RAND PAUL & THE LOCHNER ERA

Rand Paul, Tea Party Republican Candidate for U.S. Senate

Rand Paul is the Tea Party candidate running as the Republican Candidate for the United States Senate in Kentucky. He is a young man with some very old thinking. Thinking which harkens back to the early 1900's and a time known as the Lochner Era.

Recently Rand Paul has said some whacky things. He would not have voted for the Civil Rights Acts in the 1960's. He thinks government has no business telling restaurant owners who they have to let into their restaurants.

Lester Maddox

That was basically the position of Lester Maddox who owned the Pickrick Cafeteria in Atlanta. Following the Supreme Court's decision in Brown v. Board of Education and enactment of the Civil Rights Act of 1964 Maddox closed the restaurant after being ordered to desegregate by a court. Maddox thought it was his prerogative to say who could and couldn't come into his restaurant. Maddox, known for repelling African-American customers with pick axe handles and by brandishing a pistol, went on to become Georgia's Governor.

Rand says he wouldn't vote to repeal the decision. He just thinks that the property rights of the restaurant owners have been unfairly impinged upon by the courts and the Congress. Buttressing his argument, Rand extends this thinking to include the burden placed on restaurant owners, and other businesses, who now must comply with an increasing number of laws banning smoking in public places.

Rand is confusing his applesauce with his chicken manure. Rand erroneously thinks that property rights are on an equal plane with civil rights. That was the thinking espoused by an Activist Conservative Supreme Court during the Lochner Era.

In Lochner v. New York, Lochner had been convicted of a New York law which prohibited bakery employees from working more than 10 hours a day or 20 hours a week.

Associate Justice Rufus Peckham

Associate Justice Rufus Peckham delivered the opinion of the Court. He found that the Fourteenth Amendment's Due Process Clause protected Lochner's liberty to contract. This is an example of Substantive Due Process used to enforce property rights over Police Powers of the States. This errant judicial theory was subsequently overruled by the Supreme Court.

Associate Justice John M. Harlan, I

A dissent by Associate Justice John Marshall Harlan, I was joined by Associate Justices White and Day. He rejected the majority's opinion that the right to contract was an unfettered right. He said "I take it to be firmly established that what is called the liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare or to guard the public health, the public morals or the public safety."

Associate Justice Oliver Wendell Holmes

Associate Justice Oliver Wendell Holmes also wrote a dissenting opinion in which said that economic theories are not embodied in the Constitution. He said "[a] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

Rand Paul's thinking coincides with the thinking of Rufus Peckham and the Activist Conservative Supreme Court which enforced a radical theory of Substantive Due Process. They struck down statutes forbidding Yellow Dog Contracts (agreements where the employee promises not to join a union) in Coppage v Kansas, (1905). Then they struck down Minimum Wage Laws in Adkins v. Children's Hospital, (1923).

Associate Justice Owen J. Roberts

In Nebbia v. New York, The Court's opinion was delivered by Associate Justice Owen J. Roberts. There was one concurring opinion and no dissent. The opinon said "The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. Regulation of a business to prevent waste of the state's resources may be justified. And statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state's competency"

Associate Justice Harlan Fiske Stone

Civil rights litigation is premised on the famous Footnote Four of United States v. Carolene Products. Justice Harlan Fisk Stone laid the foundation for levels of judicial scrutiny with a preliminary analysis of fundamental rights and suspect classifications. That footnote reads:

"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth…

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry"

If Rand Paul would have his way then the States' Police Powers would be diminished, environmental laws mangled, minimum wage and worker safety laws would be threatened, to say nothing about the right to join a union. Rand Paul is a young mind trapped in the Lochner Era. We do not need to return to Conservative Judicial Activism and the likes of Associate Justice Rufus Peckham.

ANCHOR BABIES

State Senator Russell Pearce is the man who brought us Arizona SB1070. That would be the infamous "Show Me Your Papers Law" recently signed into law by Arizona Governor Jan Brewer and being challenged preemptively by a sizeable number of plaintiffs.

Pearce previous authored another jewel of racial lunacy. That was SB 1108 back in 2008. Today's version is on its way to becoming law as State Education Superintendent Tom Horne and Governor Jan Brewer are both on board with the newly signed Arizona House Bill 2281, the Ethnic Studies law. Horne wants to become Arizona's next Attorney General.

Among the subjective criteria the anti-ethnic studies statute, and Horne's new policy announces, are classes which: 1) promote the overthrow of the government of the United States, 2) promotes resentment towards a race or class of people, 3) are designed primarily for pupils of a particular ethnic group, or 4) advocates ethnic solidarity instead of the treatment of pupils as individuals.

The new law and Horne's new regulation are intended to rid the state of such evils as Tucson's Mexican-American Studies as well as Black Studies classes. These courses are to be banned even where they are optional classes. Well, so much for teaching about Saint Patrick's Day or Columbus Day!

So you see, Arizona has gone about as far as it can go. S.B. 1070 sort of copied federal immigration law, but forgot to include certain important due process considerations which the federal law and practice employs. Oh, it also kind of wants Arizona law enforcement to engage in guesswork to enforce the statute. What was that you ask, "arbitrary and capricious?" get away you're going to bother the powers that be in Arizona. And no Arizona isn't finished, these clowns in government costume can go further.

Today, before the grandchildren began to rise, I saw Senator Pearce on MSNBC. He apparently wants to rid the state of "Anchor Babies." Anchor babies are the American citizens, born in the U.S.A., whose parents are not legally in the nation. He wants Arizona to refuse to issue birth certificates to these children. Who knows maybe someday one of these uppity kids will want to become President of the United States! This ought to stop them

Senator Pearce wants to punish these American citizens because their parents failed his racist "you got be an American to procreate an American citizen" test.

