Why Buck v. Bell was not an Anomaly (Part II)

The Court upheld Buck v. Bell despite the fact that seven state laws were previously struck down by their Supreme Courts for violations of cruel and unusual punishment, due process, and the equal protection clause. Carrie Buck did not have a chance. Even though she was not truly “feebleminded” she was made out to be a “low-grade moron”. Carrie was also made out to be a prostitute because she had a child out of wedlock. However, the truth was she was raped but this was never introduced into evidence. Carrie’s defense attorney was hired by the prosecution and worked in cahoots with them to strengthen the case against her. Her case was test case meant to go all the way to the Supreme Court. Carrie was never given the chance to defend herself. In fact, not a single witness was called in her defense. Carrie’s six month old baby was declared “unfit” and “feebleminded” for the benefit of the case. After all, if Carrie gave birth to one feebleminded child the odds were high she would give birth to more defective children. Expert witnesses testified against Carrie and her siblings without ever meeting with her or her family. Finally, Justice Holmes’ preconceived bigoted and prejudicial views put the nail in the coffin. As Justice Holmes declared “three generations of imbeciles are enough.” This statement by Holmes was false for a few reasons. First, Carrie and her family were not diagnosed as imbeciles (in the intellect hierarchy of idiot, imbecile, and moron developed by eugenicists – Carrie and her mom were considered morons which is higher intellect than imbeciles). Carrie was taken out of school after sixth grade where she had average marks and was never held back. Second, Carrie’s eight month old baby was never diagnosed as having abnormal intellect (just as being below average). Holmes used one precedent, Jacobson v. Massachusetts, to defend his opinion. Jacobson allowed mandatory vaccinations of children. Families could, however, opt out of the vaccination if they paid a modest fine. Holmes also defended his argument by saying if government can “call upon the best citizens for their lives” then the government can sterilize humans. Jacobson and the military draft are much different than mandatory sterilization and anyone can attest to that: a vaccination and most enlisted persons see no injury to their bodily functions, whereas sterilization is automatic bodily harm. Holmes did not even try to explain why Carrie Buck’s liberties should be violated and rebuke the Court’s Meyer and Pierce decisions just 4 and 2 years earlier which established the right to a family. Holmes would later say that his five paragraph opinion gave him “great pleasure” because it allowed him to speak a harsh truth about defective humans. Holmes’s Buck opinion was the worst in the Court’s history because Holmes’s opinion shows his hate and distain for others. At least in other terrible Supreme Court decisions the majority opinion tries to justify their decision without subjecting the losing party to degrading, humiliating, and hateful rhetoric. The media, science, politicians, feminist, and elitist across the country had an overall favorable view of the Buck v. Bell decision.

After Carrie was sterilized and set free from the institution, she lived a hard life. She married twice and had a hard work ethic cleaning homes, working crops, washing dishes, and doing what she needed to do to survive. She wrote the head of the clinic (Dr. Bell, who sterilized her) routinely after her release because she wanted to see how her mother (Emma) was doing since she was confined to the same institution. Carrie was by no means stupid, her letters were coherent and she discussed future plans. She read the newspaper daily and cared for her spouses, mother, and stepsister (Doris who was also sterilized at the institution). Her daughter, Vivian, died when she was in second grade. Vivian was said to be an average student at the time of her death. Carrie and Vivian may have had below average intellect, but they were not stupid. The entire case about Carrie and her child being “feebleminded imbeciles” was conjured up with no proof and of course it was not hard to prove when the other side could not defend themselves from the charges.

By the 1930s there were over 3,500 institutions sterilizing patients across the country. Twenty-Eight states had passed eugenics legislation for mandatory sterilization. It is estimated that well over 250,000 people were sterilized in the United States because of the Buck v. Bell decision. European countries followed the American lead to start their own sterilizations of defective persons: Norway, Sweden, Finland, Estonia, Denmark, and of course Germany. Germany modeled its sterilization laws and programs after those in America and sterilized at least 375,000 so called “defectives”. There is one thing a vast majority of sterilization victims had in common: they were poor. Eugenics was an excuse to sterilize any poor person regardless of intellect or health defects and Carrie Buck was a prime example of this behavior. Ironically, the United States would put German leaders of their eugenics programs on trial for war crimes after World War II. Accused Germans used the words of Oliver Wendell Holmes’s Buck v. Bell opinion unsuccessfully for their defense. All that being said, the United States was hypocritical because they were sterilizing citizens well past World War II into the 1980s.

