Advice to Rand Paul re: Civil Rights Act of 1964

Read David Bernstein’s excellent blog post. Unfortunately, because the title of David’s post referred to Bruce Bartlett and not Rand Paul, some seeking a “libertarian” take on this issue may overlook his analysis. To David’s libertarian analysis I would add the following considerations pertaining to the original meaning of the Constitution:

(1) The problem of Jim Crow in the South was a direct product of slavery–indeed it was a deliberate and concerted effort by Southerners to reimpose slavery in everything but name. Slavery was a private as well as a public institution, which is why the Thirteenth Amendment was not limited to state action. As such, even private conduct that amounted to “badges and incidents” of slavery should have been reachable by Section 2 of the Thirteenth Amendment, which empowered Congress to make laws to put that provision into effect. It was under Section 2 that Republicans in Congress passed the first Civil Rights Act of 1866, and the Freedman’s Bureau Act. Whether or not these acts were truly within the original meaning of the Thirteenth Amendment is, of course, a matter of dispute. I think the better analysis of the Thirteenth Amendment was explained by Justice Harlan in his dissenting opinions in the Civil Rights Cases and Plessy v. Ferguson. The opposing view that limited the reach of the Thirteenth Amendment was articulated by President Andrew Johnson — a “War Democrat” — when he vetoed the Civil Rights Act in his highly racist veto message. Because Johnson’s reading of the Thirteenth Amendment has largely prevailed among legal scholars of all stripes, Section 2 of the Thirteenth Amendment is generally overlooked in debates concerning the scope of Congressional power over “private” conduct.

(2) As David mentioned, the South systematically denied free blacks, and whites who wished to deal with them on an equal footing, the (equal) protection of the law. During Reconstruction, Republicans in Congress tried to respond to this with a series of civil rights measures–including measures reaching public accommodations–that were struck down by the Supreme Court. Thereafter, “private” discrimination that existed in public accommodations was enforced by private terrorism from which no one was safe–most particularly no one who owned a business with a fixed location. In the end, (to paraphrase Justice Holmes’s infamous aphorism) 100 years of legal apartheid was enough! — as was 100 years of private violence aimed at blacks and anyone who associated with them publicly. The back of this egregious system of subordination and terrorism needed to be broken — thanks to the leadership of Democratic President Lyndon Johnson and Northern liberal Democrats, with the crucial support of congressional Republicans like Senator Everett Dirkson, and over the vociferous objection of Southern Democrats. Whether or not courts could rectify this system, I believe that Congress was well within its Section 5 powers under the Fourteenth Amendment to compensate for the deeply entrenched lack of equal protection by desegregating all public accommodations. The pity is that, out of respect for its Reconstruction-era precedent, the Supreme Court chose to uphold it as an exercise of its Commerce Clause power rather than either Section 5 or Section 2 of the Thirteenth, although we forget that some of the Warren Court justices protested that Section 5 was the better the basis for the decision.

(3) For these reasons (and others), in addition to those given by David, the prohibition on racial discrimination in public accommodations was amply justified by the original meaning of the Thirteenth and Fourteenth Amendments. But if that is not the case, in light of the fact that slavery was held to be sanctioned by the original Constitution for 80 years (over the objection of abolitionist constitutionalists), and the subordination of blacks continued for another 100 years after the formal abolition of slavery, if any deviation from original meaning is ever justified, it would be justified in interpreting Section 2 of the Thirteenth Amendment, and Section 5 of the Fourteenth Amendment, to reach the racial discrimination banned by the Civil Rights Act of 1964.

There is much more to be said about this than can be said in 2 blog posts. On the one hand, the evidence of original meaning of the Thirteenth and Fourteenth Amendment is complicated. On the other hand, at least some of the academic resistance to these originalist claims stem from a desire to discredit originalism (and libertarianism) on this issue, so it will be delegitimated on other issues having nothing to do with discrimination. Because I am now immersed in grading exams to which I need to return I cannot say any more now. But I am grateful to David for getting the ball rolling, and I wanted to make sure that readers interested in the Rand Paul controversy found David’s post, and might also consider these additional points concerning the original meaning of the Thirteenth and Fourteenth Amendments.

Comments are closed.