The Grand Old Plan

Once upon a time in America the bankers and Wall Street tycoons got so greedy that they wrecked the economy.  Their greed precipitated a time called the Great Depression.  In response to hunger, homelessness, and hopelessness America elected a Democratic President named Franklin Delano Roosevelt.

 

Prior to Roosevelt the Supreme Court followed a judicial theory called Substantive Due Process, or in terms of the Lochner Era economic due process.  During this time, the Lochner Era, courts struck down laws regulating the workplace as violating the substance of the Contract Clause. 

 

In Allgeyer v. Louisiana, 165 U.S. 578 (1897), which is considered the foundation of the Lochner Era cases, the Supreme Court ruled that a state may not legislate in a manner designed to deprive its citizens of the rights guaranteed under the Due Process Clause of the 14th Amendment.  The Louisiana Constitution prohibited foreign corporations from doing business in Louisiana, unless they had a place of business and an authorized agent within the state.  A New York Company was selling policies in Louisiana. Allgeyer bought a policy to cover goods being shipped by sea from the port of New Orleans.  He was convicted in the state court.  In this case the Supreme Court chose to address the problem by ruling on behalf of the citizen, not the state or the corporation.  Hence, Allgeyer, while providing a basis for Lochnerism is distinguishable from that case.

Lochner v. New York, 198 U.S. 45 (1905) is about a state law passed by New York which said bakery employees could not work more than 60 hours a week or 10 hours a day.  The state justified this law, as a valid exercise of the Police Powers, because it protects the health of the workers.  The Police Powers stem from the Tenth Amendment and is used by the states and local governments to preserve and protect the safety, health, welfare, and morals of the community.  

The Supreme Court sided with the bakery owner and said the law violated the bakery owner's right to contract protected by the 14th Amendment.  The Court held that the law was not justified on the basis of protecting the health of the employees.

Adair v. United States, 208 U.S. 161 (1907) is a case in which the Court struck down a federal law prohibiting Yellow Dog Contracts.  These contracts were used by railroad companies and required, as a condition of employment, that the prospective employee agree not to join a union.  Here the Court sided with the railroads saying the law was an "invasion of personal liberty, as well as of the right of property, guaranteed by the Fifth Amendment to the Constitution of the United States, and is therefore unenforceable as repugnant to the declaration of that amendment that no person shall be deprived of liberty or property without due process of law."

Another Yellow Dog Contract case, this time striking down a state law, came from the Sunflower State.  In Coppage v. Kansas, 236 U.S. 1 (1915) Kansas found the Yellow Dog Contracts to be coercive.  The Supreme Court did not agree.  The Court said, in part, "since a state may not strike down the rights of liberty or property directly, it may not do so indirectly, as by declaring in effect that the public good requires the removal of those inequalities that are but the normal and inevitable result of the exercise of those rights, and then invoking the police power in order to remove the inequalities, without other object in view."

Next the Court struck down a Washington state law, written with the support of the Department of Labor, that prevented privately owned employment agencies from assessing fees for their services.  The Court, in Adams v. Tanner, 244 U.S. 590 (1917) held that the Washington law "is arbitrary and oppressive, and that it unduly restricts the liberty of appellants, guaranteed by the Fourteenth Amendment, to engage in a useful business."

Child Labor Laws were ruled unconstitutional in Hammer v. Dagenhart, 247 U.S. 251 (1918).  And here boys and girls is where today's Republican Party wants to return, pay close attention.  Congress passed a law prohibiting "transportation in interstate commerce of goods made at a factory in which, within thirty days prior to their removal there from, children under the age of 14 years have been employed or permitted to work, or children between the ages of 14 and 16 years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of 7 P.M. or before the hour of 6 A.M." 

 

In a world view repugnant to our contemporary view of humanity, citizenship, and decency the Supreme Court said "In our view, the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus, the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend. The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that, 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."

Attacking Unions was the theme of Duplex Printing Press Co. v. Deering, 41 S. Ct. 172 (1921).  Here the Court examined the Clayton Antitrust Act and determined that a prior ruling in Lowe v. Lawlor, 208 U.S. 274 (1908) which prohibited secondary economic boycotts to violate the Sherman Antitrust Act.  The Union and its members were held collectively and individually accountable.  Mr. Justice Brandeis saw it differently in his dissent, which in part he said: "The voluntary adoption of a rule not to work on nonunion made material and its enforcement differs only in degree from such voluntary rule and its enforcement in a particular case. Such a determination also differs entirely from a general boycott of a particular dealer or manufacturer with a malicious intent and purpose to destroy the good will or business of such dealer or manufacturer."

