Judicial Activism and the Death of the Auto Industry: Part Three

For the past few weeks, we have been examining the role that “empathetic” judges have played in the massive government expansion we are currently experiencing. In Part One, we saw the first examples of judicial activism. Justices who believed it was their job to make America more “fair” perverted the constitutional responsibilities of the federal government. In Part Two, a difficult time (the Great Depression) was exploited, and private businesses became not-so-private. The Supreme Court expanded the meaning of the Commerce Clause and the Necessary and Proper Clause, so that they were almost unrecognizable. The President and Congress used their new authority to create massive state-run agencies, and redesign the free-market system. In this installment, we will examine the post-New Deal government, and get one step closer to today’s version.

The Civil Rights Movement

This, for me, is one of the toughest issues to write about. I believe that the Civil Rights Movement accomplished many great things. My goal is two fold: (1.) to explore the method in which these changes were implemented and (2.) to examine whether these methods, in the long run, set us on the best possible course to achieve what are, indisputably, admirable goals. As you read this, you will see that many of the business owners are in no way sympathetic characters. I ask that you try to look at these cases on their Constitutional merit only, and not on the likeability of the parties involved.

During the 1960′s, the United States took great strides to correct some of the racial injustices which had occurred here. The Civil Rights Act of 1964 is probably the most notable piece of legislation of that era. This set of laws was designed to eliminate discrimination in the workplace as well as in the market place. You may be wondering why I would include the Civil Right Era in a series about economic policy. Allow me to explain. It would seem logical that the Civil Rights Act was passed under the Equal Protection Clause. However, this was not the case….It was passed under the Commerce Clause. “What in the world does civil rights have to do with commerce?” you ask. Here is the story:

In 1883, the Supreme Court ruled that a series of civil rights laws, which had been passed under the Equal Protection Clause, were unconstitutional. The Justices agreed that laws could be made forcing states to end discriminatory laws, and racial restrictions on public property or on property involving a public agency. They disagreed, however, with the notion that the government could force private businesses to end discrimination. They reasoned that a private citizen had the right to hire whom he pleased, and to do businesses with whom he pleased. Although we hate to see something as vile as racism protected, from a constitutional perspective, the Court was absolutely right. There were, however, several alternative ways to end/lessen discrimination; legislation just wasn’t one of them.

Most people believed that the best way was through pressures in the market place (boycotts, possibly lawsuits, etc.). If national non-discrimination laws were enforced over states that practiced segregation in public areas ( which they weren’t), it would be easier for people to mobilize against discriminatory private businesses. No business owner would want picketers parked outside his or her door, and most would eventually realize that refusing to serve certain customers hurt their bottom lines. This approach would leave the power in the hands of the people-not the federal government-and would not infringe upon personal property rights. Another option was to amend the Constitution. If an amendment were added that specifically included regulations of race and gender discrimination, the federal government could monitor these activities without expanding its reach into other areas of commerce. But the legislators did neither.

When the Civil Rights Act of 1964 came around, the authors of the bill sought an easier way to bring about these changes. The two options ( noted above) that were within the bounds of the Constitution, required a lot of time and effort. Passing legislation was much easier (and as a bonus, scored political points for the supporters of the bill). Since the Supreme Court had already ruled out the Equal Protections clause, the law-makers decided to circumvent this roadblock by way of the Commerce Clause. This seemed like a stretch to a lot of Americans. Although most people liked the idea of ending segregation, they were not comfortable with the government dictating the business practices that took place on private property. Many saw the potential for the abuse of this power. Many others were indignant, and lined up to challenge the act before the Supreme Court.

Heart of Atlanta Motel, Inc v.United States (1964)

The Heart of Atlanta Motel was a 216 room motel which refused to serve black customers. Under the Civil Rights Act, they would be forced to stop this discriminatory practice. The owner of the motel filed a lawsuit against the federal government in response. He argued the unconstitutionality of the law on three points. (1) He believed the legislation overreached the authority granted to Congress under the Commerce Clause. (2) He argued that it violated his 5th Amendment rights. If the government required him to rent a portion of his rooms to black patrons against his will, they were, in essence, declaring his private property to be considered public property. He also felt that if any part of his property were being used in a way he did not approve of, it constituted a “seizure” of property. (3) Lastly, he argued that if the government forced him to perform work (conducting business with minorities) against his will, they would place him in a form of involuntary servitude, thus violating his 13th Amendment rights.

The Court sided with the United States government. They said that the motel qualified as interstate commerce. “How?”you might ask. Well, we learned in Part Two of this series that the court had expanded interstate commerce to include businesses that received merchandise from another state, sold to customers from another state, or provided transportation to another state. But, how could a motel possibly fall in this category? … The rationale was that if certain businesses denied services to certain groups of people, those groups wouldn’t go to those businesses. If too many of those businesses were in a certain area, those groups would avoid that area entirely. If they avoided an area entirely, they might alter their travel plans. If they alter their travel plans, they would alter transportation. Since transportation was now considered a part of interstate commerce, that put the businesses in question under the regulation of the federal government. Although most of us would love to side with the spirit of the government on this one, the constitutional justification just isn’t there. I’m sure the Justices believed that even if it wasn’t the most Constitutional verdict, it was the right one. Unfortunately, this once again opened the door for a larger expansion of federal authority.

