New Look at the 14th

Burial of the 1966 civil rights bill in Washington last week was a disappointing defeat for civil libertarians. But beyond that setback there was some consolation. For while congressional desire to ban discrimination in private housing is at present clearly lacking, congressional authority grows clearer and clearer. The legal roadblock has been all but removed by the Supreme Court's recently manifested willingness to let Congress give its own broad constitutional interpretation to the 14th Amendment guarantee that no state shall "deny to any person within its jurisdiction the equal protection of the laws."

Some scholars argue that the 14th Amendment commanded states to take positive action to ensure equality for Negroes. And Congress lent support to this view when it passed the 1875 Civil Rights Act, which sought to enforce the amendment by forbidding discrimination in privately owned inns, theaters and the like. But in 1883 the Supreme Court voided that law on the ground that the 14th Amendment applied only to state discrimination--that rather than requiring the states to act against discrimination, it merely enjoined them from actively discriminating.

Glowing Goal. In lone dissent, Justice John M. Harlan (grandfather of the present justice) argued that the whole spirit of the amendment was positive: that it ordered states to provide equal access to public facilities of all kinds. But the court then saw the amendment as merely a curb on discriminatory "state action," giving neither the court nor the Congress power to regulate individual behavior. As a result, while states cannot enforce segregation, they are free to deal as they please with private housing discrimination.

Though the court has been expanding its conception of state action, Congress has been understandably leery of attacking private discrimination through the 14th Amendment. Instead of going through the often grotesque reach required to find "state action," such as the fact that almost every private business requires a state license, Congress has relied on the Supreme Court's willingness to let it regulate almost everything that it claims has "a substantial eco nomic effect on interstate commerce."

Thus in 1964, Congress desegregated public accommodations purely as a problem of commerce.

Loosening Hobble. Then, last June, the Supreme Court encouraged those who argue that the 14th Amendment should be the main conduit of equal rights. By a vote of 7 to 2, the court ruled in Katzenbach v. Morgan that Congress may enforce the 14th Amendment by enacting a federal law that displaces a state law--even though the state law does not itself violate the 14th

Amendment. Specifically, Congress has authorized Spanish-speaking Puerto Ricans to vote in state elections, thus overruling a New York law that required English literacy. As the court saw it, that tactic was a rational means of enforcing the Puerto Ricans' 14th Amendment right to equal treatment.

At about the same time, in U.S. v. Guest, which grew out of Negro Educator Lemuel Penn's murder on a Georgia highway, a court majority indicated that Congress is actually empowered to pass laws punishing private acts that deny 14th Amendment rights, including "the right to equal utilization of state facilities." Taken together, Morgan and Guest clearly suggest that the need to find "state action" may be a loosening hobble on Congress' implementation of the 14th Amendment. It now seems that Congress may, when its constituents ask it to, outlaw private-housing discrimination or de facto segregated schools, not because such things are themselves unconstitutional, but because they subvert a state's 14th Amendment duty to provide equal protection of the laws.

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