I’d like to thank Professor David Bernstein for fact checking my essay at The Volokh Conspiracy. He is correct in that I did conflate freedom of contract arguments with federalism arguments. However, this legal distinction makes little difference to my overall point.
An active Court, which seeks to unconstitutionally limit the powers of Congress and refuses to show any deference to democracy, does in fact harm minority rights. That’s why it’s ironic that Timothy Sandefur purports to be some kind of staunch preserver and protector of minority rights, while claiming that I am “cold” to the rights of minorities.
Consider the Civil Rights Act of 1964, which was achieved by minorities through the democratic process after years of struggle. The law was based on the power of Congress to enforce the 14th Amendment and to regulate commerce. One of the ways the law sought to achieve equality was to outlaw discrimination in places of public accommodation. This meant that hotels and restaurants and other private businesses had to comply with the law. But some businesses at the time did not want to. For example, the owner of Heart of Atlanta Motel, a 216-room motel in Atlanta, Georgia, did not want to rent rooms to black patrons. He argued that Congress was abusing its power under the Commerce Clause, and that it was deprivation of his property rights without due process of law. Thankfully, the Court in Heart of Atlanta v. United States did not agree and deferred to Congress to protect our rights.
The Court extended this protection against a restaurant in Birmingham, Alabama in Katzenbach v. McClung, even though Congress’s connection to interstate commerce was more attenuated than in Heart of Atlanta. It upheld Congress’s power to protect our rights through a sweeping power to regulate commerce. In doing so, the Warren court stated, “where [Congress] keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere.”
In the decades to follow, Congress continued to pass legislation that protected civil rights. If the Court had enforced limits on legislative power, based on the principles of limited government and private property rights, then these civil rights laws would have been struck down.
Elevating the Court beyond its proper role in limiting the democratic process is a slap in the face to minorities who have worked tirelessly to secure their rights through legislation.
“When minorities win in the political process, those victories are entitled to the maximum amount of deference by the countermajoritarian courts,” writes law professor and author Rebecca Zietlow. “By definition repeat losers in the majoritarian political process, discrete and insular minorities only achieve victories in that process with intense effort and years of activism. Their successful struggle to obtain legislation that protects their rights deserves respect from the courts in the form of deference to that legislation.”
Sandefur complains that it’s too difficult for business owners to win through the legislative process. Meanwhile those who face and continue to face discrimination, say through unconstitutional voter suppression laws, never stop trying to achieve equal rights through democracy.