Foundations of the Egalitarian Regime, Part 2

​The Commerce Clause and the Civil Rights Act 

Ostensibly, the commerce power of Congress traces its source to Article I, Section VIII, of the Constitution: “The Congress shall have power…To regulate Commerce…among the several States.” The judicial misconstruction of “commerce” forms the basis of Congress’ supposed authority to pass the Civil Rights Act of 1964, and, by extension, all of the Civil Rights acts that have followed; it is thus imperative that we understand how this misconstruction was invented. In Hammer v. Dagenhart, Justice Day quite presciently warned of the vast potential for abuse of the commerce power; he asserted that “the grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the States in their exercise of the police power…The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment…if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated and thus our system of government be practically destroyed.”

In Carter v. Carter Coal Company, Justice Sutherland elaborated that warning further, writing that “the proposition, often advanced and as often discredited, that the power of the federal government inherently expands to purposes affecting the Nation as a whole…and the related notion that Congress, entirely apart from those powers delegated by the Constitution, may enact laws to promote the general welfare, have never been accepted but always definitely rejected by this court…[The Framers’ Convention] declined to confer upon Congress power in such general terms; instead…it carefully limited the powers which it thought wise to entrust to Congress by specifying them, thereby denying all others…It made no grant of authority to Congress to legislate substantively for the general welfare…Every journey to a forbidden end begins with the first step; and the danger of such a step by the federal government in the direction of taking over the powers of the States is that the end of the journey may find the States so despoiled of their powers…as to reduce them to little more than geographical subdivisions of the national domain. It is safe to say that if, when the Constitution was under consideration, it had been thought that any such danger lurked behind its plain words, it would never have been ratified…As used in the Constitution, the word ‘commerce’ is the equivalent of the phrase ‘intercourse for the purposes of trade.’”

It was during the New Deal that the Supreme Court bastardized “commerce.” In NLRB v. Jones & Laughlin, the Supreme Court held that local activities are regulable by Congress so long as they have a direct and substantial effect on “interstate commerce”. This newfound exercise of the commerce power to interfere within the States was expanded further in U.S. v. Darby, in which Congress’ commerce power was deemed to be plenary, “complete in itself”; the Tenth Amendment was dismissed as a mere “truism”, completing its vitiation, initiated so long ago by Chief Justice John Marshall. Following Marshall’s 1824 Gibbons v. Ogden expansion of the definition of “commerce” to mean anything and everything affecting “commerce”, in the circular logic of unlimited power, the Court found its groove in the specious Wickard v. Filburn, in which Roosevelt’s 1938 Agricultural Adjustment Act was upheld to penalize a farmer for growing wheat over his allotment. In other words, a farmer was told what quantity of what crop he was permitted to grow, extending even to consumption by his own family. Commerce, it was thus established, meant anything that Congress said it did. At ever-increasing levels of abstraction, you see, everything affects the economy; all activities may be held to be “economic”.

Herein lies the absolute absurdity of the “reasoning” Congress used to imbue itself with the authority to pass the Civil Rights Act, affirmed time and again by the Supreme Court. Gerald Gunther wrote to the Department of Justice shortly before the bill was passed, stating with aplomb that “the proposed end-run by way of the Commerce Clause seems to me ill-advised in every respect…of course…the commerce power is a temptingly broad one. But surely responsible statutory drafting should have a firmer basis than…some of the loose talk in recent newspaper articles about the widely accepted, unrestricted availability of the Commerce Clause to achieve social ends…the substantive content of the Commerce Clause would have to be drained beyond any point yet reached to justify the simplistic argument that all intrastate activity may be subjected to any kind of national regulation merely because some formal crossing of an interstate boundary once took place…The aim of the proposed anti-discrimination legislation…is quite unrelated to any concern with national commerce in any substantive sense. It would…pervert the meaning and purpose of the Commerce Clause to invoke it as the basis for this legislation.” In this vein, Senator Strom Thurmond noted that, rather than aiming “to regulate economic affairs of life”, the Civil Rights Act was designed “to regulate moral and social affairs.”

