Why Originalism Matters (Part II)

Consent and Majorities:

Our Founding Fathers wrote a Constitution that founded a Republic and not a Democracy. The Founding Fathers did not trust majorities (popular sovereignty) of people to make decisions that would not diminish the rights of minorities. Madison called this the problem of “factions” in Federalist Paper 10. Today, we know factions as being “special interest” groups. I have discussed my personal issue with joining groups or organizations because of the problem with factions pushing unrealistic political agendas. The United States literally has millions of factions (special interest groups) and each is governed by it its unique set of bylaws. Our founders wanted to avoid the situation of factions and majorities as much as possible in politics. However, many Republican concepts in the Constitution have been amended such as allowing the election of Presidential and Senatorial (Seventeenth Amendment) candidates through a popular vote. These actions have seriously mitigated the separation of state and federal government powers (Federalism). These actions have also escalated the problem of factions and majorities. No United States citizen has consented to the Constitution other than public officials and immigrants who take an oath to protect and serve the Constitution of the United States. Hence, it is difficult for individuals, factions, or special interest groups of people to accept political choices they reject. People live by what is called the partiality principle. In other words, citizens favor rights for themselves and those they know over strangers. For instance, many people reject the Trump presidency but this is the difficulty with majority rule and the lack of consent: acceptance is not always easy. Those that reject Trump cannot understand or care to understand how hundreds of thousands of strangers in the Rust Belt are suffering and decided to change Party loyalties. The same can be said of those who rejected Obama because they were not sold on a message of “hope and change” that would redistribute wealth. Just as anti-Trump supporters do not understand the rationale of the other side, anti-Obama supporters do not understand the appeal others found in his message. This conundrum of divisive and polarizing majority factions was an issue that the Constitution tried to prevent since the President was not initially elected via a popular vote.

Of course, there is always the first major Supreme Court decision, Chisholm v. Georgia, in 1793 to help shed light on the issue of consent. In that decision, the Court said sovereignty lies with the people and not the State or Federal Governments. Hence, individual sovereignty over popular sovereignty existed making each individual, in essence, in charge of its own personal government. Consent is not needed if each individual is sovereign. If fact, state and federal governments must consent to the people! Most scholars say the Eleventh Amendment overruled Chisholm two years later, but Chief Justice Marshall calls Chisholm solid law in Calder v. Bull decades after the ruling. However, Marshall’s input is widely ignored so “popular sovereignty” is asserted by future governments and Courts at the expense of the rights of the people.

The polarity of factions is all the more reason for judges to strictly adhere to the text of the Constitution. Otherwise the Court is just another mechanism where majority special interest groups will force their will on minority groups. Today, there are literally hundreds of thousands of factions (unions, lobbying companies, companies, and other factions with strong political ties – abortion, pro-life, NRA etc.) trying to carve out exceptions in legislations at the expense of others. I did not like it when Obama circumvented the Constitution to push his agenda. For instance, Obama’s immigration policy violates the rights of citizens if their taxes support illegal immigrants to stay in this country. The Constitution was designed to keep the government in line (the converse to keep citizens in line is not the function of the Constitution). Each Constitutional breach allows the government to have more power that is used to restrict the rights of non-consenting individuals and factions which are working to divide Americans each and every day.

The more consent a person yields, the less freedom they have and vice versa. For example, if you live in a housing development tied to a home owners association (HOA) you have consented to live by the laws of the HOA. By contrast, since most citizens are non-consenting participants of the federal government, we have more freedoms that we expect to be protected by our Constitution. Without consent, rights of any citizen may not be abridged without a “proper” or “compelling” reasons. Remember, first comes our rights, then comes government, and then comes laws. Hence, government and laws are designed around our rights and not vice versa. The government does not have any rights, they have enumerated powers. Only people and corporations have rights in the Constitution. Pennington said that “they who are to govern by laws should have little or no hand in making the Laws they are to govern by.” This was the reason the Constitution was constructed with so many checks and balances. The goal was to mitigate tyranny that may result from majorities or corrupt leaders. Unfortunately, Justices practicing presumption or judicial restraint are not doing their job to keep the Legislative Branch in check. By presuming laws are Constitutional or restraining from voiding laws that may be unconstitutional – the Legislative Branch has a blank check to violate human rights. Justices are merely a rubber stamp for Congressional agendas which create more government power and further restrict the rights of people who are non-consenting participants in the system. The problem when the Court validates unconstitutional laws of moral and social justice is it will upset the many growing angry factions in our country. For instance, Fundamental Rights is a subject that Americans should all agree 100% of the time because violations of such rights would affect each of us the same. Elevating controversial and divisive issues as Fundamental Rights is not only dumb, it is unconstitutional (i.e. Abortion). Playing politics on the Court will inevitably upset large factions of groups across the country. For instance, affirmative action and diversity social justice laws provide more rights to one person and take away rights from another. How can this type of discrimination be Constitutional? (University of California v. Bakke and Grutter v. Bollinger). Two wrongs do not make up for the slavery injustices in American history.

The Court may find laws Constitutional simply because it is what the majority or what science supports. This has led to many horrific discriminatory decisions such as Dred Scott v. Sanford (blacks have no Constitutional Rights), Plessy v. Ferguson (separate but equal racist doctrine), Buck v. Bell (mandatory sterilization), Carolene Products (corporate rights denied), Williamson v. Lee Optical (corporate rights denied), Mueller v. Oregon (women rights denied), and Bradwell v. Illinois (women have no occupational rights) to name a few of the worst offenders. Majorities and science are not always right: women and blacks are inferior to white males, all intellectually challenged persons will give birth to intellectually challenged persons, filled milk has no nutritional value, and technicians cannot operate medical equipment have all been widely accepted scientific theories that have been rebuked. And if majority rule is not enough, those factions with the most money can win legislative victories and debunk science. Textual originalism is obviously preferred over any interpretation mechanism that generates bad and inconsistent decisions subject to reversal.

