A. Creation of National Gov’t and Separation of Power 7

The Commerce Clause and Anti-Discrimination; Civil Rights Acts of 1965

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The Commerce Clause and Anti-Discrimination; Civil Rights Acts of 1965;

Civil Rights Act of 1965
1. Prohibits private employment discrimination based on race, gender, or religion and which forbids discrimination by places of public accommodation such as hotels and restaurants.
2. Enacted based on commerce clause power.
Heart of Atlanta Motel (1964) p. 472 – upheld Title II of Civil Rights Act; established effects on interstate commerce of disc; can use look to totality of effects rather than just individual case
1. Background
  1. Heart of Atlanta Motel was in downtown Atlanta and had 216 rooms and most visitors from out-of-state.
  2. Hotel had policy of refusing accommodation to blacks.
  3. It was not picked by the DOJ. This was a little easier, since there was a lot of business from travelers and people going to conventions. So there was more of a connection to interstate commerce.
2. Holding
  1. Upheld Title II of Civil Rights Act, which prohibited discrimination in public accommodation.
3. Reasoning
  1. Whether Congress had a rational basis for finding that racial discrimination by motels affected commerce
    1. Voluminous evidence presented shows discrimination by hotels and motels impedes interstate travel
    2. Did not matter that Congress’ motive may also have been moral; many federal laws, like Lottery case, had been adopted under commerce power to remedy moral wrongs.
    3. Did not matter that motel may have been purely local, “if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.”
  2. If it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate
Katzenbach v. McClung (1964) p. 473; Congress’ commerce power broad and sweeping, small impact on interstate commerce still can mean subject to power
1. Background
  1. Ollie’s BBQ was a little different, being in Birmingham in a very segregated area.
  2. This was not clearly interstate case – 11 blocks from the highway, with only half of meat bought from local supplier who bought it outside the state – Hormel meat products.
2. Recitation of facts affirmed interstate connections of restaurant
  1. 46% of meat purchased came from out of state
3. Holding
  1. Congress rationally had concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. Testimony “afforded ample basis for the conclusion that established restaurants in such areas sold less interstate goods b/c of discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new busineses refrained from establishing there as a result of it.”
  2. Congress’ power under the commerce clause is “broad and sweeping.”
4. Was the South economically stagnating b/c it couldn’t attract Northern businesses b/c of segregation and the fact that blacks could not have productive businesses with all of the traveling restrictions – not very many hotels that would allow blacks.
5. None of these cases went quite as far as Wickard in seeing interstate commerce in arguably actions with very local effects.
Lassiter (1959) (handout) – 14^th, 15^th, 17^th but don’t conflict b/c facially neutral
1. Congress sought to overturn Lassiter in Voting Rights Act.
2. The Lassiter case (1959) and the court says in Lassiter that there is nothing intrinsically unconstitutional about literacy requirements in voting – the state has interests in making sure that its electorate is literate.
3. Ruling
  1. Douglas – “the states have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, absent of course discrimination which the constitution condemns.”
  2. Ability to read and write is relevant to ability to exercise franchise intelligently.
  3. Newspapers, periodicals, books and other printed matter canvass and debate campaign issues, a state may conclude that only those who are literate should exercise the franchise.
4. Evaluation
  1. Assumptions
    1. Literacy tests are race neutral in purpose and effect
      1. Generally were motivated by desire to exclude blacks from voting and that was their impact
    2. Literacy tests meet strict scrutiny
      1. In an era of television and radio, even illiterate voters could be well informed.
      2. Other forms of assistance could allow illiterate voters to participate
  2. Did not set up any obstacles for allowing court to validate 4(e) of the Voting Rights Act.