Russell Pearce (at podium)

WARNING: EXTREME RIGHT-WING WING-NUT LAW IS BEING TOUTED BY SENATOR PEARCE. WARNING: APPLESAUCE IS BEING MIXED WITH CHICKEN MANURE.

Pearce relies on In Re Thenault, 47 F. Supp. 952, 953 (D.D.C. 1942), this is a case around which the Senator's apparently diminutive mind cannot be wrapped. Pearce engages in an obvious case of a person hearing only what they want to hear and rushing headlong into taking something out of context. Here is what In Re Thenault says:

"[T]he mere physical fact of birth in the country does not make these children citizens of the United States, inasmuch as they were at that time children of a duly accredited diplomatic representative of a foreign state. This is fundamental law and within the recognized exception not only to the Constitutional provision relative to citizenship, Amendment Article 14, Section I, but to the law of England and France and to our own law, from the very first settlement of the Colonies."

"Those children" which were the subject of the dispute of In Re Thenault were the offspring of diplomats, on diplomatic missions, and that is why they are considered to always be the citizen of the country which sent parents on their duty. The far right's wing nut law division fails to realize that it is this exact legal premise which makes Arizona's senior United States Senator, John McCain an American citizen.

McCain's daddy was an officer in the United States Navy stationed in the Panama Canal Zone with the Senator's feisty mom when John McCain was born.  He was not born in the United States and he is not Panamanian.

When you want everyone you don't like not to be allowed to be here, then you take the words out of context. Unfortunately the new face of the Republican Party is littered with these racists. Those who support this anchor baby rationale include Paul Rand and Brian Bilbray. Where, you ask, did all the Dixiecrats go? Gone to the Tea Party Movement of the Grand Old Party, that's where they went.

Not since yesterday's rant am I reminded of the "Conspiracy Theory" of the Fourteenth Amendment. You remember how dopey I said it was for corporations, without a soul to save or a butt to kick, could be considered to be persons. Well the fellow responsible for this was a former Senator from New York by the name of Roscoe Conklin. Conklin was one of the drafters of the Fourteenth Amendment. When he left the Senate he became a lawyer and got a deep pocket client in the form of the Southern Pacific Railway Co.

Roscoe Conklin

In a little dispute called Santa Clara County v. Southern Pacific Railway, 118 U.S. 394 (1886) he sold the notion that the Fourteenth Amendment intended for the term "persons" to include corporations. He offered up his personal diary as proof. Many of his contemporaries believed that he had gotten away with perjury as he padded his purse with his fees. Nonetheless he prevailed, and that is where the burr under yesterday's saddle was born.

This is important because Senator Pearce tries to use a very similar ruse, popular with the wing nut crowd, to justify the Fourteenth Amendment not applying to foreigners. He offers up a litany of the drafters of the Fourteenth Amendment whose words today appear to support his position.

The big difference is that Roscoe Conklin got the Supreme Court to rule in his favor. Legislative history may be useful in garnering an understanding of a statute or Constitutional provision. Legislative history is not precedent, it does not carry the weight of law, it is not the law. It is often used, as here, to rouse the rabble, not to provide a basis for codifying apparent plain error. Oh, and the Supreme Court rejected the arguments being paddled by Senator Pearce and his racist think tank.  That's the other problem with Pearce's theory,the U.S. Supreme Court ruled against it.  That's the stare decisis problem.

The University of Minnesota has a top rate review of citizenship on line. I took the following, lock, stock, and barrel from: http://www1.umn.edu/humanrts/immigrationlaw/chapter12.html

Wong Kim Ark

The Fourteenth Amendment also eliminated any doubt that persons born in the United States of non-citizen parents were citizens. Such a proposition was confirmed by the Court in United States v. Wong Kim Ark (1898). Wong Kim Ark was born in San Francisco in 1873. His parents were native-born Chinese merchants who lived in this country as resident aliens. They left the United States in 1890 and returned to China permanently. Wong Kim Ark made a temporary visit to his parents in 1894, but upon return the following year to the United States, was not permitted to land at San Francisco. The government claimed Wong Kim Ark was not a U.S. citizen but a Chinese laborer, and was barred entrance under the Chinese Exclusion Act (22 Stat. 58). He challenged his exclusion in federal court, claiming citizenship under the Fourteenth Amendment. Justice Gray, in delivering the opinion of the United States Supreme Court, rejected the government's contention that the rule of jus sanguinis -- citizenship by blood relationship -- determined nationality in the United States. To the contrary, both the Fourteenth Amendment and the Civil Rights Act of 1866 (14 Stat. 27) had explicitly reaffirmed "the fundamental principle of citizenship by birth within the dominion." Wong Kim Ark. Hence, children born in this country were citizens without regard to the nationality of their parents. Wong Kim Ark won readmission to the United States.

You can read for yourself what Senator Pearce believes, He forwarded an e-mail from a racist organization containing his ideas. Of course he made the obligatory apology. Then he went on MSNBC and regurgitated this foul thinking. That link is http://www.kpho.com/download/2010/0520/23624269.pdf

Hey, Senator Pearce, here's what the lady with the lamp has to say:

The New Colossus

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

"Keep ancient lands, your storied pomp!" cries she

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

The New Colossus, by Emma Lazarus, provides a better view of immigration than does Senator Pearce's weak arguments.