The Commerce Clause and Civil Rights

The Commerce Clause and Civil Rights
by Michael Giuliano


After watching the recent parade into Selma by Democratic front-runners William Hillary Rodham and Barack Obama, you might be tempted to assume that the principles flowing from the legislation being celebrated had always been self-evident to all except bigoted people in the vicinity. With the current notion of civil rights having been defined solely by the 1964 Congressional Act of the same name, and its pronouncements having been fully absorbed into the holy scripture of national law and politics, we might wonder just how this code came to be and why it differs from the notion of civil rights that existed in an earlier time.

After the Supreme Court decided Wickard v. Filburn (1942), virtually any intrastate activity with an attenuated connection to interstate commerce was deemed to be within the managerial power of Washington’s politicians and bureaucrats. In Wickard, a farmer was penalized under the Agricultural Adjustment Act for exceeding his marketing quota for wheat production-and much of the wheat was for his own consumption! By this point, there could be few further enlargements of the clause’s power through simply the inflation of its meaning. Instead, it would be expanded to regulate private social relations, using the same tortured cause and effect relationship, with little pretense that the power was being used to regulate interstate commerce or even commerce itself. It would be used to create a license for one private actor to dictate the property usage, "proper" social conscience and human associations of another; it was a weapon invented and granted by government.

The property rights and associational freedoms of Americans would be brazenly assaulted by Titles II and VII of the 1964 Civil Rights Act. Katzenbach v. McClung (1964) concerned a challenge to the Title II requirement of non-discrimination by those operating businesses of "public accommodation" (i.e. inns, restaurants). Congress had used the Commerce Clause in order to bar private business owners from discriminating based on race, sex, or religion, on the premise that this impairs travel and thus interstate commerce.

The personal or business associations of a property owner are a basic issue of conscience even leaving aside the property right of the owner to exclude from his land those he chooses. Compelling an unwanted social or business relationship and then compounding it by obliterating a most basic property right, exclusion, is more than vaguely totalitarian. In Katzenbach, the suit involved racial discrimination by a local barbecue restaurant. By ceding to the plaintiffs’ claim that the Act was a proper exercise of Congressional power, the Supreme Court entered the world of fiction; no one could have been as obtuse as to believe the facilitation of commerce was the Act’s true purpose.

§201 and §701 of the Act provide injunctive relief to a citizen alleging a violation of the public accommodations and employment discrimination prohibitions. A private weapon, granted by the government, is established for use against other private citizens wishing to exercise their freedom to employ, serve, and associate with those they desire. By making the legal relief injunctive, it amounts to a criminal penalty since a refusal to obey the court’s order leaves the defendant in contempt.

The prohibitions included in Titles II and VII of the Civil Rights Act have nothing to do with any traditional conception of civil rights. "Civil rights" were traditionally conceived as either the laws enacted to provide a procedure for the protection of "natural rights" or as those enacted to ensure equal protection under the law and common privileges of citizenship such as voting or access to the judicial system for the redress of wrongs. The 1866 Civil Rights Act was largely an enumeration of these natural and citizenship rights, rights that were to be protected for the newly emancipated as well.

According to Raoul Berger in Government by Judiciary, Blackstone’s absolute rights of Englishmen-life, liberty and property-were the fundamental rights designed to be protected by the Act, the first section of which referred to "civil rights or immunities". The immunities were the liberties enjoyed by a free people. Justice Field’s dissent in Slaughter House (1873) declared the meaning of immunities as all citizens having the same right to "make and enforce contracts, to sue…inherit, purchase…and to full and equal benefit of all laws and proceedings for the security of person and property". Civil rights were the positive procedures established to protect and defend the people’s liberties.

Previous to the 1964 rendition of the law, there existed no civil "right" to enter another’s property or to force an employment relationship upon him or her. The 1964 Act was a sign that the notion of rights as protections of personal autonomy and property had been discarded. As noted in William Wiecek’s The Lost World of Classical Legal Thought, it was typical of the modern "positive state" where "[r]ights are now seen as claims that are created by law on the state or against other individuals and entities."

The newly invented conception of civil rights established a shocking degree of control over social relationships. An owner of a small family business could be told with whom he must do business, invite on his property and even employ if the owner’s payroll barely exceeded the minimum number of employees to be amenable to the Act. Basic questions of conscience and private choice are now assumed by the state, fitting the Bolshevik model detailed by Bertram Wolfe: "All through the state, nothing against the state, nothing outside the state".

The 1875 Civil Rights Act had been an early attempt by Congress to regulate private discrimination by owners of public accommodations. The Court in U.S. v. Stanley (1883) would strike the Act’s provisions holding them as a federal regulation of private action. The first section of the Fourteenth Amendment is only applicable to discriminatory government action. This civil rights law was not predicated upon Congress’ commerce power.

The attack on property rights and voluntary association has recently become more intrusive. The egalitarian ethic requires that professional sporting events be considered public accommodations under PGA Tour, Inc. v. Martin (2001). The substantive rules of a sport may have to be amended so as not to "discriminate" against the disabled under the provisions of The Americans with Disabilities Act. Wrote Justice Scalia in dissent referencing Kurt Vonnegut’s "Harrison Bergeron": "The year was 2001, and ‘everybody was finally equal.’"

The use of the Commerce Clause for purposes of social manipulation hardly ended with discrimination laws; Gonzales v. Raich (2005) clarified the High Court’s position on reigning in the bloated powers usurped by Washington. The Court ruled that home-grown medicinal marijuana would be subjected to the normal ‘Drug War’ federal controls under the federal Controlled Substances Act.

Clarence Thomas wrote in dissent:

"Raich use[s] marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers."

Justice Thomas emerges as the only justice who will resist these exercises of brute power; not even the vaunted "conservative" Scalia can muster a dissent in favor of constitutional limitation, property, decency or freedom as against drug battles that override any competing concern. Personal and family medical decisions must be approved by the state or its designated agents who are to have the final word on every personal matter. The home poses no barrier to a war against substances the government does not want its subjects possessing.

As the purpose of the commerce power was the creation of a national market without significant barriers to trade, the grant of power to Congress should be construed in that spirit. And yet the invasion of every last sphere of autonomy, freedom and privacy is perpetrated under the current interpretation of the clause.

March 16, 2007

Michael Giuliano [send him mail] is a recent graduate of the University of Buffalo Law School. He lives and practices near Rochester, NY.

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