Slavery and the Civil War

Pre-Civil War and Civil War History
1. MS Compromise
  1. History
    1. In 1819, major national controversy surrounded admission of MS as a state and whether it, and other areas in LA purchase, would be free or slave.
    2. In a compromise that was intended to resolve issue, Congress admitted MS as a slave state, but prohibited slavery in territories north of certain latitude. Territories below the line could decide if slave or not.
  2. Issues
    1. Does the federal gov’t and the Supreme Court have the right to outlaw slavery on federal property? What is the power of the federal gov’t to control territories that were annexed prior to the ratification of the constitution? Even though noone in those territories had officially ratified the Constitution?
    2. We don’t want to think of ourselves as colonizers of the territories and you don’t want to think that the feds can do whatever they want in those territories, since it will offend the dignity of the people who settle there and eventually become citizens of a State and the Union.
    3. Slaveholders ought to have the right to move their family and property to the new territories as the Northerners did,
      1. McClean – the federal gov’t is entitled to reach its own judgment about whether slavery is good or bad for the social conditions for the new territories – diseased cattle could be outlawed. The property right is not immune.
        
        If you allow slavery in the territories, then anti-slavery people may not come. And there are more anti-slavery people than slaveowners, so the North clearly needs more land than the South.
        
        The deed is done – the country is split, and they cannot exist together. There is nothing wrong with the feds dividing the territory in order to get the territory settled.
    4. There was the possibility for States to determine when they enter the Union whether they want to be slave or not(moment of statehood) – this is the only point that Taney concedes – not any sort of legislative determination prior to Statehood.
2. Pre-Civil War Escalation
  1. Tariff controversies
    1. Cotton was exported from the South to England and England finished into textiles.
    2. Congress had imposed a large tariff on British textiles, which hurt the cotton industry in the South.
    3. There was an argument that the reason that the South was backward was because of slavery – the North thought that this was the link between the problems in the South and the richer more industrial North.
    4. The South filtered the economic disparity between the two through slavery – that the South had to continue to use slavery in order to survive and protect their way of life.

Lincoln and the secession crisis of his Presidency
1. Secession crisis arises under Buchanan and Lincoln’s election has only made it worse.
  1. Buchanan takes the position that secession is unconstitutional, but it does not have the right to prevent it by force. It only has the power to protect federal property.
  2. Seven states announced secession from Union upon Lincoln’s inauguration.
  3. Lincoln is conciliatory when he first takes office, but South Carolinians threaten Fort Sumter, and Lincoln moves to protect it.
  4. South Carolina feels that only by exacerbating the conflict will the other States join them, and the last States only join when Lincoln.
2. Arguments against secession
  1. Perpetuity is implied, if not expressed, in fundamental law of all national gov’ts
  2. No gov’t has organic law for its own termination
  3. If Union is compact/contract of all states, how can it be made except for unanimous consensus?
  4. No state can unilaterally withdraw
  5. Contract Law
    1. Party to contract can’t introduce evidence that contradicts written words – secessionist arguments essentially ignored text
3. Arguments for constitutionality of secession
  1. Constitution is compact between states, and if many states violate clauses of contracts, other states have right to withdraw
  2. Thomas’ argument in Term Limits
    1. Consent is not individual, but is each individual state
    2. 10^th amendment based on sovereignty of states, and popular sovereignty track state boundaries (electoral colleges, Senator representing and elected by state legislators)
    3. Constitution doesn’t speak of powers to the people as an undifferentiated whole
    4. Presumption should be that state action is legal unless expressly preempted by federal constitution
4. How can secession be reconciled with the constitution?
  1. What kind of community can you sustain in a world with no exit?
  2. Was it the consent of the people in the States or the States themselves that gave power and authority to the Union?
  3. The right to secede could significantly distort the balance of power – states could play that trump card.
  4. Slavery could have been the issue that should have been resolved at the formation of the Union and that there was no solution to the problem. So b/c there was no resolution, then secession was the only possibility.
  5. Was it so clear that secession was legally prohibited?
Lincoln’s Executive Actions during the Civil War
1. Actions of questionable legality
  1. Suspension of habeas corpus
    1. Constitution, Article I, Sec. 9 allows for suspension when public safety endangered through rebellion or invasion.
    2. Lincoln suspends habeas corpus between PA and DC for suspected confederate sympathizers, b/c MD are resisting troop movements through Baltimore. Lincoln bases it on the fact that his duty was to enforce the laws, and since the South was flagrantly disobeying the laws, he had a right to suspend habeaus corpus. Are all the laws but one to go unexecuted and the gov’t go to pieces, lest that one be violated? Would the official oath be broken by letting the gov’t fall apart? Framers could not have intended for danger to run its course until Congress was convened – he had to act in the face of danger.
    3. Taney immediately overturns it, and Taney loves the lawlessness of this.
      1. Can’t delegate suspension of writ to military officer for arrest
      2. Writ has to be suspended through act of Congress – no reference in constit. to it being a power of the Exec. No mention of it in Article II, where powers of Executive outlined.
    4. Congress passes law in 1863 authorizing President to suspend habeaus.
  2. Suspension of right to jury trial
    1. Lincoln also uses military tribunals to try civilians.
  3. Use of military power with declaration of war
    1. Lincoln still continues and starts a blockade of the Southern ports, which is a de facto declaration of war, even though only Congress only has this right.
  4. Freedom of speech – federal power over mails
    1. He closes the mails to seditious materials.
  5. Right to tax and spend money
    1. He borrows money for the war – right to tax is Congress.
    2. He recruits volunteers and pays them.
    3. He is paying federal funds to individuals instead of Bank of US to pay for war.
  6. Deprivation of due process of law – property
    1. Lincoln issues the emancipation proclamation – using it as seizing enemy property during wartime, but this is generally only used for military reasons.
  7. Infringement on federalism and usurpation of legis authority
    1. Emancipation proclamation repealed state law as punishment for criminal acts by majority of populace
    2. Power to abolish slavery was given to the states, not the national gov’t.
    3. Executive can only enforce, not make, laws. – Justice Black in Steel Seizure cases

