On the Civil Rights Cases

The big holding of the Civil Rights Cases of 1883 was that the great human-rights sentence of the Fourteenth Amendment applied only to state action; that, therefore, the fifth section of that Amendment only empowered Congress to enforce those prohibitions on state action; and that, therefore, the Civil Rights Act of 1875 was unconstitutional:

It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation, but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of State laws and the action of State officers executive or judicial when these are subversive of the fundamental rights specified in the amendment.

There are plenty of ways of arguing against this conclusion. My grandfather had a creative one, namely that the word 'citizen' in the first sentence of the Amendment is not just an empty title, but is rather rich with meaning. Part of being a citizen, he argues, is that you will be treated in the public forum on a more-or-less equal basis with your fellow-citizens. By this logic, the "state action" doctrine is simply inappropriate in these cases. I like that argument, and think it broadly correct. But one can reach the same conclusion on a rather more narrow basis, I think.*


There are three operative clauses in the second sentence of the Fourteenth Amendment: 1) No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. 2) No state shall deprive any person of life, liberty, or property without due process of law. 3) No state shall deny to any person within its jurisdiction the equal protection of the laws. Now plainly the first two of these clauses are about state action. I don't think it's easy to claim that the Privileges or Immunities Clause, even if it actually existed, would apply to anything but the state, with the caveat that many seemingly private actions (such as private covenants of the sort handled in Shelley v. Kraemer) depend on enforcement by the state. Likewise, it boggles the mind to comprehend an application of the Due Process Clause to any genuinely private action.

But the Equal Protection Clause does not have that same feature. Denial of something to someone is the refusal to give that thing to that person. On its face, therefore, the Equal Protection Clause is aimed at state inaction, the failure to do what it must do, provide to all persons within its jurisdiction the equal protection of the laws. Moreover the tenor of the Clause seems to suggest that the laws are protecting these persons from something else. I certainly don't disagree that the Equal Protection Clause outlaws overt state discriminatory oppression, but it definitely seems to go far beyond that. The laws of the state must equally protect all persons within their jurisdiction, from something, and that something must not be merely the law itself. It is meaningless, or perhaps trivial, to say "I hereby offer you my protection, from me," except in the context of "...as long as you give me money."

So the Equal Protection Clause seems, on a plain reading of the text, to require the laws of each state to offer their protection equally to all persons within their jurisdiction. At this point two plausible interpretations diverge: on one account, the laws must merely protect all persons equally from whatever they attempt to protect any person from, while on the other there is some minimal degree of protection from evils and harm which the laws of a state must afford, equally, to all persons. On the first account a state is perfectly free to legalize murder, but may not legalize only the murder of African-Americans. On the second account a state could not legalize murder. This is a somewhat radical doctrine, legally speaking (though certainly the idea of not legalizing murder is not a radical one), and being a bit of a radical I find myself somewhat drawn to it. It is not hard to see how we could uphold the Civil Rights Act, nay, how we could argue the Court should've been requiring states to adopt their own Civil Rights Acts, under the second, further-reaching account.

But I think we can get the job done with only the first interpretation of the Equal Protection Clause. The "private" activities targeted in the Civil Rights Act were what one might call quasi-public; that is, they were not agents of the state, but they performed a public function. A common-law tradition binds inns to accept all comers. Certainly it is a denial of equal protection of the laws to require this of inns in general, but allow them to turn any person away because of their skin color. I think a similar doctrine would apply to most of the other public accommodations in question. In general, that is, most or perhaps all states protect people from the evil of being wantonly denied service by these quasi-public facilities. For this protection to be withheld from some persons on an arbitrary (that is, insufficient to justify the differential treatment) distinction, such as skin color or ethnic ancestry, is a clear denial of the equal protection of the laws. The Court should not have struck down the 1875 Civil Rights Act, and the Great Society Congress which passed the 1964 Civil Rights Act should not have felt the need to rely on the Commerce Clause to justify that law. Rather the Court should have seen the Civil Rights Act and said, yes! This is what the Fourteenth Amendment requires, and (should some suitable case or controversy arise) we should enforce this requirement against the states ourselves, independent of whatever Congress may do.



*My theory differs from the "rich citizenship" theory only in the path which is taken to reach the same conclusion, which is ultimately that people have a general right to be treated as equals in the public forum. The provisions of the first section of the Fourteenth Amendment all tend in the same direction as one another and are manifestations of the same fundamental principle (except perhaps the Due Process Clause, which is more narrowly tailored though no less important). That principle is, of course, the basic Rawlsian notion that all citizens of a nation are free and equal, with all the great expanse that this terse phrase implies following. One might even say that one major right of citizenship is the right to be protected by the laws on an equal footing to all other citizens, or that in a sense my argument is one for incorporation "rich citizenship" rights into the Equal Protection, and probably also Privileges or Immunities, Clause. Nonetheless, citizenship as anything more than an empty title has not gained much traction in our actual caselaw, to the best of my knowledge, while the words of the Equal Protection Clause simply do say what I claim they say, on any plausible reading of the English language.