VAWA - Civil Rights Cases

[Michael McConnell]

Adam Winkler makes some highly questionable historical arguments in
a highly confident tone:

> 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.

I have read the entire legislative history of the Civil Rights Act of
1875, and do not think any of the supporters of the Act argued that
the rights of citizenship included "economic rights" as against
private actors. The constitutional theory underlying the CRA of 1875
was that common law guaranteed the rights of all persons to the
services of common carriers and places of public accommodation (which
were a distinct subset of "private businesses" -- ones with special
quasi-monopoly rights that are given in exchange for a universal
service obligation), on an equal basis, without discrimination except
for "reasonable" grounds, such as refusal to be properly behaved or
to pay the fare. They argued that the refusal of some states to
enforce these rights for black patrons, and/or the conclusion of some
states that being black was a "reasonable" ground for discrimination,
was *state action*, warranting federal intervention.

The majority in the Civil Rights Cases did *not* hold that Congress
lacks power to regulate private businesses under Section 5. It held
that the 1875 Act was unconstitutional because it applies in all
states, *whether or not* the state discriminates in its application
and enforcement of the common law of common carriers and public
accommodations. (The Civil Rights Cases may have been wrongly
decided, but not for the reasons Winkler supposes. If we apply the
modern distinction between "as applied" and "facial" challenges, then
the proper result might have been to hold the Act constitutional in
those states that, in fact, discriminate in application and
enforcement of the common law, which would have included every one of
the cases before the Court. If we apply the Boerne Court's congruence
and proportionality standard, the Act might be upheld in its entirety
on a (quite plausible) showing that a large portion of the Act's
applications are within congressional power, even if the Act is
overbroad.)

Winkler's 1866 Act argument is interesting, but not ultimately
persuasive. The supporters of the 1866 Act thought that it was
necessary as a means of combatting the Black Codes, which, they
thought, were functionally a reintroduction of slavery. But many
supporters of Reconstruction measures -- conspicuously, Bingham --
believed that the '66 Act was unconstitutional. The principal
purpose of the 14th Amendment was to place the '66 Act on sound
constitutional footing. Since VAWA is not defensible under section 2
of the 13th amendment, the 14th amendment constitutional theories
apply. Under those theories, in my opinion, the VAWA legislation
cannot be sustained unless there is a showing that state laws
discriminate against victims of gender-motivated violence. Although
some advocates assert this to be true, I am highly skeptical.
-- Michael McConnell (U of Utah)