
define the high water mark of congressional power over 
local affairs. In Title II, there is no regulation of any 
article, product, or interstate traffic. The regulation ap­
plies only to conduct in isolation from articles or activities 
directly in commerce. True, it might “ affect” commerce 
indirectly in a particular case as has been recognized in 
Sherman Act and Labor Board cases, but on the other 
hand, it might not. Whether it would in a given case, 
would depend upon the facts as is true under those 
statutes.

Seemingly Congress recognized this in applying the Act 
only to restaurants whose operations affect commerce. 
But it departed from the teaching of the very precedents 
upon which the appellants rely in legislating a conclusive 
presumption on the specific ultimate fact which is indis­
pensably required for congressional power.

Again, it is the power of Congress under the Constitu­
tion with which we are here concerned and “ [t]he power 
to create presumptions is not a means of escape from con­
stitutional restrictions.” Bailey v. Alabama, 219 U. S. at 
239; see Heiner v. Dorman, 285 IT. S. 31237 and Tot v. 
United States, 319 U. S. 463.

III. A Mere Hypothetically Rational Basis for the Exer­
cise of Federal Power Is Not Sufficient.

During oral argument, it was contended that in order 
to hold for the appellees the Court would have to say 
there was no conceivable rational basis for the legisla­
tion. This becomes relevant only if it be assumed for 17

17 “If a legislative body is without power to enact as a rule of 
evidence a statute denying a litigant the right to prove the facts 
of his case, certainly the power cannot be made to emerge by put­
ting the enactment in the guise of a rule of substantial law.” 285 
U. S. at 329.



38 —

argument (which appellees continue to deny) that Con­
gress made any declaration or finding of the kind urged 
by the Solicitor General. Appellees insist nevertheless, 
that such a rule is not in accordance with the Court’s 
historic concept of judicial review.

It must be remembered that we are still talking about 
the power of Congress and not the wisdom or workability 
of the legislation. Admittedly when legislation comes 
within a specific constitutional grant of federal power 
Congress, like a state legislature acting under the police 
power, has broad discretion as to the means to be used to 
correct whatever problem it may be dealing with. But it 
has never been held that Congress may by legislative fiat 
merely say that it is acting under granted power and thus 
foreclose judicial inquiry on the subject.

It is for the Court to say whether there is sufficient 
basis to conclude that a particular local activity has a 
sufficiently close and substantial effect on interstate com­
merce to bring that activity within federal authority in 
the manner attempted. Unless such judicial review is 
recognized and exercised, the federal government will be­
come one of unlimited power, rather than one of limited 
and delegated power as conceived in the constitution.

The Court has never been sterilized so as to limit it in 
the manner suggested—not where the existence of federal 
power has been in issue. For example, in holding that 
Congress exceeded its power under Article I to govern the 
land and naval forces of the United States by attempting 
to subject a discharged serviceman and other civilians to 
Court Martial trials, the Court rejected abundant argu­
ment that there was a rational connection between govern­
ment of the armed service and offenses committed by such 
persons. United States ex rel. Toth v. Quarles, 350 U. S. 
11; Reid v. Covert, 354 U. S. 1; Kinsella v. United States 
ex rel. Singleton, 361 U. S. 235. In Toth, the offense had



39

been committed while the accused was actually on active 
duty in the Air Force. Surely such an offense bears a far 
closer and more substantial connection to the government 
of the Air Force than the selection of local customers at 
Ollie’s Barbecue bears to interstate commerce in food. Yet 
the Court struck down the congressional judgment that 
people like Toth should be subjected to military authority.

Despite vast federal power over war and foreign affairs, 
the Court has held that Congress exceeded its granted 
powers in providing for the loss of nationality of a person 
convicted of wartime desertion. Trop v. Dulles, 356 IT. S. 
86. In doing so, the Court rejected persuasive argument 
that a rational connection existed between such a measure 
and the conduct of war and foreign relations. The Court 
examined the matter for itself (See opinion of Mr. Justice 
Brennan, 356 U. S. at 105-114).

Neither the Court Martial cases nor the expatriation 
case were based on any prohibition of the Bill of Bights. 
They were based on the grounds that Congress had ex­
ceeded its Article I authority. The Court exercised its 
independent judgment in deciding that. That is all the 
appellees ask of the Court here. Even if it be assumed, 
for argument, that there was a congressional declaration 
that the choice of customers in a restaurant has a sub­
stantial effect upon interstate commerce, solely and ex­
clusively because a portion of the food served has moved 
in commerce, can it be said that this Court is limited 
to the inquiry merely of whether there might conceivably 
be some remote and hypothetically rational basis for the 
declaration ?