Child Labor Laws were again ruled unconstitutional in Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). At issue was the 1919 Child Labor Tax Law.  The law, in pertinent part said, SEC. 1200. That every person (other than a bona fide boys' or girls' canning club recognized by the Agricultural Department of a State and of the United States) operating (a) any mine or quarry situated in the United States in which children under the age of sixteen years have been employed or permitted to work during any portion of the taxable year; or (b) any mill, cannery, workshop, factory, or manufacturing establishment situated in the United States in which children under the age of fourteen years have been employed or permitted to work, or children between the ages of fourteen and sixteen have been employed or permitted to work more than eight hours in any day or more than six days in any week, or after the hour of seven o'clock post meridian, or before the hour of six o'clock ante meridian, during any portion of the taxable year, shall pay for each taxable year, in addition to all other taxes imposed by law, an excise tax equivalent to 10 percentum of the entire net profits received or accrued for such year from the sale or disposition of the product of such mine, quarry, mill, cannery, workshop, factory, or manufacturing establishment."

Harkening back to their ruling in Hammer v. Dagenhart the Court said Congress could not impose a penalty in an area in which they lacked authority to regulate.

Minimum Wage Laws for women and children were ruled unconstitutional in Adkins v. Children's Hospital, 261 U.S. 525 (1923).  Here the Court held the law violated the individual rights to contract and the liberties guaranteed to the parties under the 5th and 14th Amendments.  The Court neatly equated the bargaining positions of individual women and children as being comparable. Clearly they were not

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Food Security wasn't even a notion, the way we consider it, when United States v. Butler, 297 U.S. 1 (1936).  Nonetheless, the Court ruled that "Regulation and control of agricultural production are beyond the powers delegated to the Federal Government." Can you imagine a world in which the USDA did not protect the food supply?

 

Minimum Wage was a main issue with the Bituminous Coal Conservation Act, also known as the 1935 Guffey Coal Act.  Congress  regulated prices, minimum wages, maximum hours, and "fair practices" of the coal industry. The Court ruled the mining of coal was not commerce and the establishment of minimum wages was a price fixing scheme.

The switch in time that saved nine refers to a Court-packing plan by President Roosevelt which would have added sufficient seats to the Supreme Court to change the jurisprudence of the Court.  It happened when Associate Justice Owen J. Roberts moved away from Substantive Due Process in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), a minimum wage case, which excluded men.

From the syllabus:

1. Deprivation of liberty to contract is forbidden by the Constitution if without due process of law, but restraint or regulation of this liberty, if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process.

2. In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.

3. The State has a special interest in protecting women against employment contracts which through poor working conditions, long hours or scant wages may leave them inadequately supported and undermine their health; because:

(1) The health of women is peculiarly related to the vigor of the race;

(2) Women are especially liable to be overreached and exploited by unscrupulous employers; and

(3) This exploitation and denial of a living wage is not only detrimental to the health and wellbeing of the women affected, but casts a direct burden for their support upon the community. Pp. 394, 398, et seq.

4. Judicial notice is taken of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved.

5. A state law for the setting of minimum wages for women is not an arbitrary discrimination because it does not extend to men.

6. A statute of the State of Washington (Laws, 1913, c. 174; Remington's Rev.Stats., 1932, § 7623 et seq.) providing for the establishment of minimum wages for women, held valid. Adkins v. Children's Hospital, 261 U.S. 525, is overruled; Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, distinguished. P. 400. 

   

And why you ask is this important now?

It is because Senator Tom Coburn has dropped his “Enumerated Powers Act of 2013,” into the hopper.  This bill is cosponsored by “Senators Ayotte (R-NH), Barrasso (R-WY), Blunt (R-MO), Boozman (R-AR), Burr (R-NC), Chambliss (R-GA), Coats (R-IN), Corker (R-TN), Cornyn (R-TX), Crapo (R-ID), Cruz (R-TX), Enzi (R-WY), Fischer (R-NE), Flake (R-AZ), Graham (R-SC), Grassley (R-IA), Hatch (R-UT), Heller (R-NV), Inhofe (R-OK), Isakson (R-GA), Johnson (R-WI), Lee (R-UT), McCain (R-AZ), McConnell (R-KY), Moran (R-KS), Risch (R-ID), Roberts (R-KS), Rubio (R-FL), Scott (R-SC), Sessions (R-AL), Thune (R-SD), Toomey (R-PA), Vitter (R-LA), and Wicker (R-MS).”

