So am I to understand you in saying that the 1964 Civil Rights Act was an unjust extension of Congressional power? Is that really how you feel? And if you think that is too old an act to indict, how about the Americans with Disabilities Act?
Indeed, what of Lopez and Morrison?
I don’t mean to single you out, Poly, but I’ve been debating you on these boards for several years now, and this is literally the first time I’ve heard you pledge your undying allegiance to principles of federalism. And, per the list above, it isn’t like there’s been a lack of situations calling for that debate. One does wonder: why now? Why this topic, and not the others?
Nor am I suggesting venal intent on your part. I just don’t think you’ve thought through the implications of the principle you stated – I think you’re going with your instinct on a policy choice and choosing a constitutional principle to support that choice without realizing what roads that choice of principle will lead you down.
The rest of your post is an unfocused list of wide-ranging topics of constitutional debate. Let’s keep our eye on the ball, OK?
(N.B.: the fourteenth amendment does not apply in the instances of hotel and restaurant accomodations, as the fourteenth amendment requires state action before its provisions are triggered.)
In point of fact, I do not personally have specific bounds spelled out on the extent to which the interstate commerce clause’s writ reaches – it’s not exactly a hot-button issue with me, and as you know, I’m a layman with an interest in Constitutional law, not somebody who might be expected to know the ramifications of the various decisions. I did however form a conviction that the so-called Constitutional Revolution of 1937 did some good and necessary things, but founded them in an unreasonable extension of that clause, and that that unreasonable extension has persisted.
Likewise, I’ve never had occasion to speak of how I feel about Federalism except in the context of civil rights issues. (BTW, I don’t agree with “states rights” because that is a misnomer – but I affirm that the states have powers duly guaranteed by the Tenth until and unless they conflict with a guarantee of citizens’ rights.
I believe that the Civil Rights Act of 1964 and the ADA were the proper business of government, to be sure – because they guarantee the rights of citizens. Personally, I’d found them in the Fifth, which does not speak of who is prohibited from depriving people of life, liberty, or property, though I know that that is a totally unorthodox bit of constuction. And that “liberty” which is guaranteed there and in the Fourteenth does in my mind not consist purely in lack of confinement but in the freedom to pursue one’s lawful affairs legally on the same plane as any other person.
Bottom line for me: there are proper spheres in which the Feds. can legislate, in which the states can legislate, and another which is the private business of the individual. The guarantees of rights in the Constitution are absolute save for reasonable non-content-based time place and manner regulations intended to balance the rights of one against those of another. And the Federal government is empowered to protect those rights – indeed, that is one major purpose for having it; see the Declaration and the Prologue for grounds for saying this.
Holy shit, Poly - first you cite the Tenth Amendment, then the Declaration of Independence and the prologue to the Constitution. And in defense of limited government, at least for the legislative and executive branches.
But you seem to deny any limits on proper spheres for the Supreme Court. Are there any? You seemed OK with the notion of the Supreme Court inserting themselves even into questions that are specifically outlawed by the Article I cited.
This is a cop-out that far too many people take in these discussions, and one I’m particularly disappointed to see you opting to plead. It amounts to saying “jeepers, I don’ know nuthin’ 'bout all that lawyer stuff Miz Scarlett,” as though that absolves you of having to think out your positions and consider their logical ramifications. I object to this tactic on several grounds.
First, this ain’t brain surgery. A law degree may make me a little better grounded in specific cases dealing with constitutional issues, but the subject matter writ large is hardly beyond the grasp of the layman.
Second, you are no mere layman. You are better-versed in con law than many lawyers I know. Even if your conclusions are often odd, you are not ignorant of constitutional case law. I’ve engaged in too many discussions on these topics with you in the past for you to plausibly plead ignorance today.
Third and finally, as evidenced by our prior discussions, you’re no dummy. When you claim you can’t “be expected to know the ramifications” of your stated constitutional principles, you’re basically trying to say you can’t be expected to have thought through your argument. Well, good argumentation (and we are in Great Debates, after all) involves doing exactly that. Thinking things through is not the exclusive province of the legal community. Further, I know you are capable of doing so. It is disappointing to see you using that line as an out.
I expect this kind of thing from certain other SDMB posters – you know the line, the one that goes “you’re so bogged down with legalities, and I’m talking about JUSTICE!” You should not stoop so low. You are better than that.
The entire Bill of Rights, including the fifth amendment, is premised on state action (the federal government standing alone, and the states via the fourteenth amendment). If your construction is adopted, it would make all those whiny teenagers claiming “free speech violations” when the SDMB bans them for trolling correct in their constitutional analysis. Surely you cannot mean for the constitution to mean that.
I also note that the fifth amendment lacks a grant of legislative authority to Congress paralleling section five of the fourteenth amendment. Meaning, if your construction were adopted, the courts could integrate lunch counters and so forth purusant to their constitutional mandate, but there is no source of power for Congress to enact specific legislation on that topic.
