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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.
The Administrative Procedures Act is up there too.
The APA seems bad out of context, but it was actually an attempt by Congress to rein in the executive, which under FDR and Truman was doing all of the same stuff anyway under baldly asserted "inherent powers" of the President as stand-in for king. Before the APA, general injunctive relief against federal agencies literally did not exist.
And this is why the focus on the Civil Rights Act as a new constitution is a bit skewed.
Elites have been attacking the US constitution ever since the Alien and Sedition Acts. More importantly, by the Progressive Era there was a well-established ideology that was hostile to the way classical liberal constitutionalism interfered with energetic technocratic government action. This is why FDR wanted to pack the court.
There's a certain amount of stupid in the CRA, but the 1960's had the virtue that people were returning to the idea that individual had inherent rights that ought to be vindicated against the higher "wisdom" of the powers that be. America's strong 1st Amendment jurisprudence emerges from the same era.
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