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A. Creation of National Gov’t and Separation of Power 7

The Commerce Clause and Anti-Discrimination; Civil Rights Acts of 1965

The Commerce Clause and Anti-Discrimination; Civil Rights Acts of 1965;

Civil Rights Act of 1965

Prohibits private employment discrimination based on race, gender, or religion and which forbids discrimination by places of public accommodation such as hotels and restaurants.

Enacted based on commerce clause power.

Heart of Atlanta Motel (1964) p. 472 – upheld Title II of Civil Rights Act; established effects on interstate commerce of disc; can use look to totality of effects rather than just individual case

Background

Heart of Atlanta Motel was in downtown Atlanta and had 216 rooms and most visitors from out-of-state.

Hotel had policy of refusing accommodation to blacks.

It was not picked by the DOJ. This was a little easier, since there was a lot of business from travelers and people going to conventions. So there was more of a connection to interstate commerce.

Holding

Upheld Title II of Civil Rights Act, which prohibited discrimination in public accommodation.

Reasoning

Whether Congress had a rational basis for finding that racial discrimination by motels affected commerce

Voluminous evidence presented shows discrimination by hotels and motels impedes interstate travel

Did not matter that Congress’ motive may also have been moral; many federal laws, like Lottery case, had been adopted under commerce power to remedy moral wrongs.

Did not matter that motel may have been purely local, “if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.”

If it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate

Katzenbach v. McClung (1964) p. 473; Congress’ commerce power broad and sweeping, small impact on interstate commerce still can mean subject to power

Background

Ollie’s BBQ was a little different, being in Birmingham in a very segregated area.

This was not clearly interstate case – 11 blocks from the highway, with only half of meat bought from local supplier who bought it outside the state – Hormel meat products.

Recitation of facts affirmed interstate connections of restaurant

46% of meat purchased came from out of state

Holding

Congress’ power under the commerce clause is “broad and sweeping.”

Was the South economically stagnating b/c it couldn’t attract Northern businesses b/c of segregation and the fact that blacks could not have productive businesses with all of the traveling restrictions – not very many hotels that would allow blacks.

None of these cases went quite as far as Wickard in seeing interstate commerce in arguably actions with very local effects.

