Chester James Antieau provided a great breakdown on the Equal Protection under the Commerce Clause, I would have never thought to even look there, until I came across the California Law Review that Mr. Antieau produced back in 1952, he provided:
Although the equal protection, due process, and privileges and immunities clauses were also argued, the Supreme Court in Edwards v. California74 chose to use the commerce clause to give non-resident indigents an equal opportunity to appreciate California’s clime. Justices Douglas, Black, Murphy and Jackson concurred in the result but indicated a preference for the privileges and immunities clause, Mr. Justice Jackon stating that “the migrations of a human being… do not fit easily into my notions as to what is commerce ….
To hold that the measure of his rights is the commerce clause is likely to result eventually either in distorting the commercial law or in denaturing human rights.”70 However, since the instant prosecution was not against the migrating human being but his transporter, there is some question as to whether the latter can avail himself of another’s privileges and immunities or whether the transporter has a privilege and immunity to carry others, a matter not quite so settled as the concurring justices assume.
The idea that the commerce clause is suitable to insure equal protection in interstate transportation is not new, Chief justice Chase and Justice Clifford both being of the opinion in Crandall v. Nevada in 1867 that this clause should be used to invalidate the state tax on passage through the state.7 Again in 1946 the commerce clause was used to accord equal protection in movement across state lines, this time to Negroes rather than the indigent. Here, in Morgan v. Virginia,’ the Supreme Court invalidated stateimposed “Jim Crow” patterns of enforced segregation on interstate carriers.
And, since at least as early as 1876, it has been accepted law that discriminations against the persons or products of interstate commerce will be invalidated under the commerce clause . 7
Furthermore, as the solicitor 7 and natural resources’ cases indicate, state regulations aimed at deterring out-of-state enterprisers will quite readily be found to constitute undue and unconstitutional burdens upon interstate commerce.
What are the relative advantages and disadvantages of utilizing the commerce clause rather than equal protection or some other clause to guarantee equality to Negroes, the poor, non-residents and other groups?
First, properly understood, the commerce clause and congressional legislation implementing it can set aside private impositions of inequality so long as they constitute unreasonable burdens upon interstate commerce.”‘
Even with an expanding “state action” concept under the Fourteenth Amendment, this is an important advantage. Next, the commerce clause, as a positive grant of power, authorizes federal action to remove inequalities, 2 something not usually possible under the Fourteenth Amendment, as the Civil Rights Cases indicate.8 3
Thirdly, some discriminations and classifications which might be held reasonable and sustained under the equal protection clause will be invalid under the commerce clause because they amount to unreasonable burdens upon interstate commerce.
The Edwards case is a fine illustration of this. Some commentators are of the opinion that the classification apart of indigents is reasonable and quite constitutional under equal protection,’ and historical materials somewhat justify their contention.
Fourthly, some justices (probably including the author of the Edwards opinion) have preferred using the commerce clause, lest by using privileges and immunities (and semble, the equal protection clause) the “frightful consequences” forecast in the Slaughter House case might come to pass. Fifthly, once agreed that the subject is “commerce” and interstate or national in nature, there is no presumption of rationality and constitutionality to aid the state statute imposing inequality.85
And, because under this clause, unlike under the Fourteenth Amendment clauses, the weighing is not between the state interest and what is too often considered private interest, but between state and national interests, the chances of discriminatory state legislation surviving the national Supreme Court are probably less.
Lastly, until the disgraceful “separate and equal” nonsense can be removed from the equal protection clause, it is easier for the Court to in-validate racial segregation in the overlapping area by use of the commerce dause.6
On the other hand, use of the commerce clause will probably produce the unfortunate circumstance of sustaining segregation, and inequalities generally, on carriers so long as they are engaged in purely intrastate traffic.’ Proper use of equal protection, or even privileges and immunities, could rectify this evil. And, again, in a situation like the Edwards case the commerce clause could probably not get at a California law expelling the indigent or denying him relief until he has been resident within the state, let us say, for twenty years. Here, too, equal protection might be more satisfactory.
And, to one like Mr. Justice Black, not at all inclined to use the commerce clause to invalidate state regulations unless clearly discriminatory against the persons or products of interstate commerce, the equal protection or privileges and immunities clauses might seem far preferable.
And, although historically sound to remove discriminations against non-resident travelers under the commerce clause, there is, as Mr. Justice Jackson indicated in the Edwards case and Mr. Justice Burton suggests in the Morgan case,8 good reason why the human rights should be protected under the humanitarian clauses of the Fourteenth Amendment, rather than under the commerce clause.
For the moment, the unfortunate judicial emasculation of the privileges and immunities clause of the Fourteenth and the perpetuation of the disgraceful separate and equal notion under the equal protection clause prevent these clauses from performing their ordained mission in our constitutional society.
Although it is fortunate that the case precedent indicated the availability of the commerce clause in the Edwards and Morgan cases, it should never have been necessary to turn there to protect the fundamental human right of equality.