an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Upon his successful nomination to be Republican Senate candidate from Kentucky on Tuesday, Rand Paul announced: “I have a message. A message from the Tea Party....We’ve come to take our government back.” Just where he hopes to take it has become clearer in a round of post-election interviews. The topic of the day is Paul’s position on the Civil Rights Act of 1964. Paul said that he supports most of the act, and he supports non-discrimination by the government and government-funded programs. But in an interview with Rachel Maddow, he raised questions about Title II of the Civil Rights Act, which prohibits discrimination by “public accommodations”: private businesses like restaurants, movie theaters and hotels. (A video of the interview is below.)
When pressed by Maddow on his views about the Civil Rights Act, Paul confused the issue by suggesting that if the federal government could prohibit actions by private businesses, it would lead to private businesses being unable to block customers from bringing firearms into their businesses. When asked whether he supported the public accommodations provisions of the Act, Paul said: “Right now many states and many gun organizations are saying they have a right to carry a gun in a public restaurant, because a public restaurant is not a private restaurant, therefore they have a right to carry a gun in there, and that the restaurant has no right to have rules in their restaurant....So you see when you blur the distinction between public and private, there are problems.”
Paul’s logic suggests that government protection of civil rights in private businesses essentially turns the businesses into “state actors,” and as state actors, they would be bound to protect all constitutional rights, including the right to bear arms.
(What follows will be obvious to Con Law scholars, but I am spelling it out for other readers.) “State action” might have been the basis for the Civil Rights Act to reach private restaurants, but this basis for such antidiscrimination laws was rejected by the Supreme Court in the Civil Rights Cases in 1883. For that reason, the Kennedy and Johnson Administrations turned principally to the Commerce Power as a basis for the 1964 Act. The Commerce Power enables Congress to regulate private businesses that are part of interstate commerce or that substantially impact interstate commerce. Congress regulates a whole host of actions by private businesses that affect interstate commerce—pollution, employment, occupational health and safety, production of safe and effective food and drugs, etc. The Supreme Court upheld the public accommodations provisions of the Civil Rights Act as proper under the Commerce Power in Heart of Atlanta Motel v. United States and Katzenbach v. McClung in 1964.
The Act itself mentions both Commerce and State Action. It applies to businesses that “affect commerce, or if discrimination or segregation by it is supported by State action.” The state action language triggers a different constitutional power: the enabling clause of the 14th Amendment, which gives Congress the power to pass laws to enforce the Amendment. This clause was narrowed in the 1883 Civil Rights Cases. But neither power turns private restaurants into agents of the state, required to uphold all constitutional rights. The Commerce Power simply provides Congress with power to pass a law regulating them.
Here’s where Paul has confused things: It is one thing to say that Congress at least arguably has power to require a restaurant to admit gun toters, and it is another to suggest that, without any action on the part of Congress, the Civil Rights Act and the cases upholding it have made restaurants state agents, required to uphold all rights, including the right to bear arms.
A law prohibiting private businesses from having rules against bringing in guns would be a pretty awful law. But nothing in the history of the Civil Rights Act supports such a prohibition. Congress has power to pass many unwise statutes. The principal check on all of Congress’s broad power is the judgment of members of Congress, and of the people who elect them.