Leslie Goldstein lesl at UDEL.EDU
Thu Sep 30 09:30:16 PDT 1999

what is wrong with the Civil Rights Cases is its inattention to the
"privileges and Immunities" precedent of Corfield v. Coryell which had
made clear that equality of access to the public sphere of the
marketplace/the world of commerce was in this society a "privilege or
immunity of citizenship."  The VAWA is different in that it really does
point to the issue of "proteciton of the law."
Leslie Goldstein

> I re-read the Civil Rights Cases recently, and putting "racial aggage"
> aside, let's say the case had involved, say, Italian-Americans, or
> Scottish Americans.  I don't recall seeing any obvious flaws in the
> Supreme Court's reasoning, and I didn't find Justice Harlan's opinion
> particularly persuasive.  So: What exactly is the flaw in the Civil
> Rights Cases, other than dislike of the result (which would then be the
> Reconstruction Congress' fault, not the Court's).
> > But in order to affirm, the Court will have to find power
> > lacking under the 14th Amendment. The Fourth Circuit relied on
> > the 1883 Civil Rights Cases, holding that Congress could not
> > regulate private conduct under section 5. Is the Court willing to
> > reaffirm the Civil Rights Cases, with all the racial baggage that
> > such a move would entail?  Or can they find a way to finesse it by
> > saying that the problem isn't private action but gender
> > discrimination? I think it will be a really hard case to affirm--and
> > I think there are at least 3 and maybe as many as 5 Justices who
> > would dearly love to do so.
> >
> > Suzanna Sherry
> > University of Minnesota Law School
> > sherry at
> > 612-625-2339
> >
> >
> David E. Bernstein
> Associate Professor
> George Mason University
> School of Law
> 3401 N. Fairfax Drive
> Arlington, VA 22201
> (703) 993-8089
> dbernste at
> <>

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