This is the third installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.

A recurring theme within the Tea Party movement is that the Constitution provides no, or extremely limited, authority for the federal government to interfere with private discrimination.  Kentucky Senate candidate Rand Paul caused a small firestorm earlier this year by suggesting that he opposed the portions of the Civil Rights Act of 1964 that prohibit racial discrimination by private businesses providing public accommodations.  The outrage following his comments quickly forced Paul to backtrack at least somewhat, though he has still not said, unequivocally, that he supports federal laws banning discrimination by privately-owned establishments and believes these laws are constitutional.  Paul’s views are part of a larger Tea Party campaign to roll back federal regulation of private businesses – a leading Tea Party website TeaPartyPatriots.org flatly “oppose[s] government intervention into the operations of private business” – and to strictly limit, if not outright repeal, the protections available under the constitutional amendments added after the Civil War to guarantee liberty and equality for all Americans.  At the outer fringes of the Tea Party, Mark Williams, one of the leaders of the Tea Party Express, went so far as to suggest, in a racist “satirical” diatribe, the repeal of the Thirteenth and Fourteenth Amendments, and that the slaves would have been better off remaining in bondage.

While the Tea Party likes to wrap itself in the mantle of the Founders’ Constitution – as in this photo of Mark Williams speaking with the Constitution’s Preamble as his backdrop – it consistently gets the text and history of the Constitution wrong.  Both the Commerce Clause contained in Article I of the Founders’ Constitution as well as Section 5 of the Fourteenth Amendment plainly give Congress the power to ban racial discrimination by private businesses that run public accommodations.

As this Issue Brief by CAC documents, at the Founding, “We the People” created a federal government of defined but substantial powers, including the power to strike out at local commercial practices that jeopardize free trade.  The Commerce Clause is unquestionably a broad power, expressly giving Congress the power to regulate interstate commerce, traffic, and intercourse.  In 1964, in the landmark case of Heart of Atlanta Motel v. United States, the Supreme Court unanimously upheld the public accommodations provision of the 1964 Civil Rights Act under the Commerce Clause, pointing out that racial barriers thrown up by Jim Crow were hampering the free flow of interstate commerce.   No Justice of the Supreme Court has ever questioned the correctness of Heart of Atlanta’s holding, including Justice Thomas, who has long urged the Court to dramatically cut back on the recognized reach of the Commerce Clause.  For good reason, Heart of Atlanta is a foundational part of our law.  Congress must have substantial power to forbid commercial practices – such as racial discrimination – that hinder free trade of goods and services.

Just as important, Heart of Atlanta’s holding that Congress has the power to prohibit racial discrimination by businesses that operate places of public accommodation finds deep support in the text and history of the Fourteenth Amendment.  In fact, two Justices in Heart of Atlanta specifically concurred to explain that the Fourteenth Amendment gave Congress the power to enact the public accommodation provisions of the Civil Rights Act of 1964.

Constitutional Accountability Center’s report entitled The Shield of National Protection: The Text & History of Section 5 of the Fourteenth Amendment, available here, shows why the power of Congress to legislate against private actors who engage in invidious discrimination is firmly rooted in the text and history of the Constitution.

The framers of the Fourteenth Amendment wrote Section 5 to give Congress authority to regulate the actions of state officials and private actors to protect the liberty and equality of the newly freed slaves and their allies.  Acting against the backdrop of efforts to re-establish slavery, as well merciless violence perpetrated by former rebels and white terrorist groups against the freed slaves and their Union allies in the South, the framers sought to ensure that Congress would have broad legislative authority to protect civil rights, whether under attack by private actors or government officials.  In fact, Congress’ very first piece of civil rights legislation, the Civil Rights Act of 1866, applied to both state actors and private actors, and it is universally recognized that the Fourteenth Amendment was written to ensure that Congress had the power to pass the 1866 Act.  Nothing in this history gave private businesses a free pass to discriminate.

The basic premise of the Fourteenth Amendment – reflected in the text of the Equal Protection Clause – was that the states have a constitutional obligation to protect all persons, citizens and noncitizens alike, an obligation that Congress could enforce.  States could not turn a blind eye to criminal or discriminatory acts committed against a disfavored group.  As the framers recognized, “[a] State denies equal protection whenever it fails to give it.  Denying includes inaction as well as action.”  Thus, when states sat idly by while the freedmen and their allies were murdered, or otherwise had their rights trampled, the Fourteenth Amendment ensured Congress had clear constitutional authority to intervene.

Sadly, the Reconstruction-era Supreme Court – brimming with hostility to the Fourteenth Amendment’s protection of racial equality – refused to follow this text and history, and set the stage for the Jim Crow era in America through a series of rulings that sharply limited congressional power and effectively left blacks without any protection against Klan violence, or from assaults on their civil rights by other private actors. One of the most important of these rulings was the 1883 decision in the Civil Rights Cases, in which the Court struck down a part of the Civil Rights Act of 1875, reasoning that because the Fourteenth Amendment only limits state action, Congress could only legislate to fix constitutional violations by the states.  Only Justice Harlan, who argued in dissent that the Fourteenth Amendment gave Congress the power to prohibit racial discrimination by business owners operating public accommodations, was faithful to the Constitution’s text and history.

The Civil Rights Cases stood as the leading precedent on the subject until 1964, when Heart of Atlanta Motel unanimously upheld the public accommodations provision of the 1964 Civil Rights Act under the Commerce Clause.   Although the Court did not correct its grievous error committed in the Civil Rights Cases, the Court’s unanimous opinion in Heart of Atlanta Motel left no doubt that Congress has broad authority to require private persons and businesses to respect the civil rights of all Americans.  The result was to bring the Constitution back into line with text and history.

There are a range of fair disputes about the powers of the federal government, but the authority of Congress to enact the Civil Rights Act of 1964 and the validity of the Heart of Atlanta Motel ruling are not properly within that range.   In 2010, it is surprising and disturbing to find a national party candidate for Senate such as Rand Paul questioning the settled and unquestionably correct conclusion of the Supreme Court that the federal government may enact and enforce civil rights legislation applying to private businesses. Both the Commerce Clause and Section 5 of the Fourteenth Amendment plainly give Congress the power to insist that business owners do not discriminate on the basis of race.