Boston University School of Law Scholarly Commons at Boston University School of Law Faculty Scholarship 2011 Involuntary Servitude, Public Accommodations Laws, and the Legacy of Heart of Atlanta Motel v. United States Linda C. McClain Boston University School of Law Follow this and additional works at: https://scholarship.law.bu.edu/faculty_scholarship Part of the Civil Law Commons, and the Supreme Court of the United States Commons Recommended Citation Linda C. McClain, Involuntary Servitude, Public Accommodations Laws, and the Legacy of Heart of Atlanta Motel v. United States, 71 University of Maryland Law Review 83 (2011). Available at: https://scholarship.law.bu.edu/faculty_scholarship/523 This Article is brought to you for free and open access by Scholarly Commons at Boston University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarly Commons at Boston University School of Law. For more information, please contact [email protected]. INVOLUNTARY SERVITUDE, PUBLIC ACCOMMODATIONS LAWS, AND THE LEGACY OF HEART OF ATLANTA MOTEL, INC. V. UNITED STATES 71 University of Maryland Law Review 83 (2011) Boston University School of Law Working Paper No. 12-54 (December 12, 2012) Linda C. McClain This paper can be downloaded without charge at: http://www.bu.edu/law/faculty/scholarship/workingpapers/2012.html# Electronic copy available at: http://ssrn.com/abstract=2188939 McClainFinalBookProof-NEW 12/7/2011 10:17 AM INVOLUNTARY SERVITUDE, PUBLIC ACCOMMODATIONS LAWS, AND THE LEGACY OF HEART OF ATLANTA MOTEL, INC. v. UNITED STATES * LINDA C. MCCLAIN I. INTRODUCTION In this Article, I look at two contrasting ways in which arguments about the Thirteenth Amendment’s declaration that “[n]either sla- very nor involuntary servitude . shall exist within the United States” featured in the enactment of Title II of the Civil Rights Act of 19641 and in Heart of Atlanta Motel, Inc. v. United States,2 the case in which the United States Supreme Court upheld the Act. First, the Thirteenth Amendment’s prohibition of involuntary servitude makes a brief ap- pearance in Heart of Atlanta Motel as an unsuccessful basis on which the motel owner challenged Title II.3 A similar claim arose in Con- gress when some lawmakers argued that the Thirteenth Amendment posed an “insurmountable constitutional barrier” to a federal public accommodations law because it compelled service.4 The second role played by the Thirteenth Amendment (barely discernible in Heart of Atlanta Motel but more evident in the congressional debates over Title Copyright © 2011 by Linda C. McClain. * Professor of Law and Paul M. Siskind Research Scholar, Boston University School of Law. This Article grew out of a paper I presented at the the 2011 Maryland Constitutional Law Schmooze on the Thirteenth Amendment, held on February 25 & 26. Thanks to or- ganizer Mark Graber and to participants for helpful comments, and, in particular, to Gar- rett Epps and Rebecca Zietlow for pointing me toward additional research sources. I am also grateful to Joseph Singer for insightful comments. Stefanie Weigmann, Head of Legal Information Services, Pappas Library, and BU law students Darian Butcher and Hallie Ma- rin provided valuable assistance with research. Comments are welcome: [email protected]. 1. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 243 (codified at 42 U.S.C. §§ 2000a–a6 (2006)). For a detailed account of the legislative debates and political strug- gles that preceded the passage of the Civil Rights Act of 1964, and Title II, in particular, see THE CIVIL RIGHTS ACT OF 1964: THE PASSAGE OF THE LAW THAT ENDED RACIAL SEGREGATION (Robert D. Loevy ed., 1997); CHARLES & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT (1985). 2. 379 U.S. 241 (1964). The Thirteenth Amendment states: “Neither slavery nor invo- luntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. CONST. amend. XIII, § 1. 3. Heart of Atlanta Motel, 379 U.S. at 261. 4. S. REP. NO. 88-872, at 53 (1964) (Individual Views of Senator Strom Thurmond). 83 Electronic copy available at: http://ssrn.com/abstract=2188939 McClainFinalBookProof-NEW 12/7/2011 10:17 AM 84 MARYLAND LAW REVIEW [Vol. 71:83 II) was as a constitutional base for a public accommodations law be- cause denial of service on the basis of race is a badge of servitude and a vestige of slavery.5 When the Heart of Atlanta Motel owner’s challenge to the consti- tutionality of Title II reached the United States Supreme Court, the Court unanimously affirmed Congress’s power under the Commerce Clause to regulate private conduct through a civil rights statute affect- ing public accommodations. In so doing, the Court distinguished its own (in)famous precedent, the Civil Rights Cases,6 in which it held that the Thirteenth and