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.

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.

Even Unanimous Decisions on the Supreme Court are Political (Part III)

Consider the 2014 case McMullen v. Coakley as another example of a politically motivated unanimous decision. A Massachusetts statute (Massachusetts Reproductive Health Care Facilities Act – MRHCFA) made it a crime to knowingly stand on sidewalk within 35 feet of the entrance of a clinic or hospital that performs abortions. The Court upheld a similar Colorado law in Hill v. Colorado in 2000 (the buffer zone was much smaller). The purpose of the law was obvious: to prevent pro-life protestors from handing out information, counsel, or to further educate persons going to have an abortion. Massachusetts argues that the law was needed for safety purposes to prevent an escalation of violence. Some Massachusetts Planned Parenthood clinics even use “escorts” who help shield patients from pro-life supporters as they walk from their car to the clinic to suppress free speech further.

However, the majority of the majority (Chief Justice Roberts and the four Liberal Justices – Kagan, Sotomayor, Breyer, and Ginsburg) decided that MFHCFA did not regulate the “content” of speech. In other words, the law was not passed to stifle one group’s free speech (anti-abortion) at the expense of another group’s free speech (abortion). However, they decided the MFHCFA law was still unconstitutional because it regulated speech of any kind by placing barriers in free speech zones such as public streets and sidewalks. Does the majority truly believes that MFHCFA was passed for safety reasons and was content neutral on speech?

According to the majority view, Massachusetts had tried many other, less evasive, safety provisions and methods that failed before enacting MFHCFA. That being said, Massachusetts could not identify a single arrest over a 17 year period of using older, less evasive laws. If this is the case, then this should have refuted the majority’s claim the law was for safety purposes and not to regulate speech content. After all, why would Massachusetts need a more protective measure when there were no previous violations of older laws?

Scalia gave the minority view with Alito, Thomas, and Kennedy concurring. The minority agreed that MFHCFA was unconstitutional, but they go further and say the law was not content neutral and the Court should have overruled the Hill decision. Scalia argues first of all, MFHCFA only “burdens public spaces outside of abortion clinics” and that is obviously discriminatory towards anti-abortion speech. The majority’s position is analogous to “invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.” Scalia further states that “Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.” Scalia further contends the majority’s claim that escorts or clinic employees do not engage in pro-abortion speech in restricted areas - the Planned Parenthood website of the Boston clinic in question states: “Become a Clinic Escort Volunteer to provide a safe space for patients by escorting them through protestors to the health center.” The website defines “protestors” as “holding signs, trying to speak to patients entering the building, and distribute literature that can be misleading.” In other words, the job of the escort is to stifle free speech. The protestors are not defined on the website as being a safety concern. Scalia concludes by saying we now have a new test for free speech and the First Amendment: “Speech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has been expressed.”

Once again, I can speculate with confidence that the four liberal justices were going to dissent in this case and it would have been a 5-4 ruling striking down MFHCFA. However, Chief Justice Roberts got the liberals onto the majority opinion by offering them a concession that the law was not designed to be discriminatory, but it was content neutral for political reasons (nothing is more political these days then abortion discussions). However, such compromises have serious consequences as Scalia points out in his arguments: free speech rights have been mitigated by this decision, not enhanced as one may think by seeing a 9-0 decision in favor of free speech.

Even Unanimous Decisions on the Supreme Court are Political (Part II)

Scalia shows proof that from 1789 to 1822 there was no use of the recess appointment clause. From 1822 to 1862 there was minimal exploitation of the clause. In other words, the framers generation applied the recess appointment clause appropriately and did not exploit it despite changing dynamics within the Senate and executive branches. Most of the exploitation of the clause occurs from the FDR administration to the present.

I do not know what happens behind closed doors at the Supreme Court, but I can speculate. This case appears to be a political compromise. The liberals agreed to join the majority opinion if Justice Kennedy joined their concurring view of the majority opinion to redefine the “recess appointment clause”. I believe the liberals on the Court truly believe the recess appointments that Obama made were Constitutional, but they were not going to win (5-4) the battle. Hence, they compromised with swing vote Justice Anthony Kennedy so they could win the war.

