1/ In the Civil Rights Cases (1883), #SCOTUS rejects the argument that Cong could prohibit segregation in places of public accommodation. Congress's powers under Section 5 of the 14th Am, the Court holds, can only remedy violations of the Constitution that are "state action"

2/ But what about Congress's power to regulate interstate commerce? I had always focused on the lead cases, in which theaters and other intrastate public accommodations were segregated. But there is another case I never focused on--until a student flagged it yesterday.

3/ One of the cases involved a woman traveling by train from Tennessee to Virginia.

4/ The majority quickly rejects the relevance of this incident because Congress did not expressly rely on its Commerce Clause power to enact the Civil Rights Act of 1875.

5/ Harlan responds in dissent that this application of the Civil Rights Act of 1875 could be sustained by Congress's commerce powers.

6/ He writes if the Court "should overturn a statute because [Congress] did not accurately recite therein the particular provision of the Constitution authorizing its enactment?" (I'm surprised CJ Roberts didn't cite this passage in NFIB as part of his saving construction)

7/ This error was compounded in Plessy. Jon Mitchell points out in "The Writ of Erasure Fallacy" that the LA segregation law involved state action. Therefore, it should have been preempted by the Civil Rights Act of 1875. joshblackman.com/blog/2018/07/1…

8/ But, Plessy assumed that the Civil Rights Cases had canceled or ‘voided’ the statutory provisions in the Civil Rights Act of 1875. It didn't. The law remained valid as applied to state action. But the Court rejected this argument.