The Courts Martial and expatriation cases also show 
that the Court’s inquiry into “ rational basis” is not an 
aridly logical one. In the case at bar Congress has at­
tempted to move into a field never before subjected to 
federal control. Section 201 (c) (2) controls the persons,



40 —

all of whom are local, who may be permitted to gather in 
an eating place. This is a novel assertion of federal 
power. I t not only impinges upon the right of association 
of the customers of Ollie’s Barbecue, but also upon im­
portant rights of the appellees themselves. For this rea­
son, it is appropriate that this Court take an exceedingly 
close look to see that there is a solid basis for saying that 
the activities regulated in this statute have a demon­
strated substantial and close effect upon commerce. Cer­
tainly because of the far-reaching implications of this 
legislation the Court should take a closer look than, for 
example, in the case of controlling the supply and demand 
of wheat. For wheat is a commodity moving daily in the 
channels of commerce, and it was only to control that 
movement that the statute upheld in Wickard v. Filburn, 
supra, was enacted. Contrastingly, the impact on com­
merce resulting from the kind of people who are per­
mitted to gather in local places like appellees’ restaurant 
could be exceedingly thin at most. Certainly it has not 
been sufficiently demonstrated in this record for the con­
gressional ipse dixit to. stand.

Furthermore, it is worth at least passing comment to 
note that in none of the landmark decisions relied upon 
by appellants has the Court approached its function of 
judicial review on any such sterile basis as is urged by 
the Solicitor General, e. g., Wickard v. Filburn, 317 U. S. 
11; United States v. Darby, 312 U. S. 100; NLRB v. Jones 
& Laughlin Steel Corp., 301 U. S. 1. In each of these 
cases the Court recognized its function as requiring it to 
examine the factual basis upon which the exertion of fed­
eral commerce power was purportedly based. In each 
case the Court went to lengths to discover, not on the 
basis of some hypothetical rationality that might have 
existed, but on the basis of substantial and genuine facts 
shown in the record, that Congress has permissibly con­
cluded that the regulation was necessary to remove a



—  41 —

burden upon commerce. The Court did not imagine a 
state of facts, not made know to it, that would support 
the legislative actions. Those statutes were upheld on 
the basis of a demonstrated factual situation in the light 
of which Congress was entitled to conclude that the local 
activities involved should be regulated for the protection 
of commerce.

The record in this case fails to show even the barest 
basis for an exercise of commerce clause power as against 
these appellees.

CONCLUSION.

The position urged by appellees in this case does not 
require the Court to be insensible to current affairs. In­
evitably, there is here a conflict between the concept of 
human equality and individual rights under the Constitu­
tion. Very early in the history of our republic in Mar- 
bury v. Madison, 1 Cranch. 137, . . . ,  Chief Justice Marshall 
stated:

“ The powers of the legislature are defined and lim­
ited; and that those limits may not be mistaken, or 
forgotten, the constitution is written. To what pur­
pose are powers limited, and to what purpose is that 
limitation committed to writing, if these limits may, 
at any time, be passed by those intended to be re­
strained? The distinction between a government with 
limited and unlimited powers is abolished, if those 
limits do not confine the persons on whom they are 
imposed, and if acts prohibited *and acts allowed, are 
of [*177 equal obligation. It is a proposition too plain 
to be contested, that the constitution controls any 
legislative act repugnant to i t” [1 Cranch. at 176-77].

Appellant’s case is founded on a concept of the interstate 
commerce clause which has never been recognized by the 
Courts. While the wisdom of legislation is a matter for



42

the Congress it is within the Court’s proper prerogative 
to look with deep concern at an assertion of power never 
heretofore upheld.

We have undertaken in our briefs in this case and in 
oral argument to demonstrate that Title II, insofar as the 
food test relating to restaurants is concerned, would apply 
to local activities having no demonstrable effect upon 
interstate commerce. While the injury that would be done 
the appellees has been shown to be substantial, it is with 
the deeper and broader implications of the rationale neces­
sarily assumed by the Solicitor General that appellees 
are most concerned. No social problem is so great as 
to justify erosion of constitutional liberties.

Appellees recognize that because of the almost un­
precedented haste with which this case has been presented 
to the Court and because of the unusually important 
constitutional issues involved, there may be points upon 
which the Court will desire further briefs or further 
argument. Appellees will welcome the opportunity of 
presenting either or both.

Respectfully submitted,

ROBERT McD. SMITH,

JAMES H. FAULKNER,

WILLIAM G. SOMERVILLE, 
Attorneys for Appellees.

Of Counsel:
LANGE, SIMPSON, ROBINSON & 

SOMERVILLE,
Exchange Security Bank Building, 

Birmingham, Alabama.



— 43 —

APPENDIX A.

Title II—Injunctive Relief Against Discrimination in 
Public Accommodations.

Findings.

Sec. 201. (a) The American people have become increas­
ingly mobile during the last generation, and millions of 
American citizens travel each year from State to State by 
rail, air, bus, automobile, and other means. A substantial 
number of such travelers are members of minority racial 
and religious groups. These citizens, particularly Negroes, 
are subjected in many places to discrimination and segre­
gation, and they are frequently unable to obtain the goods 
and services available to other interstate travelers.

(b) Negroes and members of other minority groups who 
travel interstate are frequently unable to obtain adequate 
lodging accommodations during their travels, with the re­
sult that they may be compelled to stay at hotels or motels 
of poor and inferior quality, travel great distances from 
their normal routes to find adequate accommodations, or 
make detailed arrangements for lodging far in advance of 
scheduled interstate travel.

