The Instigator
GarretKadeDupre
Pro (for)
Losing
0 Points
The Contender
DudeWithoutTheE
Con (against)
Winning
12 Points

The Civil Rights Act of 1964 is Unconstitutional

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Post Voting Period
The voting period for this debate has ended.
after 4 votes the winner is...
DudeWithoutTheE
Started: 1/5/2013 Category: Politics
Updated: 1 year ago Status: Post Voting Period
Viewed: 2,500 times Debate No: 28905
Debate Rounds (4)
Comments (22)
Votes (4)

 

GarretKadeDupre

Pro

For the purposes of this debate, I and Con will be playing the role of 2 opposing judges of the Supreme Court slightly altered; there are only 3 judges in this court. The audience will be playing the role of the 3rd judge, or swing vote.

This round is for acceptance. I hope we have fun.
DudeWithoutTheE

Con

OK, given the thought experiment setup of us being Justices attempting to convince a third justice to vote with us, PRO must explain on what grounds the plaintiff is arguing the law to be unconstitutional.

PRO has BoP. This makes most sense given how the SCOTUS works - to declare a statue unconstitutional, the Court must be sure that it cannot be justified under the constitution. It is not enough to prove that the constitution CAN be read in such a way as to render the Act unconstitutional - he must prove that this is the correct, or only, way to interpret the constitution. On a related note, given the wording of the resolution, I will not be arguing for severability - if PRO is able to prove conclusively that any part of the act is unconstitutional, he wins.

Just for the sake of completeness, although I do not expect it to be an issue in this debate, I am assuming that 'unconstitutional' is defined as


at variance with or not permitted by a constitution

with the constitution in question being that of the United States. Definition comes from the World English Dictionary.
Debate Round No. 1
GarretKadeDupre

Pro

Thank you for your acceptance, and I feel that we are in agreement. I had previously assumed I had the burden of proof; after all, the Civil Rights Act of 1964 has already been judged constitutional by SCOTUS, so I figured it was obvious.

Remember, voters, I need only to prove that any one part of the act is unconstitutional for me to win this debate.

I argue that section 703(a)2 of the Civil Rights Act of 1964 is unconstitutional because it tries to give the federal government power to regulate relations between employers and their employees.

"SEC. 703. (a) It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or" [1]

The Constitution does not specifically give the federal government this authority (to regulate employer/employee relations), but does not prohibit the individual States from doing so. Thus, according to the 10th Amendment, the States have this power, and not the federal government.

"Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." [2]

In summary, because the Act tries to give the federal government authority it cannot have according to the Constitution, I argue that it is unconstitutional.

[1] http://www.ourdocuments.gov...
[2] http://www.archives.gov...
DudeWithoutTheE

Con

OK. Since Pro has kept his opening argument to under 2000 characters, I will try to restrain my usual wordiness as much as possible while still doing actual analysis.

The ability for Congress to regulate employer-employee relations comes from section eight of article one of the Constitution, what is commonly known as the Commerce Clause - Congress shall have the power:

The 1964 Act is explicit in specifying that its provisions define an employer as someone involved in an "Industry affecting commerce," therefore by the terms of the act itself, this section only applies to those engaged in commerce. [2] Furthermore, it goes on to define commerce as

"Trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof."

In other words, the definition used in the act for it to apply to a business requires, in so many words, said business to be engaged in precisely the kind of activity to which the Commerce Clause applies. In so far as a business is not involved in trade "Among the several states," the law explicitly does not apply to it. The language of Constitution and Act is essentially the same.

[1]http://www.usconstitution.net...
[2] http://www.ourdocuments.gov...
Debate Round No. 2
GarretKadeDupre

Pro

Con argues that the authority for Congress to regulate employer-employee relations comes from this excerpt from the Commerce Clause in the Constitution:

"[Congress shall have the power to] regulate Commerce [...] among the several States" (1)

However, the Commerce Clause does not give the federal government power to interfere with local affairs. Alexander Hamilton implied as much in The Federalist #17: "The administration of private justice between the citizens of the same State [...] are [...] to be provided for by local legislation, [and] can never be [affected by the Commerce Clause]." (3)(4) It's obvious that employer-employee relations in the same state are local affairs and cannot be defined as "Commerce among the several States." The definition of 'commerce' as described in the Civil Rights Act of 1964 is irrelevant because the definition of 'commerce' is not subject to redefining at the whim of those who wrote the Act; it is known exactly what the writers of the Commerce Clause meant by the word 'commerce': "[i]ntercourse, exchange of one thing for another, interchange of anything; trade; traffick." (2)

I contend that the discretion exercised by employers when hiring and/or firing employees is not contained in the previously noted definition of 'commerce', so the federal government has no authority to restrict it. This renders the Civil Rights Act of 1964 unconstitutional; at least in part, which is sufficient for me to win this debate.

