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June 6th, 2010

Rand Paul & The Civil Rights Act

Written by Nathan Tucker

Shortly after winning the Republican primary for one of Kentucky’s senate seats, Rand Paul, an eye doctor and son of Texas Congressman and former presidential candidate Ron Paul, said during an interview on The Rachel Maddow show on MSNBC that, from a libertarian perspective, he had reservations about the Civil Rights Act of 1964.

Though stating that he supports the legislation and that his concerns over it in no way indicate any hidden racial bias on his part, he stressed that, as a general rule, government should not interfere with the rights of business owners. Specifically, Paul was discussing the provision of the Act which made it illegal for businesses to discriminate against their patrons based on race.

Paul’s statements have attracted an onslaught of attacks from a media all too eager to paint the upstart candidate and the Tea Party movement he represents as racist. Agreeing with the result but merely voicing concern over the means hardly makes one a racist.

But while Paul expressed concern with the use of Congress’ power from a libertarian perspective, a stronger argument can be made that Congress doesn’t have the constitutionally-delegated power to pass the questioned provision to begin with. The Constitution grants the federal government only certain limited, specified powers and prohibits it from exercising any other.

There is nothing racist about telling Congress it has overstepped its constitutional bounds, no matter how much we may personally agree with a particular piece of legislation. The Constitution doesn’t simply establish perimeters on the power of the federal government when we dislike a particular bill. Rather, its boundaries are firm and unchangeable no matter how much we would like to make an exception “just this one time.” The Constitution is an equal opportunity prohibition on federal authority.

Questions over the constitutionality of federal civil rights legislation are as old as Congresses attempts to pass such an act. Congress first passed a civil rights bill in 1875, which was subsequently overturned by the Supreme Court in the Civil Rights Cases (1883).

Proponents of the legislation argued that Congress had the constitutional authority to enact such legislation under the 14th Amendment to the Constitution. But, as the Court pointed out, that Amendment only prevents state governments from discriminating on the basis of race.

Nothing in the 14th Amendment prohibits private discrimination by employers, businesses, restaurants, movie theaters, home sellers, etc. As the majority noted, “[i]ndividual invasion of individual rights is not the subject-matter of the amendment.”

Advocates of the legislation tried to maintain its constitutionality under the 13th Amendment, which does apply to private individuals. But, again, the Court pointed out that the 13th Amendment only prohibits individuals from owning other individuals. That Amendment says nothing about private discrimination.

There the issue lay until public repugnance at the persistent and widespread racial discrimination in the South led Congress to pass the Civil Rights Act of 1964. This time around, Congress relied on its constitutionally-granted power to regulate interstate commerce rather than the 13th and 14th Amendments.

Though the Supreme Court bought the proposition hook, line, and sinker when it later upheld the legislation, many—including Senator and then-presidential candidate Barry Goldwater (R-AZ), then private lawyer and future Chief Justice William Rehnquist, and then Yale law professor and future Solicitor General and Supreme Court nominee Robert Bork—disputed this far-reaching interpretation of the Congress’ commerce power.

As has been noted, the Commerce Clause only gives the federal government the authority to prohibit state laws that discriminate against interstate and foreign commerce (i.e., trade)—defined as the buying, selling, and transportation of goods between two or more states.

It does not reach such activity as agriculture, production, or manufacturing, nor does it apply to commerce that takes place entirely within the borders of a single state. For instance, at no point did Congress contemplate that it had the power to abolish slavery, or even the interstate slave trade, via its commerce power.

Additionally, it took the 18th Amendment to prohibit the trade and manufacture of alcohol because Congress did not otherwise have the authority under the Commerce Clause. Certainly, then, Congress’ power to regulate interstate trade does not encompass the ability to prohibit private discrimination, either in local businesses or Fortune 500 companies.

Contrary to Rand Paul’s libertarian views, the Civil Rights Act was necessary to remedy a hundred years of private racial discrimination on top of hundreds of years of state discrimination. Unfortunately, it is not a remedy the federal government can apply, no matter how much we may desire it. The States are free to pass such legislation, but the Constitution does not grant the federal government the authority to do so.

The Constitution imposes road blocks on Congress which must be enforced regardless of personal desires. That is the hard task of the law.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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