Would this level of politics really happen on the Court? Of course! Consider the cases: Unites States v. Windsor and Hollingsworth v. Perry decided in the same session of the Court in 2013 as the NRLB case. Windsor made the Defense of Marriage Act (DOMA) unconstitutional and Hollingsworth was a gay marriage case. Both cases were similar in the fact that it was highly debatable as to whether or not the plaintiffs had standing for the Court to rule on these cases. In Windsor, a lower court ruled DOMA was unconstitutional and the Obama DOJ did not contest the decision. The Obama administration however, purposely withheld Windsor’s refund for higher estate taxes (single persons pay more than married persons) that she was forced to pay when her partner died. Why would the DOJ fail to contest the case but withhold Windsor’s refund? In order for Windsor to have standing in the Supreme Court there would have to be some sort of damages she is trying to reconcile to standing. If she received her refund there would be no reason for the Court to hear to the case. Obama wanted the Court to legislate from the bench and find DOMA unconstitutional and that is exactly what happened. Four Justices however, contended that the Court had no standing because the DOJ was not contesting the estate tax refund. In Hollingsworth, a California conservative group filed an appeal to the Court to overturn a lower court’s finding that Proposition 8 (marriage is between a man and a women) was unconstitutional. Once again, in Hollingsworth, the plaintiffs suffered no damages so the Court ruled they had no standing to hear the case. Scalia and Roberts voted the same in both cases: the plaintiffs had no standing. Alito, Sotomayor, and Kennedy voted the same in both cases: the plaintiffs had standing. Thomas voted in Windsor there was no standing and in Hollingsworth there was standing. Justice Breyer, Kagan, and Ginsberg voted in Windsor for standing and in Hollingsworth for no standing. It is interesting to note the four Justices that switched votes. Do they have different views on the standing doctrine or do they have some other political motive. In my view, the liberal justices wanted to the Court to legislate that DOMA was unconstitutional. However, at the same time, the liberal justices did not want to take up the gay marriage case and henceforth it allowed gay marriage to continue in California. I believe Thomas was convinced to change his vote because he wanted to protect the will of the people over initiative cases. Twenty-Six states allow the people to change their State’s constitution through referendums. Since the Court ruled that people fighting for these referendum initiatives within the states had no standing, it set a precedent that Thomas truly did not believe in: It denies the free will of the people in the political process. Conveniently, the DOMA ruling was cited in Obergefell two years later to rule gay marriage is a fundamental right.

Sotomayor is not immune to playing politics. In Schuette v. Coalition to Defend Affirmative Action in 2014 Sotomayor claims throughout her dissent that “race matters”. Michigan passed a new law to its constitution via a referendum: “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of races, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Sotomayor found this new law in violation of the “equal protection clause” of the Fourteenth Amendment because “race matters” when determining a person’s qualifications for college. Sotomayor rambles on senselessly about the history of discrimination as well as statistics back in 1960s or earlier. These narratives have no bearing on the case. Sotomayor points out that the University of Michigan saw its black enrollment decrease from 12.5% to 10% since the referendum passed. What this means is that 1 in 40 opportunities before the referendum passed had been taken from a deserving person and given to a less qualified person simply for being black. And there are even more opportunities hijacked from deserving persons by Hispanics. This is discrimination and the precise reason for “equal protection”: when one group of people is treated differently than another group. The Michigan law defines equal protection to perfection.

Even Unanimous Decisions on the Supreme Court are Political (Part I)

The Supreme Court decision for the 2013 case National Labor Relations Board (NLRB) v. Noel Canning was decided by a 9-0 unanimous decision. The Court correctly decided the Obama administration used the “recess appointment clause” incorrectly when appointing three members to the NLRB. So how could a correctly decided case by unanimous decision be controversial? First, the majority was divided between conservative and liberal interpretations of the “recess appointment clause”. Secondly, there was little to no precedent on the “recess appointment clause” giving liberals more latitude to push the living constitutional narrative. Antonin Scalia wrote the conservative majority opinion defending the original text of the constitution. Stephen Breyer, wrote the liberal interpretation of the majority opinion defining the “recess appointment clause” based on the historical use of the clause. Since five justices sided with the Breyer argument over the Scalia argument, Breyers point of view is the law of the land.

