Given its Constitutional roots and its embodiment in the extensive statutory provisions enacted by Congress over the decades, federal anti-discrimination law is pervasive and reaches federal, state and local levels of government. Where Constitutionally permissible, it provides the basis for broad regulation of racially-discriminatory conduct at the private level. Nonetheless, because the Congress is a legislature of limited jurisdiction, it must find authority for its statutes somewhere in the U.S. Constitution, e.g., through Section 5 of the Fourteenth Amendment, the Commerce Clause or the Spending Clauses. In those limited circumstances where the Constitution does not permit the application of federal anti-discrimination laws, state and local governments have some authority to act. Under the Tenth Amendment to the Constitution, "[t]he 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." Thus, the state and local governments retain a fairly substantial range of actions within which to regulate or prohibit discriminatory actions. In some instances, state and local governments have exercised their inherent authority by adopting statutes and administrative regulations providing powerful and effective protections against, and remedies for, private discrimination based on race, color, ethnicity and national origin. Indeed, in some states, courts have interpreted their state constitutions to provide even broader protections against discrimination than under federal law.
Because the fundamental requirements of the Convention are respected and complied with
at all levels of government, the United States concluded there was no need to preempt these state and local initiatives or to federalize the entire range of anti-discriminatory actions through the exercise of the Constitutional treaty power. Indeed, there is no need for implementing legislation providing the Federal Government with a cause of action against the constituent states to ensure that states fulfill the obligations of the Convention. Subject to the constraints imposed by our federal system, the Federal Government already has the authority under the Constitution and the federal civil rights laws to take action against states to enforce the matters covered by the Convention.
It is important to stress that this understanding is not a reservation. It does not condition or limit the international obligations of the United States. Nor can it serve as an excuse for any failure to comply with those obligations as a matter of domestic or international law. Instead, it addresses a specific and sensitive aspect of the fundamental governmental structure of the United States. As an aspect of the modality of implementation in domestic law, this understanding is entirely within the discretion of the United States as a State Party and contravenes no provision of the Convention.
In ratifying the International Covenant on Civil and Political Rights in 1992, the United States addressed this issue through adoption of an interpretive understanding, the effect of which was to clarify that the United States will carry out its obligations in a manner consistent with the federal nature of its form of government. A similar understanding was adopted for the Torture Convention as well as for the current Convention:
[T]he United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. To the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall, as necessary, take appropriate measures to ensure the fulfillment of this Convention.
Race, Racism and the Law
Vernellia R. Randall
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