Fourteenth Amendments could not sustain the Civil Rights Act of 1875, an earlier public accommodations law, both because denial of equal accommodations was not a “badge of slavery” or “involuntary servitude,” and because the Act reached pri- vate, not state, action.7 As Congress, eighty years later, considered passing a new public accommodations law, that case posed a formida- ble constitutional obstacle. Thus, the Administration and Congress relied primarily on Congress’s power to regulate commerce and se- condarily on the Fourteenth Amendment.8 In defending the law be- fore the Court, the United States, in turn, relied on the commerce power, allowing the Court to avoid considering whether “the remain- ing authority upon which [Congress] acted was . adequate.”9 Non- etheless, the Thirteenth Amendment featured as a foundation for such a law in congressional hearings and reports on the urgent need for a national law ending discrimination in access to public accom- modations and the need for Congress to complete the unfinished business begun by the Reconstruction Amendments.10 Conversely, prominent congressional opponents of Title II argued that reliance on the Thirteenth Amendment was “misplaced,” and that Title II would enact involuntary servitude.11 This Article examines how these contrasting ideas about the rela- tionship between the Thirteenth Amendment and a public accom- modations law—that it, on one hand, barred such a law, and, on the other, that it justified such a law—featured in Heart of Atlanta Motel 5. See infra Part III. 6. The Civil Rights Cases, 109 U.S. 3 (1883). 7. Id. at 11, 24–26 (“[W]e are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude.”). 8. See Heart of Atlanta Motel, 379 U.S. at 250 (noting that the legislature realized that the objectives of the Civil Rights Act of 1964 “could be readily achieved” through using the commerce power granted to Congress in the Constitution). 9. Id. 10. See infra Part III.A–C. 11. See infra Part III.E. Electronic copy available at: http://ssrn.com/abstract=2188939 McClainFinalBookProof-NEW 12/7/2011 10:17 AM 2011] THE LEGACY OF HEART OF ATLANTA MOTEL, INC. 85 and in the passage of Title II itself. Looking back at these contrasting invocations of the Thirteenth Amendment may be useful to contem- porary examinations of congressional authority to secure freedom and equality, as well as to contemporary debates over the justifications for and proper scope of antidiscrimination laws, and what is at stake for persons protected by such laws and those challenging them. Part II of this Article explicates the Heart of Atlanta Motel case. The motel owner challenged the Civil Rights Act of 1964 on several grounds: that Congress exceeded its powers under the Commerce Clause, and that the Act violated his Fifth Amendment liberty and property rights, as well as (improbably) the Thirteenth Amendment.12 These grounds reflected a particular conception of private property rights rejected by the Court in Heart of Atlanta Motel and, prior to that, by Congress and the executive in supporting Title II: that someone who used his private property to operate a business had the liberty to serve—or refuse to serve—whomever he pleased and to compel him to serve was “involuntary servitude.”13 To convey to readers some- thing of the context and historical significance of this case, I augment the case exposition with newspaper coverage of the motel owner’s le- gal challenge to Title II and its journey to the Supreme Court, as well as some contemporaneous legal commentary on the case.14 Part II al- so situates the case with two other Title II cases announced the same day, Katzenbach v. McClung15 and Hamm v. City of Rock Hill,16 and with the lawsuit brought against Atlanta restaurant owner Lester Maddox. In explicating the case, I highlight several features of the majority and concurring opinions with resonance for subsequent antidiscrimina- tion laws and challenges to them. Although private property objec- tions to public accommodations laws continue to surface, a newer generation of challenges to antidiscrimination law emphasizes First Amendment claims to religious liberty or freedom of association. Part III turns from the Court’s upholding of Title II of the Civil Rights Act to Congress’s deliberations about it, and considers the con- trasting appeals to the Thirteenth Amendment in arguments made 12. Heart of Atlanta Motel, 379 U.S. at 243–44. 13. See infra Parts II.D, III.B, III.E. 14. My sampling of press coverage draws on archives of national newspapers available at Boston University’s library and on archives of several southern newspapers available at Harvard University’s library. Thanks to my research assistant Hallie Marin for retrieving these sources.