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The first amendment does not make that distinction.
It was not illegal, and it is clear it was intended to be so by the Constitution. Business are private, but their operation is public. And their operation involves a lot of regulations (taxes, unemployment insurance, etc…). A home you own is private, but when it is offered to the public, then you are engaging in commerce.
I once contemplated a move to Florida. When looking at potential houses, the realtor made it clear the neighborhood was desirable because they kept “certain” people out. We knew then we could not live in Florida. And this was 1990.
You keep missing the word “interstate” in your discussion of commerce.
Are you saying it was clear that the Constitution intended racial discrimination in housing to be illegal?
Jerry,
That is the very argument that was used to force the quota-based system on everyone. It was too difficult to prove your claim of discrimination. The original affirmative action was to streamline the evidentiary standards and lighten the burden to prove your case. Unfortunately, by whining about the difficulties of bringing a case the door was opened for the absurdities and insanities of the quota system. Black women who scored 450 on their med boards got into the Harvard Medical School. A score of 450 meant they had trouble finishing high school. Of course, they all dropped out in the first semester. The quota had to be met, so Harvard invented Black Medicine. A dumbed-down version of medicine that someone who scored 450 could handle.
We jumped right out of the frying pan right into the fire. The original idea was to make discrimination on the basis of race more difficult. The quota-system required discrimination on the basis of race to function. The fix made everything worse.
Regards,
Jim
Jim, good job. You nailed one of the two most likely ways to prove a discrimination case.
Of course, it’s always remotely possible that there is “smoking gun” evidence, like a memo saying that Tyrone was a better candidate but I promoted Biff because I don’t like black guys.
But absent such unlikely evidence, there are two ways to “prove” discrimination:
(1) Disparate impact, as you note, which ends up requiring de facto quotas; or
(2) Proving that the decision-maker is a “racist,” which leads to questions like “did you ever use the N-word?” This is a major driver of “political correctness.”
Jerry,
I’m not a lawyer. However, I would think that first proving that your client was significantly better qualified for the spot then the one who was chosen would be the start. Next, if you could get someone who works for or with the decision-maker to testify to a pattern of blatantly racist remarks (not just the one dog whistle) this would make the case much more believable.
We live in a time where imaginary inherent racism is constantly being talked about. Those of us who lived through the earlier times know full well what a real racist is like. I think that nowadays racism is hard to prove because it isn’t there. If real racism was there you’d find a way to prove it. If you aren’t ready for this challenge but still believe in inherent racism why not go all the way to reparations for slavery. Of course, the son of a Kenyan politician and a white girl who grew up in a white middle-class home wouldn’t qualify for that. One of these days Barack’s transcripts will be revealed. As a quota-baby, I suspect his grades were worse than both George W. Bush and Donald J. Trump.
Bill, you are not correct about this as a legal matter.
The Equal Protection Clause in the 14th Amendment, and the rest of the 14th Amendment, such as the Due Process Clause, have always been held to apply only to state action. There was one anomalous SCOTUS case in 1948, the Shelley case, which applied this rule to a private racially restrictive covenant on land, though it did not actually rule that the covenant was invalid between the private parties. It ruled that the court would not enforce such a covenant.
As to commerce, it was the CRA that led to a new, exceptionally broad conception of the commerce power. This was not entirely without precedent, as a series of cases in the 1930s, upholding the New Deal programs had broadened the commerce power to a laughable degree. These decisions are quite dubious, as FDR’s court-packing plan was actually threatened to force this outcome, and the change in jurisprudence is called “the switch in time that saved nine.” (Get it? Sorry, law school humor.)
The first round of absurdity culminated in Wickard v. Filburn in 1942, in which SCOTUS held that a farmer growing wheat on his own land, for his own personal consumption, was engaged in “interstate commerce.”
The second round was kicked off by the CRA. The leading cases are Heart of Atlanta and Ollie’s Barbecue, in 1964 (Ollie’s Barbecue was the name of the restaurant; the case was titled Katzenbach v. McClung).
The Ollie’s Barbecue case was the most comic of all — it ruled, quite literally, that the federal government could regulate every aspect of a tiny, local restaurant because some of the meat that it served was from out-of-state. Not that Ollie’s bought from an out-of-state supplier, mind you. It bought from a local supplier, who got some meat from out-of-state.
