A couple of days after Rand Paul won the Republican nomination for the senate race in Kentucky, he stirred up controversy by saying the government should not be able to tell businesses who they have to serve as is regulated in the Civil Rights Act of 1964. Realize, he is for the Civil Rights Act and what it has advanced for all people in the country. As a Libertarian, he believes a business should be able to do business with whom they choose and not have the government regulate their behavior. His stance, like most Libertarians, is that the public with their money will regulate a business better than the government. Dr. Paul was adamant, he does not like racists but does not believe their views should be restricted.
The Civil Rights Act of 1964 signing was a joyous act and a sad act. It was joyous because it finally gave Americans with dark skin the liberties and freedoms that were supposedly bestowed upon them by the Fourteenth and Fifteenth Amendments to the Constitution. It was a sad act because it took almost 100 years for those rights to be recognized. Think about that. The Constitution was amended to give all Americans the same rights; however, some states did everything they could to disallow those rights for certain individuals. It took the Country almost a century to put everyone on the same page with respect to rights! And, in reality, the Civil Rights Act of 1964 was nothing more than a repeat, with specific wording this time, of the constitutional amendments ratified in 1868 and 1870.
After the end of the Civil War, the southern states passed "black codes" which were meant to restore the racial relationships which existed prior to the Civil War. After the ratification of the Fourteenth and Fifteenth Amendments, which were used as bargaining chips to reinstate the southern states into the union, the southern states were not ready to bestow the same rights upon the black Americans as the white Americans enjoyed. The black codes morphed into what were called "Jim Crow Laws." These laws ensured separation of blacks and whites. This regulated blacks to a second-class citizenry. This was further aggravated by Plessy v. Ferguson (1896). In this case, the Supreme Court ruled that "separate but equal" facilities did not violate the equal protection clause of the Fourteenth Amendment. This opened the door for the southern states to institute legal racial inequality.
Now I will go off course a little here but the discussion will be a good backdrop for the rest of the article. The Supreme Court in Plessy v. Ferguson made an incorrect interpretation of the Jim Crow laws and their constitutionality. Mr. Plessy, 1/8 black, tried to ride in a white only railroad car. He was arrested and fined. He filed a lawsuit challenging the law. When the state Supreme Court found in favor of the state, he took it to the Supreme Court. Writing for the majority, Justice Brown wrote "So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order" (Plessy v. Ferguson, 163 U.S. 537 (1896)). What the court failed to consider was the phrase from the Fifth and Fourteenth Amendments: "no person shall...be deprived of life, liberty, or property, without due process of law." While most would say that the government cannot take a life or incarcerate someone or seize property without a court proceeding, it is short-sighted to interpret the statement only in this manner. Substantive due process places a limit on the government enacting any legislative matter that is not related to a legitimate government interest or could be unfair or unjust (Merriam-Webster, pg 153). The government is not served by passing a law which restricts the freedom of an individual which is not at the benefit of society. Granted, many people in that time felt separation was good for society because co-mingling should not be forced but only encouraged. However, the force of separation is the same as the force of co-mingling. If all the whites on a rail car or bus wanted to sit together and not sit with the blacks of their own free accord, then so be it. However, for the government to say that is the rule of the land is an infringement of the Fifth and Fourteenth Amendments. One of the crucial elements of due process is the the opportunity to be heard and defend one's rights. When the state passed the separate but equal law, were blacks consulted or allowed to vote on the law? There isn't a way to verify the answer, but one can assume that for the most part, the answer will be no. Then by stating a black could not ride in a specific rail car that was not related to a valid government interest or for which did not violate the rights of someone else (mere presence in a public place is not a right infringement) limited the liberty of the blacks to ride in a specific car - a liberty which was infringed without due process of law. Thus the state law was unconstitutional. The Supreme Court missed a key constitutional argument.
One of the elements in the court case which they did get right was stating that the state had the right to regulate commerce in their state. Since the railroad was a local railroad and not a interstate railroad, the state had the right to pass a law that applied only to local railroads. The Federal government does not have the right to regulate the commerce of a state. The Federal government under Art I section 8 to the US Constitution is given the right to regulate commerce among the states. I agree in this case. However, I reiterate, while the state has a right to regulate the commerce in their state, they don't have the right to regulate contrary to the US Constitution.