Attorney General Robert Kennedy outlined the entirety of the Johnson Administration’s argument — discrimination had a “very adverse effect on our economy.” Assistant Attorney General Burke Marshall elaborated that “discrimination burdens Negro interstate travelers and therefore inhibits interstate travel. It artificially restricts the market available for interstate goods and services…It inhibits the holding of conventions and meetings in segregated cities…And it restricts business enterprises in their choice of location for offices and plants, thus preventing the most effective allocation of national resources.” The Supreme Court used a greater quantity of words to convey the same prima facie obtuse reasoning. In Heart of Atlanta Motel v. United States, Justice Clark affirmed that the Commerce Clause conferred upon Congress “ample power” to rewrite the Constitution, based on testimony that “millions of people of all races travel from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same [this may or may not have even been accurate]; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight; and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself ‘dramatic testimony to the difficulties’ Negroes encounter in travel…This testimony indicated a qualitative, as well as quantitative, effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler's pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community.”
  
Justice Clark repeated these extraordinarily vigorous mental gymnastics, working backwards to a preordained conclusion, in Katzenbach v. McClung, arguing that the proffered testimony was “replete with…the burdens placed on interstate commerce by racial discrimination in restaurants. A comparison of per capita spending by Negroes…indicated less spending…in areas where discrimination is widely practiced…This diminutive spending springing from a refusal to serve Negroes and their total loss as customers has, regardless of the absence of direct evidence [emphasis mine], a close connection to interstate commerce. The fewer customers a restaurant enjoys, the less food it sells and consequently the less it buys…Likewise…discrimination deterred professional, as well as skilled, people from moving into areas where such practices occurred and thereby caused industry to be reluctant to establish there. [this is not even accurate, and is the precursor to the specious arguments today about the supposed economic benefits of diversity, which is demonstrably nothing but a detriment in every respect] We believe…the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new businesses refrained from establishing there as a result.” Need we expound upon this result-oriented “jurisprudence”? It strains credulity to argue that segregation by private entities is within the purview of “commerce.” By this logic, just as Justices Day and Sutherland warned, everything comes under the yoke of Congress. In both Heart of Atlanta and Katzenbach, Justices Black and Goldberg implied that Congress would also have the power to pass the Civil Rights Act under the Fourteenth Amendment; this is patently false, though, for not only can the Fourteenth Amendment only be employed against State action, rather than private action, but that Amendment itself, as we shall see, did not and does not prohibit segregation.

As part of the long attack on Maurice Bessinger, the Court held in Newman v. Piggie Park Enterprises that “this court has a mandate…to conclude that all products sold to defendant as food by its producers which have moved in interstate commerce into this state in some form, even though they may have been slaughtered or otherwise processed after arrival here, are to be considered as food which has moved in commerce…by including all foodstuffs served by the defendant during the periods under consideration which have moved in interstate commerce the court has concluded that at least forty percent of the same has moved in commerce and unquestionably constitutes a "substantial" portion of the total food which it serves in all of its six locations…the direct evidence produced by plaintiffs that defendant serves or offers to serve interstate travelers is slight, unimpressive and inconclusive; however, from all the circumstances before the court there is no doubt but that defendant has served and is serving interstate travelers…it employs no reasonably effective means of determining whether its customers are inter- or intra-state travelers. The court, therefore, concludes that defendant serves or offers to serve interstate travelers at all of its locations.” To reiterate, the Court believes that if our lives involve anything that has ever left our State, it is regulable.

The late Justice Scalia expounded wonderfully upon the potential omnipotence with which the Court has invested Congress’ commerce power in his dissent in National Federation of Independent Business v. Sebelius, the “Obamacare” case. Scalia recognized that “it is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end…[The Court] treats the Constitution as though it is an enumeration of those problems that the Federal Government can address…The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers.” The Constitution does not have as its maxim that revolutionary incantation that “the ends justify the means.” For any and all government action, it is our solemn obligation to ascertain precisely from whence in the Constitution it draws its power from. Powers must be traced to their source.

