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can regulate commerce and that the courts cannot. But in a series of cases decided in recent years this Court over my protest has held that the Commerce Clause justifies this Court in nullifying state legislation which this Court concludes imposes an "undue burden” on interstate commerce. I think that whether state legislation imposes an "undue burden” on interstate commerce raises pure questions of policy, which the Constitution intended should be resolved by the Congress.

Very recently a majority of this Court reasserted its power to invalidate state laws on the ground that such legislation put an undue burden on commerce. Nippert v. Richmond, supra; Southern Pacific Co. v. Arizona, supra. I thought then, and still believe, that in these cases the Court was assuming the role of a “super-legislature” in determining matters of governmental policy. Id., at 788, n. 4.

But the Court, at least for the present, seems committed to this interpretation of the Commerce Clause. In the Southern Pacific Company case, the Court, as I understand its opinion, found an “undue burden” because a State's requirement for shorter trains increased the cost of railroad operations and thereby delayed interstate commerce and impaired its efficiency. In the Nippert case a small tax imposed on a sales solicitor employed by concerns located outside of Virginia was found to be an “undue burden” even though a solicitor for Virginia concerns engaged in the same business would have been required to pay the same tax.

So long as the Court remains committed to the "undue burden on commerce formula," I must make decisions under it. The "burden on commerce" imposed by the


Nippert v. Richmond, 327 U. S. 416; Southern Pacific Co. v. Arizona, 325 U. S. 761; McCarroll v. Dirie Greyhound Lines, 309 U. S. 176; Gwin, White & Prince v. Henneford, 305 U. S. 434; Adams Mfg.Co. v. Storen, 304 U.S. 307.

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Virginia law here under consideration seems to me to be of a far more serious nature than those of the Nippert or Southern Pacific Company cases. The Southern Pacific Company opinion, moreover, relied in part on the rule announced in Hall v. DeCuir, 95 U. S. 485, which case held that the Commerce Clause prohibits a state from passing laws which require that "on one side of a State line. passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate." The Court further said that “uniformity in the regulations by which ...

. (a carrier] is to be governed from one end to the other of his route is a necessity in his business” and that it was the responsibility of Congress, not the states, to determine “what such regulations shall be.” The "undue burden on commerce formula” consequently requires the majority's decision. In view of the Court's present disposition to apply that formula, I acquiesce.

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My brother Burton has stated with great force reasons for not invalidating the Virginia statute. But for me Hall v. DeCuir, 95 U. S. 485, is controlling. Since it was decided nearly seventy years ago, that case on several occasions has been approvingly cited and has never been questioned. Chiefly for this reason I concur in the opinion of the Court.

The imposition upon national systems of transportation of a crazy-quilt of State laws would operate to burden commerce unreasonably, whether such contradictory and confusing State laws concern racial commingling or racial segregation. This does not imply the necessity for a nationally uniform regulation of arrangements for passengers on interstate carriers. Unlike other powers of Congress (see Art. I, § 8, cl. 1, concerning “Duties, Imposts and Excises”; Art. I, § 8, cl. 4, concerning “Naturalization”; Art. I, § 8, cl. 4, concerning “Bankruptcies”), the power to regulate commerce does not require geographic uniformity. Congress may devise a national policy with due regard to varying interests of different regions. E.g., 37 Stat. 699, 27 U. S. C. § 122; Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311; 45 Stat. 1084, 49 U. S. C. $ 60; Whitfield v. Ohio, 297 U. S. 431. The States cannot impose diversity of treatment when such diverse treatment would result in unreasonable burdens on commerce. But Congress may effectively exercise its power under the Commerce Clause without the necessity of a blanket rule for the country.

MR. JUSTICE BURTON, dissenting.

On the application of the interstate commerce clause of the Federal Constitution to this case, I find myself obliged to differ from the majority of the Court. I would sustain the Virginia statute against that clause. The issue is neither the desirability of the statute nor the constitutionality of racial segregation as such. The opinion of the Court does not claim that the Virginia statute, regulating seating arrangements for interstate passengers in motor vehicles, violates the Fourteenth Amendment or is in conflict with a federal statute. The Court holds this statute unconstitutional for but one reason. It holds that the burden imposed by the statute upon the nation's interest in interstate commerce so greatly outweighs the contribution made by the statute to the State's interest in its public welfare as to make it unconstitutional.

The undue burden upon interstate commerce thus relied upon by the Court is not complained of by the Federal Government, by any state, or by any carrier. This statute has been in effect since 1930. The carrier concerned is operating under regulations of its own which conform

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to the statute. The statute conforms to the policy adopted by Virginia as to steamboats (1900), electric or street cars and railroads (1902–1904). Its validity has been unanimously upheld by the Supreme Court of Appeals of Virginia. The argument relied upon by the majority of this Court to establish the undue burden of this statute on interstate commerce is the lack of uniformity between its provisions and those of the laws of other states on the subject of the racial separation of interstate passengers on motor vehicles.

If the mere diversity between the Virginia statute and comparable statutes of other states is so serious as to render the Virginia statute invalid, it probably means that the comparable statutes of those other states, being diverse from it and from each other, are equally invalid. This is especially true under that assumption of the majority which disregards sectional interstate travel between neighboring states having similar laws, to hold "that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel.(Italics supplied.) More specifically, the opinion of the Court indicates that the laws of the 10 contiguous states of Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Arkansas, Texas and Oklahoma require racial separation of passengers on motor carriers, while those of 18 other states prohibit racial separation of passengers on public carriers. On the precedent of this case, the laws of the 10 states requiring racial separation apparently can be invalidated because of their sharp diversity from the laws in the rest of the Union, or, in a lesser degree, because of their diversity from one another. Such invalidation, on the ground

1 Steamboats: Acts of 1900, p. 340; electric or street cars: Acts of 1902–1904, p. 990; railroads: Acts of 1902–1904, p. 987. Va. Code Ann., 1942, 88 4022–4025; 3978-3983; 3962–3969.

of lack of nation-wide uniformity, may lead to questioning the validity of the laws of the 18 states now prohibiting racial separation of passengers, for those laws likewise differ sharply from laws on the same subject in other parts of the Union and, in a lesser degree, from one another. In the absence of federal law, this may eliminate state regulation of racial separation in the seating of interstate passengers on motor vehicles and leave the regulation of the subject to the respective carriers.

The present decision will lead to the questioning of the validity of statutory regulation of the seating of intrastate passengers in the same motor vehicles with interstate passengers. The decision may also result in increased lack of uniformity between regulations as to seating arrangements on motor vehicles limited to intrastate passengers in a given state and those on motor vehicles engaged in interstate business in the same state or on connecting routes.

The basic weakness in the appellant's case is the lack of facts and findings essential to demonstrate the existence of such a serious and major burden upon the national interest in interstate commerce as to outweigh whatever state or local benefits are attributable to the statute and which would be lost by its invalidation. The Court recognizes that it serves as "the final arbiter of the competing demands of state and national interests" ? and that it must fairly determine, in the absence of congressional action, whether the state statute actually imposes such an undue burden upon interstate commerce as to invalidate that statute. In weighing these competing demands, if this Court is to justify the invalidation of this statute, it must, first of all, be satisfied that the many years of experience of the state and the carrier that are reflected in this

: Southern Pacific Co. v. Arizona, 325 U.S. 761, 769.

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