VAWA - Civil Rights Cases
emaltz at CRAB.RUTGERS.EDU
Thu Sep 30 16:21:20 PDT 1999
At 12:02 PM 9/30/99 -0700, you wrote:
>I think Adam Winkler and I have come to near-agreement. IF the '75
>Act was constitutional, it was for the reason Winkler gives below,
>NOT because Congress had some free-wheeling power to protect "equal
>citizenship" by eradicating discrimination in the private realm.
>-- Michael McConnell (U of Utah)
There is another possible constitutional justification for at least part of
the Civil Rights Act of 1875--the justification that informs Harlan's
dissent. Common carriers and places of public accomodation were considered
quais-public entities, with a duty to serve the public. Moreover, the
right to use these facilities was often described as a part of the right to
travel--a right that was clearly recongized as one of the privileges and
immunities of national citizenship under Art. IV. Thus, Congress would
have the authority to protect this specific right under the 14th Amendment,
but not a general right to regulate private conduct. I think that the
legislative history of the 14th Amendment itself is ambiguous on this point.
It is important to note that theatres and places of amusement generally
stood on quite a different footing, since they were under no duty to serve
anyone at common law. Harlan (like some of the more radical Republicans in
the 1870's) relies upon the fact that these facilites were licensed by the
government, but I find this argument unpersuasive.
Finally, no one has provided a convincing originalist rationale for the
constitutionality of the jury provisions of the Civil Rights Act; in my
view, Strauder is completely indefensible, so I certainly wouldn't refer to
it as a good explication of the original understanding.
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