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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?
I'd point to Gustafson, but it's kinda in a weird limbo right now.
As a trivial matter, the 14th Amendment is how the 1st Amendment is incorporated, and I'll point again to the hat. And I use that case rather than a t-shirt because nobody talks about Dawson to the point where you can play Google Golf with it.
You've focused on 'discrimination' in the simple contract or refuse-to-contract sense, and to some extent that case is at least more arguable (though I'd quibble whether the modern contract clause jurisprudence is so clear an honest trim-back from Lochner invention), but under modern CRA jurisprudence that's no longer the boundaries and often not even the central example of modern-day discrimination. For employment discrimination purposes, allowing employees to play the wrong radio stations or tape up the wrong posters is part of the mainstream definition and just as clearly discrimination. So, for that matter post-Bostock, have the bounds of covered frameworks expanded: I emphasize Demkovich for throwing away the ministerial exception (overturned on appeal), but it was not overturned or even seriously questioned on the hostile work environment claim, separate from any employment action claims, despite the court finding explicitly that : "The conduct plaintiff alleges here is classic tortious harassment under Meritor Savings Bank, Harris, Ellerth, Faragher, and countless other cases: his supervisor allegedly subjected him to a campaign of verbal abuse based on his sex, sexual orientation, and disabilities, ultimately interfering with his job performance and mental and physical health."
This may have at one point been limited to actual conduct or conduct-enough-speech to have evaded normal First Amendment jurisprudence (the original hostile work environment in Meritor was serial rape, and Faragher v Boca Raton was handling a case with "unwanted touching" and threats of employment actions when it noted that it was not trying to produce a general civility code), but Faragher was 1998, and Reeves v. C.H. Robinson was 2010, and the law has not slowed. We have a civility code, and the extent employees may want to operate the same conventions independently is interesting but does little to evade the constitutional questions when there are routine actions by the EEOC.
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