If majority rule got its way under the guidance of the revered Justice Oliver Wendell Holmes then there would be no private schools (only public ones – Pierce v. Society of Sisters); war places restrictions on free speech (Schenck v. United States); Holmes would probably still push for the mandatory sterilization of the intellectually challenged (Buck v. Bell); women would not be permitted to work (Mueller v. Oregon and Adkins v. Children’s Hospital); blacks would still be segregated and forced into servitude by bogus work contracts (Baily v. Alabama); teachers would be imprisoned for teaching a foreign language to students under 10 (Meyer v. Nebraska); and no one would have any contract rights over their occupational wages and hours (Lochner v. New York). In Nobel State Bank v. Haskell Holmes wrote “It may be said that the police power (power of state governments) extends to all public needs.” Moreover, Holmes in his Haskell decision wrote this about state statutes: “the prevailing majority or strong and preponderant majority to be greatly and immediately necessary to the public welfare.” In a majority rule society run by government legislations, the minority can have their rights mitigated or violated as with the many examples listed above. Holmes wrote of the Fourteenth Amendment in his Lochner dissent (a decision widely regarded as bad and Holmes was in the right): “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominate opinion.” In other words, it is okay to violate the rights of women, blacks, teachers, schools, the intellectually challenged, and workers if the majority says it is okay. In his Lochner dissent Holmes also writes “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statistics.” Social Statistics is a book written by Herbert Spencer whose major theme throughout the text is that there is a fundamental equality between all persons. In other words, in Holmes view, there is no equal protection of laws under the Fourteenth Amendment. If this were true, then Brown v. School Board would have never been found Constitutional nor a host of hundreds of different civil rights and anti-discriminatory laws over the years. My only point is to beware of majority rule and to understand that imaginative Justices and government laws have diminished many of the protective clauses found in the Constitution to prevent problems with factions, majorities, or bad Justices like Oliver Wendell Holmes.

Before moving on it is important to understand why Lochner was decided correctly and a majority of both liberal and conservative judicial scholars have been wrong about this decision for the past century. First, freedom of contract is a Fundamental Right. It is listed as a Fundamental Right in the Civil Rights Act of 1866 which the Fourteenth Amendment was written to enforce. By restricting hours of bakery workers it would obviously limit bakery workers right to provide for their families. Secondly, and it is never mentioned, but the New York law was designed to help big bakery corporations at the expense of mom and pop shops who could not afford to employ more workers. Third, most people do not realize that the New York law had dozens of provisions for public health and safety that were upheld including ceiling height, whitewashing the walls every three months, only cats were allowed on the premises, floors had to be concrete, and so forth and so on. Only the 10 hour work day and 60 hour work week were held unconstitutional not only because the law violated the rights of the employer and employee relationship (contract), but these provisions provided no public health benefits. Fourth, the Slaughter House cases have been widely accepted as being decided incorrectly. The majority decision of Lochner uses the dissent’s approach in the Slaughter House cases to stress people not only have a right to contract, but they have a right to the occupation of their choice without restriction or interference from the government. Most people incorrectly believe that the right to contract for work was invented by the Lochner Court. This is not true, work contracts have been deep rooted in American history and tradition with Court precedent to back it up. The principle of “free labor” existed before the Civil War and was a term used by abolitionists. Free Labor was “the right to one’s labor was one’s own, and could only be alienated by consent.” The concept of “free labor” was upheld in the 1865 Court decision Ford v. Jermon. Obviously, the “free labor” concept and the “freedom of contract” found in the 1866 Civil Rights Act were specifically designed to prevent both slavery and employer abuse. In Baily v. Alabama, Justice Holmes sides with discriminatory work contracts that solely target black workers, and in Lochner he sides with a similarly discriminatory work law that not only targets bakers but it favors union workers. Why does Holmes disagree with work contracts in Lochner as being perverted but is perfectly fine with work contracts in Bailey? There is no other explanation then he was a typical hypocritical Justice who changed his stance for political and even bigoted purposes to conform with majority special interests. Finally, for these reasons, the New York law was discriminatory because it favored one group of persons (other professions and unions) at the expense of another (Bakery workers).

The right to contract was overruled by the Court in West Coast Hotel v. Parrish by the revolutionary FDR Court. In Parrish, a minimum wage was placed on working women only. This was another discriminatory law whose sole purpose was to eliminating women from the workforce. After all, who would you employ an expensive woman or a less expensive man? The bottom line is that child labor laws may help some kids, but what about children who want to work before 16? I started to work when I was 10, but it was my choice and companies were willing to pay me under the table. A higher minimum wage law may help one person get more money, but it may also violate the rights of another worker who must be laid off by the company because they have to pay a higher minimum wage. Social justice laws do not accomplish the political ends they intend to accomplish since they will unintentionally discriminate. Hence, social or moral justice will abridge the Fundamental Rights of some citizens at the expense of others. Passing discriminatory laws that violate the rights of some is the best way to achieve the result of having factions of people divided and polarized in society. Let’s examine several other reasons and examples why textual originalism is the preferred method to examine cases.