Think Progress has an excellent article which blueprints the Grand Old Plan to return to the days of Substantive Due Process.  They write: "To translate this language a bit, in the late 19th Century, the Supreme Court embraced an unusually narrow interpretation of the Constitution’s provision enabling Congress to 'regulate commerce . . . among the several states.' Under this narrow reading, which lasted less than half a century, the justices said that they would only permit federal laws that regulated the transport of goods for sale or a sale itself. Manufacturing, mining, production and agriculture were all held to be beyond federal regulation. This theory was the basis for several decisions striking down basic labor protections, including a 1918 decision declaring a child labor law unconstitutional.

The article is at http://tinyurl.com/mbbjkwl.

ONLY 415 DAYS TO THE NEXT KANSAS DEMOCRATIC PRIMARY

There are 415 days before the Kansas Democratic primary.  Democrats wanting to replace Sam Brownback as Governor, Jeff Colyer as Lieutenant Governor, Kris Kobach as Secretary of State, Derek Schmidt as Attorney General, or Ron Estes as Treasurer need to start doing their homework now.  Also Insurance Commissioner is up for election.  Sandy Praeger's final term is up, and the Kansas City Star opines that she no longer fits into today's more radicalized Republican Party.  Also up are the 125 seats in the Kansas House, where the GOP leads 92 to 125

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Whether you want to run for a statewide office or for a House seat, now is the time to start building your team.  Loyal Democrats tend to head up the county organizations.  Some of these local party operations are well organized but most are not.  Do not be discouraged.  Your job between now and then, especially in the House Districts is to build your team, and you have time.

An effective way to make sure you have great contact information for the Democratic and Unaffiliated voters in your district is to go out and speak with them.  While you are going through this introductory phase of your campaign put the focus on the voters, find out what their interests are.  When they begin to realize that you'll go to Topeka and work for them and not just the rich people or the corporations then they are going to remember who you are. 

 

One big mistake candidates make, and they tend to do this because they are desperate for money to run the campaign, is the nonstop request for money.  Politicians sound like tired kids demanding candy in the checkout lines of the local grocery store.  Don't lead with a fundraising component.  But ask if they are on Facebook or Twitter.  Get their information and friend or invite them.  If not ask for the email so you can stay in touch.

One county chairman, an old timer who has served a decade or more in this role, after absolving himself of all responsibility for the defeat of all Democratic candidates asked if it would be alright to mail all the Democrats in the county a letter asking for their phone numbers.  No, I wanted to scream.  Get off your lazy keister and go knock on doors, I wanted to interject.  But something in Scripture about casting pearls before swine ran through my mind.

If you want to run for office you need to go knock doors.  You will others who will work for your campaign.  Here's an idea.  If you have a bunch of go-getters on your team why not have them file to run for the committeemen and committeewomen positions on your county's central committee.  This way you have your team making the whole party stronger.

Don't forget to ask if there are additional unregistered voters at the house.  Our numbers tend to take a dive when it comes to younger voters.  By getting the social networking and email contact information in your database you are better poised to reach these new voters.

So you think you want to run for office?  That's great, now go start talking to people.  Tell them who you are and what bothers you about state government.  Ask them what bothers them.  Take notes.  Find out who is on your central committee and introduce yourself to them.  Start attending their meetings.  Get a Facebook and a Twitter set up to explore your candidacy.  If in doubt what to do next, go knock on a door in your district.

ARE REPUBLICAN FARMERS CONTENT WITH RYAN'S REPEAL OF FARM SUBSIDIES?

In the name of deficit reduction, the House Republicans passed another version of Paul Ryan's Ayn Rand inspired budget.   We will have to wait and see how farmers react to this budget, since it is their ox getting gored by the Republican Representatives for whom they tend to vote.  That's right, Ryan puts farm subsidies on the chopping block. 

