Tuesday, August 15, 2017

Erasing History

The events this past Saturday makes me sad to be an American. It is hard to believe this much hate still exists in our country. It is even more puzzling the whole ordeal started over a Robert E. Lee statue. Apparently, the local government decided to remove the statue because it represents “hate” which I found ridiculous, but unfortunately White Supremacists validated the local government’s concern. Both sides are wrong, it is not right to erase our history over political correctness and of course any argument to keep the statue for reasons of racism, bigotry, and hate is just plain stupid.

The debate over the removal of a Robert E. Lee statue should not have been about “hate”, but the precedent this sends by erasing a portion of our history. It is dangerous to erase history because these are events we should never forget, but yet most Americans are unaware or ignorant about our historical past. We should never forget the struggle of the Civil War and we should never forget the issues over which the Civil War was fought. Slavery is a brutal fact about America’s scared past and that is something we should never forget.

Robert E. Lee was a slave owner and by many accounts he was a harsh one at that. But Lee was a big part of our national history. Nobody gave the South a fighting chance to defeat the North, but it was Lee’s extraordinary leadership skills that turned the Civil War into a four-year struggle that killed over 600,000 Americans. Lee outclassed one Northern General after another. Finally, Ulysses S. Grant realized the biggest advantage the North had was in numbers. Grant used this advantage to defeat Lee (at the expense of enormous casualties). Lee made history, even if it is was negative history that we all would like to forget.

If we decide to erase all the Confederate statues around the country, what is next? Where do we draw the line on erasing history? Do we eliminate Confederate references in our history books? Of course, four of our first five presidents are easy targets because they too were slave holders (Washington, Jefferson, Madison, and Monroe). Do we eliminate their statues and erase their names in our history books to be politically correct? But to be fair, we cannot stop there. Why not eliminate the following persons from our history: Teddy Roosevelt (Eugenics believer), Margret Sanger (Eugenics believer), Oliver Wendell Holmes (Eugenics believer and all around racist and bigot), Woodrow Wilson (He segregated the government), Franklin Delano Roosevelt (internment of Japanese Americans), and Harry Truman (Dropped two atomic bombs intentionally killing hundreds of thousands of innocent civilians). Sure, these men and women may have done some good things for society, but many of their actions were controversial to say the least. This would leave only Lincoln left on Mt. Rushmore. Of course, many of Lincoln’s actions as President were also questionable because they violated the Constitution such as suspending a writ of habeas corpus. Lincoln used this power to detain people for no reason and deny them due process of the law (not much different than slavery). Anyone could make an argument to eliminate anyone from our history. Where is line drawn? Selectively erasing history is a dangerous precedent.

Today, it is easy for most Americans to see slavery for what it was: a brutal and racist institution that violated the rights of millions of slaves in our history. But, that distinction was not so easy to make for a vast majority of Southerners throughout a large portion of our history. I would suspect a vast majority of person’s living today that view slavery as evil would have a completely different view of the institution if they were born in the 1800s in the American South. The environment and culture would negatively and incorrectly shape our thoughts and point of view on the subject. This is why history is important and why we should never forget. History has a way of repeating itself and we surely do not need that. Removing the Robert E. Lee statue is not going to change the minds of White Supremacists to all the sudden love their neighbors and accept a diverse culture. That is simply wishful thinking. That statue is now a reminder, to me, the scary fact that people who had no ties to slavery and the Civil War still defend those policies in modern America. That is why the statue must remain so we never forget the evils of our past and present.

Saturday, August 12, 2017

Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part I)

The Colorado Civil Rights Commission enforcing the Colorado Anti-Discrimination Act (CADA) fails to meet its burden of proof when it decided Masterpiece Cake Shop discriminated against a gay couple wanting a wedding cake for five reasons (other than those reasons being contended on behalf of the Cake Shop’s legal counsel: Free speech cannot be compelled and free speech covers artistic views).

First, the actions of Masterpiece Cake Shop were not discriminatory in any way. It is instead an example of social justice and political correctness gone horribly wrong. Unfortunately, it is not uncommon to have discrimination claims over simple moral and ethical disagreements. If Masterpiece Cake Shop is discriminating than it can be easily conferred that CADA is also discriminatory.