Why Buck v. Bell was not an Anomaly? (Part I)

Most Judicial scholars do not like to mention Buck v. Bell (1927): the Supreme Court held that mandatory sterilization was legal. Why? Because they claim the decision was an anomaly. But that is not true! Oliver Wendell Holmes who wrote the majority decision in Buck v. Bell had a way of being on the wrong side of discriminatory decisions: black and immigration racism (Giles v. Harris, Berea College v Kentucky, United States v. Ju Toy, Lum v. Rice, and Bailey v. Alabama); freedom of contract and women’s rights (Commonwealth v. Perry, Lochner v. New York, Mueller v. Oregon, Adkins v. Children’s Hospital, Meyer v. Nebraska, and Pierce v. Society Sisters); and free speech and right to a lawful profession (McAuliffe v. New Bradford, United States v. Schenck, Frohwerk v. United States, and Debs v. United States). For Holmes, Buck v. Bell was not an anomaly but a pattern of constitutional neglect.

Even when Holmes sided with liberal or progressive causes, he only did so because he was practicing presumption or judicial activism (which meant siding with state or federal legislation almost 100% of the time). In fact, Holmes did not support many progressive causes other than his firm belief in the right of the powerful to impose their will on the weak. This is why the only forms of government legislation that Holmes disliked were laws like the Sherman Anti-Trust Act. This also fits the narrative of his Buck v. Bell decision and his firm belief in Darwin’s “survival of the fittest” and eugenics to eliminate the less fortunate or “defective” individuals from the human race. Holmes believed he came from a strong lineage of superior genes including high intellect. So it will come as no surprise that Holmes also believed that people of “lower quality” was a result of hereditary and therefore, there was no cure for the epidemic of intellectually challenged persons. Holmes is on record of being a strong proponent of population control even if it meant using infanticide to weed out babies who failed “examination” to achieve this goal. Holmes was a strong proponent for war (he fought valiantly during the Civil War) and felt the only downside from war was it wounded and killed strong citizens and did nothing to weed out the weak undesirables in society.

Holmes’s Supreme Court decisions were extremely inconsistent. In one opinion he will say the Court should not consider economic conditions, freedom of contract, or broad readings of the First Amendment. In future decisions, Holmes would do a complete 180 on First Amendment cases as well as on freedom of contract (Lochner v. New York to Baily v. Alabama). This is a result of judicial activism and “presumption of constitutionality”. Since Holmes only sided with the government legislation he failed miserably to develop any consistent view of the law. But one thing that was certain: Holmes was a monster with no conscience and absolutely no desire to uphold the rights of minorities, women, or those who cannot defend themselves. Holmes was on the wrong side of civil rights more times than not because he completely dismissed all “natural laws” that had been identified and entrenched in all modern democratic legal systems for centuries.

Liberals also like to protect another one of their heroes, Justice Louis Brandies, but he too made many discriminatory rulings by defending much of the FDR agenda. The Author of “Imbeciles”, Adam Cohen, tries to make excuses for Brandies in his Buck v. Bell decision because he was seen as a Justice who looked out for the everyday person. This is not true! For instance, in Mueller v. Oregon, the Brandies Briefs made women out to be inferior to men so the Court would uphold working hour regulations only on women. This decision was not to look out for the interest of women, but to discriminate against them to remove them completely out of the workforce. The Mueller decision made employers much more likely to hire men who had no work regulations than women. Brandies did the same in every economic regulation decision. For instance, in Wickard v. Filburn, a farmer was denied the right to grow wheat crops to feed his family. Child labor laws, women’s hourly wages, and union laws all sound like Brandies was looking out for the everyday person. But for every person these laws may have helped they hurt two or three other persons from finding work or having big corporation backed unions force mom and pop shops out of business. Brandies may have been well intentioned in his reasoning, but he flagrantly violated the Constitution for “social justice” legislation which ultimately failed because it would also hurt millions of people economically. Liberals need to remember presumption and judicial activism was not only practiced by Holmes, but the FDR Court as well as the Warren Court. Since modern legislation favors growing government expansion at the expense of the rights of “We the people”, liberals may mistake these actions as Justices siding with the progressive cause, but that may not be the case. It is impossible to tell especially since Judges, like Holmes, fail to tell us what the law is.

