A quick detour about Congress’s historical use of the Commerce Clause

How SCOTUS limited the Fourteenth Amendment and Congress got creative with the Commerce Clause

Dear Readers,

Oh jeez, the Commerce Clause again! I hear you, but as you saw in my last newsletter, the Commerce Clause is the little engine that could. While it may not be what you thought you’d be learning about in a newsletter discussing the criminal legal system, I want to highlight just one more time the myriad ways this diminutive clause actually underpins much of what Congress does, including the Civil Rights Act of 1964.

As you may recall from an earlier newsletter, between 1865 and 1870, three new amendments were added to the Constitution. Following their ratification, there was a question as to whether the new amendments served only to limit government actions, or, did they limit private action, as well? The Thirteenth Amendment was clearly meant to limit both types of actions,1 but what about the Fourteenth Amendment?

During Reconstruction, Congress passed the Civil Rights Act of 18752 that prohibited “racial discrimination in access to public accommodations and facilities” under the Fourteenth Amendment3. Like the Thirteenth Amendment imposing “criminal penalties against the owners of private businesses or modes of transportation that restricted access to their facilities because of race.”4 Lawsuits against those businesses that discriminated against Black Americans were brought, and eventually these cases made their way to SCOTUS. 

In what are now called The Civil Rights Cases of 1883, SCOTUS heard five such cases together.5 In an 8-1 decision, the Court held that the Fourteenth Amendment only applies to actions or laws by state governments and not to those by private businesses. Justice Bradley wrote, “Individual invasion of individual rights is not the subject matter of the amendment.”6 Thus, in the stroke of a pen, SCOTUS declared the primary segments of the Civil Rights Act unconstitutional, and that the Fourteenth Amendment applies only to government action. (Read the whole opinion here).

Approximately eighty years later, Congress passed the Civil Rights Act of 1964 (CRA). This time, it used the Commerce Clause as its justification. Congress found a workaround due to the limitations SCOTUS had placed on the Fourteenth Amendment.

When the CRA was inevitably challenged in the courts, SCOTUS observed that when Black Americans and people of color know that they will be discriminated against at public accommodations, they will be less likely to travel, thus impacting interstate commerce. 

In the unanimous decision, SCOTUS held that Congress can prohibit race discrimination in public accommodation because such discrimination, in the aggregate, substantially affects interstate commerce.7 As Justice Clark stated, “If it’s interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.”8

As a result, the Commerce Clause is currently the constitutional pillar (and jurisdictional hook) underpinning a whole line of anti-discrimination cases from the Warren Court (1953-1969) to the present day.

Justice Douglas, in his concurring opinion in Heart of Atlanta Motel, urged that it was time for SCOTUS to reconsider The Civil Rights Cases opinion, allowing the Fourteenth Amendment to be more broadly applied.9 He eloquently argued:

Though I join the Court's opinions, I am somewhat reluctant here . . . to rest solely on the Commerce Clause. My reluctance is not due to any conviction that Congress lacks power to regulate commerce in the interests of human rights. It is, rather, my belief that the right of people to be free of state action that discriminates against them because of race, like the “right of persons to move freely from State to State” “occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.” Ibid. Moreover . . . the result reached by the Court is, for me, much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual, not with the impact on commerce of local activities or vice versa.

. . . 

A decision based on the Fourteenth Amendment would have a more settling effect, making unnecessary litigation over whether a particular restaurant or inn is within the commerce definitions of the Act or whether a particular customer is an interstate traveler. Under my construction, the Act would apply to all customers in all the enumerated places of public accommodation. And that construction would put an end to all obstructionist strategies, and finally close one door on a bitter chapter in American history.

His words are prescient and his suggestion has yet to manifest. And, frankly, they are not likely to with the current makeup of SCOTUS. But like many of Justices Ginsburg and Sotomayor’s flaming dissents, Justice Douglas’s words at least provide a vision of what could be and a road map of what would be with a Court that believed in, at the least, equity, and at most, transformative justice.

As ever, let me know what you think and please spread the word!

With gratitude,




“The Thirteenth Amendment “is unique in the Constitution because it bars every person from holding slaves or engaging in other forms of involuntary servitude, whereas most constitutional provisions only constrain or regulate the government.” Jamal Greene and Jennifer Mason McAward, “The Thirteenth Amendment,” National Constitution Center, located at: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiii/interps/137


The language of that Act was outlined in The Civil Rights Cases, 109 U.S. 3 (1883), located at: https://supreme.justia.com/cases/federal/us/109/3/


“On this day Oct 15, 1883—Supreme Court Strikes Down Civil Rights Act; Legitimating Segregation and Violent Assaults Against Black People,” Equal Justice Initiative, located at: https://calendar.eji.org/racial-injustice/oct/15


Robert Longley, “About the Civil Rights Cases of 1883,” ThoughtCo., located at: https://www.thoughtco.com/1883-civil-rights-cases-4134310


The Civil Rights Cases, 109 U.S. 3 (1883), located at: https://supreme.justia.com/cases/federal/us/109/3/. J


Justice Bradley went on to say: “In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities.” Ibid.


Heart of Atlanta Motel, Inc. v. US, 379 U.S. 241 (1964), located at: https://www.oyez.org/cases/1964/515. Check out: Katzenbach v. McClung, 379 U.S. 294 (1964), located at: https://www.oyez.org/cases/1964/543


Heart of Atlanta Motel, Inc. v. US, 379 U.S. 241 (1964), located at: https://www.oyez.org/cases/1964/515.


Heart of Atlanta Motel, Inc. v. US, 379 U.S. 241 (1964) (Douglas, J. concurring), located at: https://supreme.justia.com/cases/federal/us/379/241/#tab-opinion-1945221