BERNSTEIN, LIBERTY OF CONTRACT, AND CIVIL RIGHTS
David Bernstein shows again why he is one of the more thought-provoking of the new libertarian scholars who write on black history and the history of civil rights. I often learn something new about history when I read his published work and his posts at the Volokh Conspiracy (though we sometimes disagree on foreign policy).
In his latest post, he writes"I'm teaching the Civil Rights Cases (1883) tomorrow which invalidated the Civil Rights Act of 1875's prohibition of discrimination by inns, public conveyances, and places of public amusement, as beyond the Congress's power under the 13th and 14th Amendments. In debates over Lochner 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 of constitutional protection for economic liberty, arguing that the Court upheld economic libery 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." Read the whole thing .