The recess clause states: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” There were two fundamental questions before the Court: 1. Does the president have the right to fill a vacancy during any Congressional recess or just during one major recess and 2. Can the president fill any vacancy including those that did not happen during a Congressional recess? At the beginning of American history, Congress did not remain in session very long – about 4 to 6 months - and then went on a long 6 to 8 month recess. Today, Congress in session most of the year and take several (shorter) recesses throughout the course of a year. This change in Congressional work patterns was argument enough for Breyer to want to change the scope of the “recess appointment clause”

Justice Breyer changed the meaning of the “recess appointment clause” in his decision based on “late arising historical practices”. Thus, Breyer not only changed but basically read the “recess appointment clause” out of the constitution. According to Breyer, Congress must be out of session for at least 3 days for it to be considered a recess. The president can make a recess appointment during “any” recess that is over 10 days long. In other words, the President cannot make a recess appointment during “any” recess that is 3 to 9 days in length. Breyer made things even more complicated by leaving his “recess appointment” definition open ended. For instance, there may be instances following an emergency or catastrophe where the president could make a “recess appointment” at any time (during a Congressional recess).

Justice Scalia disagreed adamantly. First, he talked of the responsibility of the Court to adhere to the original text of the constitution so the “separation of powers” between the legislature and executive branches is honored. Under Breyer’s definition the executive branch garners much more power and it can remove the Senate from the confirmation of appointments altogether. This new executive power could certainly, at times, encroach on the liberties of “We the people”. Scalia cites Marbury v. Madison that is the responsibility of Court to “to say what the law is”. Justice Kennedy wrote in Zivotofsky v. Clinton that the Court role is not “lessened” when “two political branches are adjusting their own powers between themselves”. In Enterprise Fund v. Public Company Accounting Oversight the Court said it “does not depend on whether the encroached-upon branch approves the encroachment”. In other words, the history of how the “recess appointment clause” was used does not matter. What matters is determining the law.

Scalia also argues that the words “the recess” suggests that the president can only make appointments during one break separating two sessions – not during multiple recesses as Breyer suggests. Scalia refutes Breyer’s argument that the founders merely forgot to place time frames within the clause. Scalia shows that there are two clauses in the Constitution that places time frame restrictions on both the legislative and executive branches. For instance, the president has 10 working days to act on passed legislation or it becomes law. Scalia further refutes another Breyer argument that would change the meaning of the word “happen” in the recess appointment clause that would enable a president to appoint officers for all vacant offices, including those that were not opened during a recess. This presidential power would permit the executive to infinitely refill positions during every recess and their appointment would never expire and they would never face Senate confirmation. Finally, as to the “open ended” nature of the Breyer version of the clause, Scalia explains a natural disaster happening during a Senate Recess would still require them to return to session to appropriate funds since only Congress can appropriate funds. Therefore, there is no need to keep the clause “open ended”.

From Peripheral Nerve Disorder to State and National Cycling Champ

I am not going to go into any detail about my disorder (Cramp Fasciculation Syndrome - CFS) or its symptoms because I have written lots of articles on that subject in this blog. And I am not going to go into any detail about the havoc this disorder wreaks on the lives of people who have peripheral nerve disorders (PND) and how difficult it is to exercise, especially intensely (I have documented this in great detail). I will say without CFS I would have never found cycling. I had to evolve and find new sport activities since my disorder made it virtually impossible to do other activities without it being a safety concern or without a great deal of pain. Do not get me wrong, it hurts to cycle, but the pain levels are tolerable even when training at a high level.