Secondly, this case is about clashing Fundamental Rights. The elevated Fundamental Right of gay marriage and equal protection versus free speech and religious freedom. If there is no discrimination then equal protection does not apply. Hence, it becomes a case between a controversial and conflicting elevated right versus natural law enumerated rights.

Third, this is a case about a person’s First Amendment right to protest which cannot be abridged without a compelling government reason. CADA is flawed for several reasons. First, it only protects customers from discrimination and not business owners (only customers can claim discrimination). Secondly, CADA fails to address the issue of customers putting forth controversial opinions and viewpoints that are in direct violation of the religious beliefs or creed of business owners. Finally, since the Colorado Anti-Discrimination Commission is political their history is to side with the most perceived disenfranchised party and not the law. Their motive is to protect against discrimination and not protect Constitutional rights of unprotected classes. For this reason, the speech of the Colorado Commission is comprised of many false factual statements that can defame the character of private citizens. For instance, since Masterpiece Cake Shop practice of its religious and free speech liberties are classified in the same manner by the Colorado Commission as someone who truly discriminates, this is a false factual statement and can unnecessarily defame the character of a private citizen.

Fourth, Religious liberty is not truly protected by CADA and fears of unscrupulous use of religious freedom to deny protected classes their Fundamental Rights are unfounded. CADA fails to pass congruent and proportionality tests since the commission has a history of siding with the most disenfranchised group. Religious liberty cannot be denied without a compelling government reason.

Finally, CADA fails to meet a simple rationale basis test of undue burden when it should be required to meet strict scrutiny demonstrating a compelling state interest to abridge both freedom of speech and religious liberty.

1. Discrimination

The day after a horrific act of terror attack killed 49 persons at an Orlando Night Club I was watching CNN’s Anderson Cooper (he was on site covering the story). Cooper interviewed Florida Attorney General, Pam Bondi, and I am paraphrasing the conversation that followed. Cooper asked Bondi about the events and to reflect. Of course, Bondi responded in a shocked, surprised, and mournful manner. She was hurt and upset over both the hate and waste of life. Cooper followed up by asking Bondi “how can she be so upset over these events when she does not even support gay marriage?” That folks, is unfortunately where we are at in our society. We are so embroiled in our public debate over social issues we have become brainwashed into believing conservatives, religious followers, and Republicans who do not agree with gay marriage must want gay people to be slaughtered. It is extremely disconcerting that a respected news anchor would ask such a question. Does Cooper really believe that people disagreeing over gay marriage want the LBGT community slaughtered in cold blood? I do not think Cooper would be happy if someone shot up a Church even though they disagreed with his views over gay marriage. Can’t Cooper distinguish between a disagreement over moral and ethical standards and true hate and terrorism? I find it hard to believe that any true Christian would find any gratitude in the events that transpired in Orlando. I cannot name a single American who saw anything positive in that tragedy. I saw lots of tears, but not a single cheer. But this type of vitriol is not uncommon and exists in this case: a conflict between religious and social-civil rights. Many of the comments and remarks over this case have devolved calling Masterpiece Cake Shop racist, bigoted, and hateful. I have a growing concern that many in the LBGT community believe that the denial of a wedding cake is nothing more than some deep-rooted anger, hatred, racism, and bigotry by religious followers towards gays that simply does not exist. It a disagreement over moral and ethical standards between religious and social-civil rights, and that is it. The fact that the gay couple in this case could not see this difference and even filed a complaint is even more concerning. Why would the gay couple want to force the religious owner to alter their beliefs to accommodate their needs? This country has a history of following a vicious cycle of events. Generally protected classes of citizens in America have forgotten their struggles and over time commit the same types of discrimination on others. Shortly after feminist won suffrage they supported eugenics in the twenties and in the seventies tried to overturn laws providing veterans (men) better job opportunities and healthcare. The reason Proposition 8 failed in California was because the vast number of the religious African-American population sided against gay marriage. We fail to have self-awareness to understand that we are doing the same thing we did not like being done to us to someone else. Two wrongs do not make a right. Vengeance is never the answer. The answer is to have patience and tolerance and to understand that a lot of people will have different viewpoints and opinions that differ from our own and that does not mean they are discriminating. We need to accept our point of view is never 100% correct nor will ever be 100% accepted.

