A FB friend of my brother-in-law has just posted an argument that (boiled down to its essence), the 14th Amendment notwithstanding, the 9th and 10th Amendments render unconstitutional any attempts to apply any “places of public accommodation” requirements upon any privately run business. That is, the 9th prevents states from imposing public accommodations obligations upon businesses, and the 10th prevents the Federal government from doing so.
What’s the current best debunking to this line of reasoning? Note that he goes on to say that many people were claiming in 1964 that the Civil Rights Act was unconstitutional.
Well, in the Civil Rights Cases of 1875, the Supreme Court ruled that the Fourteenth Amendment only applies to agencies of the government, and not individual people. And so, individual people could legally discriminate as they saw fit. At this point in time, the Commerce Clause was not yet used to justify the various public accommodation laws.
However, the bit about the Ninth and Tenth Amendments being the foundation of this is not true. While certain people have tried to find some weight in these amendments, the basic interpretation has pretty much always been that they are truisms, lacking any substantive effect.
The constitution does not require people to be truthful in their advertising - presumably lying in your advertising is free speech. The constitution does not require people to carry identification to board a plane, nor a diver’s license to use public roads with a motorized vehicle… and so on. The states and federal government passes laws. the validity of these laws hinges on whether they are deemed by the Supreme Court to violate and constitutional provisions.
So there’s nothing constitutional there. So just as the states or feds can impose “reasonable” restrictions - i.e. must have a driver’s license to drive on public roads - they can impose what are deemed reasonable restrictions on commerce - if you want a license to run a store/hotel/amusement park, you cannot discriminate against race or creed or colour.
Also there is nothing in the 9th and 10th amendments that prohibits any state from doing anything. The civil war amendments, on the other hand, certainly do. Then the “necessary and proper” clause really opens up federal jurisdiction.
Anyway, if they can convince 5 old men of the correctness of their position, they will win. Otherwise they are tilting at windmills.
You know, I don’t think I need to read more than the quoted bit, to know that the best response is: “You can’t use logic and reason to get someone away from a position that they didn’t use logic and reason to reach.”
I’ve never really understood why the Supreme Court felt the need to invoke the commerce clause to justify the federal government’s outlawing of discrimination in public accommodations (that is, they said it was within the Federal power to enact such laws because congress has jurisdiction over interstate commerce, and a person might travel from out of state and try to use one of these discriminatory establishments, so Congress can impose a standard of conduct on the place of business). My best guess is that they felt beholden to the 19th century decisions that said that the 14th amendment only applies to government action.
A far more simpler argument, in my opinion, is to say that those 19th century cases were wrongly decided, because the 14th amendment gave congress the authority to pass such laws. It’s right there in the amendment, at section 5.
[QUOTE=U.S. Constitution, Amendment 14, Section 5]
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
[/QUOTE]
The amendment gave jurisdictional power to Congress! So, the 10th amendment’s language which says that powers not delegated to the United States are powers of the states, or peope, doesn’t apply. It is expressly within the power delegated to Congress, by virtue of the 14th amendment, to pass laws to ensure that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
Nor would the 9th amendment apply. You can’t claim that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” applies to protect the right of discrimination in public accommodations when there is already a 14th amendment which guarantees people equal protection of the laws. Equal protection is an enumerated right; the fact that other rights may exist doesn’t invalidate that.
It sounds like the argument boils down to, “if we ignore the parts of the constitution we don’t like, then the other parts allow us to do things that the parts we ignore would prevent us from doing.” By that logic, there is no Constitutional right to own a gun if we just ignore the 2nd amendment.
The best de-bunking is that the SC, over the past 50 or 60 years, has had numerous opportunities to use the 9th and 10th amendments to rule against public accommodation laws, yet they haven’t. So they don’t agree with your friends, whose opinions are meaningless.
You should challenge these people to go find an ultr-conservative law firm that agrees with them, start or acquire a business, and promote the business as catering to only one race or one religion, and hope they get sued so the Court has another chance to rule the way your buddy wants.
The 9th is only a rule of interpretation. It just says that simply because a right wasn’t explicitly listed in the Constitution, that doesn’t necessarily mean it doesn’t exist. It might exist, it might not, but you can’t use the fact that it wasn’t listed in the Constitution to determine that. You have to look at the other parts of the Constitution to make that determination. So, I guess your friend is claiming that there’s a right not to conduct commerce on the basis of race? Well, all the 9th says about that is “maybe there is, maybe there isn’t, so go look at the rest of the Constitution to determine that.”
As for the 10th, all it says is that if the Federal government doesn’t have a power, then you go look at the States or the people to see who has that power. But it doesn’t tell you anything about which powers the Federal government has. You still have to go look at the rest of the Constitution to determine that. So, I guess your friend is claiming that the Feds don’t have the power to prevent discrimination in commerce? Well, all the 10th says is “Go look at the rest of the Constitution to determine if the Feds have that power. If they don’t, then the States or the people have the power.”
Lots of people claim lots of things are unconstitutional, but common law isn’t really determined by lay popular opinion.
I think it’s more broad then that. The 14th amendment gives the Congress the authority to pass laws to enforce the amendment. And the amendment includes various rights and restrictions, among which is the restriction against states “deny[ing] to any person within its jurisdiction the equal protection of the laws.”
Or, if you prefer, Congress can pass laws to make sure that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Either way, Congress can cite the 14th amendment when it passes a public accommodations law. And Congress’ authority to do so is the enforcement clause of the amendment.
(Note that I have purposefully not referenced parts of the amendment - like due process or birthright citizenship - which I don’t think apply to the issue of private discrimination)
Because while state discrimination denies equal protection of the law, private discrimination doesn’t. The 14th amendment gives Congress the power to keep states from discriminating against people. But a strict reading of the amendment doesn’t say anything about what private citizens can or can’t do.
So the court has to fall back on the commerce clause to give the federal government enforcement power.