Rand Paul has been the subject of liberal assaults recently for his comments on Title II of the ‘1964 Civil Rights Act.’  The liberal TV pundits accuse Rand Paul of ‘being ignorant of the law and history,’ but it is actually they who are ignorant-or even worse, purposely misleading.  The real issue has nothing to do with race, but with unlimited power granted to the federal government.

When Title II of the Civil Rights Act was reviewed by the U.S. Supreme Court in the case of Katzenbach v McClung, it was ruled to be ‘Constitutional’ based on the ‘Commerce Clause’ which grants Congress the power “To regulate Commerce with foreign Nations, and among the several States.”  Although some parts of the ‘Civil Rights Act’ are based on the post-civil war Amendments, these were ruled by the District Court inapplicable to private businesses absent any action by the government.  The same Supreme Court which ordered desegregation and bussing recognized that there is no ‘civil right’ to access the private business premises of another without giving the owner any choice in the matter.  In actuality, the entire Constitutional justification of the law is that it makes it easier for “interstate commerce for one can hardly travel without eating.”

Simply put, the justification Congress had to pass Title II of the ‘1964 Civil Rights Act’ was that mandating such regulations on restaurants increased the likelihood that blacks would engage in interstate travel.  With this reasoning, there is nothing to prevent Congress from passing other such laws, for example mandating that all restaurants offer a full vegan menu in order to ‘promote interstate travel’ for vegans.  Congress could pass laws demanding that all restaurants offer a full Halal meal in order to promote interstate travel by Muslims.  Congress could pass laws demanding that all restaurants offer a full range of diet drinks and low calorie meals in order to facilitate interstate travel by overweight people.

The prior court case on which the Katzenbach v McClung was based has been called into question in recent years.  In Wickard v. Filburn, the Supreme Court ruled that the federal government could prevent a farmer from growing wheat on his own land to feed his chickens because it affected the ‘interstate market’ in chicken feed.  This was the culmination of a series of cases which ruled that the federal government could basically do anything it wanted, with justification under the ‘Commerce Clause,’ while ignoring all other parts of the Constitution.

Prior to the 1930s, the Supreme Court had regarded the ‘Commerce Clause’ to read what it’s authors intended: that only Congress should have the power to set regulations on trade between the various states, a clause inserted into the Constitution to prevent trade wars from erupting between states.  For example, North Carolina can not place import tariffs on goods manufactured in Virginia.  California may not forbid its citizens from traveling to or conducting business with Arizona.

All this changed under the administration of Franklin Roosevelt.  As is happening in the present day, FDR and a Democrat controlled Congress used an economic crisis as justification to pass legislation granting massive new powers to the federal government.  Most of these were struck down by the Supreme Court, since they had no justification under the Constitution, which reserves all powers not specifically granted to the government to the states or the people.

In response, FDR threatened to increase the size of the Supreme Court from nine to fifteen Justices, meaning he would immediately be able to appoint the six new Justices himself, who would then approve his ‘New Deal’ programs.  In response to this threat, Justice Owen Roberts had a sudden change of mind, and from then on the Supreme Court approved FDR’s proposals, eventually culminating in essentially granting the federal government unlimited power in Wickard v. Filburn.

This state of affairs existed until almost the turn of the century: for six decades after the Supreme Court began use the ‘Commerce Clause’ to excuse FDR’s power grab on behalf of the federal government, the Supreme Court found absolutely nothing that was not ‘justified by the Commerce Clause.’  No limits whatsoever.  Katzenbach v McClung, which ruled that the federal government could dictate admissions policy to an out-of-the-way restaurant in Alabama, is but one of many extensions of nearly unlimited power to the federal government.

In recent years, the Supreme Court has finally returned some limits to the ‘Commerce Clause’ power.  In 1995, the Supreme Court ruled in United States v. Lopez that the ‘Commerce Clause’ did not provide justification for the federal ‘Gun-Free School Zones Act’ since the law was meant to regulate social behavior, which was outside the scope of the ‘Commerce Clause.’

Following this came a number of other decisions in which the Supreme Court ruled that neither the ‘Commerce Clause’ nor the 14^th Amendment granted the federal government  unlimited power, for example when finding that the federal ‘Violence Against Women Act’ had no justification under the Constitution.  Many legal experts expect the battle over the Constitutionality of Obamacare to focus on whether the Supreme Court follows the trend of the past 15 years, or the trend followed from the New Deal until 1995.

Which brings us to the real reason Rachel Maddow and the other liberal attack dogs are making such an immense fuss over Rand Paul’s comments on the Constitutionality of Title II of the ‘1964 Civil Rights Act.’  Of all the cases from 1936-1995 period which found that the federal government had virtually unlimited power under the ‘Commerce Clause,’ the one upholding Title II of the ‘1964 Civil Rights Act’ is the most emotionally charged.  Liberal attack dogs would not be able to get their audience worked up into a frenzy and throw Rand Paul off balance by arguing over wheat growing regulations.

Like calling the ‘Tea Parties’ racist, by focusing on a 50 year old federal law and ensuing court case in which race was involved, liberal attack dogs like Rachel Maddow can redirect the argument over Constitutional restraints on federal power into racial hyperbole.  This prevents them from having to debate Rand Paul over the Constitutionality of Obamacare or other large federal programs.

Title II of the ‘1964 Civil Rights Act,’ and the Supreme Court decision that approved it, stands as a bulwark of the ‘federal government can do anything it wants’ concept.  The admissions policy of an out-of-the-way restaurant in Alabama does not have much to do with maintaining the smooth flow of ‘interstate commerce.’

Most people don’t think it does, and instead have the incorrect opinion that Title II of the ‘1964 Civil Rights Act’ is based on the post-civil war Amendments, the statement that “all men are created equal” (which actually comes from the Declaration of Independence), or some other sort of Constitutional right to enter any business premises they please, without regard to the wishes of the owners.  Its actual basis is in the ‘federal government can do anything based on the commerce clause’ rationale, which has recently been limited and is in danger of unraveling completely.  The race issue, much hyped upon by pundits, does not provide any legal justification, only rhetorical hyperbole to distort the discussion away from the Constitutional limits of the power of the federal government.