Does the First Amendment prohibit discrimination? No, it does not. Most discrimination is protected speech. In fact, many groups of people depend on discrimination for their existence: female athletics, women’s groups and schools, men’s organizations and schools, military combat restrictions on women, age limits to qualify for certain activities and so forth. The equal protection clause of the Fourteenth Amendment and the Commerce Clause have been used by the Court to curb discrimination, not the First Amendment.

The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in public accommodations including businesses of all kinds. CADA defines discrimination against protected classes of citizens on the basis of color, national origin, marital status, creed, race, gender, religion, and sexual orientation. The dictionary defines discrimination similarly, “the unjust or prejudicial treatment of different categories of people or things especially on the grounds of race, age, religion, or sex.” CADA’s marital status designation conflicts with the Colorado Constitution which defines marriage as being between one man and one woman. CADA allows no exceptions to its statute and therefore, expects a business owner to forgo their Fundamental Religious Liberty and be compelled to uphold practices they do not believe. In this sense, CADA conflicts with the Religious Freedom and Restoration Act of 1993 (RFRA) which applies to all federal, state, and local laws. Masterpiece Cake Shop was merely practicing its ideals, which are the same ideals found in the Colorado Constitution and RFRA. Chief Justice Roberts said, “Congress had a reason for enacting RFRA, too” (Gonzales v. O Conto Espirita Beneficente Unioa do Vegetal, 2006). In today’s world of social justice and political correctness discrimination is a harsh label to apply to any one person or group. Being labeled as discriminatory is the same as being labeled as a bigot or racist by today’s standards even though that is not how the word is defined. Discrimination and labels that are associated to the word are often thrown around recklessly. To discriminate there must be a pattern and history of that behavior for definitive proof. Every instance of political correctness mistakenly places a label of discrimination, hate, bigotry, and racism on a person or group. For instance, someone referring to terrorism as “extreme Islamic terror” is labeled as an Islamaphobe bigot, racist, and hater of Muslims. Americans supporting actions against illegal immigrants are also considered bigots and racists. Americans supporting a temporary ban on immigration from Muslim countries are also all classified as haters by a vast number of our populous. Sure, some of the people supporting these measures may be true discriminators, but a vast majority are not. Most simply want to keep America safe from terrorism and see illegal immigration as a drain on our economy. We need definitive proof before we go around labeling someone as Hitler. This case is no different. The label of discrimination placed on the Masterpiece Cake Shop has devolved into other unfair labels and comparisons without any proof and without a history or pattern of any such behavior. Differing viewpoints, morals, or ethical standards does not necessarily constitute discrimination although it may violate what someone may perceive as being political correct. This case involves the conflict between two Fundamental Rights (Religious Liberty and Equal Protection), it is not a battle over discriminatory views. Maybe the word abridge can be used instead of discrimination. Abridge means to curtail rights or privileges, it does not mean to prohibit rights as discrimination implies.

Social justice to put an end to discrimination is a necessity. But social justice can also be an evil by wrongly asserting every act of political correctness constitutes some form of discrimination. It is just as discriminatory to force or compel someone to practice what they do not lawfully believe. Discrimination claims in this case cut both ways. The only reason this is a complicated case is due to the fact that unfair labels associated with discrimination can make religious liberty conflicts with social or civil liberties ugly and polarizing on the national level. It would be prudent to have a fair definition of discrimination (maybe abridge). A definition that would not label most of our populous as haters, bigots, and racists, but one that distinguishes between real political and legal debates over morals and ethical standards and true acts of discrimination. Since Roe v. Wade, this Court has had to deal with conflicting civil or social Fundamental Rights with natural or traditional enumerated Fundamental Rights. This trend will continue with the Obergefell v. Hodges decision. I believe the Court has a right to elevate Fundamental Rights through the Ninth or Fourteenth Amendments (although I believe the privilege and immunities clause makes more sense to elevate rights over the due process clause, but that would take overruling the Slaughter House cases). The problem in this case, and others like it, is when elevated rights, that are not overwhelming supported by the public, conflict with other enumerated or elevated rights. This issue needs to be addressed by the Court.