Lassiter (1959) (handout) – 14th, 15th, 17th but don’t conflict b/c facially neutral

Congress sought to overturn Lassiter in Voting Rights Act.

The Lassiter case (1959) and the court says in Lassiter that there is nothing intrinsically unconstitutional about literacy requirements in voting – the state has interests in making sure that its electorate is literate.

Ruling

Douglas – “the states have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, absent of course discrimination which the constitution condemns.”

Ability to read and write is relevant to ability to exercise franchise intelligently.

Newspapers, periodicals, books and other printed matter canvass and debate campaign issues, a state may conclude that only those who are literate should exercise the franchise.

Evaluation

Assumptions

Literacy tests are race neutral in purpose and effect

Literacy tests meet strict scrutiny

Did not set up any obstacles for allowing court to validate 4(e) of the Voting Rights Act.

Slavery and the Civil War

Pre-Civil War and Civil War History

MS Compromise

History

In 1819, major national controversy surrounded admission of MS as a state and whether it, and other areas in LA purchase, would be free or slave.

In a compromise that was intended to resolve issue, Congress admitted MS as a slave state, but prohibited slavery in territories north of certain latitude. Territories below the line could decide if slave or not.

Issues

We don’t want to think of ourselves as colonizers of the territories and you don’t want to think that the feds can do whatever they want in those territories, since it will offend the dignity of the people who settle there and eventually become citizens of a State and the Union.

Slaveholders ought to have the right to move their family and property to the new territories as the Northerners did,

McClean – the federal gov’t is entitled to reach its own judgment about whether slavery is good or bad for the social conditions for the new territories – diseased cattle could be outlawed. The property right is not immune.

There was the possibility for States to determine when they enter the Union whether they want to be slave or not(moment of statehood) – this is the only point that Taney concedes – not any sort of legislative determination prior to Statehood.

Pre-Civil War Escalation

Tariff controversies

Cotton was exported from the South to England and England finished into textiles.

Congress had imposed a large tariff on British textiles, which hurt the cotton industry in the South.

There was an argument that the reason that the South was backward was because of slavery – the North thought that this was the link between the problems in the South and the richer more industrial North.

The South filtered the economic disparity between the two through slavery – that the South had to continue to use slavery in order to survive and protect their way of life.

Lincoln and the secession crisis of his Presidency

Secession crisis arises under Buchanan and Lincoln’s election has only made it worse.

Buchanan takes the position that secession is unconstitutional, but it does not have the right to prevent it by force. It only has the power to protect federal property.

Seven states announced secession from Union upon Lincoln’s inauguration.

Lincoln is conciliatory when he first takes office, but South Carolinians threaten Fort Sumter, and Lincoln moves to protect it.

South Carolina feels that only by exacerbating the conflict will the other States join them, and the last States only join when Lincoln.

Arguments against secession

Perpetuity is implied, if not expressed, in fundamental law of all national gov’ts

No gov’t has organic law for its own termination

If Union is compact/contract of all states, how can it be made except for unanimous consensus?

No state can unilaterally withdraw

Contract Law

Party to contract can’t introduce evidence that contradicts written words – secessionist arguments essentially ignored text

Arguments for constitutionality of secession

Constitution is compact between states, and if many states violate clauses of contracts, other states have right to withdraw

Thomas’ argument in Term Limits

Consent is not individual, but is each individual state

10th amendment based on sovereignty of states, and popular sovereignty track state boundaries (electoral colleges, Senator representing and elected by state legislators)

Constitution doesn’t speak of powers to the people as an undifferentiated whole

Presumption should be that state action is legal unless expressly preempted by federal constitution

How can secession be reconciled with the constitution?

What kind of community can you sustain in a world with no exit?

Lassiter (1959) (handout) – 14^th, 15^th, 17^th but don’t conflict b/c facially neutral

10^th amendment based on sovereignty of states, and popular sovereignty track state boundaries (electoral colleges, Senator representing and elected by state legislators)