VAWA - Civil Rights Cases

[Michael McConnell]

I appreciate Adam Winkler's response to my earlier post; I think we
are coming down to the real issues. Let me carry the discussion a
step farther. He writes:

> 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.

The argument was that if a state failed in its duty to provide equal
protection, Congress could "enforce" the 14th Amendment by providing
that protection *itself.* (This is an important way in which the
Section Five power extended beyond available judicial remedies.)
This was, in fact, a very common method. The various removal
statutes, such as the one at issue in Strauder, were based on this
principle: if parties could show they were being denied civil rights
in state courts, they could remove to federal court. The Section Five
power was not limited to applying force directly against state
governments. So, under the '75 Act, if a state would not enforce a
black man's right to nondiscriminatory common carriage, the federal
courts would. (The defect in the Act, according to the Court, was
that it created a federal remedy even in cases were the states were
ready, willing, and able to enforce his 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).

I agree that Prigg was wrong, but that does not make the Civil Rights
Cases wrong as well. Let's not make Prigg the foundation for our
jurisprudence.

> 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.")

There are two points to notice about these early drafts, neither
of them helpful to the anti-state action thesis. First, Bingham
probably understood the concepts of privileges and immunities, and of
equal protection in the rights of life, liberty, and property, as
inherently "state action" in nature, since civil rights run only
against the states. (There was never a suit against a private party
for violations of the privileges and immunities clause of Art. IV.)
Second, it was precisely because many members of Congress --
Republicans as well as Democrats -- feared that the Bingham draft
might be *interpreted* as going beyond this understanding that the
changes were made. I do not think there is any substantial evidence
that the constitutional framers, even most radical Republicans,
thought that Congress  should be given power to eradicate private
discrimination, as such.




-- Michael McConnell (U of Utah)