Ryan's web page reports that "With farm profitability – and deficits – continuing at high levels, it is time to adjust support to this industry to reflect economic realities. This budget proposes two major reforms to achieve this: First, reduce the fixed payments that go to farmers irrespective of price levels, to reflect that soaring commodity prices are reducing the need for high levels of farm-income support. Second, reform the open-ended nature of government’s support for crop insurance, so that agricultural producers assume the same kind of responsibility for managing risk that other businesses do."

Roger Johnson, President of the National Farmers Union, said "The Republican Leadership in the House of Representatives and Budget Committee Chairman Paul Ryan, R-Wis., have put forward an unrealistic and ill-advised budget. Their Fiscal Year 2014 budget proposal would cut $31 billion from farm programs – on top of the reductions that have already come by way of the farm bill extension and the sequester – and will turn the Supplemental Nutrition Assistance Program (SNAP) into block grants for states. The depth of the cuts to SNAP appear to be similar to last year’s House budget proposal, which totaled $134 billion. In 2012, the House Agriculture Committee passed a farm bill that would have cut $16 billion and the Senate passed their own farm bill with a $4 billion cut to SNAP.

"We are certainly willing to do our fair share for deficit reduction, but these projected cuts to farm bill programs are many times larger than proportionate and will likely make it impossible to pass a five-year farm bill," Johnson said.

The money for SNAP being sent to the states in the form of block grants may work in some places.  It would not work in Kansas which is facing record deficits because of Governor Brownback's ill conceived  tax policies.  Remember what the states did with the millions they received from the tobacco settlement?  Cash strapped states will squander money from the block grants at the expense of the hungry.

A LESSON ABOUT MERIT SELECTION OF JUDGES FROM THE ASSASSINATION OF LEON JORDAN

The assassination of Kansas City, Missouri civil rights activist and State Representative Leon Jordan on July 15, 1970 carries a message to Republicans in the Kansas Legislature: Don't politicize judicial elections.

One of many factors for Jordan's death was his failure to make an accommodation on behalf of a member of Kansas City's "black mafia with a judge who owed allegiance to Jordan's political organization, Freedom Incorporated.

Lord Acton is well known for the adage “Power tends to corrupt and absolute power corrupt absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.” 

When powerful elements want favor, they can get it from a partisan judiciary that owes its allegiance to the whims of the ballot box.  An independent judiciary, free from partisan political pressure, is insulated from granting favor and perverting the role of justice in society.

Currently Kansas has merit selection of judges.  Under existing law, vacancies in the Court of Appeals are filled by appointment of the Governor from a panel of three nominees who have been determined to be qualified to serve as judges of the Court of Appeals by the Supreme Court Nominating Commission.

Kansas did not come to merit selection of judges willy-nilly.  In 1956 Democratic candidate for Governor, George Docking, Republican Warren Shaw, who had defeated Republican Governor Fred Hall in the primary.  Chief Justice Smith then resigned due to ill health.  Hall resigned from office and his Lieutenant Governor, John McCuish took the oath of office becoming Governor.  McCuish immediately appointed Hall to replace Smith on the Kansas high court.  The political scandal was called the triple play.

It is imperative to keep politics and the potential for corruption out of selecting appellate judges in Kansas.  A bill, H.B. 2019 is matriculating through the legislature with the intent of abolishing the merit selection of appellate court judges.  Let your Representative know that you oppose H.B. 2019.

SPEAKER BOEHNER IS MAKING AN ASS OF HIMSELF

John Boehner just made an ass of himself.  He did it this way: "The president "is going all over the country holding rallies instead of sitting down with Senate leaders," while, Boehner argued, "We have moved a bill in the House twice." "We should not have to move a third bill before the Senate gets off their ass and begins to do something," he added. http://www.cbsnews.com/8301-250_162-57571323/on-sequester-boehner-tells-senate-to-get-off-their-ass/.

Why, you ask did Boehner make an ass of himself?  Because this is February, 2013 which means we are in the second month of the 113th Congress.  During the 113th Congress has been in session 21 days, http://thomas.loc.gov/home/ds/h1131.html; today will make the 22nd day.  That's right, the 113th Congress convened on January 3rd, now the rest of working America had to suit up and show up for 39 of those 55days.   Assuming they got the two day weekends off. 

 

Boehner would mislead you into believing that the House of Representatives has acted twice in those 39 days.  They haven't.  The bills to which Mr. Boehner referred are the same bills the House GOP spin machine fed Lynn Jenkins to spew out in her email to me.  You recall, H.R. 6365 (a bill by former Representative Allen B. West exempting the military from any budget cuts and H.R. 5652 (that infamous Ryan budget).

