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Don't sleep on this excellent Caplan piece. The man is a national treasure.
In "Lawsuits are the Hitman of the State," Caplan makes the case that the Texas "Heartbeat Act" is functionally equivalent to workplace discrimination laws that punish racist or sexist remarks.
(One thing I would be interested to see further discussion from Caplan on is the development of the idea that having a "job" is a "right," but he doesn't go into that in this piece. Basically, the Constitution is a document of enumerated powers, meaning the federal government can't--in theory--do anything the Constitution doesn't explicitly allow it to do. But the judicially-crafted breadth of the Fourteenth Amendment, combined with loose interpretation of the Commerce and Tax-and-Spend clauses, metastasized through the 20th century into today's rather grabby American legal system. This has given rise to the idea that you haven't just got a right to your own labor, but that you have a right to personally profit from other people's capital, at their expense, even if you contribute nothing of value to the enterprise.)
Something I really like about Caplan is how concise he manages to be while making absolutely cutting points:
Precedent on what counts as "government action" is remarkably unhelpful in understanding these things. Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors. This, even though in virtually every other regard, as Justice O'Connor then noted, "our [past] decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions." Whether any particular action counts as "government action" proscribed by the Fourteenth Amendment does not seem to depend at all on who actually took the action, in other words, but only on how the Court wants the case to come out.
So I think Caplan is dead on, here--the Civil Rights movement basically shredded any kind of principled interpretation of the Fourteenth Amendment, in pursuit of socially-engineered results.
Civil rights wasn’t just a change in the 14th amendment. It basically was a new constitution. So many items (either explicitly or implicitly) under the CRA blatantly contradict the constitution (eg freedom of association, contract clause, 14th amendment as you note). CRA also dramatically expanded the scope of the executive and heavily reduced the scope of the State’s powers.
I can only think of the NRA and possibly the 17th amendment which committed such violence to the constitutional scheme.
It is a little unclear to me why the Commerce Clause does not give Congress the power to bar a practice that made it very difficult for millions of people to engage in interstate travel.
It is also unclear to me how the Civil Rights Act violates "freedom of association, contract clause, 14th amendment." Freedom of association is not a right listed in the Constitution. The Court has recognized a right to associate for the purpose of speaking, and a right of intimate association (eg, the right to raise children and the right to live with relatives), but a freestanding "freedom of association" would be as much an invention as the right to abortion. The contract clause simply forbids states from the common practice of passing laws eliminating the debts of particular individuals. It is not a right to enter into any contract you want. Finally, how does the 14th Amendment give anyone a right to engage in discrimination, racial or otherwise?
Yes it is.
Since the power to force association is not delegated to the United States, and it is not prohibited by the States, it's right there in black and white that Freedom of Association is reserved to the States, or to the people, as the case may be.
If you want to claim otherwise, then you need to point to specifically enumerated powers.
Isn't this his point? Since the constitution doesn't guarantee a freedom of association then you don't have that right, AKA there's no reason the states can't infringe upon it, which is what they did in quite extreme fashion during segregation - if I as an individual wanted to go to McDonalds with my friend of a different race I was deprived of that right and legally barred from doing so. By ending the State's ability to prevent people of different races from voluntarily comingling, surely the CRA represented one of our history's more dramatic expansions in freedom of association.
Obviously, I'd have to be comically stupid to believe that the Ninth Amendment is anything other than a dead letter, but it's worth a mention anyway:
The founding principle of American governments was not intended to be that anything not explicitly called out falls under state power.
IANAL but my understanding is that the Ninth Amendment has never been held to confer substantive rights (which seems to be what the linked wiki page affirms as well). If it is supposed to do that, and Americans have always had a right to freedom of association, then surely segregation was always unconstitutional and the CRA just reestablished the right to association that we were supposed to have.
Of course not. The ninth amendment assumes that people already have those rights and is affirming them. It doesn't confer rights, but the rights still exist according to the constitution.
Works for me, but doesn't change that the argument that freedom of association is listed in the constitution is incorrect, hence why the states were capable of infringing upon that right during segregation.
As best as I can tell, the first time the Courts ruled that we did have a right to freedom of association it was NAACP vs. Alabama, which is much my point above - that the Civil Rights Era was a legal expansion of freedom of association rather than a contraction of it.
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