1382 THE YALE LAW JOURNAL [Vol. 73: 1353 enforce the fourteenth amendment can deal only with "state action" will not stand up. It is obviously at odds with the original understanding. Even if we are not certain precisely what the original understanding was, we know that it could not have been this. The theory leaves still unsolved and still incapable of any national solution the principal problem which the amendment was designed to remedy. The cases which are believed to have established this theory do not do so. It is difficult to say whether the more moderate and complex theory which the cases actually express (if I read them correctly) can still be exhumed after generations have grown accustomed to a contrary reading. It is still more difficult to say just how useful, if useful at all, that theory might prove to be if its rescue and revitalization are still possible. Admittedly, adoption of this theory would leave many difficult problems unresolved. Some may doubt, too, whether decisions such as those in the Cruikshank, Harris, and Civil Rights Cases are now of anything more than historical interest. Those cases, whether read one way or the other, are expressions of a judicial attitude vastly different from that which now obtains. Surely the present Court, if compelled to choose between following those cases (as they have generally been understood) or overruling them, would choose the latter. Yet, unless we are willing to attribute to Congress vast and undefined powers which might alter the federal-state balance more than we wish or need to alter it, overruling those cases would not solve the problem, but merely restate it if "state action" is not the limit of congressional power to enforce the fourteenth amendment, then what is that limit? Perhaps the Garfield-BradleyWoods theory might furnish an acceptable answer to that question. Very little fourteenth amendment enforcement, either judicial or legislative, had received judicial approval by 1883. The growth of the judicial decisions under the fourteenth did not fairly begin until after that date. Thereafter, the power of the courts under the fourteenth evolved greatly while the power of Congress under the same amendment was left to wither on the vine. Yet this did not happen because the courts had given Congress a fourteenth amendment power so restricted that no further experiments would have been justified. It happened because, by the time its first efforts had been judicially rejected, Congress was no longer interested in making another try. The HayesTilden Compromise had been accepted, and Congress had gone out of the tional rights when the states failed in their primary responsibility to do so either by neglecting to enact laws or by refusal or impotence to enforce them. HARRIS, THE QUEST FOR EQUALITY 53 (1960). If the abolitionist origins of the Fourteenth Amendment are accepted, ... the states are forbidden to fail to carry out their primary duty of protection; and, when carrying it out, are forbidden to fail to adhere to the standard of equality. Congress is authorized to enforce this provision, that is to say, is authorized to supply the protection of the laws when the states do not, and to correct deviations by the states from the prescribed standard of equality. TEN BROEK, THE ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT 98 (1951). 1964] 14th AMENDMENT AND PRIVATE ACTS 1383 civil rights business, which it was not to attempt to re-enter for more than half a century. Indeed, by 1883 some Congressmen may have been only too anxious to give the decisions their modern reading as an excuse for taking no further action. In any case, once that restrictive reading was established, there was no way in which it could be judicially re-examined unless Congress made the challenge by enacting a statute which goes beyond that narrow concept of its powers. We may nevertheless be pardoned for suspecting that the framers of the fourteenth amendment — and even the justices of the 1883 Court — would have been far more astonished by the powers later exercised by the judiciary under the fourteenth amendment than by an assertion that that amendment empowers Congress to enact a public accommodations bill, or a statute to punish racially-motivated acts of private intimidation. In the end, civil rights were largely nationalized after all — and the process of their nationalization is still continuing. Yet this nationalization has taken place in a peculiarly one-sided manner, with the judiciary obliged, at least until the recent legislation, to assume the whole responsibility of defining the new consensus and almost the whole responsibility of enforcing it. The fourteenth amendment was adopted in part to give Congress power to deal with a racial crisis. Yet, in the current racial crisis, there is, according to present theories, almost nothing of major importance which Congress can do cept where it can find power to act in the commerce clause, or some other source independent of the fourteenth amendment. ex In view of the fact that an enlargement of federal legislative, rather than judicial, power seems to have been the primary intent, this is an ironic and upside down result. It is also, in my view, an unfortunate one. Piecemeal litigation is hardly an ideal method for the accomplishment of sweeping social reforms. And the civil rights crisis which has precipitated the current legislation certainly indicates that, if further proliferation of lawsuits was ever an adequate answer, it is so no longer. Furthermore, a readjustment of the social, economic, and legal structure so profound that it is being widely referred to as a "revolution" is hardly a process over which the courts should be expected to preside alone and largely unaided, except for an occasional show of force when a court order is openly defied. Moreover, the presently orthodox theory in effect informs the die-hard white supremacists that, so long as they resist through the forms of law, "state action" is sure to be found, and they remain within the actual or potential orbit of federal power. At the same time, it assures them that, if they act outside the law, then the Constitution commands the federal government to keep hands off and leave them to such sanctions as their friends and sympathizers in state and municipal governments can be persuaded to apply. Thus the orthodox theory is an open invitation to vigilantism. At the same time, the apparent impotence of the national government to define and enforce the newly emerging consensus gives rise, on the other side, to a sense of frustration which can find outlet only in direct action. 