Civil Rights Cases

I'm teaching the Civil Rights Cases (1883) tomorrow, which invalidated the Civil Right Act of 1875's prohibition on discrimination by inns, public conveyances, and places of public amusement, as beyond Congress's power under the 13th and 14th Amendments. In debates over Lochner v. New York and constitutional protection of economic liberty more generally, liberal scholars will sometimes refer to the Civil Rights Cases as an example of the evils of constitutional protection for economic liberty, arguing that the Court upheld economic liberty at the expense of civil rights. As I read the Cases, however, the majority's opinion is solely based on federalism and has nothing to do with economic liberty or property rights. Indeed, the majority takes pains to note that all states require inns and common carriers to serve all comers, and that the plaintiffs in the cases involving inns and common carriers (but perhaps not the case involving a theater) had remedies under state law. Just another example of how sloppy the debate over Lochner has been.