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Federalism and Foreign Affairs in 1960s Civil Rights Reform
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This essay will argue that a central issue in the history of federalism in the United States
in the 20th century was the role of the U.S. in world politics, and the impact of international affairs on domestic constitutional development. The essay will examine this issue through the example of the impact of international affairs on federalism in the civil rights context in the 1960s. Although scholars of the U.S. constitution have sometimes addressed the impact of global events on American constitutional development, those inquiries have tended to focus on the protection (or lack of protection) for civil liberties during wartime. Recent scholarship has addressed international impacts on rights during a time of supposed peace, the Cold War era. The impact of the nation’s role in the world on the constitutional scope of federal government power and the nature of federalism has received less attention.
An important moment in 20
th
century federalism was the enactment of the Civil Rights
Act of 1964. While modest federal civil rights laws were passed in 1957 and 1960, the 1964 act was the first major civil rights act passed by Congress since 1875. Among its features, the Act prohibits discrimination in employment and public accommodations. The Act’s most important provisions apply to discrimination by private actors, leading to concerns about whether it exceeded Congress’s powers, and interfered with matters more properly within state authority. The standard account of the federalism questions underlying the statute centers on the need for federal action on the issue of civil rights, concerns about the scope of Congress’s constitutional power under the Fourteenth Amendment’s enabling clause, the turn to the Commerce Power as an alternative, and the evidence presented to Congress of the impact of segregation and discrimination on interstate commerce justifying the use of the Commerce Power for civil rights reform.
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There is much to be said for the standard account, however it is only part of the story.
1
See, e.g. Gunther and Sullivan, Constitutional Law. There is a rich literature on the
Civil Rights Act of 1964 and 1960s civil rights reform. See, e.g., Hugh Davis Graham, The Civil Rights Era; etc.
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This essay will argue that a central issue in the history of federalism in the United States
in the 20th century was the role of the U.S. in world politics, and the impact of international
affairs on domestic constitutional development. The essay will examine this issue through the
example of the impact of international affairs on federalism in the civil rights context in the
1960s. Although scholars of the U.S. constitution have sometimes addressed the impact of global
events on American constitutional development, those inquiries have tended to focus on the
protection (or lack of protection) for civil liberties during wartime. Recent scholarship has
addressed international impacts on rights during a time of supposed peace, the Cold War era.
The impact of the nation’s role in the world on the constitutional scope of federal government
power and the nature of federalism has received less attention.
An important moment in 20
th
century federalism was the enactment of the Civil Rights
Act of 1964. While modest federal civil rights laws were passed in 1957 and 1960, the 1964 act
was the first major civil rights act passed by Congress since 1875. Among its features, the Act
prohibits discrimination in employment and public accommodations. The Act’s most important
provisions apply to discrimination by private actors, leading to concerns about whether it
exceeded Congress’s powers, and interfered with matters more properly within state authority.
The standard account of the federalism questions underlying the statute centers on the need for
federal action on the issue of civil rights, concerns about the scope of Congress’s constitutional
power under the Fourteenth Amendment’s enabling clause, the turn to the Commerce Power as
an alternative, and the evidence presented to Congress of the impact of segregation and
discrimination on interstate commerce justifying the use of the Commerce Power for civil rights
reform.
1
There is much to be said for the standard account, however it is only part of the story.
1
See, e.g. Gunther and Sullivan, Constitutional Law. There is a rich literature on the
Civil Rights Act of 1964 and 1960s civil rights reform. See, e.g., Hugh Davis Graham, The Civil
Rights Era; etc.
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