Why Originalism Matters (Part VIII)

Police Power and Moral Justice Example:

The power of a state government to restrict, prohibit, or regulate rights is police power. The Constitution does not specifically enumerate any State rights because as Madison says in Federalist 45 they are “infinite”. The Fourteenth Amendment holds that the Bill of Rights in the Constitution applies to the states. Other than that, there are few restrictions on state police power. Typically, a state government can regulate, prohibit, or restrain personal rights to protect the “health and safety” of other citizens. However, state governments have also used police power to regulate “moral justice” as well. One example of this was provided earlier in Champion v. Ames were the Court prohibited the sale of lottery tickets in interstate commerce because gambling was seen as an immoral behavior or a bad vice.

In Mugler v. Kansas, Justice Harlan rejected a Fourteenth Amendment challenge to alcohol manufacturing and sales. He said “It cannot be supposed that states intended, by adopting that amendment (14th), to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community.” In other words, the State had a right to prohibit what it assumed to be “immoral” activity such as prostitution, gambling, alcohol, drugs, pornography, cigarettes, or other types of “bad vices”. Chris Tiederman developed the Libertarian point of view of liberty, freedom, and rights by saying “No law can make a vice a crime, unless it becomes by its consequence a trespass upon the rights of the public.” The reason for this is simple, people are not violating the rights of others by practicing their “immoral” vices. So according to Tiederman police power should be used to protect “safety, health, and public morals” of others. In other words, private immoral behavior or vices that do not affect the rights of other citizens should be protected from laws.

There may be some truth to this theory. For instance, in Lawrence v. Texas (2003 – overturned Bowers v. Hardwick, 1986), the Court overturned a Texas statute that made private homosexual sodomy illegal. For sure, this law has some issues. First, how do you enforce a law if people are having sodomy in private? Second, this act is not violating the rights of other citizens. Therefore, it is reasonable for the Court to overturn this moral justice law as being discriminatory as defined by the equal protection clause of the Fourteenth Amendment. But the Court was wrong by elevating sodomy as a Fundamental Right. Today, many so called “immoral” vices are gaining legalization traction. Marijuana is a good example as is gambling. Prostitution is legal in Nevada. Remember, alcohol was illegal and prohibited for many years before gaining a “moral” status. I can certainly agree to a large extent what Tiederman proposes is a good way for the Court to view so called immoral behavior in private.

However, I believe the issue is a little more complicated than what Tiederman proposes. What about the spread of sexually transmitted diseases to citizens that came from prostitutes? A husband goes to Vegas and sleeps with a prostitute and then transmits a disease to his wife when he gets home. That clearly violates the rights of the wife. Is all sex in private consensual and not a crime? Of course not: rape and incest are examples of right violating crimes. Doing drugs in private may hurt others if people drive under the influence (although the same can be said of alcohol). Should child pornography be allowed in private if it could hurt others if people act on their vice? What people do behind closed doors is their own business and for the most part the Court should not interfere. Many moral justice laws may have good intentions, but they can go overboard if they violate the rights of law abiding citizens who are not violating the rights of other citizens. For example, locking people up or fining them for private sodomy or masturbation is a bit overboard. This behavior may not be acceptable to some, but these laws do not violate their rights. With that being said, I cannot say with 100% certainty that what goes on in private will not necessarily or ultimately affect other citizens in a negative way. So some regulation may be required by state police power over private moral issues. For instance, possession of contraband does not hurt anyone or violate a person’s rights, but the use of contraband (like drugs or driving under the influence) can be regulated because it could violate another person’s rights.

Solutions:

Until the States invokes Article V and convene an Amendments convention then nothing will change. At an Amendments convention some proposals that may be useful include: repealing the Sixteenth and Seventeenth Amendments; placing Term Limits on Congress; bringing back the original meaning of the Commerce and Necessary and Proper Clauses; Limiting the Spending Clause to non-coercive methods; Congress cannot trump common State Laws that are on the books in half the states or preside over half the U.S. population; Supreme Court justices are not allowed to interpret the Constitution, they must use the original meaning at the Founding; allow the President a line item veto over budget bills to rein in spending; place the rights retained by the people as outlined in the 1866 Civil Rights Act and Bushrod Washington in Corfield v. Coryell as Fundamental, and reinstate the Privileges and Immunities clause.

