The laws are not out of synch with the Constitution.
The 13th, 14th and 15th Amendments, and the Civil Rights Acts of 1866 and 1873 (all enacted by the same folks: the original intent of these amendments was very clear) forbade discrimination, and gave a public right of action for private discrimination.
It was the Supreme Court, using that vaunted power of judicial review, that struck down those laws, and effectively tore those three amendments out of the Constitution, in Plessy v. Ferguson.
Now, I certainly agree that justifying the anti-discrimination decisions on the basis of the Commerce Clause was thin gruel and bad beer. A better, original intent argument would be that private discrimination against blacks in places of business violates the original intent of the 13th and 14th amendments. It is a "badge and incident of slavery".
The US amended its Constitution right after the Civil War to make blacks free and equal, and passed laws to enforce that. Racists managed to regain control of the government, and used the Supreme Court to nullify all of that through pure judicial activism.
What was the original intent of the 13th, 14th, and 15th Amendments? Precisely to end the oppression of the black race by the white race. That was the point. The legislative history (the 1860s equivalent of The Federalist Papers) tell us what the drafters were thinking and why they did it. So does the Civil Rights Act of 1866, and 1873, both of which resound in the Civil Rights Act of 1964.
Anti-discrimination laws based explicitly on forbidding private race discrimination are a federal matter, and have been so since the Constitution was formally amended three times in the 1860s. That was the whole purpose of the Amendments.
Commerce clause was a bad argument.
13th and 14th Amendments and their original intent are an invincible argument...to any Constitutional Originalist anyway. Judicial activists, of course, can ignore all that original intent and just make up whatever they want...like strange commerce clause constructions, or that the post-Civil War Amendments were not intended to make racial equality a federal constitutional issue...
And oh, by-the-way, they were the Democrats!
And they didn't change for a hundred years until the
Federal Government forced them to at the point of a Gun.
Why don't Republicans remind everyone of that with
every other sentence they speak?
The Republican has always had the moral high-ground yet
has never failed not to use it.
Using the 14th Amendment is a pretty bad argument too...just on it's plain face.