My message in this blog is to tell folks with PND to keep fighting and evolving. Life it too short to miss out. This year I won the Colorado Masters Time Trial Championship (Age: 50+, Category: 4 & 5) and the National Senior Games 5K and 10K Time Trial Championships (50-54 Open Division). I finished 13th at the USA Nationals Masters Time Trial Championships (50-54 Open Division) – This is the most competitive national race. I was a mere few seconds from earning a top 10 finish and my time would have been good enough to place 5th in the 55-59 group which is less than two years away for me.

I am not too sure what is next for me. I miss riding a bike just for fun. Do not get me wrong, it is fun to go fast, but that fun is not realized until the race is over and you catch your breath. Training is fun, but it is really painful. I’ll continue to take it one day at a time and try to remain humble with my successes and learn from my failures.

My wife asks me why I put myself through so much pain and travel aggravation to compete. I told her a few short years ago I was being tested for ALS and MS and I thought I was dying. After being diagnosed with CFS it was blessing but my life was changing for the worse. When I found cycling it made me appreciate that much more that I have an activity I can do. I figured it was just a matter of time before the slow progression of my disorder took cycling away from me as well. So I wanted to make the most of what I had because it could go away at any time. I wake up every day and realize how lucky I am because there are lots of people suffering in this world much worse than I am. What I am going through was a wakeup call for me and I am doing my best to answer that call and make the most of it.

I have been told my entire life that I would not amount to much. My mother, when she was mad at me, would tell me how stupid I was since I had issues with reading and writing. I worked hard to prove her wrong. I got rejected at most schools because they said my test scores and grades were not good enough to be an engineer. I worked hard to prove them wrong. At work I was told product and test engineers were inconsequential and did not make a difference like design and system engineers. I became one of few product and test engineers to be named a Distinguished Member of the Technical Staff. Multiple neurologists told me my life would change for the worse and I would not be able to remain active. I have worked hard to prove them wrong. I really do not like it when people tell me I cannot do something and it motivates me to prove them wrong. My wish is everyone with peripheral nerve disorders also prove their neurologists wrong! Do not settle with what they prognosticate for you! I believe most people can overcome a great deal of adversity if they put their minds to it.

Pain is relative and it is impossible for anyone to know what is going on inside another human being. Maybe my pain is not as bad as others, but I know my hands and feet hurt a great deal. My muscles are sore to touch. I know I definitely have pain, but it is impossible to relate my PND experiences with others because we are so unique. Peripheral Nerve Disorders attack each of us differently and remedies that work for one person to relieve pain will not work for another. I receive several emails per week from people suffering and I do not have many answers for them, but if you want someone to talk with feel free to write me. I do my best to try to motivate others. When I wake up I say to myself there is no way I can train today. I never feel like training, but once I get going I feel better for doing it. I encourage those with exercise intolerance to force themselves to walk, they will feel better for doing it. Besides, the pain from training or exercise will mask the pain from CFS which is a much more desirable outcome.

The Evils of Supreme Court Democracy (Part IV)

In 1954 in Brown v. Board of Education the Court finally overruled Plessy and ordered that racially segregated schools were unconstitutional. This ruling was labeled the “counter-majoritarian difficulty” since the decision defended a minority group. Our Constitution was designed precisely to address the majoritarian difficulty by limiting the power of the federal government as well as putting in place checks and balances. For instance, In Gibbons v. Ogden Chief Justice Marshall specifically outlines some specific state powers that cannot be encroached by the federal government: inspection laws, quarantine laws, health laws, and transportation laws. The Court’s interpretation of the commerce clause in the FDR administration has allowed the federal government to control all economic issues regardless as to whether they are interstate or intrastate (consider the 1941 ruling in Wickard v. Filburn). The Rehnquist Court limited some of the commerce clause power of the federal government by drawing the line between economic and non-economic issues in the cases: United States v. Lopez and United States v. Morrison. These cases limited the federal government’s scope over guns and local crimes.