Why Originalism Matters (Part VII)

Proximity

There seems to be an understanding that federal government power extends to anything that may be seen as a national problem. Liberals argue that healthcare is a national problem, but that is not necessarily true. Healthcare can be a local and state issue just as much as it is a national problem. For instance, ObamaCare is not solved as a national issue, but at the state level with each state creating its own ObamaCare insurance exchanges and even some states have decided to opt out of ObamaCare exchanges. Minimum wage is not a national problem because the cost of living not only varies a great deal between states, but between localities. Unions are not a national necessity because many states with thriving economies are right to work states (a Fundamental Right). Hence, Congress will use the guise of national problems to convince the Court to rubber stamp their agenda. After all, if it is truly a national problem, then only Congress can solve the problem, right?

Justices and the federal government are of the incorrect belief that one size fits all. Although most laws passed by Congress are discriminatory because they treat citizens differently (i.e. ObamaCare treats persons in a union differently than other citizens and it exempts Congress from using the healthcare law), they tend to think one concept such as ObamaCare (healthcare) or Abortion is a good idea in every state and locality. Forced abortion in highly religious states such as Utah makes very little sense. If Abortion is a good idea get it amended to the Constitution. ObamaCare policies have mandatory coverage for childbirth for all women including women older than 60. ObamaCare mandates people who do not have insurance to buy it even if they do not want it. ObamaCare forces companies to lay off workers or put them on part time to avoid paying fines. Even if ObamaCare provides needed healthcare to some Citizens, it is unconstitutional because in doing so, it violates the Fundamental Rights of other Citizens. Congress and the Court refuse to accept that all laws are not necessarily designed to function equally for all across all factions of the population. For instance, rural farmers are at the mercy of urban policy makers: Reynolds v. Simms was one of biggest travesties in this regard (Democracy or majority views take precedent over Republican views that defend minorities).

The Commerce Clause Example:

The Commerce Clause in conjunction with the Necessary and Proper Clause have been the most abused Clauses in the Constitution. The expansion of the Commerce Clause in the FDR Court was called by liberals as necessary because our Founders did not anticipate the implications of a complicated and interconnected modern economy. Once again this is not true. Madison said this of John Marshall’s decision in McCulloch v. Maryland (which held a national bank was Constitutional): “everything is related immediately or remotely to every other thing, and consequently, a power over any one thing, if not limited by obvious and precise affinity, may account to a power over every other thing.” Our Founders were smart, especially Madison, and he understood the intricate details of economics back in the 1820s when he wrote this statement.

The Commerce Clause states: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Commerce typically means “trade” in its narrow interpretation which was by far the most common usage during the founding period. Commerce has nothing to do with the manufacturing of products or with agriculture. After all, the United States could not regulate manufacturing and agriculture with foreign nations or Indian Tribes. That makes no sense. In its broadest application Commerce could mean any “gainful activity” (for profit). Commerce was used hundreds of times within the Constitution, the Federalist Papers, at the Constitution Convention, and at State ratification conventions and Commerce always meant trade and nothing else. But regardless of the definition, the Commerce Clause today is applied by the Supreme Court in even more broad terms than gainful activity. In Gibbons v. Odgen decided by the Marshall Court, Marshall incorrectly gave the definition of Commerce a broader meaning than intended in the Constitution: “Intercourse”. In Gibbons, Marshall correctly asserted that Congress had the power to regulate ship navigation for commerce. However, in the 1895 case United States v. E.C. Knight and the 1936 case Carter v. Carter Coal Company the Court held that Commerce meant trade (not intercourse) and it did not include activities such as manufacturing or agriculture. In E.C. Knight the Court considered using the Sherman Anti-Trust Act to break up a sugar production monopoly and in Carter Coal the Court considered economic regulations on coal manufacturing. Of course, the Court was criticized by social justice liberals for their rulings in these cases because the Constitution must evolve to handle modern conditions. In 1937 in NRLB v. Jones, the Court overruled Carter (1 year later!). That is caving to political pressure. Is federal government control necessary over wages, hours, and union activities of workers? Of course not, most states have similar laws. For instance, states with a high cost of living have minimum wage laws that are higher than the Federal law (about half). States are fully capable of passing its own economic laws to keep up with modern times.