Katzenbach v. Mcclung (1964)

This case revolved around Olie’s Barbecue. The restaurant was popular among the locals in Birmingham. It served primarily middle class/ white-collar families. It also served take-out to African Americans. Olie’s was located just off the interstate, and received a large portion of it’s food from an out of state supplier. This was commonly accepted to be just cause for placing the restaurant under federal authority. It may seem like the same debate over what constitutes interstate commerce, but the restaurant owner brought a whole new discussion to the table.

The President and Congress had touted the Civil Rights Act as a way to bring about sweeping “social changes.” They had insisted from day one, that their goal was to unite people of different races and promote equality in the communities. …..They never claimed the bill would improve interstate commerce. The lawyer on behalf of Olie’s argued that everyone knew the Civil Rights Act promoted a purely social agenda (in fact, to this day, most Americans think it was enacted under the Equal Protections Clause). He said that the government could not aim for social changes, and then get in front of the Supreme Court and claim their concerns were of a fiscal nature. Further more, the intentions of the bill’s authors were a violation of the 5th Amendment. The most basic aspect of property rights is a right to control whom an owner allows on his property and with whom he chooses to interact on his property. If the intention of the bill was to force business and social interactions upon unwilling private property owners, it (a.) could not be considered related to interstate commerce, and (b.) clearly violated the 5th Amendment with regard to property rights. The case went before a federal district court and the owners of Olie’s won. The Attorney General appealed to the Supreme Court, and they found in favor of the government.

At the time, few noticed, but the Supreme Court had just changed the importance of the Bill of Rights forever. You see, not only did they allow the government to push through a social agenda under the phony premise of protecting “commerce,” they gave the Commerce Clause more weight then the Rights of American citizens. This ruling basically said that the government’s desire to regulate businesses, outweighs the 5th Amendment rights of the people… Which amendment would be next?

Empathy is a quality that we admire in every-day life, but our courts must remain free from it. Although the Civil Rights Act accomplished a great thing in terms of protecting the rights of minorities, the sloppy manner in which the legislation was put in to place opened the door for lawmakers to decrease personal rights in other areas. There are two cases in particular I would like to briefly mention. In 2007 Rev. Scott Hoffman (Methodist) refused to allow a lesbian couple to have a civil union ceremony in a church-owned pavilion. He offered them other locations on the ground, but said that they could not wed in a building that was used for religious meetings. The couple sued. In 2008 the Christian-run Elane Photography refused to take the photos for a same-sex marriage ceremony. This couple also sued. Both the pastor and the photographers believed they were within their 1st Amendment rights, and cited their right to religious free-exercise……both lost. The ruling in each case was the same. Non-discrimination laws can override religious freedoms. Or to put it another way, the Commerce Clause trumps the Bill of Rights.

The social implications of the Civil Rights Act are great. There are certainly many positives. However, the negatives extend far beyond the social spectrum. Once the Supreme Court granted the federal government a backdoor to limiting property rights, the effects would be felt in the economic arena as well. By this point in history, the Commerce Clause was bloated beyond anything our founding fathers could have imagined. Essentially any and all businesses were considered to be under federal authority. The U.S. government now had the right to not only monitor against abusive practices (price fixing, child labor, etc.) , but it now had the authority to regulate the day to day operations of businesses. It could regulate how much an industry produced and how much they charged for it (Part Two), and now it could even dictate the clientele to a business owner.

This is a tough era to come to an agreement on. Some would say that the freedoms lost were worth the freedoms gained, and that is a valid argument. I believe that our leaders should have been determined to not only bring about racial equality, but should have been equally determined to protect the Bill of Rights.  In the next installment, I hope to finally show how all of the cases we have covered in this series, played a role in our current economic climate. I often hear people ask, “How did we get here?” In an age where the government seems to be “bailing out” and “reorganizing” businesses at a break-neck speed, it is vital that we can clearly identify every piece of the puzzle.

I don’t have a definitive answer when it comes to the Civil Rights Movement. Instead, I would like to leave you with a few food-for-thought questions. Please consider, and decide for yourself:

• If the federal government had actually enforced existing laws which required states to stop segregation on public property, would it have led to the much-desired increase in integration on private property?
• Some industries (especially the bus companies), wished to integrate for years, but had been forced to continue segregation by certain state governments. If the states had been forced to stop interfering in private business would integration have happened naturally?
• If some business that desired to integrate had been permitted to do so, would market pressures (possibility of increased sales and customer count, threats of boycotts and pickets) have forced other businesses to integrate as well?
• Would amending the constitution have been a better option than expansion of the Commerce Clause?
• If you ran the world in 1964, how would you have stopped segregation?

Part Four