The Reconstruction Amendments: State Action & Congressional Power to Enforce Civil Rights

Section 1. The Civil Rights Statutes of the Reconstruction Era

1866 Act

13^th Amend. Ratified in 1865 gave const. support to the Emancipation Proclamation and to help enforce this congress passed the Civil Rights Act of 1866

“all persons born in the U.S.” “are citizens of U.S” and it lists certain rights of “such citizens, of every race & color, w/o regard to any prev. condition of slavery”

This was applied to the states through the 14^th Amend in 1868

1870 Act

In 1870 the 15^th Amend was ratified, prohibiting denial of the franchise (voting rights) “on account of race, color, or prev. condition of slavery”

1870 Enforcement Act dealt primarily w/ state denials of voting rights

Section 6 went further: it provided criminal sanctions for private conspiracies to violate federal rights

1871 & 1875 Acts

Civil Rights Act of 1871 (Ku Klux Klan Act) established civil liabilities together w/ parallel criminal liabilities

Civil Rights Act of 1875, contained “public accommodations’ and was held unconstitutional as exceeding Congress’s power in the 1883 Civil Rights Cases.

Civil Rights Laws that Survive

Criminal Provisions

18 U.S.C. 241 “conspiracy against rights”

18 U.S.C. 242 “Deprivation of Rights under Color of Law”

Civil Provisions

42 U.S.C. 1981 “Equal Rights Under Law”

42 U.S.C. 1982 “Property Rights of Citizens”

42 U.S.C. 1983 “Civil Action for Deprivation of Rights”

42 U.S.C. 1985 “Conspiracy to Interfere w/ Civil Rights”

Section 2. The Requirement of State Action

Basic Question:

Can we call it state action even if we have a private party acting? Can they be characterized as a state actor?

Public Function Theory:

Things characteristically done by the state (punishment & imprisonment of criminals)

Nexus Theory:

Where have private & public acting to some degree together

Test: ask if the action is a power traditionally & exclusively reserved to the state

Civil Rights Cases (1883) STYLE

Issue: Was it w/in Congress’s power to pass Section 1 & 2 of the Civil Rights Act of 1875?

No, cause the 14^th Amendment prohibits certain state action of discrimination not private action

Here were trying to say couldn’t reach private actors at all (but this will change)

The 13^th Amend: Abolishing Slavery

Legislation may be primary & direct & is not directed only at State Actors

It is not remedial

It allows Congress to abolish slavery as to ALL ACTORS.

No state action required but it must still be appropriate legislation & actually have to do with the prohibition on slavery

Cannot have legislation which gives a badge of slavery

Harlan Dissent:

Modern View: 13^th Amend should cover all types of racial discrim & that all are related to slavery badge

Comes up with the “public function”

Quasi-public, license from the state, individuals operating these things should be subject to 13^th Amend

Says these individuals are acting as agents or instrumentalities of the state

As to the 14^th Amend- says wrongly interpreted & should be construed as giving broad power & not require state action

Power to Enforce? 2 Arguments:

Necessary & Proper

Remedial Only

Marsh v. Alabama

limited to facts, doesn’t cover shopping malls

Town wholly owned by a corporation which restricts freedom of speech & arrested Jehovah Witness for religious speech

Argument was it was privately owned so not state but was ruled unconstitutional cause TOWN took on the “public function”

Evans v. Newton

White-only park from a will but the trustee was the City of Macon

Ct. said park was for the public- like a police or fire dept unlike social clubs

The predominate character and purpose of the park was municipal in nature and so could be considered state action

White Primary Cases

Tried to restrict voting to whites only in Democratic Primaries

Tried to give it to private organizations

Ct. said can’t do these things

Elections & voting are state functions & so if delegate this then private becomes state actors

Shelley v. Kraemer IMPORTANT CASE

Private covenant restricting neighborhood to all whites

Allowed by private people but once court intervenes or enforces the covenant it becomes state action endorsing discrimination & cant be done

When have judicial enforcement (clerk, judge, etc) have a Shelley Issue

State Action, as that phrase is understood for the purposes of the 14^th Amend refers to exertions of state power in all forms

Burton v. Wilmington Parking Authority

Restaurant a private discriminator but was in a longtime lease located on PUBLIC property

The state authority got to collect rent & were “entangled” w/ the private guy

“Joint Participant” and had ongoing business relationship so can do it here.

The profits earned by discrimination not only contribute to, but are indispensible elements in, the financial success of a governmental agency.

Moose Lodge No. 107 v. Irvis CRITICAL CASE

Private Club wldn’t serve Black & had a liquor license & so plaintiff argued cause state license was state action

Ct. said NO, just giving a license is not a state action or endorsement of discrimination

Mere license, even in highly regulated are, not enough for state action!

Reitman v. Mulkey

Ct. said yes state action when state repealed their previous anti-discrimination in housing laws & amended its constitution

This amounted to State Endorsement of discrimination

New Test is the NEXUS THEORY:

“Ask whether there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the laztter may fairly be treated as that of the State itself?

Jackson v. Metropolitan

Electricity Company cut off electricity w/o giving a hearing

Ct. says that was not state action

Yes have a monopoly franchise but that alone is not enough

Said the city didn’t specifically approve this particular action

Flagg Bros Inc. v. Brooks

Warehousemen sold bailed...

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