Kenneth W. Mack, Professor of Law at Harvard Law School:
Title II was preceded by the sit-in movement of the early 1960s, which caused many Americans of egalitarian racial beliefs to sympathize with the point of view that got Rand Paul into so much trouble. During the sit-ins, young people entered restaurants and other public accommodations, and refused to leave when they were denied service, causing the proprietors to invoke apparently race-neutral trespass laws (rather than segregation statutes) to eject them. The sit-in protesters claimed that to refuse them service in an institution otherwise open to the public was a denial of their basic humanity as American citizens. The proprietors took the position that Paul seemed to endorse, that their basic rights as property owners allowed them to refuse service to anyone they pleased. Which side was correct? Predictably, white racists sympathized with the proprietors, but others did as well.
Attorney General Robert Kennedy himself cautioned that an overbroad public accommodations bill would make “a private business” into “an instrument of the State.”
Stop me if this sounds familiar, Canadian free speechers:
By 1964, many supporters of Title II simply felt that it was the right thing to do, as did most Americans. At that moment, to speculate about the constitutionality of the bill would simply bolster the cause of those who would employ any argument—good or bad—to block it.
