American Constitutionalism in Historical Perspective (packet)

Congressional Enforcement Powers

1. 
   Commerce clause: thin judicial enforcement, any commerce w/ necessary & proper connection to nat. economy. As long as what’s regulated is commercial, likely to fall w/in commerce class. Exceptions: Civil Rts Act of 1964 anti-discrim provisions upheld, Anti-Gun Act unconst (Lopez), and Violence Against Women Act also unconstitutional (Morrison).
   
2. 
   Reconstruction Amendments: 13^th, 14^th, 15^th A: robust judicial enforcement and use of fed power to enforce civil rts. Judiciary creates Equal Protection analysis of suspect class, unusual burden on class, and express vs. invidious discrim (unconstitutional weighting of vote, voting rts cases). Congress c/n override this under Marbury, so question arises what legit scope of Congressional powers (remedial theory vs. substantive theory)
   
   1. 
      Voting Rts Act of 1965: Katzenbach, Morgan, Rome
      
   2. 
      Voting Rts Act of 1970: Oregon v. Mitchell
      
   3. 
      RFRA of 1993: unconst. in Boerne
      
   4. 
      Violence vs. Women Act of 1964: unconst. in Morrison
      

State Action (pp. 917-926)

1. Background: during Radical Reconstruction period Congress took on responsibilities that had previously been left to the states. States w/n enforcing laws to protect blacks from reenslavement. Led to drafting of 14^th A which applied national law ONLY to the states not to private parties.

   1. Statutes enacted to give the Reconstruction Amendments force: often extended enforcement beyond state action (see below). The statutes derive their authority from the 14^th A, which is limited to state action, to the extent that they go beyond this they are arguably ultra vires. These statutes become dead letter when the North withdraws from the South, but are later revived during the Civil Rights Movement, leads to passage of the Voting Rights Act of 1965.

   2. 4 approaches around state action req: (1) State action interpreted broadly (Harlan), (2) may be possible of §5 of 14^th A to extend anti-discrim imperative further than judiciary can (Brennan in Guest), (3) 13^th A has no state action req, so if can ground legislation in §2 of 13^th A can apply legislation w/out state action req (Runyon), and (4) no state action req w/ interstate movement, etc.

2. Civil Rights Cases, 1883: the court struck down the Civil Rights Act of 1875 as it was ultra vires as applied to private citizens. Read w/ Plessy, Lochner, etc b/c tears heart out of fed enforcement and Reconstruction Amendments. Open accommodations provision: anyone who goes to hotel/restaurant c/n denied service b/c of their race, but no state action here. Later becomes Civil Rts Act of 1964.

   1. Bradley: Introduced distinction b/w public and private enforcement. Wants to draw the line, d/n believe slavery necessarily leads to discrim, afraid that to go that far would open up personal interactions to scrutiny. Outside scope of 14^th a b/c of state action req. Reserves the ques of whether this law would be const under Commerce Clause since Congress is authorized to reg business. W/n allow under 13^th A what is unconst under 14^th A (overruled by Runyon, Jones).

   2.