[Cont’d]
This is actually an area of special expertise for me, as I wrote my Law Review note on the commerce clause (about 23 years ago).
The astonishing increase in the scope of the commerce clause, as interpreted in Heart of Atlanta and Ollie’s Barbecue, led to a massive increase in federal regulation based on this justification. Examples included the gun-free school zones act, a federal law prohibiting gun possession within a certain distance of a school, and the violence against women act, federalizing certain crimes.
The argument was that Congress had power to regulate these things because they “affected commerce.” The commerce power became a pretext to regulate non-commercial things. This was rejected by SCOTUS in a 1995 case called US v. Lopez (which was the subject of my Note).
The problem is that everything affects commerce. Our use of toilet paper and shaving cream, in our own homes, affects commerce. Moreover, under the silly rule of Wickard, even if we don’t use shaving cream — but could — then that affects commerce, too.
It is a difficult line to draw, and SCOTUS has not yet been willing to push back very much against the assertion of federal power under the commerce clause. After Lopez, they did invalidate provisions of the violence against women act in the US v. Morrison case in 2000 (as I accurately predicted in my Note, incidentally).
Jerry,
Did it ever occur to you that if you can’t get the “unlikely” evidence then maybe it is best not to go ahead with the lawsuit? Otherwise “innocent until proven guilty” can be permanently replaced by “guilty by historical innuendo” as a foundational principle of justice. I’m not going to accept this.
Regards,
Jim
Article I, Section 8, states:
While this originated in the issues of transfer over rivers which separated states (most specifically, Virginia and Maryland), as it is written does not specifically require goods to pass state borders. Combined with the 15th amendment:
Makes it quite that discrimination in housing, employment and such is unconstitutional. No case using a first amendment basis has ever succeeded in federal courts. Appropriately.
Agree that the commerce clause is abused. But that does not include usage in support of civil rights. It is quite clear, based on the huge majority of court rulings, that it is appropriate.
And that argument will not go far in a court.
This makes my day, to find that there is an expert on the commerce clause in our midst. (But where were you all those other times we needed you to weigh in on this topic?)
Whatever that’s supposed to mean. But let’s hear it for quantity over quality!
How does a provision that a state shall not deprive an person of life liberty or property translate into an individual not being able to choose to whom he wishes to rent his own property?
Compare their qualifications and experience?
FDR, the New Deal, and threats of court packing are what brought about the “Second Constitution” — not the civil rights movement.
This is generally very difficult to do. It is rare that there is one extraordinary candidate who is not hired or promoted, and a vastly less qualified one who is.
In practice, this rule ends up with a judge or jury second-guessing a close call. Which means that, as an employer, you ought to prefer the minority candidate to avoid the possibility of a lawsuit. Which is race discrimination.
Bill, the problem is, that this argument did go far in court — the Supreme Court — for over 50 years. Part of that expansion was the use of the commerce power to support the CRA.
Jim, the problem is that the courts allowed the use of the quota-type evidence and allowed proof through “guilt by historical innuendo.” This is how discrimination law actually works. It is generally a shake-down.
This does not mean that there are never incidents of wrongful discrimination. But wrongful discrimination should be largely solved by market forces, anyway. An employer who deliberately selects less qualified employees is not going to do very well, in the long run.
Jerry,
There are many issues in U.S. law that we aren’t completely happy about. Our libel laws make it difficult to bring a libel suit. In Britain, it is much easier to bring it and win. Some would call this a feature and some would call it a bug. However, I don’t think the right solution is to take all libel laws off the books and let the market sort it out.
What I am saying is that the basis for the 1964 Civil Rights Act was rational. However, because of frustration with the difficulty of proving the case we went off the deep end and ended up with discrimination law, in your words, as a “shakedown”. Remove the quota-based rulings and we get back to a standard of behavior that if transgressed, and proven so, puts the abuser at risk of losing a lawsuit against them. No more “shakedowns”. If it’s difficult to prove the case that’s just tough. Everything isn’t easy and shouldn’t be so.
Regards,
Jim