Social justice and political correctness confuses anything that may “offend”, “annoy”, or “hurt feelings” with discrimination. Ruling against Masterpiece Cake Shop will open a flood gate of frivolous lawsuits confusing every act of political correctness with discrimination. In Bray v. Alexandria Health Clinic (1993) the Court faced a similar situation. In that case the Court held that the Ku Klux Klan Act of 1871 could not be used against anti-abortion protestors. The Court rightly understood the difference between discrimination against free African-Americans and the dispute between differing moral and ethical views about abortion. The Masterpiece Cake Shop case is no different, it is dispute over differing morals and ethics and is not discrimination. To discriminate Masterpiece Cakes must show a consistent pattern of denying service to gay persons for ANY reason, not just for wedding cakes. Masterpiece Cake Shop would also deny service to a customer wanting to promote anti-American or any anti-religious activity. Would anyone disagree if Masterpiece Cake Shop denied service to a communist group wanting a cake showing the American Flag in flames? Would this also be considered discriminatory against one’s creed?

Would a gay cake shop owner be allowed to deny making a cake for Nazi Parade celebration? A Nazi parade, if peaceful and with a lawful permit, is a legal activity. Would anyone blame the gay or even straight bakery owners for turning away that type of business? It is bad business to have your product associated with controversial groups that would yield bad publicity. But if CADA wants to treat all citizens equally, then the creed of White Supremacist should not be discriminated against either, right? Would a black baker be discriminating to deny making a Confederate Flag cake for a White Supremacist group? Would an Islamic baker be compelled to make a cake for a church group who wants to depict Allah in a bad manner? Would an Atheist cake maker discriminate by refusing to make a Ten Commandants Cake? Maybe not, based on how the CADA commission has ruled on some prior cases. Three Denver Cake bakers were found not guilty of violating creed discrimination of CADA for declining to bake a Christian Cake in opposition to same sex marriage. Social justice and political correctness hysteria in America has declared poor grades discriminate against the intellectually challenged; bad credit discriminates against the poor and unwise spender; and criminal laws discriminate against criminals. It seems everything discriminates.

Obergefell v. Hodges (2015) was a decision that went against the beliefs of a vast number of religious followers from many different religions. This is true for a number of reasons. First, the law changed the traditional definition of marriage found in the Bible that marriage is between a man and a woman. It is always hard to accept when something people believe in with strong conviction is altered. Secondly, Obergefell was not a case about love, but one about government entitlements attached to marriage. For religious follower’s marriage does not discriminate, instead it is the government entitlements attached to marriage are what discriminates. Would gay people still want to be married if government entitlements were not attached to marriage? This question was not answered satisfactorily to religious followers in Obergefell. Marriage is about love, and not about tax breaks. Marriages based on financial tax breaks will not last the test of time. Without love, marriages will eventually end in divorce. Finally, religious followers see Obergefell as a symbol of the Court using social justice and political correctness to justify its decision, not the law. For these reasons, one can understand why Masterpiece Cake Shop is protesting the elevated Fundamental Right of gay marriage.

In Roemer v. Evans, the Court held a Colorado referendum denying the gay community preferential treatment was unconstitutional. If this Court finds that someone who is offended or has hurt feelings deserves protection via social justice and political correctness, then the dissent in Roemer was correct. This would yield preferential treatment to one class of citizens at the expense of another class of citizens. Preferential treatment to protected classes of persons may have the unintended effect of discriminating against another group of unprotected classes.

Wednesday, August 9, 2017

The Most Underrated Chief Justice: Salmon Chase (Part II)

