I'll have to admit up front here, this thread for me is spilling out of some of my reactions to reading comments on this thread -->> Does discrimination exist against blacks in the US?, and should the government be involved?

The arguments against AA on that thread seem to pull back before 1964 and make the assertion that the prohibitions against discrimination in the landmark Civil Rights Act of 1964 are in fact unconstitutional.

The law is lengthy and its title 7 is a cornerstone of the modern women's movement from the time COnservative Democratic Congressman Howard Smith inserted the word gender into the bill in order to try to derail its passage and inadvertently gave a major tool to the womens' movement of the 1960s and 1970s.

This linkdetails this story and provides a good synopsis of the major provisions of the bill.

Here is that synopsis



but this leaves some titles hanging and here they are from Wikipedia



The question for debate is: Is the Civil Rights Act of 1964 Constitutional? Why or why not?

The question for debate is: Is the Civil Rights Act of 1964 Constitutional? Why or why not?

I'm surprised that no one's tackled this one yet. I going with no, because there's nothing in the Constitution giving Congress the power to regulate any employer/employee relation. That's reserved to the states under the 10th Amendment. I know that this condemns a whole vast array of federal statutes that have been around for a long time, but so be it. The Constitution doesn't change by osmosis.

Interestingly enough, this fact was acknowledged by the very man who became most responsible for setting us on this unconstitutional course to begin with. I posted a thread a while back, quoting from a speech by then-Governor of New York, Franklin Delano Roosevelt, in which he stated that under our Constituion, such concerns "as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features" are the exclusive province of the states, in which "Washington must not be encouraged to interfere." He was absolutely right. If only he had heeded his own words three years later.

Well I went trolling for people who believe the Civil Rights Act was unconstitutional and I caught the New Deal in the same net.

While I might argue the case of the 14th Amendment edited to cite the 14th Amendment as I accidently posted the 4th Amendment in bringing the federal government in in protecting the civil rights as individuals, we have the same issue of government inaction in the face of a serious crisis. Constitutionally this seems to be okay when we claim there is a war going on but it is not okay just to protect the general welfare of individuals.

Perhaps it is simply the heinousness of the crimes against Southern blacks that occurred in the 1950s and 1960s that pushed the federal government into action from the executive and legislative and judicial branches in the face of outright defiance from people named Faubus, Barnett, and Wallace (and these were the ones who showed their face in public and did far less damage than non-elected officials.

This of course all comes down to a strict or loose interpretation of the Constitution. In reality, from Washington forward (when Hamilton argued for the creation of the Bank of the United States) we have used a loose interpretation of the Constitution both in terms of dealing with issues that don;t fit nicely into the Constitution (like when the father of the strict interpretation school opted to make the Louisiana Purchase for the good of the nation and in his view in violation of the Constitution) or in terms of being more progressive in society. (enacting the Social Security Act for example)

When I see people arguing against the ability of the federal government to exercise power I always come back to this law. For this law IMHO is one of the most important laws in American history as it gave greater federal power to the enforcement of Brown v. Board (and for those of you who saw Remember the Titans or remember how long legal segregation really lasted, the 1954 court case didn't get fully applied in terms of de jure segregation until the mid-1970s.), it ended legal discrimination in hiring in the private sector or in the service of the public.

We are a better country for the termination of the ability of employers and businesses that serve the public to say we don;t hire or serve your kind here.

No I can not find a place in the Constitution that literally gives that power, but ironically it was the states that vociferously and violently asserted the rights of the states over the union that reprised the debate a century later and pushed the federal government into a stronger position again.

Oddly, I almost wish the Civil Rights Act would get declared unconstitutional (don;t hold your breath) so it could get enshrined in the Constitution as an amendment.

If you are going to argue against AA, it seems to me you must come here and likewise assert that this landmark law is unconstitutional and claim the New Deal went beyond the scope of the COnstitution and question that interpretation of the court in Brown v. Board.

Ahhh, but it was so much more than that. First, the clearly constitutional part:


Now you do have action toward private business, but they fall under the commerce clause.



On top of that, you had three cases where the courts found that private businesses fall under the commerce clause.


Wiki-Commerce Clause selection.



The problem that I see with this is that the states failed to guarantee the "general welfare" of black citizens. On top of that, they were in violation of the 14th and 15th amendments. Federal law trumps state law, and it cannot be seriously maintained that the federal govenrment cannot pass laws to guarantee basic rights and privileges to citizens whose own state refuses to acknowledge them, or even deems to work against those rights. As such, the "muscle" was the civil rights act which was passed to ensure state complicance towards basic rights. Yes, you as a business owner may only serve who you want to serve, but if that continues on such a basis as to rob life, liberty, and the pursuit of happniess of others at large in society, then that is hardly freedom as guaranteeing the "liberty" to take away another's is not liberty at all.

