The Agenda

NRO’s domestic-policy blog, by Reihan Salam.

David E. Bernstein on the Civil Rights Act


At Cato Unbound, David E. Bernstein, who has written a compelling essay on libertarianism and antidiscrimination law, replies to his critics. Bernstein’s reply ends on an intriguing note:


One legitimate concern, raised also by Jason Kuznicki, is that the Supreme Court’s approval of the 1964 Civil Rights Act as a regulation of interstate commerce was the final nail in the coffin of the idea that Congress’s powers are limited and enumerated. The Court’s commerce clause ruling was a travesty, though it followed logically from equally atrocious rulings in the late 1930s and early 1940s.

The government instead should have argued the Court’s earlier 1883 decision was incorrect. Rather, Justice John Marshall Harlan’s dissent was correct in arguing that Congress had the power to protect African Americans from discrimination under either Section 2 of the Thirteenth Amendment, or Section 5 of the Fourteenth Amendment, as Randy Barnett explains here. Not only would this have been a better constitutional argument, but it would have provided a limiting principle: Congress can regulate private property to redress African Americans’ constitutional grievances created by, or under color of, state law.

Many on the left find the right’s fixation on “the constitution-in-exile” baffling. But I think Bernstein is right: a limiting principle is very valuable. Ultimately, a written constitution isn’t a source of real restraint in a modern liberal democracy. Rather, it is the norms and expectations built around a constitutional settlement. Had the Civil Rights Act been grounded in the Thirteenth Amendment, we might have a very different understanding of the appropriate scope of the federal government in matters not relating to the struggle against caste oppression. 


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