Friday, May 21, 2010
Rand Paul, the Republican nominee for U.S. Senate from Kentucky, seems to have reconsidered his distinction between public discrimination and private discrimination in taking on the Civil Rights Act of 1964. (In this clip from the Rachel Maddow show, Paul argued against federal the federal anti-discrimination law insofar as it applies to places of private accommodation.)
But his constitutional claims may nevertheless be worth considering. He makes three:
1. The Civil Rights Act of 1964 Violates Property Rights. Paul's claim is that a federal prohibition on private discrimination amounts to a violation of private property rights--a Due Process or regulatory takings claim. But the Supreme Court in 1964 rejected precisely this kind of challenge to the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S. In just four or five paragraphs, the Court wrote that it had repeatedly rejected property rights claims against civil rights legislation, going back to The Civil Rights Cases, that anti-discriminatory legislation was common among the states, and that the federal law posed no particular threat to property or liberty. (The Court mentioned a rational basis test, but barely applied it, instead deferring to Congress's judgments in passing the Civil Rights Act of 1964.) The Court also flatly rejected a challenge based on the Thirteenth Amendment, that the private anti-discrimination provisions of the Civil Rights Act of 1964 amounted to involuntary servitude.
2. The Civil Rights Act of 1964 Violates the First Amendment. Paul's claim here is that Congress can't prohibit individuals from advancing discriminatory or racist views without violating the First Amendment's Speech Clause. But his First Amendment claim is perhaps better thought of as an argument against forced inclusion of an unwanted person in a group that engages in "expressive association," as in Boy Scouts of America v. Dale. In that case, the Court ruled that New Jersey's Law Against Discrimination, which prohibited discrimination against gays and lesbians, violated the First Amendment as applied against the Boy Scouts. But there's no indication that most private corporations engage in expressive association under the Boy Scouts test; it's simply inapplicable to an organization that doesn't, as an organization, engage in "expressive activity" with a purpose of excluding or discriminating. (Your local grocery, favorite restaurant, and book store probably don't fit this description.)
3. Congressional Authority Could Be Used in Other Ways. Paul argues that a Commerce Clause that would support federal anti-discrimination legislation against private actors could also support federal gun-rights legislation against private actors--a result, he claims, that some supporters of the Civil Rights Act of 1964 may not favor. For example, there are now several bills before Congress that would provide reciprocity for legal concealed weapons carriers and thus allow them to carry their weapons in states without a concealed weapon law. See, e.g., H.R. 197. But this is no constitutional argument. It simply shows that an expansive federal Commerce Clause can support a wide range of federal action. As the Court in Katzenbach v. McClung wrote:
The power of Congress [under the Commerce Clause] is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitations it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find in it no violation of any express limitations of the Constitution and we therefore declare it valid.