VAWA - Civil Rights Cases -Reply

[DAVID E. BERNSTEIN]

My understanding is that the consensus among legal historians is that
(1) The 14th Amendment was passed in large part precisely because there
was doubt as to the constitutionality of the Civil Rights Act of 1866
and (2) The Radical Republicans sought to protect not the vague *rights
of citizenship* but the more specific *civil rights*--the right to make
and enforce contracts, etc.  Political rights were covered by the 15th
Amendment, and social rights, such as the right to sit in an integrated
theater, were not covered at all (though laws *banning* integration
might be covered as caste or class legislation).

Since I have written as much in several footnotes, I would be
interested to see contrary citations.

David Bernstein > Bradley's opinion in the Civil Rights Cases was wrong
on two grounds:  law > and history.  The history was wrong because the
Radical Republican framers > of the Reconstruction Amendments did intend
for Congress to be able to > pass > corrective legislation to guarantee
the rights of citizenship, which > included economic rights, from
private actors.  The 14th was not necessary > solely to protect against
state discirmination.  The fact that the earlier > Civil Rights Act of
1866 applied to state actors indicates that Congress > thought it had
that power prior to passage of the 14th Amendment -- as > does > the
override of Jackson's states' rights based veto of the '66 Act. > >
Bradley was also wrong on the law, as Harlan argues in his dissent.  The
> Court had previously upheld congressional legislation that provided >
protections against private actions that infringed a constitutional
right > in Prigg and Ableman, namely the right to have one's fugitive
slave > returned upon claim.  And unlike the Fugitive Slave Clause, the
14th > Amendment expressly provided for congressional legislation to
enforce its > guarantees.