“Among the several states” means between the people of different states. However, the modern meaning of this term means nothing since the Court has given Congress the right to regulate intrastate Commerce. In Gibbons v. Ogden Marshall erred in defining “among the several states” as meaning “concerns more state than one”. At first this seems harmless but this definition justified future Courts to “regulate” intrastate commerce that may affect another state. Of course we know this is not the true meaning because Congress cannot regulate intrastate commerce that affects foreign nations or Indian Tribes.

To “regulate” means to make something regular. There is nothing in the meaning of to regulate to mean to prohibit commerce. However, the regulation of Commerce has also included the prohibition of commerce. This was first done in Champion v. Ames where the Court upheld a prohibition of selling lottery tickets over state lines. Selling lottery tickets intrastate or interstate does not violate the liberties, rights or freedoms of a single citizen. So it begs to reason why would the Court make such a decision. The answer is simple, the progressive Court was issuing moral justice, not the law (gambling is bad). As bad as this decision may have been, the majority did not say Congress had the right to regulate or prohibit commerce within a state. The Eighteenth Amendment (prohibition of alcohol) was ratified in 1919 because Congress did not have the right to prohibit alcohol using the Commerce Clause. A proposed amendment (but unratified) in 1926 sought to prohibit work of children under eighteen years of age. This is proof that regulation and prohibition are two separate items. In Hammer v. Dagenhart (1918) the Court found a law prohibiting the commerce of products made by children unconstitutional, but Hammer was overruled by 1941 in United States v. Darby violating the definition of regulation as identified in past precedent and the Eighteenth Amendment.

Under the broadest meaning of Commerce (Gainful activity – for profit) Congress could not legally enforce any law prohibiting alcohol, tobacco, drugs, guns, pornography, or other potentially illegal activities. In Wickard v. Filburn the Court established the “aggregate effects” doctrine. This means anything that has an aggregate effect on commerce can be regulated. In Wickard the Court held wheat regulations included those crops intended to feed one’s personal family were Constitutional. Think about the consequences of the “aggregate effects” doctrine for a moment. This means that anything we buy, such as a stick of gum, can have an aggregate effect on commerce and can be regulated. The Court even established the “the articles of commerce” doctrine which allows Congress to regulate any activity that makes use of any product that ever traveled in interstate commerce. The key word here is “activity” such as manufacturing, agriculture, or anything economic including wages, hours, work conditions, overtime, and so forth and so on. David Engdahl called this the “herpes theory of interstate commerce”. In 1995, the Court held in Lopez v. United States that for something to be considered commerce, it would have to “substantially effect” commerce. The Lopez decision also limited commerce to include only economic activities. This put a stop to the insanity but it was too little too late. The damage had been done. State police power had been diminished into federal police power over any economic activity including intrastate commerce and even prohibiting commerce. That is a lot of power that has been abused by the federal government monopoly with no oversight or checks and balances.

Why Originalism Matters (Part VI)

Necessary and Proper Clause Example:

The meaning of “necessary” is incorrectly changed to “convenient” by both Alexander Hamilton (Bank argument) and Chief Justice John Marshall (McCulloch v. Maryland, 1819). Madison argued that by doing so would yield the federal government with limitless and boundless power that would come at the expense of the people and states. Ultimately, he was right. Marshall defended his decision by saying in no terms does the McCulloch decision yield the federal government unlimited power and Hamilton, of course, argued his stance of limited (enumerated) Federal Government powers quite differently in the Federalist Papers. Hamilton and Marshall wrongly accepted the idea a minor change to the current or interpreted definition of “necessary” would result in any federal power grab. However, the Necessary and Proper Clause has been used in conjunction with the Commerce Clause to allow the largest single power grab in our history to cover anything that is economic including a backyard garden, crime, banks, insurance, and civil rights (instead of using the Fourteenth Amendment). By moving away from textual originalism, the Constitution is worthless (meaningless) because it places no limits on federal government enumerated powers.