Further, I’d love to see your analysis as to how the fifth amendment means what you purport it to mean. Upon what basis do you claim as much? Your interpretation appears made up entirely out of whole cloth, on the spot, pulled directly out of your own posterior.
Given that the fifth amendment cannot be used as a basis to restrain action by private actors, there is no basis for the 1964 Civil Rights Act outside of the commerce clause.
Ditto, I might add, for the ADA, the GFSZA, and the VAWA.
This is all utterly meaningless. Translated, it means: “Whatever source of governement power or limit on government power that leads to the policy choice I favor is legitimate, and any contradictory constitutional or statutory provisions are subordinated to those sources.”
We can call it “The Polycarp Principle.” Or lack thereof.
Shodan, contrary to what the typical demagogue has to say, the judges of this country (local, state, and Federal) in general rule based on the law (see any thread on a legal subject for the definition here – and it’s exceeding rare for an appellate panel to allow a judge’s ruling based on personal views of “what oughta be” stand. This may mean that your or my construction or opinion of what the law means is not the one they finally agree on – but it does provide complete license. Dewey and I have argued about the extent to which matters may be read into the broad definitions of rights which are in the Constitution, state constitutions, and federal and state statutes. Can I, for example, wear a T-shirt with a picture of Pat Robertson within a circle and with a red slash diagonally across the circle, obscuring a small part of the picture? Am I exercising my “freedom of speech” in so doing? There is a man serving a life sentence in prison here for stealing a television set in 1970 – and protestors who feel that this is an unjust punishment under the Eighth Amendment. The point, however, is that the courts act by interpreting the law as it has been written, as it applies to the cases which are brought before them. You may find writings on “judicial self-restraint” to be of interest.
You raise some interesting points, Dewey.
First, what I said was not, “Well, gawrsh, I’m just a country boy what don’t know all that highfalutin legal stuff.” Rather, it was – “As a layman, I have not had occasion to think through where I personally would draw the line on the second elastic, er, interstate commerce clause.” Not I won’t or I can’t, but merely I haven’t. Several times you’ve pointed out flaws in my analyses, and I’ve duly become conscious that the law of unintended consequences applies to such generalizations. If I had to attempt a definition of my standard today, it would be “the matter to be regulated has a significant nexus to the actual act of shipping goods across state lines, or is tangentially related to such commerce but directly related to the general welfare of the country in such a way that state regulation would be ineffective.” Merchandise manufactured for sales in other states, then, would be included – but the fact that Joe the Whittler sells a carving to Mr. & Mrs. Tolliver who drive home to another state with it, would not bring Joe under the ambit of the clause. The second provision brings into account the issue that matter produced and consumed within a state can have the potential to impact the national economy and the welfare of all citizens, as the current extreme extension of the IC clause is intended to note, but draws on the “general welfare” clause and demands that “indirect impact on IC” matters must have an impact on the national welfare that is not suited to state regulation.
It occurs to me that the public/private distinction is not synonymous to “government/non-government” but means, roughly, “that which is held open to the common use of all citizens, under certain circumstances,” versus “that which is the province of the individual and those with whom he chooses to share it.” If I choose to disrobe in my neighbor’s front yard, I can be charged with public nudity as a crime, notwithstanding the point that I am not on public lands but on his private property. It occurs to me that there is, or ought to be, some guarantee that a person who chooses to operate a public business or service, albeit in the “private sector” in economic terms, is obliged in some way to respect the rights of his fellow citizens. Granted that discrimination can be self-regulating, there are circumstances where it will not be. If all three providers of a high-capital-investment institution or service in a given area refuse to do business on equal terms with black people, openly gay people, open feminists, or whatever, that high capital investment means that they have no recourse for those services except to accept the terms of the three providers who have made that investment. And I would be very much disinclined to stretch the IC clause to cover this. Your thoughts?
Your last comment was a gratuitous insult. The quote was a summary of matters discussed at length here and elsewhere. Do you really have a problem with my stating the idea “There are some areas where the Federal government may legislate; there are others that are the proper provinces of the states” without a twenty-paragraph treatise on Federalism explaining what those areas are?
I refuse to be so insulting as to tu quoque you and say that your saying my last sentence is meaningless means that you think the government has no business protecting rights – I know better, from other discussions. But it appears you were not prepared to grant me the same courtesy in reverse.
I can, if you wish, march you through the progression of pre-New Deal commerce clause jurisprudence that attempted just such a distinction in order to illustrate precisely why this standard is not a standard at all. I’d rather save myself the typing if I can (you can look at the outlines I prepped for first-year con law on my web page if you’d like nice capsule summaries). Suffice it to say this approach has been tried, and it proved to be entirely arbitrary and unprincipled and impossible to administer short of litigating every single type of commercial activity all the way to the Supreme Court.
Consider gun control. Say I am a manufacturer of fully-automatic military-grade firearms. I advertise only by word of mouth, and I do not sell anywhere outside of my own shop. By your lights (and ignoring second amendment issues for purposes of this discussion), the federal government cannot regulate the sale of my wares.
