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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.
Not Marbury v. Madison? (Kidding, kind of.)
But relatedly, the Civil Rights Act was just the legislative prong; I would argue that the Warren court overall did far greater violence to American liberty than any specific act of Congress. In particular, "one man one vote" via Baker v. Carr (1962) and Reynolds v. Sims (1964) stripped "protected minority" status from rural Americans, in effect ensuring that the United States would eventually follow the same trajectory as every other urban-centered empire in history. When your cities are packed with low-agency wards of the state who can vote themselves unlimited quantities of free grain, keeping the lights on becomes an increasingly fraught undertaking.
Marbury was technically wrong so you aren’t wrong but probably the o LT real workable outcome.
And agreed, Warren court was terrible for constitutional design. Really the entire period from 1930-1980 was terrible in fucking up the constitutional order for which we now are paying a price.
Fwiw quite a few of the founders seemed to think judicial review was going to be a thing; Hamilton famously argued for it in the Federalist Papers. It was already practiced in State and Federal Courts and of course for a long time in English Common Law, so I don't know if it should be counted that highly as a legal revolution, at least as measured by how far it departed from founding intent and the historical context.
The difference was at least in England is that the judiciary was an appendage of the King’s authority whereas under the US scheme the judicial authority was both separate but co-equal.
So the idea that the SCOTUS could command the executive to do an action was at least questionable under the constitutional scheme.
Now, I think you need a scheme to ensure the Fox isn’t guarding the henhouse so as a prudential matter I don’t dislike Marbury. But I would like it a lot more if it functioned to say “Executive can’t do X” instead of “Executive must do X” in the civil application by the executive (criminality is a whole different ball of wax)
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