Friday, June 11, 2010

WHY THE CIVIL RIGHTS CASES STILL MATTER

One of the most outwardly frustrating aspects of our legal system is the seeming incongruity between what in many instances appear to be clear and straight-forward social mandates and the shall we say "narrow" interpretations of those mandates the US Supreme Court is wont to issue that if not deny the application of social justice, at least allow for in many instances the continuation of behavior often directly in conflict with the very words of the U.S. Constitution itself. How is this so? For instance, why is racism still allowed to not only exist, but as of recently, flourish? Rather than blame this phenomenon on the "unconstitutional" acts of an ignorant and unruly minority, is it possible that racial discrimination still has a legitimate legal basis to exist? It would seem so.

In 1865, The Thirteenth Amendment was adopted into the U.S. Constitution.

Under Section 1, there would appear to be a clear and unambiguous mandate, namely the end of slavery.

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

And so slavery, as a legally permissible, entrenched institution, soon to be referred to as "badges and incidents of slavery" ceased to exist. But legally sanctioned racism continued against the newly freed slaves. And so the legacy of the Thirteenth Amendment would appear to be that while persons of race were no longer allowed to be enslaved, there was no actual prohibition against discriminating against them. However, even if this view were adopted (hint: it was) how could racial discrimination continue to flourish against what were clearly citizens of the United States?

In 1868, The Fourteenth Amendment was adopted into the United States.

Under Section 1, there would appear to be a clear and unambiguous mandate, namely ending State discrimination against any citizen of the United States.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

And with the Fifth Amendment already prohibiting the Federal Government from unconstitutional deprivations without due process, it would appear that all citizens would receive at a minimum, equal protection under the law. But legally sanctioned racial discrimination continued.

This despite the enactment by Congress of the Civil Rights Act of 1875 which reads in pertinent part that regardless of race, color, or previous condition of servitude, everyone was entitled to the same treatment in "public accommodations". But history tells us this did not happen. Racial discrimination continued. How? It wasn't until 1883 that we got our first glimpse into how racial discrimination was legally allowed and how it continues today.

The Civil Rights Cases 109 U.S. 3 (1883) was a US Supreme Court decision based upon a number of consolidated cases involving racial discrimination in direct violation of, if nothing else, the Civil Rights Act of 1875. Individual incidents involved persons of color being refused service at a hotel dining room in Topeka Kansas, an opera house in New York City and access to a car set aside for ladies on a train.

In that case, the Court, led by Chief Justice Morrison Waite and authored by Joseph P. Bradley decided that for legal purposes, (a) The Thirteenth Amendment prohibited persons from owning slaves, but did not extend to banning discriminatory behavior, the so called "badges and incidents" of slavery; (b) The Fourteenth Amendment did not extend to private citizens and organizations (only to the States themselves) and consequently; (c) The Civil Rights Act of 1875 was unconstitutional because it applied to private citizens and organizations.

Interestingly, I think it more than fair to say that this is the position Rand Paul has as recently as 2010 (last week to be exact) advocated as a basis for overturning the Civil Rights Act of 1964.

In dissent, Justice John M. Harlan eloquently described the effete effect of the majority's decision:

"My brethren say that when a man has emerged from slavery, and by the aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through Congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained."

And as Justice Harlan prognosticated, newly freed slaves became second class citizens and racism continued.

The next opportunity to re-invent racism as somehow if not socially acceptable, at least legally so, came in the landmark case of Plessy v. Ferguson 163 US 537 (1896).

The case involved the constitutionality of Louisiana's 1890 Separate Car Act. The act allowed for railroads to offer separate "white" and "colored" cars long as they were "equal."

On June 7, 1892, the light-skinned Homer Plessy bought a ticket and boarded the whites only car of the East Louisiana Railroad. Once aboard, he announced that as he was in fact 1/8th black he was classified under then existing Louisiana law as "colored" and required to sit in the colored only car.  Plessy refused to leave and as planned, he was arrested and jailed. As a railroad is a "common-carrier," the Constitutional issue for the US Court to decide was whether under the Fourteenth Amendment such segregation was an unreasonable use of state power.

