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

[ 31 ] October 24, 2013 |

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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  1. Josh G. says:

    Nathan Newman has made a very similar case in the past, that today’s theory of “states’ rights” owes more to discredited 19th-century precedents like Cruikshank than it does to any serious attempt at interpreting the 14th Amendment as its writers intended.

  2. L2P says:

    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.

    Something that no opinion by Scalia, Alito, Roberts or Thomas will even ATTEMPT to address.

    How does this happen? How do we get a jurisprudence where we pretend that amendments enacted right after the United States fought a war against traitors who felt free to abandon the state to oppress and enslave black people has an unwritten state action requirement?

    • rea says:

      “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.* * * The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

      Well, the state action requirement is right there.

      • rea says:

        Let me put it this way–does the 14th Amendment authorize a federal statute prohibiting blogs from banning obnoxious commentors, on the theory that banning them deprives them of rights guaranteed by the 1st and 14th Amendments?

        • Scott Lemieux says:

          Let me put it this way–does the 14th Amendment authorize a federal statute prohibiting blogs from banning obnoxious commentors, on the theory that banning them deprives them of rights guaranteed by the 1st and 14th Amendments?

          , Of course not, because the powers granted the 14th Amendment are restricted by the 1st Amendment, just like Article I powers. The argument made by Republicans is that 14th Amendment powers should be subject to heightened scrutiny even when they’re not restricted by another provision.

          • rea says:

            Well, you’re invoking the bloggers’ first amendment rights (to not be compelled to offer a platform for someone else’s speach) as opposed to the banned commentors, and that probably shows that it was not a well-chosen hypothetical. But, my basic point still stands, which is that there is no way to read a “state action” requirement out of the 14th amendment. I’m not shy about construing “state action” broadly, but there is no way to say it’s not there.

            • Scott Lemieux says:

              Well, yes, there has to be a rational relationship between the proposed legislation and the 14th Amendment, but the Civil Rights Act of 1875 passes this easily.

              • Denverite says:

                Hold on. This is a bit of a bait-and-switch. The challenged provisions in the Civil Rights Act of 1875 weren’t about making sure criminal laws get enforced against people committing crimes against freed slaves. The challenged provisions were ones prohibiting discrimination in hotels and trains and the like. That’s much harder to construe as state action than a state refusing to enforce criminal laws (not impossible, though, as I note below).

                • L2P says:

                  If I refuse to leave after the hotel owner refuses to rent to me? And do I use some primitive barter system to pay for this hotel room, or do I use currency and credit created by the state? Do I just teleport to and from these hotels, or do I use some sort of, hmmmm. What would the word be? Maybe a transportation system? Maybe made with immense state support and control?

                  Is there some way that using the state to keep me out of hotels, denying me the right to use state created currency and substitutes, and denying me the full use of the state’s transportation system somehow LESS denying me the full rights created by the state than denying me the protection of the courts?

                  If your answer is “Sure, it’s obvious,” there’s a Supreme Court appointment in your future!

                • Denverite says:

                  This is exactly what I said below.

                • Big Ticket Items says:

                  I remember this exact conversation (and L2P’s exact position articulated by someone else) at Matt Yglesias’s independent blog back during the first administration of the second Bush. So apparently we’re still having this discussion because conservatives want to keep having it.

                  [Sigh] Movement conservatism: forward into the 18th century!

              • rea says:

                Well (and not to get bogged down in the details of the 1875 act) it’s very easy to use the 14th Amendment to justify something like 42 USC 1983, under which you can sue state government agencies and officials for civil rights violations.

                But the problem is, consider something like the Marysville rape case, in which the prosecutor claims to have engaged in a standard exercise of prosecutorial discretion–he decided not to spend his scarce resources on a case he didn’t think he could win. Proving that instead he was motivated by bias against women is . . . difficult.

                On the other hand, you can have a statute like the Violence Against Women Act, under which the Marysville victim would have had a federal cause of action against the rapists. And maybe that works better for her than her obvious state law assault claim, because the jury pool in her county was likely biased against her, changing venue might not be allowed, and a federal jury would be drawn from a different jury pool. But there, the connection with state action is a lot more tenuous. And the justification is not that the action is premised on a finding in the particular case that this individual has suffered state action denying her equal protection or due process–instead the notion has to be something like, generally speaking, women who have been the victims of violence often can’t get justice in state courts. And clearly, every state in the Union has laws on the books providing remedies in the Marysville situation–it’s just that the theory of the law often does not match up with the practice.

                Now, I’m not saying that the 14th Amendment shouldn’t be stretched to fit this situation–but recognize that it’s something of a stretch.