As this is the only paragraph in your post that addresses the constitutional issue raised in your question, this is the one I'm addressing. There hasn't been any serious question until the time of FDR as to how "nicely" the Commerce Clause applies to federal legislation. During his presidency, the federal government deliberately expanded its application not only well beyond its actual words, but beyond how it had been universally understood up to that point (FDR's own words three years earlier being very powerful evidence of this). We might as well have written the 10th Amendment completely out of the Constitution, because it became a complete joke at that point. In fact, we might as well abandon the Constitution altogether, because it serves absolutely no purpose whatsoever if it can be made to mean whatever those in power want it to mean. It was supposed to serve as a restraint on their powers, and they've turned it into a mere plaything.

You also mentioned something about the abuse of the 4th Amendment in wartime, I guess maybe to imply some sort of inconsistency on my part. In reality, that abuse is the inevitable result of treating the Constitution as nothing but a book of suggestions.



Yes, I'm aware of how the modern courts have ruled on the Commerce Clause.


Refusing to serve someone doesn't take away his liberty. Certainly not in the sense of the word that was ever used in the Constitution. What this whole question really comes down to - and which has never been remotely subjected to any kind of public debate - is this: Do people have a right (in the constitutional sense) to others' property, to any degree? Maybe the question deserves its own thread, I don't know, but I do know that that's the big elephant-in-the-living-room in all of these modern discussions on what are called "civil rights", and it needs to be addressed head-on. It represents a very profound shift in our national philosophy that would have very profound consequences, extending far beyond questions of race or gender.

That's not really true. If you look at Stafford v. Wallace in 1922, or Hammer v, Dagenhart being 5-4, or the dissents of Cardozo, Brandeis, and Stone there was controversy as to what the commerce clause meant prior to 1937. Not to mention the fact that decisions prior to 1937 used standards based on the directness of the impact on interstate commerce and a stream of commerce which weren't "nice" or clear by any stretch of the imagination.

I think the Civil Rights Act fits well within the federal power under Commerce Clause and equal protection clause of the 14th amendment. At least since the Civil War racial discrimination has been a federal concern. And it ought to be since the Southern states were allowing discrimination and exploitation of blacks and there was no politically feasible remedy for blacks to get equal voting rights and employment rights. Alabama or Mississippi couldn't be trusted to safeguard the rights of blacks, and the Constitution allows the federal government to intervene. This can go back to Marshall in Marbury when he basically said if there's a right, there is a legal remedy.

Does it not matter that the southern states were in direct violation of the 14th and 15th amendments? In that light, the government can utilizes the "necessary and proper" clause.

Stafford involved, as you say, regulation of streams of commerce, which is really just another way of saying regulating commerce, so that's fairly self-explanatory.

As for Holmes' dissent in Hammer which the other three joined, he was really just making an emotional argument. He wondered aloud how it (supposedly) was that Congress could use its commerce power to go after prostitution (it had passed a law prohibiting the transportation of women across state lines for the purposes of prostitution), but not to go after child labor. Either it didn't occur to him, or he deliberately ignored the notion, that he was making a completely false comparison. The difference between the two cases has nothing whatsoever to do with the activities being targeted, but with the way of targeting them. If Congress had passed a law prohibiting transporting children from one state to another for the purposes of engaging in child labor, that would have been just as constitutional as the one about prostitution. But instead, Congress tried to pass a law probiting the interstate trade of the products of child labor, and if it could do that, it could then prohibt trade with any state whose laws on any subject didn't meet with Congress's approval. It doesn't take a legal scholar to see that that's not what was intended by that clause at all.

The fact is, the country at the time (1916) was rightfully repelled by the idea of child labor, which was still rampant at the time, so they got a bit overzealous and insisted that Congress act, without giving much thought to the constitutional issues. Some judges on the Court got caught up in that fervor, but enough justices prevailed who could read the plain language of the Constitution and who understood the way the clause had been interpreted up to then - and by 1930, a prominent Yankee Democrat could state quite unreservedly that the regulation of a business's affairs was constitutionally not a matter of federal concern.


The 14th Amendment has nothing whatsoever to do with the actions of private employers.


And where is it stated in the Constitution that people have a right not to be discriminated against by private individuals?



Actually no, it doesn't matter at all, because we're talking about the actions of private employers, who are not restricted by those amendements.