Justice Thomas, in his concurrence in United States v. Lopez, ably summarized the rotten core of Congress’ commerce power. Thomas wrote that “our case law has drifted far from the original understanding of the Commerce Clause…At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes…when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably…The Constitution not only uses the word ‘commerce’ in a narrower sense than our case law might suggest, [but] it also does not support the proposition that Congress has authority over all activities that ‘substantially affect’ interstate commerce. The Constitution does not state that Congress may ‘regulate matters that substantially affect commerce…among the several States…’ In contrast, the Constitution itself temporarily prohibited Amendments that would ‘affect’ Congress’ lack of authority to prohibit or restrict the slave trade…Clearly, the Framers could have drafted a Constitution that contained a ‘substantially affects interstate commerce’ Clause had that been their objective…[The Court’s] construction of the scope of Congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution.” Thomas was slightly mistaken in noting that one could read the Court’s precedent as making that shocking declaration — that is exactly how the Court has come to brutalize the Constitution.

The Civil Rights Act of 1964, with only the flimsy foundation of a nonsensically expansive definition of “commerce” as “anything and everything with any potential economic impact whatsoever”, has revolutionized the United States of America. As we shall see in our examination of the Fourteenth Amendment, the “civil rights” understood by our forebears has no connection at all with Civil Rights ideology; this definitional transformation has fundamentally deformed American society. Christopher Caldwell[i] explains that the Civil Rights Act inseminated an immense machinery of enforcement, concretizing a giant leap for the Egalitarian Regime and incentivizing “bureaucrats, lawyers, intellectuals, and political agitators to become the ‘eyes and ears’…the foot soldiers, of civil rights enforcement. Over time, more of the country’s institutions were brought under the act’s scrutiny. Eventually all of them were. The grounds for finding someone or something guilty of discrimination expanded.” It is perhaps no coincidence that the creation of this edifice occurred in conjunction with the massive injection of federal money into the university system.

As Civil Rights “hardened into a body of legislation, [it] became…the model for an entirely new system of constantly churning political reform. Definitions of what was required in the name of justice and humanity broadened…There was something irresistible about this movement. The moral prestige and practical resources available to the American governing elite as it went about reordering society were almost limitless.” This comprehensive reorganization of America was not an addition to the Constitution, Caldwell argues, but was rather “a rival constitution, with which the original one was…incompatible…Much of what we have called ‘polarization’ or ‘incivility’ in recent years is something [graver]—it is the disagreement over which of the two constitutions shall prevail: the de jure Constitution of 1788, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the de facto constitution of 1964, which lacks this traditional…legitimacy but commands the near-unanimous endorsement of judicial elites and civic educators and the passionate allegiance of those who received it as a liberation.”

Civil Rights was not merely an esoteric constitutional theory, but rather “proved to be the mightiest instrument of domestic enforcement the country had ever seen…the largest undertaking of any kind in American history.” Every aspect of our society was forever altered; the original Constitution was devoured by the new, for, as Caldwell accurately states, “rights cannot simply be ‘added’ to a social contract without changing it. To establish new liberties is to extinguish others.” Every other right, including the truly fundamental rights of life, liberty, and property, was subjugated under the harness and whip of Diversity. American history was recast for generations of schoolchildren, the new “history” reinforced with each successive year. Race, Caldwell notes, “is the part of the human experience in which American schoolchildren are most painstakingly instructed. Their studies of literature, of war, of civics, are all subordinated to it. Race was invested with religious significance. It became an ethical absolute…the civil rights movement…became a doctrinal institution…there was something new…about the way the U.S. government sought to mold the whole of society — down to the most intimate private acts — around the ideology of anti-racism.” The New York Times’ “1619 Project” is emblematic of the new American history. According to the authorized Regime history, now made our official doctrine, the story of America is that of “the extension of constitutional rights and protections to people once ignored or excluded…This was the route followed by the dissident tendency within the American constitutional tradition that culminated in Civil Rights. But now Civil Rights was no dissident tendency. It was the American constitutional tradition.” The Constitution, and the Republic built upon it, were vulgarized as “a mere set of tools for resolving larger conflicts about race and human rights.”

