Restoring the American Dream (Part II)

The 1938 case Carolene Products v. United States was another blow to working rights. In this case, the Court upheld the “Filled Milk Law” which prohibited Carolene Products from shipping its product via interstate commerce. Without any evidence, the Court decided that filled milk was unhealthy for human consumptions and could therefore be restricted. We, of course, understand today that this is not true. In fact, filled milk is better for you than regular milk. The powerful dairy lobby in both Nebbia and Carolene Products was trying to quash their competition and succeeded in doing so with the help of state legislators and the Court. Since filled milk cost 3 cents less per quart than milk, the milk lobby stopped a reputable company from pursing its right to a lawful occupation. Similarly, in Nebbia, the Court was successful in undercutting mom and pop shops trying to compete against big time dairy producers.

Carolene Products is more famous for Justice Stone’s footnote four than its misguided decision. In footnote four Justice Stone listed a few instances where a state law may come under stricter scrutiny in determining its constitutionality. For instance, if any rights in the Bill of Rights are abridged then stricter scrutiny is needed to evaluate the State law. Also, if a minority is disenfranchised then the law would face stricter scrutiny. But, both Nebbia and Carolene Products showed that economic minorities did not matter since the Court held that a mom and pop shop and a single company competing against the national dairy lobby held no minority status. What’s worse, footnote four protects only those rights found in the Bill of Rights, not those rights outlined in Justice McReynolds opinion in Meyer or Society Sisters. For instance, McReynolds says there is a fundamental right to work a lawful occupation but Justice Stone’s opinion holds the right to a lawful occupation can be abridged because it is not in the Bill of Rights. Hence, the right to a lawful occupation can be denied for any rational reason even if is dumb and makes no sense because it fails to promote any government interest such as protecting the general welfare and safety of its citizens. Both Meyer and Carolene Products are good law today, but despite being separated by just 15 years, they conflict. For example, in Williamson v. Lee Optical (1954) the Court upheld an Oklahoma law prohibiting Lee Optical from doing what Lens Crafters does today without any sensible reason. In Anastaplo (1961) the Court held that an Illinois law prohibiting lawyers from joining the bar because they do not recite an oath of office is constitutional. George Anastaplo was denied becoming a lawyer because he would not recite an oath claiming he was not a communist. Anastaplo was not a communist, but he thought a person’s right to conscience had nothing to do with becoming a lawyer or any type of profession for that matter. He was right. The Carolene products precedent clearly diminished the rights outlined in Meyer.

Pursuing happiness would be much easier if the Court would reinstate the validity of Lochner and the freedom of contract. Or the Court could simply use Meyer precedent to protect the right of contract. Freedom of contract would have advantages when deciding cases other than economic freedom such as making decisions simpler and easier to understand. Take, for instance, Loving v. Virginia (1967) and Obergefell v. Hodges (2015) – the interracial and gay marriage cases respectively. In Loving the Court used the Equal Protection Clause of the Fourteenth Amendment to strike down a Virginia law which prohibited the marriage between white and black persons. The defense argued the statute did not violate the Equal Protection Clause because both persons in the marriage (black and white) faced equal punishment. But, since the law did not ban marriages between white persons and other minorities the Court held the law did, in fact, violate the Equal Protection Clause. Thus, this essentially means if Virginia rewrote its statute to ban any type of interracial marriage then the law would be held constitutional. Although this did not happen, this scenario illustrates the Court’s decision was highly flawed. If, instead, the Court used Meyer and the right of marriage or Meyer and Lochner and the right of contract, the dilemma of finding a loophole in the decision could have been avoided. Remember, marriage is a contract between two persons and their church. If the right of contract is law then any marriage regardless of race would be seen as legal.

Obergefell is even more convoluted. All of the plaintiffs in Obergefell had partners that were deceased. Thus, Obergefell became a case about government entitlements tied to marriage. Since the government provides married couples lower tax rates and estate taxes (once a person dies) those seeking gay marriage merely wanted the same financial benefits as married couples. Hence, the Court upheld Obergefell using the Equal Protection Clause because the government discriminates against single persons. This means if the government stops its discriminatory ways by no longer attaching entitlements with marriage, then gay marriage is no longer Constitutionally protected. This is more evidence that the government should not be in the business of establishing entitlements or rights. However, this disaster could have been averted, once again, if the Court used Meyer and or Lochner freedom of contract precedent. Under this situation the Court could protect every person’s right to contract which includes marriage regardless of race or gender.

Essentially, the Court in Loving and Obergefell elevated both marriage and gay-marriage as fundamental rights, but their arguments to do so are highly suspect. The freedom of contract is so strong it can be used to protect many individual rights. If both person A and person B equally benefit in their pursuit of happiness from a contract, then the government has no right to infringe upon the contract and violate individual rights. Similarly, in Griswold and Lawrence, the Court could have upheld these decisions using the freedom of contract. In Griswold, the government should have no business to interfere with the freedom of contract between a married couple’s decision over contraception. Freedom of contract could also be have been used to uphold contracts between consenting individuals who are not married such as in Lawrence. Remember, individuals enter into hundreds of contracts each day: every time we purchase or sell goods and services (property) as well as relationships (friends, spouse, companies, bosses, and children) in our pursuit of happiness. Roe, on the other hand, unconscionably breaks or voids the contract between a mother and child. There is no question that neither Party A or Party B obtains any benefit in an abortion. Party A may be relieved to get rid of an “unwanted” baby, but that situation is hardly a happy or beneficial moment if it haunts Party A for the rest of her life. Party B is exterminated so there is no benefit for them in the contract!