Are the departments of Agriculture and Education necessary? Our Founders did not think so because they were not enumerated powers. What about a department of Energy for modern times? Since these departments have been created agriculture, education, and energy costs have gone up higher than inflation (this violates the property rights of every citizen). In fact, education has gotten worse when compared to the rest of the World. Can the federal government handle these issues better than states? Apparently not. What about other departments that promote welfare such as Health and Human Services or Housing and Urban Development. Once again health and housing costs are going up faster than inflation. What about government sponsored healthcare such as ObamaCare, Medicaid, and Veterans Affairs? These programs are failing big time and their future liabilities are unsustainable. None of these departments are necessary and they are not enumerated powers and therefore should be controlled by the states.

What about the necessity of taxing people and companies to redistribute wealth to other citizens and companies? This is not allowed by the Constitution. The government may take property from private citizens (taxes, without just compensation is allowed through the Sixteenth Amendment), but the federal government is not allowed to redistribute wealth to other private persons. The federal government can only use taxes for public purposes such as those things enumerated in the Constitution: military, infrastructure (roads, bridges), etc. How “public” in the Constitution can also mean “private” illustrates why applying textual originalism is needed. Keep in mind, takings are usually enforced against poor citizens and given to wealthy citizens or companies. It is the opposite of welfare and liberals support both conflicting policies.

Remember, a law can be necessary but at the same time be “improper”. James Madison provides numerous examples of this type of law. Most Justices ignore the “proper” aspect of the necessary and proper clause when reviewing laws under this provision. For instance, in Schechter Poultry v. United States the Court ruled that because of the Great Depression code enforcement of some industries may be necessary, but it is not proper and therefore unconstitutional. A crisis does not provide the federal government additional constitutional grants of power (The Court would reverse course in just a few years after the Schechter decision). Our Founders were smart and anticipated the need for extra-constitutional authority in the Tenth Amendment: “The 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.” The uniqueness of the Constitution from other world governments was the separation of powers between the State and Federal Government known as federalism. This was the most important check and balance in our system to prevent tyranny and to keep the rights of the people unfettered. However, because of the expansion of the Necessary and Proper and the Commerce Clauses the Tenth Amendment has basically become moot. Most judicial scholars only view the Tenth Amendment as a truism with no other enforcement value. Of course, under this theory, the entire Bill of Rights can be considered a truism. The Bill of Rights consists of Rights that no one would contest (a truism), but they must be enforceable! Because of these bogus theories the States do not have much power while the Federal Government is continually expanding and growing in size. This is opposite to what James Madison said in Federalist 45 where he states government powers are few and limited but state powers are infinite.

Emergencies and Crisis:

Justices have used emergencies and crisis to warrant making unconstitutional measures constitutional. War and the Great Depression have led to some of the worst decisions in U.S. history. Unfortunately, the precedent from these emergencies and crisis are still good law today. The First Amendment’s “clear and present danger” doctrine is still used but we are no longer at war. All of the FDR Court’s economic decisions are still law but we are no longer in a Great Depression. The interment of the Asian race is still law (Korematsu) even though WWII has been over for 75 years. None of this would happen if Justices were consistent and interpreted laws using the original textual meaning regardless of the circumstances.

Why Originalism Matters (Part V)

Modern Examples:

Most people do not believe that originalism takes into account modern events. For instance, what if the police used “infrared technology” outside a residence to determine if marijuana was being cultivated without a warrant. Is this an illegal search and seizure under originalism? Most say no because the Constitution does not take into account modern technology. The Fourth Amendment says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects all citizens from “unreasonable” searches and seizures without a warrant and probable cause. It does not matter what method or technology was used. If the home was searched without a warrant and it was deemed unreasonable, the act violated the constitutional rights of the home owners. The Constitution’s vagueness or broad provisions allow its meaning to account for modern advances in society.

