Conservatives see in the 14th Amendment a limitation of government action to protect the rights of citizens. Since the 1883 Civil Rights Cases the state action requirement has been embedded in discussions of limits of federal power. Bruce Ackerman explains that the Civil Rights Act of 1964 - fifty years old today- eroded the significance of that requirement. Relying on the commerce clause of the constitution, it greatly expanded the scope of governmental authority to protect people from oppression. - gwc
Balkinization: The Civil Rights Act's Repudiation of the State Action Doctrine:
by Bruce Ackerman // Yale Law School
"Fifty years ago today, Lyndon Johnson signed the Civil Rights Act into law, marking a decisive transformation in the institutional dynamics propelling the civil rights revolution forward. From Brown in 1954 through Kennedy's assassination in 1963, the Warren Court had assumed the burden of constitutional leadership, with the political branches giving it their often-reluctant support. As I argue in We the People: the Civil Rights Revolution, this was the first time in American history that the Court had played such a leadership role. But this role came to an end with the entry of Lyndon Johnson into the White House.
During the next decade, the higher lawmaking system developed in a more familiar way: As in the cases of Jefferson, Jackson, Lincoln, and Roosevelt, the presidency joined with a mass movement to claim a mandate from the People for a decisive constitutional breakthrough -- with the voters endorsing this transformation in a series of elections from 1964 through 1970."
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