1384 THE YALE LAW JOURNAL [Vol. 73: 1353 Should Congress ever be minded to enforce the fourteenth amendment by appropriate legislation rather than approaching the problem through the commerce clause, it will be venturing into almost wholly unexplored territory. That territory has not been judicially charted but neither has it been judicially interdicted. The Congress need not conceive its fourteenth amendment enforcement powers in terms of a narrow and pessimistic reading of a handful of nineteenth century cases especially since that reading seems only a misreading after all. APPENDIX PART 1.-LETTERS TO SENATOR MATHIAS UNITED STATES ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD, Hon. CHARLES MCC. MATHIAS, DEAR SENATOR MATHIAS: We read with interest the Bill S. 506 which you introduced in the Senate on February 22, 1979. As the Federal agency responsible for ensuring that public transportation facilities and conveyances and buildings are made accessible to and usable by elderly and handicapped people, and for eliminating architectural and attitudinal barriers, I am very interested in your proposal. Therefore, I would appreciate it if your office would keep me apprised of any relevant action taken on this Bill. Please also let us know the times and dates of hearings which are planned, if any. Your cooperation in this matter is greatly appreciated. ROBERT JOHNSON, AMERICAN COUNCIL OF THE BLIND, Hon. CHARLES MATHIAS, Russell Senate Office Building, DEAR SENATOR MATHIAS: The American Council of the Blind supports S. 506, the Fair Housing Act Amendments. In addition to greatly strengthening the present law, this legislation would amend Title VIII of the Civil Rights Act of 1968 to include "handicapped" as a protected class. Handicapped persons now face many types of discrimination and one of the most serious and prevalent forms is discrimination in housing. The protection provided by S. 506 is an important step toward securing full equality of opportunity for all citizens. This organization appreciates your co-sponsorship of S. 506. We join with you in working for the passage of this important legislation. DURWARD K. MCDANIEL, ASSOCIATION FOR RETARDED CITIZENS, INC., Mr. CHARLES MCC. MATHIAS Jr., Senate Office Building, Washington, D.C. DEAR MR. MCC. MATHIAS: I am writing on behalf of the Association for Retarded Citizens/Prince George's County, Maryland, to request your support of the Fair Housing Amendments of 1979. These amendments will add handicapped people as a protected class and would prevent discrimination in housing matters. Along with this, we request that language be provided which will prohibit discriminatory zoning practices which prevent the development of housing opportunities for the handicapped. This protection is mandatory if people who are mentally retarded are to have the opportunity to accept their place in our communities as fully integrated citizens. Your support of these measures will be greatly appreciated. Sincerely yours, RICHARD J. WEIKART, BALTIMORE NEIGHBORHOODS, INC., Hon. CHARLES MCC. MATHIAS, DEAR SENATOR MATHIAS: As you know Baltimore Neighborhoods, Inc. (BNI) is a local civil rights open housing agency in the Baltimore Metropolitan area since 1959. BNI wishes to go on record in strong support of Senate Bill 506 and its identical House Bill 2540. The BNI Board of Directors at its April meeting took action to support the proposed amendments to Title VIII, i.e. provide HUD with stronger fair housing enforcement powers. During the past ten years BNI has assisted a number of minority persons to file complaints and/or suits when encountering racial discrimination in their search for housing. BNI's assessment that the fair housing law and complaint process, as now constituted, has proven to be weak, ineffective, and costly for the complaint. The proposed amendments will strongly strengthen the fair housing law by providing much needed enforcement powers. BNI urges passage of S.B. 506 and H.B. 2540 so that our national policy of fair and equal housing will become a reality. Sincerely yours, DEAR SENATOR: The Los Angeles County Board of Supervisors strongly supports your bill S. 506, the "Fair Housing Amendments Act of 1979." Attached for your information is a copy of an analysis of this legislation prepared by the Los Angeles County Commission on Human Relations. Sincerely yours, JOSEPH M. POLLARD, ANALYSIS OF 8. 506 (MATHIAS) 96TH CONGRESS, 1979 This bill, called the "Fair Housing Amendments Act of 1979" is designed to strengthen enforcement of Title VIII of the Civil Rights Act of 1968. S. 506 (and its companion bill H.R. 2540) would: (a) give HUD the authority to issue cease-and-desist orders, impose civil penalties of not over $10,000, file complaints on the initiative of the Secretary (in addition to complaints filed by aggrieved parties), investigate housing practices to determine if "charges should be brought or new rules should be made"; (b) extend coverage to persons who are physically or mentally handicapped; (c) end the exclusion from coverage of sales by owners of single family homes and rentals in owner occupied buildings with four or fewer units; (d) permit successful plaintiffs to be awarded attorneys' fees; (e) make subject to the full prohibition of the law the operations of federal agencies that regulate financial institutions in the field of housing; (f) expressly prohibit mortgage redlining and discrimination or redlining in insurance; (g) provide the Secretary with the alternative of filing an administrative complaint with full enforcement powers, or referring a case to the Attorney General for filing a civil action; (h) broaden the powers of the Attorney General to initiate civil action in pattern-of-practice cases or denial of rights under the Act to any group of persons when such denial "raises an issue of general public importance." (i) provide an aggrieved person an opportunity for private enforcement action in civil court and authorize the Attorney General to intervene if able to certify that such a case is "of general public importance." (j) authorize the Secretary to refer complaints to a state enforcement agency if the powers of the state agency are equivalent to those of the federal act. |