And you can insert anything else you wish: a meth lab; a discriminatory lunch counter; a factory that pollutes a local lake without affecting land in other states; a guy selling snake oil as a cure-all to locals only. Under your reading of the commerce clause, none of these things could be regulated by the federal government.
I realize you’ve got a second prong that might pick up some of this stuff, and I’ll deal with that next. But this prong of your rule as stated undoes much of history.
And this second prong swallows the first. After all, all federal legislation at least claims to improve the welfare of the citizenry – no one authors bills with names like “The Let’s Anally Rape the American People Act of 2004,” no matter how much more accurate such a title may be. Truth in advertising doesn’t apply to Congress. The bill will more likely be titled the “Proctological Health and Cute Warm Puppies Act of 2004.” Hey, we’re an unhealthy nation. Who could be opposed to proctological health?
In short: your second prong essentially makes the rule no different than the current state of affairs under the “affects test.”
Perhaps you mean for the courts to determine what is or isn’t “in the general welfare,” which is a dangerous cessation of legislative authority to the judiciary. Such a question isn’t one that can be answered by legal formulations; it is fundamentally political in character. You are asking the courts to answer a question they are neither equipped nor empowered to handle – not to mention that, since this isn’t a question that can be managed with legal formulations, you are asking for a lawsuit and a court judgment on every act Congress passes under the commerce clause.
I’d also hope that I needn’t remind you that the general welfare clause in the Preamble is not a source of legislative authority, and that the general welfare clause of Article 1, Section 8, clause 1 is limited in application to that clause – the taxing and spending power. Congress can do much more indirectly than it can directly.
The constitution’s provisions have long since been held to require state action. We can quibble over what is or isn’t a “government” sufficient to meet that requirement, but a lunch counter in rural Mississippi ain’t it.
Yes, you can be charged with a state crime. The states have a broader range of authority than the federal government.
I agree there ought to be. The question is where that legal obligation comes from. Currently, it comes from federal legislation – the 1964 Civil Rights Act. The only question is where the federal government gets the authority to pass that act. Note, however, that this guarantee does not come from the Constitution. Absent the '64 Act, a lunch counter owner is not compelled to serve patrons of differing races. The guarantee is statutory, not constitutional.
But yes, yes, you think that the Bill of Rights does create such a guarantee, or at least power for Congress to create such a guarantee outside of the commerce clause. Ignoring for the moment the completely nonexistent basis you have for making that assertion, consider the following two questions:
You claim that much of this stuff is in fact self-regulating, and it’s only when all or substantially all of a community’s businesses act in concert in a way that renders that self-regulation ineffective that the government can act pursuant to your view of the fifth amendment. Does that mean you think the 1964 Act should be inapplicable today? Or that it should only have been applicable to the south? After all, if you discriminate against blacks in New York City, those blacks have a literal cornucopia of other restaurants where they can take their business. Does the existence or reemergence of effective self-regulation invalidate congressional power?
I asked this before, and you did not answer: if, as you suggest, the Bill of Rights demands things not only of the government, but of private enterprises that hold themselves open to the public, is the SDMB acting unconstitutionally when it bans someone for hate speech?
I also would be interested in hearing your basis for this rather novel interpretation of the fifth and fourteenth amendment. Again, the presence of discriminatory state action has long been understood as a basic requirement for litigation under both amendments and for congressional action under the fourteenth amendment. Upon what basis do you claim otherwise? Can you point to anything written by the authors of those amendments suggesting they shared your reasoning? Can you point to any court case or other legal authority that has made anything remotely approaching a suggestion such as what you are proposing? Any legal scholars who view things as you do? Is there any source for this interpretation other than your own posterior?
Why is it exactly that two centuries of jurisprudence explicitly demanding state action is wrong, yet Polycarp standing alone is right?
*I have no problem with that statement as a general proposition, just as I have no problem with the statement that “all men are created equal and are endowed by their creator with certain inalienable rights, that among these are Life, Liberty and the Pursuit of Happiness.” I do, however, object to such a statement in the context of this discussion because it provides no useful information, just as the text of the Declaration provides no useful information. It is a nice sentiment but utterly meaningless standing alone. And I will not sit here and allow you to pass off a glittering generality as a substantive debating point.
You mean like Roe v. Wade, where the decision was based on what the Constitution actually said about “the right to privacy” and a “penumbra emanating” that granted the Court the power to overturn abortion legislation in all fifty states?
Yes, it grants complete license. The Constitution says whatever the Court says it says - even if that is in direct contradiction of what it seems to say.
If the Court wants jurisdiction over something, it takes it, and writes the opinion to justify the decision later.
This simply isn’t true. See the current debate about gay marriage for an example of how a state court is reading things into a constitution to bring about a desired end.
Your notion of “judicial self-restraint” seems to be no more than the reassurance of the court to “Trust us - we know what we are doing, and we know better than you.” And the whole purpose of my suggestion that there might be some areas of life that are not under the control of the federal judiciary was to find some check on the power of the Court to say, “No, there isn’t, so do as you are told.”