In short, the result was that as the Court could not discern any difference in quality between the two cars with Justice Brown writing for the Court,

"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

In what has proved to be arguably the most prophetic dissent in the history of the US Supreme Court, Justice Harlan wrote

"The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race."

And so, while the Court's ruling in some odd way may have been true in the limited context of two railroad cars, the impact was that virtually all racial segregation was not only constitutional, it was in fact protected by Federal Law. And in an effort to prevent other test cases of its ruling, the Plessy Court went on to analogize its decision regarding transportation to also apply to among other things, education, another hot-button segregation issue. And so "Separate but Equal" became the law of the land along with all the attending, constitutionally blessed, Jim Crow laws, until 1954 when the very issue referred to by Plessy, segregation in the classroom resurfaced.

In the landmark case of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) the Warren Court tackled the issue of whether "separate" really was "equal."

The actual facts are quite simple. 13 parents (Oliver L. Brown was the named plaintiff) who lived and worked in Topeka, Kansas merely wanted to enroll their children in the school nearest to where they lived. Unfortunately, the nearest schools were subject to segregation and the children were by law, not allowed to attend. Basing their claim on the separate but equal clause of the Fourteenth Amendment, the plaintiffs argued that as applied to public education as evidenced by the 90 years of inequality since Plessy, separate education facilities were because education was provided by the States, as a matter of law, inherently unequal and violated the Fourteenth Amendment. In what can fairly be classified as an unusual direction, the Court agreed and at page 495, expressly overruled Plessy.

"The 'separate but equal' doctrine adopted in Plessy v. Ferguson, 163 US 537  has no place in the field of public education." 


And the death knell for school segregation, and ostensibly racial discrimination was sounded. 

Progress came slowly. For example, Topeka  still needed to litigate Brown II and Brown III, cases that delayed the School District from actually attaining "unified" (as opposed to segregated) status until 1994. In another notable attempt to keep schools segregated, On June 11, 1963  then Alabama Governor George Wallace staged the "Stand in the Schoolhouse Door" in an effort to prevent two black students from enrolling at the University of Alabama. But society marched forward.


On May 22, 1964, then president Lyndon B. Johnson outlined his plans for a series of domestic programs designed to eliminate poverty and racial injustice. These programs were later referred to collectively during the speech and later as the "Great Society." By building upon initiatives started by John F. Kennedy as part of his "New Frontier" initiative, LBJ undertook the greatest change in domestic politics and government agenda since Franklin Delano Roosevelt's New Deal.  Within two years of his assuming the presidency, LBJ signed into law four civil rights acts including The Civil Rights Act of 1964 that forbade job discrimination and the segregation of public accommodations.   

How could LBJ accomplish this? Was the Court's decision in Brown enough precedent to accomplish an entire ban on segregation of public accommodations? The answer is no. However, LBJ did have the advantage of presiding in a more modern era, an era of government that saw the rise in power and scope of the Commerce Clause.    

Under Article I, Section 8, Clause 3 of the US Constitution, the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".


In the years since it's enactment, the phrase "and among the several States" had grown from regulating waterways and tariffs between States Gibbons v. Ogden, 22 US 1 (1824) to how much wheat a farmer could grow in his own backyard to feed his chickens Wickard v. Filburn, 317 US 111 (1942) because of the effect on interstate-commerce.

In 1964, constitutionality of  the Civil Rights act of 1964 was not determined under the Fourteenth Amendment, but by the following: By relying on its enumerated power under the Commerce Clause, could Congress forbid the segregation of public accommodations as an act of regulating commerce among the States?

It did not take long for the Warren Court to decide this issue in the affirmative. In Heart of Atlanta Motel Inc. v. United States, 379 US 241 (1964), a case involving the right of a Motel owner/private citizen to restrict access of his rooms to patrons of color, the Court found that based upon the powers granted Congress under Commerce Clause, the Civil Rights Act of 1964 was within Congress' power to enact, and Constitutional. It is also worth noting that the Court extended it's decsion to include restaurants (in particular Ollie's Barbecue) in Katzenbach v. McClung, 379 US 294 (1964).  But is that the end of the story?

After nearly 60 years of an unbroken string of US Supreme Court decisions allowing for the expansion of Congress' power under the Commerce Clause, the conservative leaning "New Federalism" ideology of Chief Justice William Rehnquist found it necessary to curtail the reach and scope of the Commerce Clause.

