What Is James Taranto Talking About?

James Taranto in the WSJ takes Senator Richard Durbin to task for his comments on the 1964 Civil Rights Act:

Sen. Dick Durbin, best known for likening American soldiers to Nazis, weighs in today with a Chicago Tribune op-ed in advance of the John Roberts hearings. Mostly it's liberal boilerplate, but one assertion got our attention: "Nowhere did the Constitution expressly give Congress the authority to pass the Civil Rights Act [of 1964]."

Really? What about the 14th Amendment? Here are the first and last sections of that amendment, which was ratified in 1868:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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. . . . The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

We'd say that last clause authorized Congress to pass the Civil Rights Act of 1964. One could argue otherwise, on the ground that the Civil Rights Act, which outlaws discrimination in private commerce, goes further than the 14th Amendment, which mandates equal treatment by government. But we would counter that the system of Jim Crow segregation was so all-pervasive that federal intervention in private commerce was necessary to ensure the promise of the 14th Amendment--and that, even more clearly, the amendment grants Congress the discretion to determine that the Civil Rights Act was "appropriate legislation."

Does Durbin disagree? Does he really think that the Civil Rights Act of 1964 was an extraconstitutional exercise? Or is he making this argument in bad faith in order to render more palatable actions, such as the creation of a "right" to abortion, that plainly are extraconstitutional?

Taranto clearly needs to read up on civil rights law. After the 14th Amendment was ratified, Congress passed the Civil Rights Act of 1875 which banned segregation and discrimination in certain types of private commerce--restaurants, hotels, theaters, etc. Opponents of the bill argued that, similar to Taranto, that the 14th Amendment only bans discrimination by state actors and that the 1875 legislation went beyond this by outlawing discrimination by private actors. This is the infamous "state action limit."

In 1883 in the Civil Rights Cases, the Supreme Court agreed and struck down the 1875 Civil Rights Act. In addition to upholding the state action limit, Justice Joseph Bradley wrote that the time had come for blacks to cease being "the special favorite of the laws." Justice John Marshall Harlan issued a stinging dissent where he argued that private discrimination constituted "badges of servitude" and therefore Congress had full power under the 13th Amendment (which has not state action limit) to ban such discriminations. Marshall went on to point out that these supposed "private" actors and institutions were in fact serving in the public interest and in many cases were licensed and regulated by the state making the "state action limit" a rather transparent dodge to let states off the 14th Amendment hook.

Nonetheless, the "state action limit" remained and still remains to this day. That is why the 1964 Civil Rights Act (which is in many ways similar to the 1875 bill) is based not on the authority granted to Congress by the 14th Amendment, but rather by the power of Congress to regulate interstate commerce. Here's the relevant section of the 1964 act:

Sec. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (b) which holds itself out as serving patrons of such covered establishment.

(c) The operations of an establishment affect commerce within the meaning of this title if (1) it is one of the establishments described in paragraph (1) of subsection (b); (2) in the case of an establishment described in paragraph (2) of subsection (b), it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce; (3) in the case of an establishment described in paragraph (3) of subsection (b), it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce; and (4) in the case of an establishment described in paragraph (4) of subsection (b), it is physically located within the premises of, or there is physically located within its premises, an establishment the operations of which affect commerce within the meaning of this subsection. For purposes of this section, "commerce" means travel, trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia and any State, or between any foreign country or any territory or possession and any State or the District of Columbia, or between points in the same State but through any other State or the District of Columbia or a foreign country.

Congress also cited interstate commerce in Section VII of the Act which bans discrimination in hiring and employment.

The Supreme Court agreed with this interpretation in Heart of Atlanta Motel v. U.S., where it claimed that racial discrimination was a legitimate impediment to interstate commerce and that Congress, therefore, was free to regulate it.

The fact that the 1964 Civil Rights Act is based on the Commerce Clause shows the perniciousness of recent conservative attacks on Congress's commerce power. To the extent that such power is limited, it raises the prospect that the Court could limit or strike down various civil rights laws.

The upshot of this is that Durbin is right and Taranto is wrong--the Constitution, including the 14th Amendment as it has been interpreted by the Supreme Court since 1883, does not "expressly" grant Congress the power to regulate racial discrimination by private actors.