How about a Commerce Clause example where manufacturing emissions and agriculture waste are being transported over state lines through the air and water? Our Founders certainly did not envision manufacturing pollution may affect the rights of citizens. Although, Congress has no power to regulate manufacturing and agriculture, but only goods and services traded across state lines, it is hard to envision how the Commerce Clause could be used for pollution or waste. This is certainly one of those borderline cases and I could see this one going either way. That being said, the best was to handle the situation would be by an amendment if the Constitution is out of date. Many Senators proposed amendments for the Commerce Clause such as Edward Costigan and Henry Ashurst during FDRs early years. Castigan wrote the Commerce Clause should be changed “to regulate hours and conditions of labor and to establish minimum wages in any employment and to regulate production, industry, business, trade, and commerce to prevent unfair methods and practices.” Ashurst proposed the Commerce Clause should “regulate agriculture, commerce, industry, and labor.” Of course, these amendments were not needed when the FDR Court incorrectly granted Congress all these powers. However, if these amendments were passed (and I would have been against them because it yields too much power to Congress), it would have brought legitimacy to the Court’s rulings including regulating emissions and waste across state lines. Castigan and Ashurst proposals do prove one thing: The FDR Court completely changed the meaning of the Commerce Clause in the Constitution to meet their agenda.

How about a Second Amendment example. For the most part Justice Scalia used Originalism to guarantee the Fundamental Right to keep and bear arms for self-defense in his Heller v. D.C. majority opinion. Justice Stevens’ dissent never contests Scalia’s Originalism argument, but instead offers a different non-constitutional point of view in his opinion. Would the Second Amendment right extend to assault weapons or limitations on magazine rounds? For assault weapon and magazine regulations to happen the government must prove their regulations are not irrational, arbitrary, and discriminatory. This is not easy to do. In other words, it would be hard for the government to prove that assault weapon and magazine regulations would curtail crime by any substantial amount. Furthermore, it is hard to determine the difference between assault weapons and high powered hunting rifles. Hence, assault rifle bans can be seen as discriminatory because similar types of hunting rifles exist without regulation. In his majority opinion Scalia veered from Originalism when he pointed out some possible regulations for guns such as prohibiting felons and the mentally ill from owning a gun. Scalia incorrectly practices what he calls “faint-hearted originalism”. In other words, there are instances where he would veer from Originalism such as cases where precedent may trump Originalism. This is not correct, a judge should be consistent and follow the same methodology for all cases. Using Originalism and or Precedent is a means to have options to get the desired result. This is wrong. Regulations such as prohibiting felons and the mentally ill from owning a gun could further restrict the rights of someone who was wrongfully convicted or someone wrongfully diagnosed. What is the purpose of medication to help people with mental issues to function in society if we are going to restrict their Fundamental Rights with no exception? It is a stretch to say all felons and all people with a mental illness should be prohibited a Fundamental Right without exception. There is no difference when liberals argue to give felons back the right to vote. If a person is deemed responsible to vote, then should they be deemed irresponsible to own a gun? The Second Amendment was constructed so citizens can defend themselves not only from criminals but from a tyrannical government. If the Constitution failed and the federal government abused the rights of citizens then State militias had a right to defend its citizens. Using the original meaning, since citizens were allowed to keep and bear arms of military proportions during the founding period then this would equate to large magazine capacity and assault weapons today.

I am not in agreement with many aspects of the Constitution such as the Sixteenth Amendment (Income Tax), Seventeenth Amendment (Popular vote for Senators), the Takings Clause of the Fifth Amendment, and the fact the Constitution provides no term limits on Congress. However, as imperfect as the Constitution may be, I will respect the entire document: the good provisions and the bad provisions. Nothing in government is perfect so taking the good with the bad is nothing new. We cannot pick what we like and what we do not like. It does not work that way. As Sanford Levinson wrote “Almost all constitutional analysis, as a matter of brute fact, seem committed to a de facto theory of happy endings, whereby one’s skill as a rhetorical manipulator are devoted to achieving satisfying results.” Modern examples of Constitutional interpretation are meaningless because the truth of the matter is the Necessary and Proper Clause, the Commerce Clause, the Ninth Amendment, the Takings Clause, the Privileges and Immunities Clause, and the Tenth Amendment have no meaning and have been completely redacted from the document. This is the danger of amending the Constitution as proposed by scholars such as Bruce Ackerman – through Judicial Decisions. This would certainly make the Supreme Court the most powerful branch in the federal government. And we know the Court’s decisions will become even more biased based on political ideology and not neutrality to protect the rights of all equally if Amendment by Judicial Decision was law of the land. Judicial precedent is completely different from allowing precedent to amend the Constitution. This is very dangerous.