(c) Negroes and members of other minority groups who 
travel interstate are frequently unable to obtain food serv­
ice at convenient places along their routes, with the result 
that many are dissuaded from traveling interstate, while 
others must travel considerable distances from their in­
tended routes in order to obtain adequate food service.

(d) Goods, services, and persons in the amusement and 
entertainment industries commonly move in interstate com­
merce, and the entire American people benefit from the



44

increased cultural and recreational opportunities afforded 
thereby. Practices of audience discrimination and segre­
gation artificially restrict the number of persons to whom 
the interstate amusement and entertainment industries may 
offer their goods and services. The burdens imposed on 
interstate commerce by such practices and the obstruc­
tions to the free flow of commerce which result therefrom 
are serious and substantial.

(e) Retail establishments in all States of the Union 
purchase a wide variety and a large volume of goods from 
business concerns located in other States and in foreign 
nations. Discriminatory practices in such establishments, 
which in some instances have led to the withholding of 
patronage by those affected by such practices, inhibit and 
restrict the normal distribution of goods in the interstate 
market.

(f) Fraternal, religious, scientific, and other organiza­
tions engaged in interstate operations are frequently dis­
suaded from holding conventions in cities which they 
would otherwise select because the public facilities in such 
cities are either not open to all members of racial or re­
ligious minority groups or are available only on a segre­
gated basis.

(g) Business organizations are frequently hampered in 
obtaining the services of skilled workers and persons in 
the professions who are likely to encounter discrimination 
based on race, creed, color, or national origin in restau­
rants, retail stores, and places of amusement in the area 
where their services are needed. Business organizations 
which seek to avoid subjecting their employees to such 
discrimination and to avoid the strife resulting therefrom 
are restricted in the choice of location for their offices and 
plants. Such discrimination thus reduces the mobility of 
the national labor force and prevents the most effective



45

allocation of national resources, including the interstate 
movement of industries, particularly in some of the areas 
of the Nation most in need of industrial and commercial 
expansion and development.

(n) The discriminatory practices described above are in 
all cases encouraged, fostered, or tolerated in some degree 
by the governmental authorities of the States in which 
they occur, which license or protect the businesses involved 
by means of laws and ordinances and the activities of their 
executive and judicial officers. Such discriminatory prac­
tices, particularly when their cumulative effect through­
out the Nation is considered, take on the character of ac­
tion by the States and therefore fall within the ambit of 
the equal protection clause of the fourteenth amendment 
to the Constitution of the United States.

(i) The burdens on and obstructions to commerce which 
are described above can best be removed by invoking the 
powers of Congress under the fourteenth amendment and 
the commerce clause of the Constitution of the United 
States to prohibit discrimination based on race, color, re­
ligion, or national origin in certain public establishments.

Bight to Nondiscrimination in Place of 
Public Accommodation.

Sec. 202. (a) All persons shall be entitled, without dis­
crimination or segregation on account of race, color, re­
ligion, or national origin, to the full and equal enjoyment 
of the goods, services, facilities, privileges, advantages 
and accommodations of the following public establishments:

(1) any hotel, motel, or other public place engaged 
in furnishing lodging to transient guests, including 
guests from other States or traveling in interstate 
commerce;



— 46

(2) any motion picture house, theater, sports arena, 
stadium, exhibition hall, or other public place of 
amusement or entertainment which customarily pre­
sents motion pictures, performing groups, athletic 
teams, exhibitions, or other sources of entertainment 
which move in interstate commerce; and

(3) any retail shop, department store, market, drug­
store, gasoline station, or other public place which 
keeps goods for sale, any restaurant, lunchroom, lunch 
counter, soda fountain, or other public place engaged 
in selling food for consumption on the premises, and 
any other establishment where goods, services, facil­
ities, privileges, advantages, or accommodations are 
held out to the public for sale, use, rent, or hire, if—•

(i) the goods, services, facilities, privileges, ad­
vantages, or accommodations offered by any such 
place or establishment are provided to a substan­
tial degree to interstate travelers,

(ii) a substantial portion of any goods held out 
to the public by any such place or establishment 
for sale, use, rent, or hire has moved in interstate 
commerce,

(iii) the activities or operations of such place 
or establishment otherwise substantially affect in­
terstate travel or the interstate movement of goods 
in commerce, or

(iv) such place or establishment is an integral 
part of an establishment included under this sub­
section.

For the purpose of this subsection, the term “ integral 
part” means physically located on the premises occupied 
by an establishment, or located contiguous to such prem­
ises and owned, operated, or controlled, directly or indi­
rectly, by or for the benefit of, or leased from the persons



— 47 —

or business entities which own, operate or control an 
establishment.

(b) The provisions of this title shall not apply to a bona 
fide private club or other establishment not open to the 
public, except to the extent that the facilities of such 
establishment are made available to the customers or 
patrons of an establishment within the scope of sub­
section (a).



98