Although he would only serve 9 years as Chief Justice before his death, nearly every one of his decisions was the proper one. In United States v. Dewitt decided in 1869, Chase delivered the unanimous decision restricting the usage of the Commerce clause and the Necessary and Proper clause by denying restrictions on buying certain oil products because it would be beneficial for the government to collect and lay taxes. The Legal Tender cases were a huge part of the Chase legacy. In 1869, the case Hepburn v. Griswold, Chase delivered the majority opinion with a very narrow reading of the Necessary and Proper clause. Chase ruled that although the Federal Government has the enumerated power to “coin money”, that power did not imply that the Federal Government has the power to make “paper money”. Chase argued that in following Marshall’s opinion in McCulloch v. Maryland that using the Necessary and Proper clause would not be “consistent with the letter and spirit of the Constitution.” Since “the States are expressly prohibited by the Constitution from making anything but gold and silver coin a legal tender” Chase argues “This seems decisive on the point that the power to issue notes and the power to make them a legal tender are not the same power, and that they have no necessary connection with each other.” Also, Chase understood as being Secretary of the Treasury, that legal tenders (paper money) were not always redeemed at face value making Chase to proclaim “It is difficult to conceive what act would take private property without process of the law if such and act would not.” Just two years later, for the first time in history, the Court over turned Hepburn in Knox v. Lee. Chase would write in his diary “The consequences of the sanction this day given to irredeemable paper currency may not soon manifest themselves but are sure to come.” In Knox, Justice Strong wrote the majority opinion saying “It is incumbent, therefore, upon those affirm the unconstitutionality of an act of Congress to show clearly that it is a violation of the provisions of the Constitution.” In other words, Congress is Judge and Executioner of ALL laws with no oversight. Legislators need not have to find the words in the Constitution for them to have power of things outside its writings. Strong further argues the Amendments to the Constitution are “powers not enumerated, and not included incidentally in any one of those enumerated”, the amendments “are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers.” In other words, something may not have to be an incidental power of an enumerated power for it to be “necessary and proper”. Strong cites the National Bank as being convenient to lay and collect taxes, but the Court still found it “necessary and proper.” In Strong’s view for the legal tender act to be unconstitutional it would have to be both inappropriate and prohibited. Strong cites the Civil War as an emergency requiring Congress do what is “necessary and proper” to keep the war effort funded. Finally, Strong says “The degree of the necessity for any congressional enactment, or the relative degree of its appropriateness, if it have any appropriateness, is for consideration of Congress, not here.” In his dissent Chase rightly points out that if “the legislature is the sole judge of the necessity for the exercise of such powers, the government becomes practically absolute and unlimited.” Chase was right, by 1884 in Juilliard v. Greenman (after Chase’s death) the Court ruled that Congress can issue paper money for any reason, not just an emergency such as war stating any sovereign power has the power issue paper money. Note how Chase’s decisions do not allow for expansion of government whereas his comrades allow the government unlimited power to expand.

Chase’s two most important decisions were decided shortly before his death in 1873. Although he was too sick to write a dissenting viewpoint in the Slaughter House Cases or in Bradwell v. Illinois once again Chase sided against discrimination. In Bradwell, Chase was the only dissenter in the 8-1 decision that held a woman, Myra Bradwell, was not entitled work as a lawyer simply because she was a women and was therefore, inferior. In the Slaughter House cases, similarly a discriminatory statute placed all butchers in the City of New Orleans under a monopoly of one owner. In both cases, it was held that the privileges and immunities clause of the Fourteenth Amendment did not apply to the practice of a profession. In fact, these decisions practically wrote the clause out of the Amendment making it moot. These were the first Fourteenth Amendment cases. The privileges and immunities clause was there to not only protect blacks against racism but to apply all the Bill of Rights to the states to protect the liberties of all citizens. Chase would die a few weeks later. Chase stood up for blacks, women, and minorities at a time when it was not popular. Chase stood up against discriminatory laws and statutes. Chase stood up for the Constitution at a time when federal government was starting to grow in size and scope and the Court was allowing it. Four years following the death of Chase, the Chase Bank was named in his honor.

Sunday, August 6, 2017

The Most Underrated Chief Justice: Salmon Chase (Part I)

Salmon Chase is underrated both as a Chief Justice and as a citizen fighting for the abolishment of slavery. In 1837, at the age of 29, Chase defended a women named Matilda. Matilda was a runaway slave and her owner wanted her returned to bondage. Chase argued that the Fugitive Slave Act of 1793 was unconstitutional and beyond the enumerated powers of Congress. However, Article IV of the Constitution contains the “Fugitive Slave Clause” stating: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation thereof, be discharged from such service of labor; but shall be delivered up on claim of the party to whom such service may be due.” Chase astutely argues “Does this clause confer any power on government, or on any officer or department of government?” Clearly it does not, “The parties to agreement” in this clause “are the states.” Chase says that the government cannot claim the “necessary and proper” clause to carry out the Fugitive Slave Act because that power is not enumerated in the grants of power given to Congress. Hence, Chase says such power is delegated to the states through the Tenth Amendment. Another clause in Article IV of the Constitution says “Full faith and credit shall be given, in each state, to the public acts, records, and judicial proceeding of every other state.” Chase argues that this clause is similar to the Fugitive Slave clause because it also confers no power to the federal government. Why would the founders confer legislative power in one clause of Article IV but not the other? Of course, Chase also argues to free Matilda in the “name of justice, of liberty, and of our common humanity.” Chase lost his case and Matilda was returned to bondage.

