American Constitutionalism in Historical Perspective (packet)

Harlan dissents: represents the structure of the current law.

1. 13^th A: power to move anti-discrimin imperative beyond public into private sphere, but not everywhere. Certain business practices have public character to which the 13^th A could be applied. Public conveyances are highly publicly regulated and licensed businesses, so have quasi-public functions. Approp to extend public accommodations doctrine into these areas.

2. 
   14^th A: relies on Citizenship Clause in sec. 1 – “All persons born or naturalized in US, and subject to the j/d thereof, are citizens of the US and of the State wherein they reside.” No state action limit in this clause and implies equal rts. Further the Necessary & Proper Clause gives Congress the power to enforce equal citizenship, i/n confined to state action.
   
3. 
   Limitations: realizes rts in conflict w/ the rt of privacy (liberty vs. equality) – “If one citizen chooses not to hold social intercourse w/ another, he is not and c/n be amenable to the law.” Sometimes Equal Protection will have to yield to the rt of privacy.
   

P.892: Cruikshank: lynching by private parties c/n be reached but if lynched b/c assembled to protest fed law, then can reach it b/c not limited by state action req

Civil Rights Act of 1964: public accommodations legislation grounded on both the Commerce Clause and XIV Amend, sec. 5 enforcement powers.

1. 
   Heart of Atlanta v. Katzenburg: S. Ct. finds the act constitutional, dictum indicate that there is ample power in the Commerce Clause to regulate this type of business. D/n matter whether public or private. Human dignity v. Commerce: if really about human dignity, should be grounded on enforcement powers in 14^th A § 5, and would have overruled Heart of Atlanta. Some argue that degrades the issue of civil rights to protect under the Commerce Clause. The Warren Court: expands case law in accord with the Harlan dissent above.