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I was just watching this video of one of Eric Foner's lectures and he had this worthwhile point about private business vs. state action. Helpfully, there was a transcript. Sorry about the dodgy formatting. Did my best.
Now, one other thing about this language is it applies to states, right? No state may do this, that, or the other thing. What about individual or private discrimination? Can a restaurant refuse to serve you because you're black? That's not the state, right? The state is not doing that. I mentioned this before that Senator Rand Paul last year said, well, you know the Civil Rights Act of 1964, yes, if banning racial segregation mandated by law is -- then sure,
the 14th Amendment, you can't do that.
But what about private discrimination? He said, that's bad, I don't approve of it, but that's not state action. This is the "state action" principle. State action. One of the worst constitutional
concepts, I believe, that ever has been built into our jurisprudence
by the Supreme Court. We will see down the road how it goes in.
It creates this false dichotomy between what they call de jure and de facto discrimination, let's say, discrimination by law and discrimination by individuals. And even when the Supreme Court upheld the Civil Rights Act of 18 -- of 1964, banning private
discrimination by public, you know, by restaurants, hotels,
they did not do it under the 14th -- they were afraid to do it
under the 14th Amendment, because of that state action clause.
They did it under the Commerce Clause. A black guy is trying to drive around the South selling Fuller Brushes. He can't find a motel. He can't find a restaurant. That interferes with commerce, so therefore Congress can ban it. That's absurd. That's not why they passed that law, so guys can go around selling Fuller Brushes.
They passed it because private discrimination is a -- is itself a
stigmatization of certain groups of American citizens and ought not to be allowed.
And moreover, every single private -- it's not a question of whether you have someone in your home -- every single restaurant, every single hotel is licensed by the state, is protected by the state.
You think when fire breaks out they're going to say, hey, I don't want the fire department because I'm a private place. No. They rely on the state. They're regulated by the state. The distinction between state and private is much murkier than the jurisprudence has, you know, has led us to believe.