Once the federal government becomes too big, as Madison rightly points out in Federalist 10, the number of factions will grow. For instance, our country is divided over a plurality of issues that should not be of any federal concerns: abortion, gay marriage, death penalty, sex, and so forth. The federal government is creating winners and losers over social issues when the Supreme Court makes the final decision to legislate from the branch. National level fights over so many controversial issues creates a polarization that leads to gridlock. A one size fits all federal regulatory scheme is detrimental because it limits federalism and hence, individual sovereignty. States with different laws over social and economic issues allows people to move to a state that fits their ideology. When the federal government encroaches on federalism, it denies individual sovereignty. The Federal income tax allows the government to coerce states into participating in programs such as welfare denying more power and sovereignty from the people and states. Federalism is not just a conservative issue. In 2005 the case Gonzales v. Raich, the Court held that a California law allowing people to grow marijuana for medical use to be unconstitutional. Why are citizens with real medical problems prohibited of pursuing a life without pain? Why must the government intrude over a state issue?

There are other techniques the Federal government uses to grow its power by limiting the separation of powers. One such method is the establishment of agencies that have the power to make laws instead of Congress. Consider the EPA’s crippling regulations on businesses as just one example. More agencies also expands the federal government’s spending power. Under this system of rule, the constitution’s checks and balances no longer exist to protect the liberty of individuals but to protect those who want to control liberty of individuals. The Supreme Court has looked the other way to unconstitutional federal agencies saying as long as it is an “intelligible principle”, it would be allowed. Another method to avoid the separation of powers is rolling spending bills of individual departments and agencies into one omnibus spending bill. If the legislature would oppose such a bill, it would create the dilemma of shutting down the government. The omnibus is a method of coercion to limit Congress’s ability to control spending in any matter. Supreme Court judicial restraint and deference provide the executive and legislative branches too much power. For instance, in the 1984 case between Chevron v. Natural Resources Defense Council the Court deferred to the EPA’s interpretation of the law unless their interpretations were unreasonable. Judicial restraint is a concept practiced by Justices where they hesitate to strike down laws unless they are obviously unconstitutional. Using Judicial Restraint the Court has also used unreasonably broad interpretations of the Necessary and Proper Clause, the Spending Clause, and the Commerce Clause to justify unlawful legislation. The Court also uses substantive due process (using the Fourteenth amendment “due process” clause) to wrongly elevate the status of some fundamental rights such as the “liberty of contract” (Lochner), “the right to privacy” (Griswold), “the right to an abortion” (Roe), and “the right to gay marriage” (Obergefell). Instead, the Court should rule on the rational or arbitrary nature of the law to prove if it is proper or just. What the Court has viewed as rational and non-discriminatory in the past has been found to be irrational and or discriminatory later on: Carolene Products, Lee Optical, Plessy, Cruikshank, Bradwell, and so on. This is what happens when the court uses majority rule. Still, today, most justices adhere to the philosophy of upholding any legislation that may have any hypothetical reason for its passing as Justice Douglas said “the law need not be in every respect logically consistent with its aims to be constitution”. Hence, the need for a law to be “rational” was removed from the equation. Douglas also stated that “The legislature may select one phase of one field and apply the remedy there, neglecting the others.” Therefore, the need for the law to be non-discriminatory is also removed from the equation. In other words, a judge merely needs to conjure up some imaginary reason for a law for it to be upheld. Today, the Court usually conjures up some “fundamental right” or selectively identifies a “suspect class” of people deserving special protection. Of course the Court only recognizes fundamental rights when they are popular (majority rule) and suspect classes are only recognized when they are politically influential. The Court also invented what is known as the Dormant Commerce Clause (Nebbia v. New York) where the Court can encroach on State police power even over non-federal issues. The President can move unilaterally with executive actions to pass things that should go through Congress such as comprehensive immigration reform. Under such a system, the federal government has become “legislator, judge, and executioner of its own prerogative powers.” As Madison rightly explains in Federalist 10, such a situation of government would be “corrupt”.

