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April 15, 2014 11:41 AM Learning to Live With the Civil Rights Act, 50 Years Later

By Ed Kilgore

Freshman U.S. Rep. Ted Yoho (R-FL) has mainly drawn attention as a Tea Party ultra who somehow managed to draw a Tea Party ultra ultra 2014 primary opponent with rather exotic extracurricular activities.

But he may be fairly typical of his ideological cohort in having some, well, problems coming to grips with major legislation enacted a half-century ago, per this report from Scott Keyes of Think Progress:

Rep. Ted Yoho (R-FL), a freshman congressman aligned with the Tea Party, held a town hall Monday evening in Gainesville where he fielded a wide range of questions from constituents. One such voter was Melvin Flournoy, a 57-year-old African American from Gainesville, who asked Yoho whether he believes the Civil Rights Act is constitutional.
The easy answer in this case — “yes” — has the benefit of also being correct. But Yoho found the question surprisingly difficult.
“Is it constitutional, the Civil Rights Act?” Yoho repeated before giving his reply: “I wish I could answer that 100 percent.” The Florida Republican then went on to strongly imply it may be unconstitutional: “I know a lot of things that were passed are not constitutional, but I know it’s the law of the land.”

Well, that’s mighty nice of him to acknowledge the Supremacy Clause, not a universal tendency among self-styled Constitutional Conservatives.

But the difficulty a lot of CCers have with the Civil Rights Act—which almost certainly exceeds public expression, given the rather controversial nature of fighting the particular lost cause that helped sink their predecessor Barry Goldwater’s 1964 presidential campaign—comes from three distinct but interrelated sources. The wonkiest issue is hostility to the Commerce Clause jurisprudence on which the Public Accommodations section of the Civil Rights Act relied for regulating private discriminatory business practices. It’s very common in conservative legal circles to deplore the extension of federal power via the Commerce Clause during a chain of Supreme Court decisions beginning in the 1930s; Chief Justice Roberts famously refused to accept a Common Cause rationale for the Affordable Care Act of 2010.

A second argument that would have been more familiar to Goldwater and to the southern segregationists who flocked to his 1964 campaign is a states’ rights objection to federal regulation of race relations. While today’s neo-secessionists would try to stay a million miles from racial issues in arguing that “state sovereignty” retains meaning even after the Civil War, it still has a ghostly power in conservative circles.

And then there is the idea, embraced off-and-on by the Paul family, that the Civil Rights Act simply violates fundamental principles of private property rights that cannot be trammeled for any cause, however justifiable.

It’s unclear which of these conservative concerns about the Civil Rights Act Ted Yoho shares, notwithstanding his willingness to bend the knee to the “law of the land.” But it’s interesting that he and other constitutional conservatives can’t quite suppress their discomfort with a legal regime that ensures people aren’t denied access to restaurants and hotels and other business because of the color of their skins.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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