Discrimination and Commerce

Cris's comments (and the Radiolab podcast) raise some issues worth thinking about with respect to using the Commerce power to get at discrimination.

On one hand, Cris is correct that there is a certain cynicism behind using business and commerce to establish equality--a play for the dollar rather than a commitment to equality. But that cuts both ways. Some critics have argued that anti-discrimination laws are unnecessary because the market will take care of it--discrimination is economically inefficient, so rational businesses will not engage in it.

On the other hand, the dominant source of inequality that cannot be reached through the 14th Amendment is that which occurs in business and economic areas. Isn't Congress regulating commerce when it sets rules to control who interstate businesses hire or employ or do business with? If Congress can dictate a business' hours as a regulation of commerce, shouldn't it also be able to dictate that business' employment practices or sale practices? If Congress can require businesses to work with unions, shouldn't it also be able to require that they hire qualified women and not harass them on the job. Or if Congress can prohibit a business from using child labor, can't it also prohibit a business from refusing to use labor of certain races, religions, etc? Either all are regulations of commerce or none are. (It is worth noting that following Hammer, a constitutional amendment was introduced but never passed in Congress empowering Congress to regulate the labor of persons under 18).

Alternatively, think of it this way. Discrimination is problematic in two spheres: Government-run institutions (schools, legally required segregation, discrimination by government officers) and private society. The 14th Amendment, with its express prohibition on state deprivation of equal protection, gets at the first (not fully successfully, but that is the goal). Much (not all) of the second is economic--it is contracts and property and employment and doing business to be able to make, buy, and sell things on equal footing. The 19th-century conception of civil rights centered on equal participation in the social economy. It is no accident that the first thing Congress did during Reconstruction in the Civil Rights Act of 1866 (which produced the provisions at issue in Jones) was to protect the rights to contract and the rights to buy and sell property--these were seen as the ways to bring freedmen into society. So using the Commerce power to make that economy function the way Congress wants makes some sense.

We also can think of  discrimination as a collective action problem--the kind of thing states cannot regulate individually and where competition among states has interstate effects. If some states can discriminate and others cannot, you get the sort of competition and movement (described a bit in Katzenbach) that affects many states and the country. If the point of the Constitution is for Congress to regulate those matters that affect the nation as a whole or affect multiple states, discriminatory practices by businesses in one state seem to qualify, given the likely results of discrimination within that state.