Why Originalism Matters (Part IV)

Levels of Scrutiny:

There are many levels of scrutiny applied by the Court and it depends on the issue at hand as to what level of scrutiny applies: strict, intermediate, or rational basis scrutiny. Strict scrutiny is used by the Court to defend most Fundamental Rights. In these cases, such as free speech, the burden of proof is on the government to show that a law regulating free speech is necessary and proper or compelling to achieve a government objective. The government must also show that the law is the least restrictive means to achieve its ends. Rational basis scrutiny is the opposite of strict scrutiny. The burden of proof is on those claiming the law violates some right and the government can choose any means to achieve the ends they want. The government does not have to show any evidence or empirical data to back up its claims. Cases such as Carolene Products and Williamson are good examples of rational basis scrutiny cases. The problem with these two types of scrutiny is that the government rarely wins in strict scrutiny cases and the government almost always wins in rational basis scrutiny. Since levels of scrutiny to be applied for most cases is open for debate, Justices can pick the level of scrutiny that achieves the result they desire. Like presumption, this is another way Justices can avoid “judicial review” and refuse to say what the law is. Both conservative and liberals are guilty of this technique to evaluate cases. In FEC v. Beach Communications it is Justice Stevens who objects to the conservative choice of the rational basis test saying “it is difficult to imagine a legislative classification that could not be supported by a reasonable conceivable state of facts.” He is right. In fact, the only case that failed a rational basis test that I can recall is City of Cleburne v. Cleburne Living Center (I am sure there are a few others).

Contracts:

The Constitution is similar to any written contract in many respects. Contracts are interpreted textually. Take for instance the parole evidence role “which rejects evidence that contradicts the meaning of the contract at the time of its formation.” The Constitution is no different: “Written documents cease to perform their function if meanings can be changed in the absence of an equally written modification or amendment.” Furthermore “overriding written contracts to reach results that some deem superior places the rights of everyone at peril.” What is binding government if not the Constitution? Unfortunately, it is the opinions of legislators and justices who want to expand their power and corruption at the expense of citizens’ rights.

Amendments:

The Constitution can be amended to keep up with the changing times. Unfortunately, most people do not have the patience (the partiality principal and issue with majority factions) to go through this process so they must rely on the Court to legislate decisions for social and moral justice. In well over two hundred years the Constitution has only been amended 17 times (and 2 were for prohibition and the repeal of prohibition). That means only 15 new ideas have been amended. And two of those Amendments (Sixteen – Income Tax, and Seventeen – Choosing Senators by popular vote) should have never been passed because they provide the federal government with unlimited coercive powers. I take the limited amount of amendments to mean that the original meaning of the document must be sound. If the Constitution fails to meet modern requirements to the satisfaction of a special interest group or people this is a problem with the Constitution, not originalism. Originalism is still a valid method to interpret the Constitution.

Experimentation:

There have been many times when the Court has deferred to state laws in the name of experimentation but there have been other times the Court has failed to yield the same type of patience with state laws. Louis Brandies said a "state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” A good example of this in modern times is medical and recreational marijuana. Many states are experimenting with marijuana laws even though the Federal Government views marijuana as illegal. States should be allowed to experiment as long as laws do not infringe on the rights of its citizens. Experimentation is no different than the concept of federalism found within the Tenth Amendment. The Supreme Court does not have to act on social issues such as marijuana, gay marriage, and abortion. It should be left up to the states to experiment with laws to find those laws that work best and those that do not. For instance, it should not be up to the Supreme Court to legislate its trimester theories in Roe v. Wade, which were later abandoned in Casey v. Planned Parenthood less than 20 year later. The Supreme Court is not an expert on marijuana or abortion and therefore it is outside their realm to make legislative directives on such topics. This is the true meaning of federalism: to let States figure out laws through a trial and error process and through the will of the people in each state so long as they do not violate the rights of citizens without compelling reasons. Once something becomes socially accepted, recreational marijuana or gay marriage can be amended to the Constitution like previous civil rights and social issues such as women’s suffrage and the abolishment of slavery. We do not live in a perfect society, humans make mistakes, and sometimes we need to learn from those mistakes before laws are perfected. Remember, mistakes made through state legislation are much more desired than mistakes made by the Supreme Court which can violate the rights of millions more persons.