The election and the meltdownPart 2

Led by Jon RolandAustin, Texas

2008 December 18

Bill of Rights DayDecember 15

The Bill of Rights were the first ten amendments to the U.S. Constitution introduced to avoid broad construction of delegated powers that might infringe them.

But if they were to be bars against broad construction of powers, then how does one get to the position in DC v. Heller that one of the rights, the right to keep and bear arms, was subject to “reasonable regulation”, stated in the dicta written by Justice Scalia?

Courts have allowed as constitutional the exercise of powers that have only an incidental impact on the exercise of a right, saying it does not impose an “undue burden” on the exercise.

For example, a 5% sales tax on newspapers is not deemed an undue burden on the First Amendment right of free press if it is also imposed on almost all other commercial items, but would be if the rate were higher on newspapers or newsprint than on other things, or even more if it were selectively applied to a few disfavored newspapers.

The door was opened to the direct regulation of rights by the comment of Justice Oliver Wendell Holmes, jr., that one could be prosecuted for falsely yelling fire in a crowded auditorium.-- Schenck v. United States, 249 U.S. 47, 52 (1919).

Strictly speaking, the act to be prosecuted is not speech per se, but “inciting a riot” that only happened to be achieved by speech, but that was enough for lawyers anxious to push the door wider.

This has led to:

Pornography statutes (U.S. and state) Mail fraud statutes (U.S.) Wire fraud statutes (U.S.) “Commercial speech” regulation (U.S. and state) Campaign finance statutes (U.S. and state) “Hate speech” statutes (state) Flag burning statutes (state) Criminal libel statutes (Colorado)

And for the Second Amendment:

Statute making it illegal to possess an untaxed weapon, imposing a tax on it, and refusing to accept payment of the tax.

Ban on post-1986 full-auto firearms. Findings of some weapons to be “destructive

devices”, prohibited without registration, then making it difficult or impossible to register them.

Statutes banning possession by “felons”, drug users, mentally unbalanced, or those under restraining order.

DC Council now demands:

Handguns be re-registered every 3 years. Training by “certified” firearms instructor. Keeping firearms away from children. No magazines holding more than 10 rounds. No carrying outside home.

Texas requires

No open carry of handguns. No concealed carry without permit. Passing training course to get permit.

But it permits unlicensed carrying in vehicle, long guns.

Doctrine of “strict scrutiny” requires that there must be an overwhelming public interest to be served to infringe on a constitutional right.

But this mainly applies to the exercise of powers by states, because the U.S. government is not supposed to have general police powers to legislate for the health, safety, morals, and order of the public.

What steps were taken to get us to this point, that may have to be reversed to take us back to original understanding?

On the Constitution Society website we have a spreadsheet of landmark U.S. Supreme Court decisions that traces the way we have wandered away from the Constitution like a drunken sailor.

Here are some of those cases:

Goes back to 1819

McCulloch v. Maryland 17U.S. 316 4 Wh. 1819National Bank was tax-exempt federal agency. Constitution emanated from the people and was not the act of sovereign and independent States.

Next was in 1824

Gibbons v. Ogden 22U.S. 1 18249 Wh. Expanded definition of "commerce" from only transport and sale of tangible commodities to include "traffic", "navigation" or "commercial intercourse", and every species of movement of persons and things, whether for profit or not, across state lines. Expanded definition of "regulate" to be considered "plenary as to those objects".

This one led to the 14th Amendment

Barron v. Baltimore 32U.S. 243 1833Federal courts do not have jurisdiction in cases in which a citizen sues his state for violation of any of the Bill of Rights.

Subversion of jury rights begins here

Games v. Dunn 39U.S. 322 184014 Pe. When judge and jury disagree on a question of law, the decision of the judge prevails. Previously, the decision of the jury prevailed. Enabled judge to decide cases without a jury.

This led to the present financial crisis

Knox v. 79U.S. 457 1871Lee (Legal Tender Cases)

12 Wa. Congress had authority to issue treasury notes and to make them legal tender in satisfaction of antecedent debts.

This opened door to not applying all of the Bill of Rights to the states

83U.S. 36 1873Slaughterhouse Cases

Introduced notion of substantive due process and practice of selective incorporation of federal rights under the 14th Amendment.

This opened door to broad penal powers

U.S. v. Fox 95U.S. 670 1877Reversed conviction for bankruptcy fraud, but in dictum affirmed Congress has power to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government, without an express delegation of penal power, under necessary and proper clause, thereby abandoning doctrine of 1798 that Congress had no such implied penal powers.