In 1842, the Supreme Court upheld the legality of the Fugitive Slave Act in Prigg v. Pennsylvania. Even though the Constitution does not refer to “slaves” the majority in Prigg states that the clause in Article IV is about “slaveholding”. Therefore, the Court ruled that Congress has “exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby” to uphold the Act. Of course, in 1857, the Taney Court held in Dred Scott v. Sanford that slave owners could not be deprived of “property (slaves)” without due process of the law. When Chief Justice Roger Taney died in 1864, Abraham Lincoln replaced him with Salmon Chase.

Before becoming Chief Justice, Chase contended that Congress had the power to abolish slaver in the District of Columbia and any U.S. territories. When Chase was unable to make headway into abolishing slavery as lawyer he turned his focus to politics. Chase was instrumental in the formation of the anti-slavery Republican Party. The Republican Party platform in 1856 and 1860 adopted Chase’s views on slavery. Chase was elected governor of Ohio in 1855 and lost the 1860 Republican presidential nomination to Abraham Lincoln. Lincoln would appoint Chase as the Secretary of the Treasury from 1861 to 1864, a position he would hold until being named Chief Justice. Secretary of the Treasury was a tough job during the Civil War but first on his agenda was to hire thousands of women and blacks to serve in the department.

Wednesday, August 2, 2017

The Warren Court: Rightly Decided, but Wrong Rationale

The Warren Court is in many ways an enigma. You have to applaud them for overturning Plessy v. Ferguson in Brown v. School Board which finally ending the “separate but equal” discriminatory practices. This was accomplished using the Fourteenth Amendment’s equal protection clause. However, two cases a decade later, in 1964, the Courts rationale can leave one scratching their head wondering what was the Court thinking. In Heart of Atlanta Motel v. United States and Katzenbach v. McClung the Warren Court rightly upheld the Civil Rights Act of 1964, but did so in a very peculiar fashion. Their decision was consistent with Brown in ending discriminatory practices in the South, but they used the “commerce clause” to reach their verdict instead of applying the Fourteenth Amendment.

The clause in question of the 1964 Civil Rights Act reads: “All persons, shall be entitled to the full and equal enjoyment of the good, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the grounds of race, color, religion, or national origin”. Those facilities include inns, hotels, motels, restaurants, cafeteria, and movie theatres. Congress passed the Act by insinuating discrimination in any of the above mentioned facilities “affects commerce”. That is a reach at best since commerce means the trading of commodities. The Atlanta Motel case applied to lodging and the Katzenbach case applied to restaurants since both refused to serve African-Americans. It is worth noting a similar clause in the 1875 Civil Rights Act was deemed unconstitutional in 1883.

In Atlanta Motel, Justice Clark says “the conditions of transportation and commerce have change dramatically, and we must apply those principles to the present state of commerce”. This is just another way of saying the Court is about to expand the Federal Government’s power. After all, people travelled between states all the time when the Constitution was drafted and at no point was that considered commerce. However, up to the date of this decision the commerce clause had been held constitutional to regulate: gambling (Lottery Case, 1903), insurance (Underwriters case), individual crop control (Wickard v. Filburn, 1942), regulate labor unions (Labor Board v. Jones and Laughlin Steel, 1937), and economic activity including wages and hours (United States v. Darby, 1941). The Court decided that since Congress had a “rational basis” to end discrimination using the commerce clause it was an “appropriate” law. Clark correctly points out “Congress could have pursued other methods” to end racial discrimination (Fourteenth Amendment). Both Justices Douglas and Goldberg concurred with the decision but also correctly add that the Court could have made its decision to end discrimination in both cases via the fifth clause of the Fourteenth Amendment which says: “The Congress shall have power to enforce, by appropriate legislation, the provisions in this article.” The first clause of the Fourteenth Amendment saying everyone has a constitutional right “to be treated as equal members of the community with respect to public accommodations” would be provision enforced by the fifth clause.

