In an OpEd in today’s Chicago Tribune (HatTip to RealClearPolitics), Sen. Dick Durbin argues that the elevation of John Roberts to the Supreme Court would put the ability of Congress to pass laws on civil rights would be at risk.
Baloney.
Durbin’s point is that Congress based the 1964 Civil Rights Act on the commerce clause, “[b]ut recently, the commerce clause has come under assault” by those meanie conservatives.
It is true that the Civil Rights Act was based on Congress’s commerce clause authority, but it is not true that it had to be. In a 1968 case (Jones v. Alfred H. Mayer Co.) the Court held that Congress had the authority to outlaw discrimination in housing under Section Two of the 13the Amendment — as a “badge or incident” of slavery. Moreover, a strong argument was made during debates over the 1964 CRA that it should have been based on the 14th Amendment, not the commerce clause, inasmuch as the real objection to discrimination was that it violated equality rights, not that it negatively affected commerce.
Even aside from these perfectly sound arguments, however, Durbin’s fear-mongering is still ridiculous. The dreaded conservatives, after all, have not attacked Congress’s authorithy to legislate under the commerce clause. What they have done is begin to restrict that legislation to matters that in fact “substantially affect interstate commerce.”
Racial discrimination clearly does that. Indeed, as Wendy Kaminer, a noted liberal, has written in The American Prospect, a notably liberal journal, limiting Congress’s commerce clause authority to issues actually having a significant on interstte commerce
does not unduly limit congressional power, including the power to prohibit discrimination. It does not invalidate the Civil Rights Act of 1964: Segregation in hotels and restaurants, on transportation systems, and in the workplace involved commercial activities with clear and substantial effects upon interstate commerce.
UPDATE: You Read It Here First… [3 Sept.]
… Now you can read it here second:
Senator Dick Durbin (D., Ill.) … suggests that the future of our nation as a place of compassion, fairness, and equality is at stake in the hearings on judge John Roberts
The best government is the least government.
Why should it be assumed that more civil rights laws should be enacted? Perhaps it’s time to stop passing civil rights laws. Should we continue to pass such laws just to prove what wonderful folks we are?
In fact, as the weblog illustrates, perhaps it is time to repeal some ill-considered civil rights legislation.
Before any legislation is enacted, we should demand a demonstration of need, and spend some time thinking about the unforseen consequences.
“the Court held that Congress had the authority to outlaw discrimination in housing under Section Two of the 13the Amendment — as a “badge or incident” of slavery”
For all kinds of discriminations? Against any race, national origin, sex or sexual orientation?
“Inasmuch as the real objection to discrimination was that it violated equality rights, not that it negatively affected commerce”
But rights vis-a-vis the govenrment, not private actors.
“Racial discrimination clearly does that [substantially affect interstate commerce].”
So do guns — which travel in interstate commerce — that are present in schools. Yet that was struck down.
actus, just out of curiosity, do you think that there is any human activity at all that the Federal government can’t regulate specifically due to the Commerce Clause? (That is, not subjects already covered by other parts of the Constitution.) Is there anything at all that is so tenuously connected to interstate commerce that you’d concede that Congress (or any regulatory agency set up by Congress) just doesn’t have the Constitutional authority to meddle with it?
Not goading you; genuinely curious.
“actus, just out of curiosity, do you think that there is any human activity at all that the Federal government can’t regulate specifically due to the Commerce Clause?”
I think that at the time of the founding there was a lot of stuff that was not commerce among the several states. Now, I’m not so sure.
Thanks, actus. I have not seen anyone else say so that straightforwardly. (On the other hand, no one I’ve seen hedge has ever been able to come up with a ready counterexample, either.)
Here is a hypothetical for you. There are good arguments in support of school uniforms. They prevent kids from competing with one another in the way of fashion (and in particular prevent the rich kids from showing up the poor kids by dressing more expensively); they remove the distraction of provocative T-shirts, &c. in a content-neutral way; they force kids to “express their individuality” by other and more thoughtful means than dress; &c. Clinton argued for them; a lot of people argue for them, not all of them nasty conservatives bent on snuffing out the first flicker of individuality in the nation’s youth or whatever.
So what would you say if Congress passed a law requiring school uniforms at all public schools, citing as justification that this would mean greater order in the schools and a better environment for learning, and that nothing is more important to interstate commerce than an educated populace? (I think, actually, that this was the stated rationale behind the guns-and-schools law you mention: not that the guns themselves might have been made in one state and purchased in another, but that we need an educated populace, &c., and anything that makes that more difficult has an impact on interstate commerce.)
What say you? Never mind whether it’s a good idea or not for the moment. (It could be an unconstitutional good idea, or a constitutional lousy idea.) Could the Federal government, in your own reading of the Constitution, mandate this?
So Actus, you’re saying that Congress has the right to regulate abortion because it’s part of interstate commerce?
“So what would you say if Congress passed a law requiring school uniforms at all public schools, citing as justification that this would mean greater order in the schools and a better environment for learning, and that nothing is more important to interstate commerce than an educated populace?”
If I was congress I’d do it pursuant to the spending power, like No Child Left Behind. That would avoid any constitutional issues, but still leave behind political ones.
I think the commerce power permits your hypothetical.
“So Actus, you’re saying that Congress has the right to regulate abortion because it’s part of interstate commerce?”
Certainly. But this power is limited by the right to privacy. Just like congress can, according to the commerce power, censor newspapers, but according to the first amendment, cannot.
Thats why Roe is so important. If abortion wasn’t protected by the right to privacy, the wingnuts that run congress would legislate it away.