Curious Civil Rights Views of Dick 'The Turbin' Durbin

Sen. Dick Durbin, best known for likening American soldiers to Nazis, weighs in today with a Chicago Tribune op-ed in advance of the John Roberts hearings. Mostly it's liberal boilerplate, but one assertion got our attention: "Nowhere did the Constitution expressly give Congress the authority to pass the Civil Rights Act [of 1964]."

Really? What about the 14th Amendment? Here are the first and last sections of that amendment, which was ratified in 1868:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

We'd say that last clause authorized Congress to pass the Civil Rights Act of 1964. One could argue otherwise, on the ground that the Civil Rights Act, which outlaws discrimination in private commerce, goes further than the 14th Amendment, which mandates equal treatment by government. But we would counter that the system of Jim Crow segregation was so all-pervasive that federal intervention in private commerce was necessary to ensure the promise of the 14th Amendment--and that, even more clearly, the amendment grants Congress the discretion to determine that the Civil Rights Act was "appropriate legislation."

Does Durbin disagree? Does he really think that the Civil Rights Act of 1964 was an extraconstitutional exercise? Or is he making this argument in bad faith in order to render more palatable actions, such as the creation of a "right" to abortion, that plainly are extraconstitutional?"

From Opinion Journal