Modern Sappers and Miners: The Rehnquist and Roberts Courts and the Civil Rights Act of 1964

this article is organized as follows. To orient readers on what is at stake, Section I provides a brief overview of the substantive provisions of the Civil Rights Act of 1964. Section II considers reasons why the Act was premised on Congress' Commerce Clause authority rather than the enforcement power that the Constitution confers upon Congress under the Thirteenth and Fourteenth Amendments. Section III evaluates several recent Supreme Court decisions that give the Commerce Clause a restrictive interpretation.

For illustrative purposes, this section explores the impact on Title Two of the Act. Finally, the article closes with a few observations of the implications of the Roberts' Court jurisprudential approach in the ACA case.