In Katzenback, Clark says interstate commerce includes the “movement of persons, goods or information from one state to another.” Clark also contends that Congress has the power to regulate “intrastate activities”. Clark would go on to cite the most controversial commerce clause case, Wickard v. Filburn: Congress has the power to regulate any “substantial economic effect” on interstate commerce. This vague and ambiguous statement has never been clearly defined as to what constitutes “substantial”. The Court merely has to decide whether a Federal law is “rational” to deem it constitutional. Hence, the Court concludes that the law “had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of commerce”. “The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this court” to uphold these laws.

So instead of properly applying the Fourteenth Amendment for its intended purpose: to stop discrimination; the Warren Court decided to further expand the powers of Congress by redefining the commerce clause. What can’t Congress regulate if they have the power to control local businesses for whatever reason they may see fit? Notice the interstate commerce clause has gone from meaning regulating trade among the states to controlling all aspects of economic activity well beyond trade. The Court had other options to decide this case such as reinstating the “privileges and immunities” clause in the Fourteenth Amendment. The Court could have decided that the “liberty” of American citizens was being violated or restricted. However, instead of giving more power and sovereignty back to the people, the Court decided to yield more power to the Federal government.

Sunday, July 30, 2017

Why Gibbons v. Ogden was a Flawed Decision

Marshall continued his assault on the constitution in his 1824 decision Gibbons v. Ogden. The case involved a New York statute which provided a monopoly to the steamship business on New York waterways. The commerce clause states: “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Marshall ruled that commerce was much more than “traffic” but was also “intercourse”. Marshall further defined commerce as including the navigation of ships in waterways and overruled the New York statute. Marshall based his decision on the wording in Article 1, Section 9 which states: “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another.” The next sentence also states: “nor shall vessels bound to or from on State, be obliged to enter, clear, or pay duties, in another.” From this Marshall interpreted the commerce clause to mean not only controlling navigation among states, but it “may be introduced into the interior” of states. Marshall states that the commerce clause would be “useless power” if the federal government could not “pass those lines” within the states if necessary. Marshall would further state Congress’s power to regulate commerce has “no limitations, other than are prescribed in the constitution.” In other words, Marshall can find plenty of latitude to increase Congressional power not prescribed in the constitution (such as this case or McCulloch), but he says Congressional commerce power is only limited by what is prescribed in the constitution. Marshall, later in his opinion, uses the Supremacy clause to answer the question of sovereignty when both states and the federal government have incidental laws regulating commerce that conflict. New York argued since the constitution forbids States from “laying duties on imports and exports proves this power might have been exercised, had it not been expressly forbidden.” Marshall ended this argument by saying “duties on imports and exports” pertained to taxing powers not commerce powers. Well then, by Marshall’s argument the statements: “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another”; and “nor shall vessels bound to or from on State, be obliged to enter, clear, or pay duties, in another” is about taxing power or discrimination, but it is not about navigation.

By all accounts of the time and dictionaries the definition of commerce means trade. In no instance during the Constitutional Convention (the word commerce appears 34 times in Madison’s notes), in the Federalist papers (63 appearances), or the ratification conventions (Massachusetts – 19 appearances, New York – 8 appearance, Pennsylvania – 8 appearances, North Carolina – 18 appearances, South Carolina – 26 appearances, or Virginia – 74 appearances) is commerce defined as anything more than trade. In no instance is commerce defined as intercourse, manufacturing, agriculture, economic activity, or navigation supremacy. Although Gibbons v. Ogden was a unanimous decision, Justice Johnson wrote a separate decision stating a more conventional definition of commerce (trade). This quote sums up the outcome of the Gibbons v. Ogden decision: “The Marshall Court's broad reading of the Commerce Clause gave it a legal elasticity that was later extended to include federal regulation of railways, airlines, pipelines, television stations, telephone communication, and even racial segregation.” Despite this decision, most federal government expansion in the early part of American history was created through the “necessary and proper” clause and not the commerce clause. This is for two reasons: 1. Marshall’s decision in McCulloch v. Maryland gave the necessary and proper clause even broader appeal than the commerce clause and 2. Most Americans understood the real definition of commerce and believed its scope was very narrow as written in the Constitution despite Marshall’s opinion. It would take until the FDR era for the commerce clause to grow in scope to include regulating anything that is economic.