First to exploit Slaughterhouse to refuse to apply right to a state

Hurtado v. California 110U.S. 516 1884States not required to indict by grand jury.

Major erosion of jury rights

v. U.S. 156U.S. 51,64 1895Sparf & Hansen

Jurors do not need to be informed of their power to judge the law in bringing a general verdict.

Abuse of Commerce Clause begins here

Reid v. Colorado 187U.S. 137 1902Upheld first statute, passed in 1884, to impose criminal penalties for a violation of a regulation of interstate commerce, which prohibited transportation of diseased livestock across a state line. This overturned understanding that commerce power did not imply penal power.

This opened way to abuse of taxing power

McCray v. U.S. 195U.S. 27 1904Tax may be imposed for regulatory or prohibitory purposes rather than to raise revenue.

Expansion of definition of “commerce”

v. U.S. 196U.S. 375 1905Swift & Co.

Business transactions, and the like, which are antecedent to or subsequent to a move across state lines, are conceived to be part of an integrated commercial whole and therefore subject to the reach of the commerce

Solidified precedent begun with Reid

v. McKendree 203U.S. 514 1906Illinois Central Railroad

Upheld criminal penalties for violations of regulations of interstate commerce, the first such penalties being in an act prohibiting the exportation or shipment in interstate commerce of livestock having any infectious disease, 23 Stat. 31 (1884), but held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce.

Further expanded definition of “commerce”

Caminetti v. U.S. 242U.S. 470 1917Upheld statute forbidding transportation of female across state line for noncommercial sexual purposes, to enforce majority conceptions of morality, as within the scope of the commerce clause.

Extended “commerce” to what “influences” it

U.S. v. Ferger 250U.S. 199 1919Congress has criminal jurisdiction over fraud which obstructs or influences interstate commerce.

Further expansion of “commerce”

U.S. v. Simpson 252U.S. 465 1920Further expanded definition of "interstate commerce" to include every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise. See also Caminetti v. United States, 242 U.S. 470 (1917).

Limited access to those with “standing”

Frothingham v. Mellon 262U.S. 447 1923Neither a State nor an individual citizen has standing for a remedy in the federal courts against an alleged unconstitutional act without having incurred prior actual or threatened personal injury to a legal right.

Federal “police powers” start here

Brooks v. U.S. 267U.S. 432 1925Congress can exercise a police power by regulating interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin.

Opened door to regulating speech

Gitlow v. New York 268U.S. 652 1925While holding that First Amendment right of free speech does apply to the States under 14th Amendment, it also sustained state statute making it a crime to advocate overthrow of the government, and that a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger.

First major step away from hard money

Norman v. 294U.S. 240 1935Baltimore & O.R. Co.

Sustained the power of Congress to abrogate the clauses in private contracts calling for payment in gold coin, even though such contracts were executed before the legislation was passed.

Long step toward present meltdown

Nortz v. U.S. 249U.S. 317 1935Congress may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold.

Misconstruction of “Welfare Clause”

U.S. v. Butler 297U.S. 1 1936Welfare clause is a broad grant of power rather than only a restriction on the power to tax, but struck down the Agricultural Adjustment Act of 1933 as an attempt to regulate production, a subject held to be "prohibited" to the United States by the Tenth Amendment.

Another long step

U.S. v. 304U.S. 144 1938Carolene Products Co.

The power to regulate commerce, whether with foreign nations or among the several States, comprises the power to restrain or prohibit it at all times for the welfare of the public, provided only the specific limitations imposed upon Congress' powers, as by the due process clause of the Fifth Amendment, are not transgressed.

“Commerce” further extended

v. Adkins 310U.S. 381 1940Mining is interstate commerce.Sunshine Anthracite Coal Co.

Major step to expand federal powers

U.S. v. Darby 312U.S. 100 1941Upheld indictment under Fair Labor Standards Act, which defined commerce to mean "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof", and prohibiting the shipment in interstate commerce of goods made by employees whose wages are less than the prescribed minimum but also the employment of workmen in the production of goods for such commerce at other than the prescribed wages and hours, or with child labor. Held the cumulative effect of many minor transactions with no separate effect on interstate commerce, when they are viewed as a class, may be sufficient to merit congressional regulation. Invoked McCulloch v. Maryland and Gibbons v. Ogden.

This was the clincher

Wickard v. Filburn 317U.S. 111 1942Sustained criminal prosecution of farmer under the Agricultural Adjustment Act of 1938 for consuming his own grain, which was subject to price and production controls, as having a "substantial effect" on interstate commerce because it would "overhang" the market.