The Irony of Deducing “Constitutionality”

The 14th amendment was enacted in 1868, with the intention of preventing any state from making a law discriminating against African-Americans, or enabling the discrimination of African-Americans under cover of existing law. The “privileges and immunities” of all citizens were not to abridged; no person was to be deprived of their life, liberty, or property, without “due process of law”; and no person could be denied the equal protection of the laws and their subsequent enforcement.

In 1873, the infamous Slaughterhouse Cases established that the 14th amendment only safeguarded the federal rights of individuals, and was not to be construed so as to be “incorporated” into the states themselves, thus allowing for states to freely curtail the rights of individuals therein, so long as those curtailments and abridgements did not violate a federal right of the individual (e.g., freedom of speech, assembly, right to trial by jury, etc.). Additionally, in 1883, the also infamous Civil Rights Cases established that Congress did not have the authority, under the enforcement provision of the amendment, to proscribe private (i.e., non-governmental) discrimination. Both of these cases patently ignored both the text of the amendment and the intention behind its passage. And both established precedents that essentially wrote the 14th amendment out of the Constitution.

Fast forward to 1964. As Congress mulled passage of the Civil Rights Act, they were not sure what constitutional power enabled them to do so, in order to proscribe discrimination across the country. A few Senators noted that the 14th amendment provided the proper constitutional authority to pass such a law. However, due to the aforementioned precedents – which, to reiterate, were woeful misreadings of the 14th amendment – Congress opted instead to shoehorn the authority to pass civil rights legislation into their power to regulate interstate commerce as enumerated in Article 1, section 8. So, instead of passing a law under a constitutional power plainly enabling such a law, they passed a law by expanding a constitutional power to the point of “pervert[ing] the meaning and purpose” of that power (letter of G. Gunther to the DOJ, June 5, 1963).

Which leads me to this conclusion. Stare decisis is a doctrine without which a stable rule of law would be impossible. As such, it is absolutely vital to adhere to as a default mode of jurisprudence. When the doctrine, however, forces plain and obvious misreadings of the Constitution, and also forces unconstitutional and nonsensical workarounds to try to recover lost ground due to said misreadings, it is a good sign that precedent should be abandoned in favor of common sense. The “Irony” in the title above is that bad precedent can have the perverse power of making an otherwise constitutional law (in the original meaning of the text) unconstitutional!

Congress should not shrink from a fight when this is case. They should abide by their legitimate enumerated powers, and force the judiciary to review and overturn bad precedent. Of course, that’s easier said than done. But, in my view, it would grossly reduce the amount of constitutional mischief enabled by such “creative” workarounds, and would respect the intended meaning of the text, as well as the appropriate processes for fixing inadequacies in the text and the rule of law entailing from it.

The passage of civil rights in the 60s was beset by a host of complications, and, given the post-New Deal commerce authority of which Congress found itself in possession, I do not necessarily fault legislators then for taking the “path of least resistance” (although the fact that the Court had already signaled their desire to end discrimination via Brown v. Board should have inspired more confidence among members of congress to adopt the 14th amendment construction they were debating!). Nevertheless, every now and again a constitutional confrontation might help clarify gross injustices entrenched within the rule of law, and help bring about the resolution of those injustices in short order, rather than creating other injustices that exacerbate and prolong the confrontation (see, e.g., Justice Douglas’ dissent in Katzenbach v. McClung, wherein he observes that “a decision based on the fourteenth amendment would have a more settling effect, making unnecessary litigation over whether a particular restaurant or inn is within commerce definitions of the Act or whether a particular customer is an interstate traveler….that construction [of the fourteenth amendment] would put an end to all obstructionist strategies and finally close one door on a bitter chapter in American history”).

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