How is the Commerce Clause Related to Civil Rights?


INTERVIEWER: What does the Commerce Clause have to do with civil rights? It’s a great question. And first off, this surprises my students every year. The basic answer is, the Civil Rights Act of 1965, when the Congress passed it, they said, “Look, our authority for passing this law is the Commerce Clause.” The question is why? Why do we end up there? Why does Congress end up using its powers—under the enumerated powers—its powers to regulate commerce to outlaw discrimination based on race, creed, color, gender? And the answer goes back all the way into the history of the Constitution. First off, the right to be treated equally. That goes all the way back into our history. It’s part of the basis, the unspoken basis, of the Constitution. The Commerce Clause itself appears in Article 1, Section 8. Article 1 meaning Congress, [Section] 8 meaning the list of enumerated powers that Congress has under the Constitution. Early in our history, the Supreme Court was trying to create a nation. It was trying to create a nation from this collection of states. It was a new thing. So [the Supreme Court] broadly interpreted this question of interstate commerce. It said Congress has broad power to regulate commerce among the states. During the Gilded Age, the Supreme Court was attempting to outlaw all economic regulation whatsoever, and it interpreted interstate commerce very narrowly. It said almost no businesses are covered under interstate commerce, so therefore Congress can pass no laws that regulate business at all. It’s only during the Great Depression. It’s only in that national, even worldwide, economic calamity. That the Supreme Court gives Congress the power to regulate almost all commerce. It says almost all commerce is interstate, and it entirely pulls out of the business of preventing Congress and the states from passing economic regulation. At the same time, when it frees Congress, it also frees Congress to pass other laws. In 1965, therefore, when Congress was looking for a basis to pass the Civil Rights Act, it was able to turn to the Commerce Clause.

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