As aforementioned, the Regime utilizes merciless censorship to further strengthen its stranglehold on American life, discrediting and ruining any dissident, no matter how slight his transgression; this censorship is to some extent governmental, but its most effective use is outsourced to private entities. This privatization of the Diversity inquisition “was an institutional innovation [that] grew directly out of Civil Rights law. Just as affirmative action in universities and corporations had privatized the enforcement of integration, the fear of litigation privatized the suppression of disagreement, or even of speculation. The government would not need to punish directly the people who dissented from its doctrines. Boards of directors and boards of trustees, fearing lawsuits, would do that…Americans in all walks of life began to talk about the smallest things as if they would have their lives destroyed for holding the wrong opinion…Cant was the only way a sensibly self-protective person would talk about race in public—and when it came to civil rights, every place was public. Because there was no statutory ‘smoking gun’ behind it, this new system of censorship was easily mistaken for a change in the public mood, although it remained a mystery how a mood so minoritarian could be so authoritative.” With respect to Silicon Valley, Michael Rectenwald has termed this enforcement mechanism “the digital gulag.”

Unconstitutional though the Civil Rights Act was and is, the American people were shanghaied. Caldwell demonstrates that all of what we have been drilled by “conservatives” to see as deviations from the core goodness of Civil Rights ideology are in fact not deviations at all; what we understand as a departure from the “colorblind” ideal that was used to foist the Act upon the public was always “baked in the cake.” The present sordid state of our civilization was always the logical consequence of the Civil Rights Act. Caldwell implies what we have long known, that traditional America was deceived into unilateral disarmament. Outside of the South, whose people understood precisely what was at stake, whites “seemed to believe it would be a simple matter to get rid of segregation, as if a system…so intricate and ingenious that it had taken three-and-a-half centuries to devise could be dismantled overnight — by sheer open-minded niceness, at no price in rights to anyone. The country could solve [the problem] without altering any of its institutions.” Moreover, Caldwell writes, “whites did not suspect they would see the vast increase in federal government oversight that would become the sine qua non of civil rights. The Congressional debate leading up to the Civil Rights Act of 1964 is filled with outright mockery of those who warned of some hitherto unimaginable federal government infringement…All sorts of constitutionalist and libertarian fears, chuckled at and pooh-poohed on the floor of the Senate, came to pass. Those who opposed the legislation proved wiser than those who sponsored it.” For example, when Senator George Smathers gave voice to concerns about forced busing, Senator Hugh Scott scoffed. Less than a decade later, busing was nationwide.

Essentially, the American people simply did not grasp that they had just been placed into the bloody talons of an insatiable Leviathan; they believed the nascent Regime when it told them that all it sought was legal equality. After that initial goal was achieved, it was “now deemed insufficient by both civil rights leaders and the government. Once its ostensible demands had been met, the civil rights movement did not disband. It grew.” Everything “would be racialized. No one would be permitted to sit back and just allow social change to happen. Every American had to be enlisted as a zealous soldier in the war on racism.” The federal government thus empowered itself to “disrupt and steer interactions that had been considered the private affairs of private citizens…It could interfere in matters of personal discretion…the government was now authorized to act against racism even if there was no evidence of any racist intent. This was an opening to arbitrary power. And once arbitrary power is conferred, it matters little what it was conferred for.” Civil Rights ideology initiated a crude new politics that uses “lawsuits, shaming, and street power to overrule democratic politics.” The Civil Rights Act, Caldwell notes, thus “wrought a change in the country’s constitutional culture [and] had given progressives control over the most important levers of government, control that would endure for as long as the public was afraid of being called racist…The Civil Rights model of executive orders, litigation, and court-ordered redress eventually became the basis for resolving every question pitting a newly emergent idea of fairness against old traditions…Civil Rights gradually turned into a license for government to do what the Constitution would not previously have permitted…winning what its apostles saw as liberation after liberation.”

[i] Caldwell, Christopher. The Age of Entitlement: America Since the Sixties (Simon & Schuster, 2020).