I await my opponent's rebuttal.

(1) http://www.archives.gov...
(2) http://johnsonsdictionaryonline.com...
(3) http://www.lewrockwell.com...
(4) http://www.constitution.org...

DudeWithoutTheE

Con

"The definition of 'commerce' as described in the Civil Rights Act of 1964 is irrelevant because the definition of 'commerce' is not subject to redefining at the whim of those who wrote the Act."

The problem with PRO's argument here is that the definition of commerce contained with the Act does not 'redefine' the meaning in the Constitution at all. Rather, the whole point of mentioning this definition is that it is essentially the same definition contained in the Constitution. Since Title VII of the Act deliberately claims to apply to nothing but those entities (those engaged in commerce, ie businesses, and only businesses with 25 or more employees at that) that the Constitution grants it the explicit right to regulate, it is clearly constitutional.

Let us accept PRO's definition of Commerce offered in this round: "[i]ntercourse, exchange of one thing for another, interchange of anything; trade; traffick." Now why is it obvious that hiring and firing employees is covered by this definition? Because the act of employment IS trade! The employee provides his labor - in return for this, he receives remuneration. It is the exchange of one thing for another. The provision of services, as well as goods, constitutes trade, [1] and the worker is clearly providing a service to the employer.

Consider the case of a barber. If an individual barber contracts with a customer to provide him with a haircut, and the customer pays him for it, is that not an act of trade? Clearly it is. How then is it possible that the exact same transaction NOT be an act of trade merely because it goes through an intermediary (the owner of the barbershop) who collects the money from the customer and passes some of it on as wages? Therefore, by PRO's own definition, employer-employee relations are commerce, and as such are an area where Federal intervention is entirely constitutional.

As for the Hamilton quote, your selective quotation is deeply misleading. From the same source:

"The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository."[2]

Hamilton states precisely that power over commerce ought to be lodged "In the national depository." Given this, it cannot be seriously argued that by "Private justice between citizens of the same state," which is what Hamilton says is not the proper province of the Federal Government, extends to commercial matters. Even if it did, Hamilton's opinion is not the Constitution. The power of Congress to regulate commerce is, as Mr. Justice Clark [3] states, 'Broad and Sweeping.'

[1]http://www.wto.org...;
[2]http://xroads.virginia.edu...;
[3]http://supreme.justia.com...;
Debate Round No. 3
GarretKadeDupre

Pro

Thank you Con for your intelligent response.

I want to point out that Con has conceded my definition of 'commerce'. Also, he described my quotation as 'deeply misleading,' but failed to argue exactly how or why.

Con claims that "Title VII of the Act deliberately claims to apply to nothing but [entities engaged in commerce]"; that's true, but that doesn't mean that Title VII applies to commerce itself. When read carefully, Con should realize that his quote doesn't justify the application of Title VII to commerce itself. Entities engaged in commerce, and commerce itself, are two very different things.

Since the discretion that employers exercise when hiring someone is not an entity engaged in commerce, but commerce itself, Con's argument is invalid. The Civil Rights Act of 1964 does not claim (directly or indirectly) that Title VII is restricted in application to cases where intrastate commerce (Commerce among the several States) is involved. This implies that it can be applied in cases where intrastate commerce is not involved at all; in fact, case precedent establishes this conclusion. Examples of such cases include:

Heart of Atlanta Motel, Inc. v. United States, 379 US 241 - Supreme Court 1964
Meritor Savings Bank v. Vinson, 477 US 57 - Supreme Court 1986

In summary, The Civil Rights Act of 1964, in both theory and in practice, regulates employer-employee relations in cases where no intrastate commerce is involved. According to Con, it derives this authority from the Commerce Clause of the Constitution; however, it has been conceded that 'commerce' in that context only applies to intrastate commerce. Thus, the Act has no Constitutional authority to regulate employee-employer relations where intrastate commerce is not involved.

