VAWA - Civil Rights Cases

[Adam Winkler]

Michael McConnell makes a good point by recognizing that the framers of the
Civil Rights Act thought that states who refused to enforce the common law
right of access to public accomodations were violating the Fourteenth
Amendment.  But I'm not sure how he can conclude that the Civil Rights
Cases do not hold that Congress lacks the power under that amendment to
reach private racially discriminatory conduct.  Bradley was pretty clear in
stating that the amendment reached only state action adverse to the rights
of citizenship and did not authorize Congress to make a "code of municipal
law for regulation of private rights."

Even if one agrees with Bradley's discussion of the overbreadth, he still
had it wrong on the law for the Court had upheld similarly overbroad
fugitive slave laws to protect the property right in slaves (which right
was hardly under attack in the South).

As for the statement "The principal purpose of the 14th Amendment was to
place the '66 Act on sound constitutional footing," some indeed believed
that.  The early drafts of the 14th, such as that proposed by the Joint
Committee in February of 1866, suggest that others had a broader objective
than firming up the state action requirement.  ("The Congress shall have
power to make all laws which shall be necessary and proper to citizens of
each State all privileges and immunities of citizens in the several states;
and to all persons in the several States equal protection in the rights of
life, liberty, and property.")  So I remain convinced that Bradley was
wrong on both history and law grounds.

(I take the accusation of confidence in tone to be a compliment coming from
the ever-confident -- and often correctly so -- McConnell.)

Adam Winkler