Law Office History and the Unrelenting Attack on Public Accommodations Law

Abstract

This short essay responds to historical claims made by Professors Richard Epstein and Christopher Green in support of their view that the Fourteenth Amendment precludes application of public accommodations laws to non-monopoly businesses. The Epstein-Green argument was presented in amicus briefs filed in 303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and Professor Green recently published an essay elaborating upon the argument in response to the dissent in 303 Creative. Notably absent from Green’s essay, which he describes as “historically grounded,” is any discussion of either (1) the state public accommodations laws adopted in the wake of the Fourteenth Amendment’s ratification, or (2) the many late-19th and early-20th Century cases approving application of those laws to non-monopoly businesses. Also absent is an acknowledgment of Lord Chief Justice Holt’s earlier and explicit rejection of a monopoly-based limit on the common law duties of innkeepers and common carriers. Instead, Green, following Epstein, primarily relies on caselaw and commentary that involves rate regulation, not public accommodations laws or their common law precursors. And the Epstein-Green argument ultimately rests on a logical fallacy: the assertion that because the existence of monopoly power was sufficient to warrant rate-regulation under the common law, the existence of monopoly power must be a constitutionally necessary predicate to the legislative imposition of a nondiscrimination requirement on businesses that offer their goods and services to the general public. Although there is support for the former proposition in cases and commentary predating the end of Reconstruction, Epstein and Green identify no authority for the latter proposition in that period. And the early public accommodations cases discussed in this essay are more than sufficient to refute it.

Keywords: public accommodations, fourteenth amendment, originalism, history and tradition, nondiscrimination, civil rights