I have a problem with Con's disregard for Hamilton's opinion in the context of this debate. The writings of Hamilton (and others) in the Federalist Papers are an important resource for making sense of these semantics, and the most important source for understanding the Constitution. (1)

I also have a problem with Con's interpretation of the quote he provided. I agree that Hamilton wanted power over commerce to be "in the national depository."; this obviously means that Hamilton intended for the federal government to have authority over commerce. However, Hamilton was clear about what this authority over commerce would not affect; namely, "The administration of private justice between the citizens of the same State" and "the supervision of agriculture and of other concerns of a similar nature". His reason for excluding these things is also mentioned in The Federalist #17: "those things, [...] which are proper to be provided for by local legislation, can never be desirable cares of [the federal government.]" This proves that Hamilton didn't want the federal government to regulate intrastate commerce.

I thank Con for this interesting debate :D

(1) http://www.bu.edu...
DudeWithoutTheE

Con

PRO has engaged in a very strange line of argument in his last round. He contends that because hiring and firing is 'commerce itself' rather than entities engaged in it, then it is beyond the scope of federal regulation. But it is precisely commerce itself that the Constitution grants Congress the right to regulate! It has the power to regulate those entities because of the commerce in which they engage.

Secondly, he contends that the Act applies to purely intrastate commerce. (PRO has got inter and intra mixed up, though this isn't a big deal. Intra means within). It is not true that I have conceded that the Commerce Clause applies only to interstate commerce - I have not used the word until this round. That is the Supreme Court's historical definition, not my own. As justices, we are bound by precedent, but if you are able to throw out the precedents upholding matters like this as examples of interstate commerce, I am equally free to throw out the test itself. The first definition given for 'among' in Merriam-Webster[1] is 'in, into, or in the midst of.' If we take the Commerce Clause as meaning 'In the several states' then there is no question at all of the constitutionality of the Act. Since Merriam-Webster is a reasonable source for definition, this is a reasonable interpretation.

Secondly, as per the quote from the Act itself I supplied in the first round, if we understand 'among' as meaning 'between' then the Act makes clear that it only applies when there is an interstate element at play. Even if it were true, therefore, that the Act was being applied to purely intrastate matters, that is a problem of the executive's application of the Act to things it was not intended to apply to, not the Act itself, whose language as I have noted parallels the Constitution's. A contract to participate in interstate commerce clearly is interstate commerce. Why? Because the language of the contract itself cannot help but cover matters of interstate commerce, because it defines how the employee is to participate in said commerce. If Congress has the power to regulate interstate commerce, it must logically have the power to regulate things that themselves regulate interstate commerce!

On Hamilton. Firstly, while Hamilton's opinions can be assumed to carry some weight, the Constitution was the product of negotiations, and therefore no one person's interpretation of it can be considered definitive. Secondly, it is by no means clear that "Private justice between citizens" applies to commercial activity - by the logic of Hamilton's own words, it does not. Therefore Hamilton's words would be an argument against federal tort reform, which clearly is a matter of 'private justice,' but not against interference in commercial affairs - note that Hamilton also does not use the term 'interstate.' Hamilton clearly contends that commerce, all of it, is properly the province of Congress.

[1]http://www.merriam-webster.com...
Debate Round No. 4
22 comments have been posted on this debate. Showing 1 through 10 records.
Posted by malcolmxy 1 year ago
malcolmxy
you wanna ensure civil rights in brown towns all across the country?

step 1 - repeal or decriminalize all federal drug scheduling laws, retroactive to all non-violent drug offenders currently in federal prison.

step 2 - end the wars in the middle east (we have troops back in Iraq, and have since a few months after the "last troops left Iraq")

step 3 - build schools

I'm sure there are more steps, but those 3 things would be like 38.5 acres and a mule.

(to Obama's credit, he did make progress on the drug thing, somewhat equalizing rock cocaine penalties with those of its powdered cousin...)
Posted by GarretKadeDupre 1 year ago
GarretKadeDupre
"It's always white people who get the most upset over this useless cr@p anyway."

Quoted for truth!
Posted by malcolmxy 1 year ago
malcolmxy
I think a lot of people do, but they're scared to say so, or there's some sort of guilt preventing them from doing so.