In United States v.  Lopez,  514 US 549 (1995) the Rehnquist Court overturned the conviction of a 12th Grade student for carrying a concealed handgun into a school in violation of the Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A). The Gun-Free School Zones Act made it a federal offense for any individual knowingly to possess a firearm at a place that individual knows or has reasonable cause to believe is a school zone.  The majority explained that the prevention of crime is not related to any commercial enterprise and thus could not be found to as an individual act, or in the aggregate, have a substantial effect on interstate commerce. Accordingly, at least when it comes to banning the possession of handguns at schools, Congress had exceeded its power to regulate under the commerce clause.

Thus the erosion of the power of the Commerce Clause, the basis of Congress' power to enact the Civil Rights Act of 1964 began and continues

In United States v. Morrison, 529 US 598 (2000) the Court invalidated § 40302 of the Violence Against Women's Act.The Act sought to impose civil penalties for the commission of a gender-based violent crime.

As in Lopez, it could not be argued that State regulation alone would be ineffective to protect the aggregate impacts of local violence. The Court explained that in both Lopez and Morrison "the noneconomic, criminal nature of the conduct at issue was central to our decision." Furthermore, the Court pointed out that in neither case was there an " 'express jurisdictional element which might limit its reach (to those instances that) have an explicit connection with or effect on interstate commerce.' " Id. at 1751. In both cases, Congress criminalized activity that was not commercial in nature without including a jurisdictional element establishing the necessary connection between the criminalized activity and Interstate Commerce.

Logically following, it does not seem unthinkable that the States could also be viewed as having adequate resources to regulate discrimination. Thus making civil rights legislation beyond the power of the Commerce Clause and hence Congress? Think not? Then read below.

In addition to citing similar concerns to the lack of a commercial enterprise as in Lopez, the Morrison Court, noting that unlike Lopez, Morrison contained an element of disparate treatment based on gender discrimination, and felt compelled to revisit the history of the Fourteenth Amendment and the the Civil Rights Cases, the very case that invalidated the Civil Rights Act of 1875.

'Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment’s provisions, United States v. Harris, 106 US 629 (1883), and the Civil Rights Cases, 109 US 3 (1883). In Harris, the Court considered a challenge to §2 of the Civil Rights Act of 1871. That section sought to punish “private persons” for “conspiring to deprive any one of the equal protection of the laws enacted by the State.”  And;  "In so doing, we reemphasized our statement from Virginia v. Rives 100 US 313, 318 (1880), that “ ‘these provisions of the fourteenth amendment have reference to State action exclusively, and not to any action of private individuals.’ ”  

After discussing the Fourteenth Amendment, the Morrison Court then applied the effect of the 1875 Civil Rights Cases in the year 2000. 

    "We reached a similar conclusion in the Civil Rights Cases. In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the §5 enforcement power. 109 U.S., at 11 (“Individual invasion of individual rights is not the subject-matter of the [Fourteenth] [A]mendment”)." (citations omitted)

And;

“The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society”

Therefore, the logic can only follow that sans the Civil Rights Act of 1964, every private citizen has, in fact, a constitutional right to discriminate under the Fourteenth Amendment, without government interference against anyone and for any reason.

Starting to sound like a familiar argument?

In conclusion, if Congress' power to regulate through the Commerce Clause continues to weaken, particularly as applied to States Rights issues, and if in fact a more conservative Congress regains power, and as is a possibility of all laws, repeals the Civil Rights Act of 1964 as an impermissible encroachment upon States Rights, what are we left with? Indeed, the prevailing law regarding discrimination by private citizens will be the holding in the Civil Rights Cases from 1875.

You still think Rand Paul has no constitutional basis for his views?

POST NOTE:

In 1952 then law clerk William Rehnquist wrote a memo called "A Random Thought On the Segregation Cases."  The memo was authored during the period of the Courts deliberations that led to its landmark decision in Brown reads in part

"I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleges, but I think Plessy v. Ferguson was right and should be reaffirmed." Rehnquist continued to state, "To the argument...that a majority may not deprive a minority of its constitutional rights, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional right of the minority are."

Still?