The Evils of Supreme Court Democracy (Part III)

The Wilson era may have been the most racist time after the Civil War in American History. But all was not bad, in Bailey v. Alabama the Court held an Alabama law making it a crime subject to imprisonment for a person to quit a job after signing a labor contract and accepting a payment in advance as unconstitutional (servitude and hard labor was allowed in prisons). Of course, Holmes once again dissented (known as the Great Dissenter and of course as one of the great progressive liberal minds). In 1917 the case between Buchanan v. Warley the Court held a racially exclusionary zoning law in Kentucky unconstitutional because it violated the due process clause of the Fourteenth Amendment. In the ruling, although the Court rejected the police power rationale in the Plessy ruling, it did not invalidate the law because they still considered “equal but separate” non-discriminatory. Holmes was going to dissent, but for some unexplained reason he sided with the unanimous majority. In the 1908 case Muller v. Oregon the court held that an Oregon law limiting women to 10 hour work days was constitutional. Justice Louis Brandies concurred with the ruling summarizing the “physical differences between men and women” along with “scientific proof” submitted by dozens of male authorities on the issue. Brandies arguments were similar to those issued by Justice Bradley’s sexist and misogynist arguments in Bradwell. Upholding Muller despite its discriminatory nature made it more difficult for women to find work in Oregon. In 1919, the Court upheld the Espionage Act of 1917 in Schenck v. United States. Schenck wrote unpatriotic pamphlets about WWI and was convicted and sentenced to jail. The Court (Holmes) set the “clear and present danger” exception to the First Amendment and weakening our individual liberty for free speech. In 1927 in Buck v. Bell the Court upheld a Virginia law allowing intellectually challenged persons to be sterilized. Holmes this time wrote the majority opinion referring to the “living constitution” and modern science to declare that “three generation of imbeciles is enough” when referring to the Buck family. Carrie Buck was “lawfully” sterilized. Remember, a “living constitution” is one that is ignored or is dead. In the 1944 case Korematsu v. United States, the Court held that it was legal to intern Japanese-Americans following Pearl Harbor without due process of the law. The Bailey and Buchanan decisions were outlier rulings on Civil Rights during this period while Muller, Buck, Schenck, and Korematsu were more common decisions during this era since “legislative majorities guarantees that challenges by out groups will fail.” In other words, minorities like the Japanese race, blacks, the intellectually challenged, women, and communists are destined to lose to the majority factions of early twentieth century politics.

The due process clause of the Fourteenth Amendment would continue to be weakened by the FDR Court. In the 1934 case Nebbia v. New York, the Court held that New York State could regulate the retail price of milk protecting the big dairy companies over small mom and pop shops (obviously an arbitrary decision opposite to the Court’s reasoning in Lochner). The 1938 case involving the United States v. Carolene Products Company the Court began to set standards for applying the commerce clause (the Famous Footnote 4 case). While the Court used very low standards for economic issues, the Court applied higher standards for other laws affecting other areas of “commerce”. One standard was whether or not the law attempted to distort the political process and another standard was whether or not the law discriminates against a smaller minority groups (i.e. trying to minimize the power of majority groups or factions over smaller groups). Carolene Products lost this case because their healthier products were falsely deemed unhealthier than other milk products. Hence, the dairy lobby won this case using false information and denied Carolene products the same right to interstate commerce they enjoy (once again arbitrary). The Court ruled if it had a “rational” reason it could deprive a person or company of life, liberty, or property. The Supreme Court was making up rules (and using false data) to protect earlier New Deal decisions using substantive due process and the commerce clause. After all, siding with Carolene Products would set possible precedent to overrule FDR’s economic agenda. Carolene Products would be vindicated decades later. In a similar case decided in the Warren Court era in 1955, Williamson v. Lee Optical of Oklahoma the Court overturned a well thought out lower case ruling to uphold a law that denied Lee Optical the right to do what Lens Crafters performs today (once again an arbitrary decision). The Court said it did not have to contemplate all reasons for the law when making a decision, it merely had to decide if it was reasonable. In Reynolds v. Simms (1964) the Court said that state legislatures have to enact democratic principles of majority rule because it found republican principles held in the constitution to be unconstitutional. This was the famous “One person, one vote” case that said state legislature representation had to be based on population outlawing republican principles in the Constitution such as the Senate from being adopted at the state level. This law provided urban areas an unfair (discriminatory) advantage over rural areas.