Restoring the Constitution: Afflict Liberals with New Deal Precedent (Part III)

In the United States v. Butler the Court held that the Agriculture Adjustment Act was unconstitutional. But dictum in that opinion opened the door for the Court to uphold the Social Security Act in Helvering v. Davis just a few short years later using the General Welfare Clause. By all accounts, the General Welfare Clause meaning at the Constitutional Convention was that the Federal Government can protect the General Welfare by only acting upon enumerated provisions within the Constitution. In other words, if the General Welfare Clause was a provision that yielded the Federal Government with unlimited power, then why enumerate any powers since they are simply truisms? Congress has no grant of power in the Constitution to start any social welfare programs such as Social Security. By 1987, when the Court decided Dole v. South Dakota, the line of cases Butler, Helvering, and Dole gave the federal government unlimited coercive spending power. Today, we are starting to see how this abuse of government power can be used against liberal agendas such as sanctuary states and cities. Trump’s actions will ultimately go before the Supreme Court but Butler – Helvering – Dole should provide him ammunition to defend his policies to withold funding to sanctuary cities. Liberals revere Helvering, but maybe they will start to see how expanding government can work both for and against their benefit.

Roe v. Wade (1973) made abortion legal throughout the United States. In his Roe opinion, Justice Brennan said the Court had no business defining when life begins and then went on to do exactly that in his opinion: Brennan defined when a fetus is viable and when the fetus is not viable. Since Roe liberals, governments, and the Court have been busy providing preferential treatment to certain groups of people including the LBGT community (Romer v. Evans), racial minorities (Grutter v. Bollinger), and women (United States v. Virginia) in the name of equal protection. Liberals, governments, and courts have even provided citizenship rights to enemy combatants, nature, and animals where they cannot be denied due process of law. Conservative groups have been able to garner more rights for corporations (ever since Santa Clara County v. Southern Pacific Railroad in 1886). Now, consider the Supreme Court decision Bennis v. Michigan. In that case, the Court held that authorities can confiscate private property without compensation. In Bennis, authorities confiscated a car after apprehending suspects conducting an illegal sexual act (prostitution) in the car. However, the perpetrators apprehended in the case did not own the car, they illegally broke into the car to perform their sexual activity. Tina Bennis, who took no part in the crime, merely wanted to retain her property, but in the eyes of the Court the car was “guilty property”. Taking property from innocent victims is not only wrong, it is like kicking a person when they are down. The Bennis opinion provided a scary modern precedent to what is called civil forfeiture or “guilty property” cases. Could authorities confiscate a car, boat, or plane if a single passenger had a single illegal marijuana “joint”? Under Bennis, the answer is yes. In United States v. One 1970 Pontiac GTO: The United States sued a car. In fact, there have been several cases where a car was a defendant or plaintiff: One 1958 Plymouth Sudan v. Pennsylvania and United States v. One 1978 Chevrolet Impala. There are other cases where the property was a boat such as United States v. One 1976 Chris-Craft 27 Foot Fiber Glass Boat. That is right, we may sue corporations and persons, but we can also sue property and even nature. All of this precedent would allow an opening for conservatives to file for fetus rights instead of trying to overturn Roe. It does not matter if a fetus is considered a citizen or even a viable human being, liberal courts have shown that citizenship or personhood is not necessary to garner Constitutional protection (equal protection or due process). Why can’t a “fetus” obtain preferential treatment and rights. After all, the fetus is unable to protect its own rights. Why can’t a fetus have rights equivalent to non-citizens, nature, property, or corporations? Non-citizens, nature, property, and corporations may not be allowed to vote, but they all can receive due process protections in our courts. So, it begs for us to ask the question: why can’t a fetus receive due process protections in our courts regardless of personhood viability?

Gay marriage and marriage have been elevated by the Court as a fundamental right. However, gay marriage was elevated using equal protection in an odd manner: not because everyone should have marriage rights but because marriage was a form of entitlement. Since the government ties tax breaks and estate tax rates with marital status, gay members of our society wanted the same protections. In other words, gays were not wanting marriage for reasons regarding love, but for financial reasons. Hence, the institution of marriage is not what is discriminating, it is those government entitlements that are discriminating (treating single persons differently from married persons). Remember, churches often refuse to marry people for a number of reasons including compatibility issues, not just their faith and believes. Hence, it is difficult to say churches are discriminating since anyone can be denied the right to marry is particular churches. If gay marriage was upheld, it should have been done using our right to freedom of contract. No one can deny that marriage is a contract between a two people and possibly their faith organization. However, liberals do not like to use freedom of contract or economic freedom because it would mean restoring faith in older decisions such as Lochner v. New York which both conservatives and liberals abhor. Lochner protected an individual’s right to seek a lawful profession without government interference. Liberals dislike this because restoring Lochner would mean overturning the entire progressive New Deal (union protection, wage and hour regulations, social security, and so on). And both conservatives and liberals did not like the fact the Lochner Court elevated a right which was not enumerated in the Constitution. After all, if freedom of contract is protected for marriage, then freedom of contract should be protected between employer and employee. But, it is ironic that the Lefty Justices decided to elevate marriage rights just how Righty Justices elevated economic rights. So, there is really no difference in the Court’s jurisprudence reasoning in Lochner and Obergefell (gay marriage decision). In essence, the Court is actually restoring a part of Lochner.