American Constitutionalism in Historical Perspective (packet)

Enforcement of Civil Rights and Commerce Clause (pp. 201-206)

1. Civil Rights Act of 1964: reaches public & private discrimination. Uncertain source of authority for Act

   1. Commerce Clause: broad power to regulate eco activity, d/n look at purpose which is human rts. More certain to pass on this ground.

   2. Amendment XIV: equal protection, DP, P & I provided to protect human rts of citizens from the states. But private application opposes precedent since had previously only been applied to state action.

2. Case law: have used broad interpretation of CC to reach private acts of discrimination.

   1. Heart of Atlanta: (p.150) hotel discriminating against blacks forced to provide equal accommodations on the grounds that if opened up would increase interstate travel opportunities.

   2. 
      Katzenbach v. McClung, 1964 (Ollie’s BBQ): Relied on aggregative discriminatory effect on interstate travel. Black & Douglas criticized use of CC here- 14^th A should be extended to cover private behavior. Hotel and restaurants are commercial businesses, so under Wickard as long as business might have a conn to a natn’l purpose in the aggregate, can regulate even if it’s a human rts purpose
      

4. 
   Commerce Clause: State Power (the Negative Commerce Clause) (pp. 258-269)
   

1. 
   Assuming congress is silent or h/n legislated, what may the states do? Marshallian view is that CC effectively deprived the states of ANY power to regulate interstate commerce.
   
   1. 
      Gibbons v. Ogden, 1824: Congress has authority to regulate ferries, it chose not to. NY had a ferry monopoly. Stronger argument in CC for exclusivity so NY ferry monopoly is inconsistent with fed power, preempted by fed statute. One view is that under commerce clause, states have no power.
      
   2. 
      Wilson v. Black Bird Creek Marsh Co., 1829: company authorized by state law to build a dam on a navigable river. Find that this is not interstate commerce, so within state’s authority (only an estuary)
      
   3. 
      Cooley v. Board of Wardens, 1851: PA law req ships to engage local pilot to guide out of harbor. State legislation passed regulating interstate commerce without congressional approval. Held, congress c/n give away its power, must pass legislation to give fed approval. If state law had been passed prior to 1789 then could say that Congress had passed it and adopted state law as fed law.
      
2. 
   Search for judicially enforceable standards: when states may regulate, when congress is silent.
   
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