                • Scott Lemieux says:

                  Proving that instead he was motivated by bias against women is . . . difficult.

                  But, again, this just begs this question, taking conservative hyperformalism as a given as a standard for congressional action. The Marysville prosecutor may not have been motivated by bias, but the general underprosecution of sexual assault undermines the rights of the women of Missouri, rights Congress is explicitly empowered to enforce.

          • L2P says:

            The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

            Also right there in the Amendment.

        • L2P says:

          Probably not (it would depend on the reasoning). But it WOULD allow the Feds to pass a law prohibiting most blog sites from banning commentators because they were Black.

          On the other hand, if all blogs were run by a single company (let’s say Google) and Google had a policy of only allowing commentators that had good things to say about businesses advertising on its sites . . . well, maybe the Feds would have a case.

        • Heron says:

          I don’t know; do you think Jon Stewart could successfully sue the Fox News Channel into giving him a show under current free speech jurisprudence? A right to say what you want is not a right to say what you want, without restriction or the potential of reprisal, in any privately moderated venue you care to say it.

      • Mark Field says:

        To state what should be obvious: states deny equal protection when they decline to pass or enforce laws. For example, they deny equal protection when they fail to enforce the law against murder against those who lynch a black person.

        If the state failure allows individuals to violate the rights of others, Congress has the power under Sec. 5 to fill the gap.

        I think originalism is bunk, but in Rethinking the Judicial Settlement of Reconstruction, Pamela Brandwein makes a compelling case that this was understood at the time.

        • David Kaib says:

          What Mark said. Equal protection requires state action, and when it is not forthcoming, requires the federal government to protect people.

          FWIW, it’s not just a matter of history (although that’s true) it’s the only reasonable way to make sense of the words.

          • Denverite says:

            Equal protection requires state action, and when it is not forthcoming, requires the federal government to protect people.

            But that’s not right, at least not necessarily. The federal government doesn’t have to provide equal protection itself in order to make sure the states are doing so. It could also pass laws designed to force the states to comply with the equal protection guarantee.

            The important question concerns which of these was intended by the Fourteenth Amendment. From what I understand, the “legislative” history behind the amendment points to broader meaning. I think that the text itself supports the narrower to some modest degree, though certainly not enough to trump the history.

  3. Denverite says:

    How do we get a jurisprudence where we pretend that amendments enacted right after the United States fought a war against traitors who felt free to abandon the state to oppress and enslave black people has an unwritten state action requirement?

    Section 1: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    Not saying this is dispositive, even from a purely textualist point of view — a lot of seemingly private conduct requires state action (or at least the threat of state action) in order to proceed. For example, a “whites only” restaurant necessarily relies on state action (i.e., removing trespassers) to enforce that policy.

    But the reason that the Supreme Court has read a state action requirement into the Fourteenth Amendment for the past 130-odd years is that seems to be what Section 1 says when taken at face value (and in a vacuum).

    • David Hunt says:

      Mark Field at 1:18 PM above dealt with this “state action” thing better than I could, but to sum up:

      The state doing nothing in certain circumstances is the ur-example of “deny to any person within its jurisdiction the equal protection of the laws.”

      • Denverite says:

        Sure, but that observation doesn’t really address the problem at the heart of the Civil Rights Cases — what sort of enforcement measures does Section 5 authorize? I don’t think anyone would dispute that Congress could pass a law allowing victims to sue a state or local government for failing to prosecute a crime against him or her (assuming you couldn’t stretch 1983 that far already — I’m not a civil rights lawyer, and my sole experience in this sphere came doing a handful of 1983 opinions while clerking).

        The question isn’t what constitutes state action. It’s whether Congress can enforce the equal protection guarantee proscribing that state action by permitting a private lawsuit against a non-state actor.

        (Incidentally, I agree with Scott and Jill that the Civil Rights Cases — and Morrison — came out the wrong way. My only point is that it’s not like Bradley imposed this limitation out of thin air. It has some textual support.)

  4. dl says:

    How many justices have endorsed the interpretation of the state action doctrine that Scott urges? In Morrison, it looks as if–at best–Breyer and Stevens do, and even they do not call for the overruling of the Civil Rights Cases per se. Scott makes a strong argument, but I was under the impression that the narrow understanding of the state action doctrine is, in practice, a settled question.

    • Scott Lemieux says:

      As Rehnquist concedes in the majority opinion, it’s more complicated than that. The Civil Rights Cases were largely observed in the breach by the Warren Court, and the main reason they weren’t overruled is that most of what could be accomplished through Section 5 can be achieved through the commerce power.

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