I’m teaching the Civil Rights Cases (1883) tomorrow, which invalidated the Civil Right Act of 1875’s prohibition on discrimination by inns, public conveyances, and places of public amusement, as beyond Congress’s power under the 13th and 14th Amendments. In debates over Lochner and constitutional protection of economic liberty more generally, liberal scholars will sometimes refer to the Civil Rights Cases as an example of the evils of constitutional protection for economic liberty, arguing that the Court upheld economic liberty at the expense of civil rights. As I read the Cases, however, the majority’s opinion is solely based on federalism and has nothing to do with economic liberty or property rights. Indeed, the majority takes pains to note that all states require inns and common carriers to serve all comers, and that the plaintiffs in the cases involvig inns and common carriers (but perhaps not the case involving a theater) had remedies under state law. Just another example of how sloppy (see link for a further discussion) the debate over Lochner has been.
UPDATE: Tim Sandefur has an interesting response, arguing that the public-private distinction enforced in the Civil Rights Cases reflects the same sort of classical liberal view of state and society as Lochner. Perhaps, but the liberal scholars I’ve noted seemed to imply that the Civil Rights Cases themselves were decided based on a Lochner-like liberty of contract or property rights theory, which is simply false. And I think the ultimate schism in the Civil Rights Cases Court was over how much the Reconstruction Amendments changed the balance of federal-state power, especially vis-a-vis Congress’s power to aid African Americans, and not over generally differing views of state and society. Harlan was the lone dissenter in the Civil Rights Cases, and though he dissented in Lochner, he also either wrote or joined some of the most significant liberty of contract cases. Overall, Harlan falls into both the nationalist and “moderate Lochnerian” camps, supporting strong Congressional regulatory authority in a variety of areas, but also having a somewhat narrow view of the states’ police police powers.
FURTHER UPDATE: A reader agrees with my point on Lochner, then adds,
the much more interesting–and much more damning–debate goes to the legitimacy of the “federalist” reasoing deployed in The Rights Cases. In short, the Court was wrong. The 13th and 14th Amendments by their very terms are assertions of federal power vis-a-vis states and citizens. Relying on southern states’ civil rights laws was reallyI agree, but in 1875, and even 1883, it was not clear that state courts would fail to guarantee blacks’ access to common carriers and inns, and indeed there were successful lawsuits in southern state courts against train companies and others who mistreated black customers. The situation in the South was rather fluid until the 1890s, when Jim Crow hardened and blacks were disenfranchised. That said, it’s also true that the Supreme Court stuck to its guns in a few cases in the first decade of the 20th century, holding that individuals denied enjoyment of their civil rights by private action had remedies only in state courts that clearly weren’t going to aid them. In short, I agree with the reader that a violation of “equal protection of the laws” can include states not enforcing facially equal laws, and that, if Congress acts to redress such a situation, it is acting within its powers under Section 5 of the 14th Amendment. But the Supreme Court still has to distinguish between such situations, and pure federal power grabs, as it did in the recent case of United States v. Morrison, holding the Violence Against Women Act unconstitutional in part based on the Civil Rights Cases. It’s a debatable point, but I find that it streches credibility to believe that women in the 1990s were being systematically and unequally denied remedies in state court for violence committed against them by men.
laughable in the way it blinked at the enforcement problems. Remember, the 14th amendment’s text: “nor deny to any person…equal protection of the laws.” Enacting a law denying equal protection and failing to enforce laws that “guarantee” equal protection both sound like denials to me. Further, the 14th amendment does not preclude a *private remedy,* but at most merely defines a violation as requiring state action.
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