Garrett and the Spending Clause

[Michael MASINTER]

The Court has greatly curtailed, but has not eliminated congressional
power to regulate private conspiracies whose intent is to deprive
individuals of the equal protection of law.  U.S. v. Morrison limits
section five power, but does not overrule Griffin v. Breckenridge.  I
understand 42 U.S.C. 1985(3) still to apply to "conspiratorial, racially
discriminatory private action aimed at depriving [someone] of the basic
rights that the law secures to all free men."  Griffen found two sources
of congressional power -- the right of interstate travel, and more
importantly, section two of the thirteenth amendment.  Though
congressional power to protect interstate travel may not reach purely
intrastate private conspiracies, its power to eliminate the badges and
incidents of servitude surely does.  Because U.S. v. Morrison involved
gender rather than race, the thirteenth amendment was unavailable as a
source of congressional power.

Post Griffen, the Court has chipped away at 1985(3), suggesting that state
action may be required when race discrimination is not the source of the
claim, and suggesting that only race discrimination may suffice to
establish the claim.  United Brotherhood of Carpenters and Joiners v.
Scott held that a conspiracy to infringe the first amendment rights
requires state action, and that animus based upon nonmembership in a labor
union is not the kind of discriminatory animus sufficient to trigger
1985(3) liability.  Bray v. Alexandria Women's Health Clinic held that
antiabortion protesters who obstructed access to clinics lacked the
requisite discriminatory animus required to trigger section 1985(3)
liability, and that the right to an abortion is not guaranteed against
private impairment.  But neither seems to me to call into question
congressional power to protect against private conspiracies whose intent
is to impose badges or incidents of servitude.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Tue, 21 Aug 2001, Leslie Goldstein wrote:

> I 'm sorry--I meant to specify in this post "equal protection of the law
> for all racial groups"
> LFG
> Leslie Goldstein wrote:
>
> > did the Court ever reaffirm the part of the Civ Rts Cases that ruled
> > that Congress may not regulate private action even when said private
> > action affects equal protection of the law?  I have been believing
> > that the footnote in U.S. v. Guest ovverruled this.  Is there
> > something I missed?
> > LFG
> > David Bernstein wrote:
> >
> >> My understanding is that United States v. Butler, holding that
> >> Congress
> >> cannot regulate indirectly under the spending clause if it cannot
> >> regulate
> >> directly under the commerce clause, has never been overruled, though
> >> it was
> >> weakened by the "bribing power" in US v. Dole.  Butler doesn't get
> >> much
> >> attention because no one seems to think it would be affirmed today,
> >> but then
> >> again I bet very few of us though that the Court would reaffirm the
> >> Civil
> >> Rights Cases.
> >>
> >> David E. Bernstein
> >> Associate Professor
> >> George Mason University
> >> School of Law
> >> (703) 993-8089
> >> Home Page: http://mason.gmu.edu/~dbernste
> >> Only One Place of Redress Home Page:
> >> http://mason.gmu.edu/~dbernste/Redress.html
> >
>