I'm white, but despite making WAY more than enough to live elsewhere, I live in the heart of the ghetto, with all black, latino and asians for 3 years.

Being a minority is weird, and I could always get out of it whenever I wanted to, but I have a pretty good understanding of the sitch, because I lived it, and lived in it.

If anyone wants to call me a racist, I shudder to think of the embarrassment that will accompany that false entitlement just after they try to drop it on me, so I'll say it all day long. I can say, from 1st hand experience, it's true.

It's always white people who get the most upset over this useless cr@p anyway.
Posted by GarretKadeDupre 1 year ago
GarretKadeDupre
"The legislation is unnecessary, and has done the sum total of NOTHING for the black folk it was designed to protect."

OH MY GOSH, another person who realizes this! :D
Posted by malcolmxy 1 year ago
malcolmxy
Well, I didn't read either argument (because I can't vote until my latest debate is complete), but based on what I've seen from you elsewhere, your heart was probably in the right place.

The legislation is unnecessary, and has done the sum total of NOTHING for the black folk it was designed to protect.

It was glory, white guilt legislation passed by Johnson as proof that he was a liberal (so that he could keep bombing Vietnam back to the stone ages...friggin' warmonger...)
Posted by GarretKadeDupre 1 year ago
GarretKadeDupre
Oh o.k., that's what I figured you were trying to say. Yes, it seems my opponent won by convincing the voters that the Act is extraconstitutional
Posted by malcolmxy 1 year ago
malcolmxy
unconstitutional vs. extraconstitutional - unconstitutional would mean that it directly contradicted something in the constitution. Extraconstitutional means that it simply more directly states rights that were already guaranteed in the constitutional.

Basically, it's unnecessary redundancy.
Posted by GarretKadeDupre 1 year ago
GarretKadeDupre
Oh, ok. I didn't know that. But I forgot what I wanted to tell Con... lol
Posted by likespeace 1 year ago
likespeace
Garret, I don't see any prohibitions in the rules against posting information in the comments. You can put a simple discliamer--"Please don't take the following into account when voting; this is additional food for thought for my opponent and after you've rendered a verdict." I have done this in previous debates and my opponent was not offended by my actions.
Posted by DudeWithoutTheE 1 year ago
DudeWithoutTheE
It's set to friends only Garrett, I think that's standard. Will friend you.
4 votes have been placed for this debate. Showing 1 through 4 records.
Vote Placed by Mangani 1 year ago
Mangani
GarretKadeDupreDudeWithoutTheETied
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Reasons for voting decision: Constitutionality is ultimately determined by interpretation of the Supreme Court. In acknowledging SCOTUS has already deemed the Civil Rights Act constitutional, Pro undermined his own arguments. Had neither debater invoked SCOTUS, then the arguments would speak for themselves, however, again, constitutionality is ultimately determined by interpretation of the SCOTUS.
Vote Placed by likespeace 1 year ago
likespeace
GarretKadeDupreDudeWithoutTheETied
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Reasons for voting decision: I found Con's point compelling that the Civil Rights Act of 1964 is constitutional based on the commerce clause. Pro made a case that the wording should only apply to interstate commerce. Con pointed out the language of the act and constitution mirror one another. Therefore, if Pro is right, both the act and the commerce clause would refer to only interstate trade. Thus, the act would still be consistent with the constitution--simply more limited in scope. It was an interesting debate from both sides. If the central point had been the application of the act to intrastate trade, I believe the debate would've been much closer. In any event, this debate was interesting. :)
Vote Placed by DoubtingDave 1 year ago
DoubtingDave
GarretKadeDupreDudeWithoutTheETied
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Reasons for voting decision: Although I am generally against the Civil Rights Act, I feel that con won this debate. Con did misrepresent and misuse the Commerce Clause, though Pro did not effectively challenge con on that point and therefore, pro lost the debate. This was an interesting debate and I wish there were more characters allowed in the debate because it would allow for more indepth discussion on the commerce clause and the 10th amendment.
Vote Placed by Cobo 1 year ago
Cobo
GarretKadeDupreDudeWithoutTheETied
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Reasons for voting decision: The Commence argument cause me to give my argument point to Con as he showed why the Federal government was able to pass the Civil Rights Acts. Good conduct, spelling and sources on both sides though...
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