Irontank, are you a constitutional originalist?
Does the original intent of the drafters of the Constitution count a lot for you?
Good!
Go and read the legislative debates of the 1860s, when the three amendments to the Constitution which ended slavery and extended civil rights to blacks were passed. Go and read the Civil Rights Act of 1866, passed by the same people who debated the amendments, and all for the same reasons.
They passed a private right of action in federal court against racial discrimination. That was, indeed, the original intent of the drafters of those amendments, and those amendments were duly adopted by the states. Those amendments, and the reasons for them, therefore stand on identical ground as the Federalist Papers, the Bill of Rights, and the rest of the Constitution.
The purpose of those laws was to end slavery, and the badges and incidents of slavery, to make black people equal to white people in every way. That was the intent, that is what the Congressmen and state legislators who enacted those three amendments debated, and passed.
It was the Supreme Court that, quite maliciously, reversed all of that, paring it back, reducing the right of action. Because the Supreme Court was as activist - to promote racism in the late 1800s - as it has been in our day. The laws were overturned, or abridged, and three amendments to the Constitution were ignored.
Private property rights did not extend to the right to discriminate against black people in business, that is perfectly clear, painfully clear, from the "Federalist Papers" of the 1860s, the Congressional Record of the debates over those amendments and the 1866 Civil Rights Act.
If one is an originalist, one has to accept that the Constitution was duly amended with the INTENT of making segregation and discrimination illegal. Because a bunch of racist bastards in this country wanted to continue to beat blacks down, they used the judiciary to block, and then relied on local democracy to supplant the original intent of the Constitution, as amended thrice in the 1860s.
Under the Constitution, as intended, there does not exist a private property right to discriminate against black people in business. That was totally and irrevocably removed by the 13th Amendment, and the 14th, and the 15th.
That the Supreme Court wrote the right back in there, so that the Supreme Court, a hundred years later, had to dig it all back out...by relying on the paltry Commerce Clause (instead of the express amendments designed to address this thing), is not to the court's credit. The reason there had to be a Brown v. Board of Education was because the Supreme Court gutted the Constitution in 1873 and in 1896, successively overthrowing the original, anti-racist intent of the Constitution, as amended.
Property rights ceased to have constitutional standing as a basis for discrimination based on race with 1865, with the 13th Amendment.
Does the original intent of the drafters of the Constitution count a lot for you?
Originalism and original intent are two different things...I am an originalist which means I take, at face value, the words of the Constitution....applying the meaning of those words as they would be understood by those drafting and ratifying the Constition or the amendment. Original intent is a discredited form of analysis...how does one discern the collective intent of hundreds of different Congressman and state legislators...to the extent that there even is a collective intent?
The 13th Amendment deals with slavery...its not relevant to federal civil rights legislation which regulates discrimination by private parties. The 14th Amendment provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Section 5 of the 14th Amendment provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article. "
The purpose of the 14th Amendment was to provide Congress with the Cinstitutional authority for the 1866 Civil Rights Act...but that 1866 Act, in no way, outlawed private discrimination...nor would Congress have had the authority under the 14th Amendment to do so...and even today...it does not have that authority.
States...not private parties...are prohibited from practicing discrimnination under the 14th Amendment.
Now, you are correct that in 1875, Congress passed another Civil Rights Act that attempted to outlaw discrimination by private persons and businesses that served the public...but an originalist would plainly see that Congress had no such Constitutional authority.
That was exactly the issue in the Civil Rights Cases of 1883 in which the Supreme Court struck down the 1875 Civil Rights Act. The holding in the Civil Rights Cases has never been overturned and, in fact, was recently re-affirmed in the Morrison case...a case I thought all conservatives liked in which those "judicial activists" you speak of like Justices Scalia and Thomas correctly held that the 14th Amendment does not provide authority to regulate private discrimination.
That is why, in upholding the 1964 Civil Rights Act, the Warren Court looked to the Commerce Clause. In the opinion of Katzenbach v McClung...the Court explicitly acknowledges that the defendant white-only restaurant could not be reagulated under the 14th Amendment. Believe me when I tell you that, if the Warren Court could have, they would have avoided engaging in the absurd illogic necessary to find authority for the 1964 Civil Rights Act under the Commerce Clause...they would much preferred to have found authority in the 14th Amendment...but its simply not there.
And lets not act like the leftists we've been condemning all of these years who have always seen the Constitution as an impediment to their political objectives. When you claim that, by using the courts to enforce your contracts and by calling on the police...a private party is transformed into a "state" so that the private party's actions can be regulated just as though he were a government...you are engaging in the same sort of absurd stretches of logic that have rendered our Constitution effectively dead...thanks to the leftists.