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

Many horrible Court decisions will take a revolution (like the New Deal) to overturn. The Contract Cause states “No State shall pass any law impairing the obligation of contracts”. In other words, contracts between borrowers and lenders should be honored without government interference so long as the contract was not coerced in any matter. However, the Contract’s Clause has been rewritten by the Court in Home Building and Loan Association v. Blaisdell (1934) and the Gold Clause Cases (1935). Blaisdell protected a home owner from eviction who defaulted on their payments due to emergency reasons (the Great Depression). However, Blaisdell has been used by modern courts to treat “Corporate shareholders and employees as second-class citizens whose rights can be sacrificed to protect homeowners and farmers.” Consider another example. Article I, section 1 of the Constitution reads “All legislative powers herein granted shall be vested in the Congress of the United States.” But, in 2001, in Whitman v. American Trucking Association, the Court basically provided government agencies such as the Environmental Protection Agency (EPA) the right to make and enforce laws. In many cases, these new laws, mandates, regulations, and statutes come without any oversight from Congress. This allows Congress to rightfully claim ignorance when voters are outraged by government interference. Consider that there are well over 300 government agencies that are free to make up and enforce laws without the knowledge of Congress. This is how things such as the IRS targeting conservative charitable groups can happen. With Congress out of the loop, agencies are free to push the political agenda of their choosing. What would happen if the Trump administration targeted liberal organizations – would liberals finally cry foul and maybe then we finally can limit the lawmaking role of government agencies?

If this is not bad enough, the most egregious violation of civil liberties is the blatant disregard the Court has for economic freedom and the right for individuals to work a lawful profession. Over 20% of all professions now require some kind of license. State and local governments use this power to limit competition in certain occupations such as taxi drivers, cosmetology, barbers, and florists. The downfall of economic freedom started in the Slaughter House cases (1873) where the Court held government protected monopolies are acceptable. Economic freedom was preserved, but it was short lived, when the Court in Lochner v. New York (1905) held government regulations over work hours for bakery workers was unconstitutional. The Court held employers and employees had a freedom of contract over work hours. All of this changed, however, in Nebbia v. New York (1934). In this case, the Court held a New York law which denied a store owner the right to sell milk and bread at a reasonable price that was to his satisfaction and the satisfaction of his customers was constitutional. This trend continued in Carolene Products v. United States (1938). In this case the Court upheld the Filled Milk Act which denied the manufacturers of filled milk to sell their products. Why? Because the milk lobby was powerful in both this case and the Nebbia case. Without any evidence, the Court held that filled milk was “unhealthy” for humans. This, of course, we know is false, since modern science has found filled milk is better for you than milk. But filled milk sold for 7 cents a quart compared to 10 cents for a quart of milk in 1938. Hence, the milk lobby influenced the Court to eliminate their competition – essentially denying thousands of people the right to work a lawful profession. Footnote Four of the Carolene Products opinion held that the Court could view state laws with stricter scrutiny under some specific conditions such as if the Bill of Rights was violated or if a minority group is involved. Footnote Four made no mention of individual fundamental rights not enumerated in the Constitution but protected by the due process clause, the privileges and immunities clause, and the Ninth Amendment in our Constitution. Hence, any law prohibiting the fundamental right to work a lawful job without government interference merely faces a rational basis test (laws facing rational scrutiny are never found unconstitutional) instead of strict scrutiny. In other words, the fears of our founding fathers at the Constitutional convention have come to fruition. Most founders were against adding a Bill of Rights to the Constitution because they feared it would limit those individual rights that were not enumerated. The anti-federalists pushed for a Bill of Rights if states were to ratify the document. Madison cleverly tried to work around this dilemma by introducing the Ninth Amendment which states those rights not included in the Constitution or Bill of Rights should not be denied or disparaged for any reason. Madison did not know the Ninth Amendment would be the most ignored Amendment in our history. For proof of denial of unenumerated rights take, for instance, Williamson v. Lee Optical (1954) where the Court denied persons in Oklahoma to do what Lens Crafters does today. The Court admitted the law did not make much sense, but a dumb law could still have some rational basis. Similarly, in 1961, the Court held in Anastaplo that a person could be denied access to the Illinois bar if they were a communist. Anastaplo was not a communist, but he refused to take the Illinois bar oath which makes people assure they are not a communist. Anastaplo, correctly asserts that political or religious affiliation does not matter when applying for a job. In Anastaplo, the Court not only denied a person to a lawful profession, they also denied a person of both the right to conscience and First Amendment Rights. Of course, Red Scares throughout the 20th century denied hundreds of people these same rights.

The Right to work is something that both the Right and Left should want protected. It boggles my mind that something like abortion may be protected, but the right to sell coffins or to be florist face unbelievable road blocks including cost prohibitive training. Does it really make sense for persons to obtain a funeral director license and learn how to embalm corpses to sell a box? Does it make sense to obtain a license to be florist? Of course not, a florist is an artist! Are we going to ask painters and sculptors to obtain work licenses? This is a violation of not only someone’s right to work, but also their First Amendment rights. Sure, it makes sense to regulate some critical professions for the health and safety of the public such as medical doctors. But, the regulation is out of hand. “The pursuit of happiness” includes our right to seek a lawful profession. Nobody will ever argue that a person’s happiness is directly proportional to their happiness with their work. Nobody is guaranteed to be “happy” but when the government restricts the “pursuit” to be happy then government is doing the opposite of what they are chartered to do. Government was put in place to protect our rights, not to “create”, “prohibit”, “interfere”, or “deny” rights (without some very compelling government reason). There is no reason to make it harder for anyone, especially for the poor, to find and work a lawful profession without government interference.

Do liberals and progressives understand how much government regulation and new interpretations of the Constitution have hurt the poor? I believe they are oblivious as to how local governments use property takings to bolster wealthy land developers and national chain stores at the expense of the poor. I believe they are oblivious as to how government regulations make it almost impossible for many poor persons to earn a lawful living in many professions. I believe liberals are oblivious to how supporting “guilty property” have attacked the poor much harder than the middle class and wealthy citizens. Liberals also like to attack charities that help the poor such as Little Sisters of the Poor. Liberals will attack such organizations because they do not agree over abortion and the contraception mandate in ObamaCare. But it makes little sense to attack an organization that helps poor people over one single issue. In effect, these lawsuits take money away from people who can use it. If liberals will not or cannot accept the fact that progressivism is hurting their own base (the poor), then maybe it is time for some competent conservatives to argue these points to minorities in their “blighted” neighborhoods.