Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law, and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States, and it is assumed that the power vested in Congress to enforce the article by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States, and, upon this assumption, it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement, the argument being that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment.
This week's Landmark Cases episode concerns five cases that are generally labeled the "Civil Rights Cases," which held sections of the Civil Rights Act of 1875 unconstitutional as applied to public accommodations.* The two guests were well spoken though did not seem particularly expert on the specific question. A tweet of mine regarding wondering what would have happened if the case went the other way and then Congress (the law controversial from the beginning) overturned the law was cited on air.
One curious thing about these cases -- which to many seem badly decided** (though the Republican guest agreed with the majority) -- are basically good law. The general idea that Congress does not have the power under the Fourteenth Amendment to regulate "private" action (even public businesses) is still good law -- e.g., U.S. v. Morrison. The Supreme Court upheld using the Commerce Clause with a few justices agreeing with Justice Harlan's dissent and saying the Fourteenth Amendment should be used. The trick there though is that we would then need to know how much it is about "enforcement," which to some extent goes beyond what the amendment bars by its own force. So, e.g., Congress barred literary tests in various cases [and the Supreme Court upheld it] even after it was determined that literacy tests are not by unconstitutional in general.
The majority here left open the Commerce Clause route, Congress only taking them up on it around eighty years later. Harlan noted that if there was a power to pass the regulation, why did it matter if Congress expressed it the wrong way? This, however, is often the case -- the Supreme Court says a certain approach is wrong, but doesn't close off doing the same thing in a different way. Anyway, I think Harlan has the better argument on the "public" nature, particularly transportation and inns, which historically had had to take all comers. The connection to interstate commerce is most apparent there. Would think there was room for compromise there, excepting places of amusement and maybe certain intrastate actions. As to places of amusements, Harlan argued:
My answer is that places of public amusement, within the meaning of the
act of 1875, are such as are established and maintained under direct
license of the law. The authority to establish and maintain them comes
from the public. The colored race is a part of that public. The local
government granting the license represents them as well as all other
races within its jurisdiction.
The majority feared the congressional approach here would eat the rule, wondering where there was a limit if it went beyond mere "corrective legislation." It was even willing to assume for sake of argument that there was a right to equally enjoy public accommodations. But, and Harlan correctly shows how artificial this formalism was, the law here covered discrimination not "sanctioned" by the state. In a couple weeks, we will see that the Supreme Court will allow that if it is "separate but equal." And, the majority in particularly dubious passage was worried about blacks being a "special favorite of the laws" if "badges of slavery" was taken this far. They did (see opening passage) give the Thirteenth Amendment something of a broad breadth:
Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution.
And, it even conceded that barring blacks from certain places might have been influenced by fear that it would allow slaves to sneak in too. But:
There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.
Laying things on a tad thick. What are these "essential" rights, even if we (rightly) deem Chief Justice Taney's "no right" rhetoric in Dred Scott exaggerated? I think "some one" would deem there was said "invasion" and that such barriers were in a core fashion a result of slavery -- white and blacks were seen as in some special respect different, blacks so inferior that it was acceptable to allow many states to enslave them. The separation of the races did not arise out of mere social distaste or something. It grew from blacks being enslaved and this set up a range of different treatment. Regardless, the Fourteenth Amendment was in place to provide a wider source of power to protect civil rights.
Again, there has been some staying power here -- the Rehnquist and Roberts courts have multiple opinions cautioning us that the Reconstruction Amendments (the Thirteenth not getting much attention though some would argue for its open-ended use in a range of areas) should not be taken too far. This particularly involves the enforcement in areas outside of race where the Commerce Clause won't work [e.g., discrimination against the disabled when state workers are involved] and even there -- Shelby v. Holder. There has to be a "congruent and proportional" fit, it has to be true "corrective" (to cite the majority here) legislation against state wrongs.
It is also a bit ironic that John Harlan's grandson was in various was more conservative then he was. For instance, the "great dissenter" (both were in a fashion) also was an early supporter of incorporation of the Bill of Rights (even of the Grand Jury Clause, still not incorporated) while his grandson strongly was against that sort of thing. Harlan -- showing his Whig roots -- supported a broad discretion of federal power as long as it reasonably follow the "substance and spirit" of the text -- honoring McCulloch v. Maryland. This led -- though he did honor property rights in various cases -- to write the main dissent in Lochner v. N.Y. as well, one that deserves a bit more notice beyond Holmes' more famous one.
Harlan counseled a consistency -- he noted how the Fugitive Slave Clause was protected by express congressional legislation, positive legislation that enforced what arguably could only be enforced by state action. It would be ironical not to equally allow Congress to give full expression to the Thirteenth and Fourteenth Amendments that in Harlan's opinion broadly assumes equal citizenship as to race. Harlan does not share the majority's fear of unlimited congressional legislation since at the very least the amendments protect racial equality. It is the basic of "republican" government and not mere "social" rights.
What I affirm is that no State, nor the officers of any State, nor any
corporation or individual wielding power under State authority for the
public benefit or the public convenience, can, consistently either with
the freedom established by the fundamental law or with that equality of
civil rights which now belongs to every citizen, discriminate against
freemen or citizens in those rights because of their race, or because
they once labored under the disabilities of slavery imposed upon them as
His wife's memoirs was published some years ago with the help of Justice Ruth Bader Ginsburg. One vignette involved her role to assure that her husband retained Chief Justice Taney's inkwell, which he planned to give to someone else. He was apparently having writer's block while writing his dissent, but was inspired when he found the inkwell his wife left for him. A cute story, but does reflect how Harlan in the dissent did see the whole story of slavery, including the true breadth of Congress' power to do away with all of its badges and bring forth true constitutional equality.
* The act also protected service on juries, which the majority notes was deemed constitutional beforehand since juries are creatures of the state.
** This follows a general theme that the amendment was underenforced in the years after Reconstruction, including allowing segregation and not applying the Bill of Rights to the states. But, maybe this should not surprise. Did not the Bill of Rights get similar treatment -- see, e.g., the Alien and Sedition Acts and how it so rarely arose in Supreme Court cases in the early years though examples can be cited especially in the states.