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Republican Supreme Court Justices and the 14th Amendment: A Long War

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Word limits necessitate a division of labor among writers. Jill Filipovic explains why U.S. v. Morrison was an outrage on commerce clause grounds. I argue that Morrison was also outrageous on 14th Amendment grounds, and the Supreme Court needs to stop citing anti-civil rights precedents from the 19th century:

What is most striking about Rehnquist’s majority opinion in Morrison is that his disparagement of the power of Congress to enforce the 14th Amendment relies largely on two post-Reconstruction decisions that should as discredited as Dred Scott v. Sanford and Korematsu v. United States.

The first cited case, United States v. Cruikshank, denied the federal government’s ability to prosecute the perpetrators of the massacre of more than 100 African-Americans in Colfax, Loiusiana. The idea that the Supreme Court in 2000 would blandly cite a notorious and poorly reasoned opinion giving the Klan the green light to use terrorism to end democracy in the states of the former Confederacy defies comprehension. (It’s worth noting that when it comes to the 2nd Amendment holdings of Cruikshank, the Supreme Court’s conservatives properly did not consider themselves bound by this discredited precedent.)

Central to Morrison’s holding was the Civil Rights Cases of 1883, in which the Supreme Court struck down provisions of the Civil Rights Act of 1875 that closely resembled later provisions in the Civil Rights Act of 1964. The Court argued that because Section 1 of the 14th Amendment applied to action by states, Section 5 did not allow Congress to regulate the conduct of private individuals. The result of this decision, as John Marhsall Harlan argued in his dissenting opinion, is that “the substance and spirit of the [Civil War amendments] have been sacrificed by a subtle and ingenious verbal criticism.” The obvious problem with the majority’s logic is that state inaction was a greater threat to the equality of freed slaves than state action, so to construe Congress’s enforcement power that narrowly defeats the purpose of the amendment. As Gerard Magliocca points out in his fine new biography of John Bingham, the 14th Amendment’s primary framer “rejected the idea that there was a rigid ‘state action’ requirement in the Fourteenth Amendment.” The congressional Republicans who framed the Civil War Amendments were well aware that Congressional action against private individuals would be necessary to secure the objectives of the 14th Amendment. The case is anachronism that should no longer be considered good law.

[…]

In civics textbooks, the Supreme Court protects minority rights against the encroachment of congressional majorities. Bare majorities of the Roberts and Rehnquist Courts, conversely, have repeatedly acted to deny Congress’s ability to protect the civil rights of disadvantaged groups, generally based on states’ “rights” that are found not in the Constitution but in the imagination of the justices.

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