In Barron v. City of Baltimore in 1833, Marshall may have made his most inexcusable decision. Marshall ruled that the Bill of Rights (the first 10 Amendments) only applied to the federal government, but not to the states. This was of course contrary to what James Madison had in mind when Congress adopted the amendments in 1791. Marshall’s decision led to a nearly 150 year battle between the Supreme Court, States, and the Bill of Rights.

Wednesday, July 26, 2017

Why the McCulloch v. Maryland Decision was Flawed

McCulloch v. Maryland was a landmark Supreme Court decision in 1819. The decision for this case is still relied upon as key precedent for interpreting the “necessary and proper” clause. Chief Justice Marshall put forth the unanimous decision of the Court that determined that the National Bank was constitutional because the “means to obtain the ends” was deemed acceptable for the national government to pursue its enumerated powers for collecting and laying taxes as well as borrowing money.

The battle over the National Bank started over two decades earlier when the National Bank was passed by the Washington administration guided by the tutelage of his Treasury Secretary, Alexander Hamilton. Arguing against the passage of the bank were House leader James Madison and Secretary of State Thomas Jefferson. Madison argued that the constitution’s theory of limit and enumerated powers of the federal government would be “destroyed” by erecting a National Bank. Madison argued further that if a Bank is necessary than the government could control “every object within the whole compass of the political economy” by using creative means to obtain those ends. Madison said that a National Bank was not necessary, but “convenient”. Marshall’s decision would define “necessary” as also meaning “convenient” among other broader definitions. Jefferson argued that “necessary and proper” meant “restraining them [enumerated powers] to the necessary means, that is to say, to those means without which the grant of power would be nugatory.” He further exclaimed that enumerated powers could “be carried into execution without a bank”. Probably the best argument defining the “necessary and proper” clause was provided by Attorney General Edmund Randolph. While Hamilton and Marshall use the “necessary and proper” clause to expand enumerated powers of the federal government to include ANY means to obtain the ends, Randolph rightly points out the key word in the clause is “proper” and not “necessary”. Randolph points out that the word “proper” does not “enlarge the powers of Congress, but rather restricts them.” Proper restricts what is necessary to what is appropriate, correct, right, accepted, conventional, regular, or orthodox. “Necessary and proper” does not purport ANY or ALL means that is necessary to obtain the ends as supported by Hamilton and Marshall. However, Marshall says in his decision “Let the end be legitimate, let it be within the scope of the constitution, and all means which are ‘appropriate’, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitutional, are constitutional.” Marshall uses the term “appropriate” but he classifies appropriate as ANY means to an end that is not prohibited by the constitution. It is highly debatable that a National Bank is the right, correct, accepted, orthodox, and conventional means to lay and collect taxes.

After a huge backlash of negative media following his decision, Marshall wrote a series of articles defending his decision stating “In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution.” However, Marshall’s decision opened the floodgates for the “necessary and proper” clause to be abused by the federal government to expand its powers over the next two centuries. As Madison said “Is there a Legislative power in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the Court, be exercised as a means of carrying into effect some specified Power?” Despite this, Madison did not veto the Bank bill as President of the United States in 1816. Madison, argued that he was following “precedent” over 25 years of debate on the issue and hence, he decided to merely conform (although he personally objected). In 1832, President Andrew Jackson vetoed the Bank bill by saying “precedent” can be dangerous. He also stated that “nor can I conceive it ‘proper’ that the substantive and most essential powers reserved by the States shall be thus attacked and annihilated as a means of executing the powers delegated to the General Government.” Jackson further argues “We may not pass an act prohibiting the States to tax the banking business carried on within their limits, but we may, as a means of executing our powers over other objects, place that business in the hands of our agents and then declare it exempt from State taxation in their hands.” Jackson also points out the dangers of Congress having more power: “to make the rich richer and the potent more powerful.” “Many of our rich men have not been content with equal protection and equal benefits but have besought us to make them richer by act of Congress.” “We can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many…” Jackson correctly portrays what happens when Congress is employed with more power and why Marshall’s interpretation of the “necessary and proper” clause was flawed in the McCulloch decision.