Kentucky Senate candidate Rand Paul created a firestorm recently by stating 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.  This lingering dispute compels this post to set the record straight.

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 Paul’s arguments cannot be squared with the Constitution’s text and history.  Focusing on Section 5 of the Fourteenth Amendment, which states “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” The Shield explains why the power of Congress to legislate against private actors who discriminate against racial minorities is firmly rooted in the text and history of the Constitution.

As The Shield demonstrates, through Section 5, the American people deliberately and dramatically shifted the federal/state balance of power.  The second of the post-Civil War amendments, the Fourteenth Amendment made protection of civil rights a national commitment, giving Congress a central role in ensuring that our foundational document’s promise of liberty and equality is a reality for all Americans.

The framers of the Fourteenth Amendment wrote Section 5 to give Congress authority to regulate the actions of state officials and private persons 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 persons, and it is universally recognized that the Fourteenth Amendment was written to ensure that Congress had the power to pass the 1866 Act.

The framer’s basic constitutional theory – reflected in the text of the Fourteenth Amendment’s Equal Protection Clause—was that the states have a constitutional obligation to protect all persons, citizens and noncitizens alike, which Congress could enforce.  The Fourteenth Amendment, they explained, “gives to the humblest, the poorest, and most despised of the race the same rights and same protection before the law as it gives to the most powerful . . . .”  Thus, 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 and lynched, and had their rights trampled, Congress had clear constitutional authority to provide the protection the Fourteenth Amendment secured.

The framers’ also drew heavily on the Supreme Court’s own understanding of federal power under the Fugitive Slave Clause of the Constitution.  In the 1842 case Prigg v. Pennsylvania, the Court had held that Congress had the authority to regulate the acts of both states and private actors to enforce the constitutional right of slaveholders to have their slaves returned to them, even though the text of the Fugitive Slave Clause only limited state action, and did not give Congress any legislative power.  Prigg, the framers argued, “fix[ed] the interpretation of the Constitution . . . as authorizing affirmative legislation in protection of the rights of federal citizenship under federal law . . . .”

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 in a series of rulings that sharply limiting congressional power and effectively left African Americans without any protection against Klan violence or assaults on their civil rights.

For the purposes of Paul’s argument, the most important of these was the 1883 decision in the Civil Rights Cases, in which the Court invalidated the public accommodations provision 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.  In so doing, the Supreme Court wrote protection out of the Fourteenth Amendment and ignored its own precedents permitting federal regulation of private persons under the Fugitive Slave Clause.  The Court’s theory did not even fit the facts – Congress only stepped in because states were running roughshod over basic legal and constitutional principles in keeping African Americans out of railroads, hotels, and other places of public accommodation.

It took 90 years and the passage of the Civil Rights Act of 1964 – the landmark statute Paul appears to oppose – to finally outlaw racial discrimination in the provision of public accommodations in America.  In 1964, in Heart of Atlanta Motel v. United States, the Court unanimously upheld the public accommodations provision of the 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.   Although the Court did not correct the grievous error committed in the Civil Rights Cases, the Court’s unanimous opinion left no doubt that Congress has broad authority to require private persons and businesses to respect the civil rights of all Americans.

The text and history recounted in The Shield demonstrate that Paul is wrong about Congress’ authority to enact civil rights legislation applying to private persons and businesses.  Paul’s already had a chance to rethink his opposition to the Civil Right Act.  Now he needs to rethink his flawed understanding of Congress’ constitutional power to protect civil rights.