So now we come to the Civil Rights Act of 1964. The southern states were denying rights to blacks under the guise of "separate but equal." The Federal government stepped in and passed a law to ensure the civil rights of all Americans. Did the Federal Government have the legal power to do this? Yes, section 5 to Amendment 14 states, "The Congress shall have power to enforce, by appropriate legislation, the provision of this article." So Congress did have the power. But, now the question is, was the legislation appropriate? For the most part it was, for one specific section it was not.
Congress in the Civil Rights Act of 1964 Title II Section 201, defined any business that somehow partook in interstate commerce to affect interstate commerce and thus fall under their jurisdiction. For example, if a business gets most of its food from out of state, that business affects interstate commerce. But this is a far-reaching interpretation of the "commerce among the states."
Merriam-Webster defines commerce as "the exchange or buying and selling of goods, commodities, property, or services esp. on a large scale and involving transportation from place to place." The question then: is the buying of a good, commodity, property, or service which has been transformed from its original state after original exchange or buying or selling still fall under the purview of the Congress? To this extent, once something has changed form and is resold inside the state, even if it comes from another state, is intrastate commerce and not interstate commerce. Thus the Congress does not have the right to regulate commerce in a state even if the commerce is a direct result of interstate commerce. To better explain, Congress has the right to regulate the exchange of lettuce moved from one state to another state. Congress does not have the right to regulate the salad made from said lettuce once it is in the state. But this is what Congress in effect did with the Civil Rights Act of 1964. Thus they over stepped their rights under the Constitution; therefore, the Civil Rights Act of 1964 is unconstitutional in the respect where it regulates the conduct of business in a state when the business obtains goods or services via interstate commerce.
Now with that said, some of the regulation in the section 201 is legal. For example, the regulation of a sports arena which hosts teams from another state falls under the commerce clause - the exclusion of a team or their fans from a local site affects interstate commerce. The regulation of inns along the interstate highway system falls under the commerce clause - the purpose of those inns is to support interstate commerce, how could they support interstate commerce if they refused service to some customers trying to affect the same?
Section 202 of Title II to the Civil Rights Act does exactly what was really needed. This section specifically tells each state they cannot have a law which restricts access to anyone on the basis of color, race, etc. This restatement of the Fourteenth Amendment was needed in the Act.
To clarify the viewpoint of this article: Congress has the right under the commerce clause to regulate commerce among the states. This does include the regulation of how a business conducts intrastate commerce. Each state has the right to regulate the commerce inside its borders. This does not include the regulation which violates the Fourteenth Amendment, such as the Jim Crow laws, or "separate but equal." Each business should have the right to say who they will cater to including the refusal of service to a group or groups of people they don't like. Now while this standpoint might be reprehensible, it is a basic tenet of free speech and the power of the consumer. It is worse to stifle speech which one does not like than to be subject to the same. When you go into most businesses do you not see signs both in English and Spanish? Why is that? That's because there is a large consumer group with buying power that does not speak English, only Spanish. To tap that money, why not put signs in both languages if you want to cater to both groups? So how long do you think a business would survive in this day and age if it excluded a group based on race, color, national origin, etc?
The Civil Rights Act of 1964, a great legal triumph which should be celebrated, is also, possibly, a good example of "the ends justify the means."
Mike
References:
Ourdocuments.gov. (n.d.) Transcipt of Civil Rights Act (1964). Retrieved 27 May 2010 from http://www.ourdocuments.gov/doc.php?flash=true&doc=97&page=transcript
Plessy v. Ferguson 163 U.S. 537 (1896). Retrieved 28 May 2010 from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=163&invol=537
New World Encyclopedia. (2008). Jim crow laws. Retrieved 28 May 2010 from http://www.newworldencyclopedia.org/entry/Jim_Crow_laws
Thompson, K and Dan Balz. (2010). Rand Paul comments about civil rights stirs controversy. DC: The Washington Post. Retrieved 28 May 2010 from http://www.washingtonpost.com/wp-dyn/content/article/2010/05/20/AR2010052003500.html
Nash, G and others. (1990). The American people: creating a nation and a society Volume 2 since 1865. NY: HarperCollins.
Merriam-Webster's dictionary of law. (1996). MA: Merriam-Webster.
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