So politicians lie, we should expect politicians to lie, and how does this make the Speaker of the House of Representatives an ass, you ask?  Just as Representative West no longer having a vote in the 133th session, so also are all of the bills passed by one chamber but not passed by the other null and void. All bills not passed by both houses of Congress and signed by the President expire.  The authority for those bills to continue through the legislative process lapsed with the termination of the session of Congress.

Well, isn't it time for the Senate to get off its ass anyway?  Maybe, but were the Senators to cease endless gridlock and pass a bill pertaining to revenue it would be a meaningless gesture.  What?  It is that little known document, the great secret that Boehner hasn't yet been able to synthesize into his Speakership.  It is called the Constitution.

Article 1 Section 7 of the Constitution says: "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills."  It is the job of the House of Representative, of Speaker Boehner, of House Republicans to open up the legislative process and get the ball going on a compromise to avoid sequestration, which is now appropriately called Boehnerquestration. 

 

If John Boehner doesn't know the basics of Article 1 of the Constitution then he is not qualified to be the Speaker of the House.  I suspect he does, he is just making an ass of himself.

Lynn Jenkins Reminds us SHE'S FOR THE 1%

Lynn Jenkins sent me an email describing her position on avoiding the sequester.  In her missive Representative Jenkins noted that she supported H.R. 5652 (112th Congress) as a better solution to avoiding the Boehnerquester.  Now most people will take that at face value, being accustomed to being spoon fed information.  I, however, am not one to accept Jenkins's propaganda machine's output as Gospel.

H.R. 5652 (112th Congress) is terrible legislation that tries to bury the progress made during President Obama's first term.  There is a lot wrong with the bill, and you may see more than one blog on this bill.  It is that bad!

In this piece of work Jenkins turns to one of her favorite topics, protecting Golden Parachutes for the executives that, in the true vulture capitalist tradition, wreck their businesses while skating off with massive ill gotten gains in the form of bonuses and other compensation.

The Dodd-Frank Act §210 puts it this way: "The FDIC may avoid or invalidate certain prior transfers, agreements, leases, or compensation to executives that hinder the ability of the FDIC to carry out its duties."  Those duties are winding down the failed business while providing that claimants get at least as much as they would have received under a bankruptcy liquidation."  In bankruptcy parlance that means the FDIC can reach back and bring those monies back into the estate to be liquidated.

What, you ask is Jenkins's voting record on Golden Parachutes?  Let's review.

From this Blog on June 5, 2010:  Lynn Jenkins never saw a Golden Parachute she didn't like. H.R. 1664, and the title says it all: "To amend the executive compensation provisions of the Emergency Economic Stabilization Act of 2008 to prohibit unreasonable and excessive compensation and compensation not based on performance standards." This is another attempt to reign in Wall Street Fat Cats giving themselves big paychecks and bonuses on the taxpayers dime. Lynn Jenkins voted against us and for the Wall Street Fat Cats on roll call 247.

Then on June 10, 2010: H.R. 3269 the CORPORATE AND FINANCIAL INSTITUTION COMPENSATION ACT OF 2009 gives stockholders rights some teeth when it comes to executive compensation and golden parachutes. This bill gives the Securities and Exchange Commission authority to make rules regarding these compensation packages. Lynn Jenkins loves those golden parachutes. Again she votes to keep exorbitant executive pay packages and those golden parachutes they way they are. In roll call 686 Lynn Jenkins voted against H.R. 3269.

On September 28, 2010 I wrote:  Lynn Jenkins voted several times to do nothing about those Golden Parachutes being paid out of taxpayer money. She voted against letting shareholders have a mandatory binding vote on exorbitant executive pay practices, H.R. 3269.  She voted against a bill allowing the Treasury Secretary  prohibit financial institutions from paying excessive executive pay from taxpayer money, H.R. 384 and H.R. 1664. She consistently voted against restraints on executive pay for Big Bankers while the Big Banks are being Bailed Out! H.R. 3269 contained one weak provision permitting non-binding shareholder votes on Golden Parachutes, which Lynn Jenkins voted against.

It is clear that at every opportunity to support Wall Street, Big Banks, and the Silk Stocking Financial Sector Lynn Jenkins is with them and against us.  Why she would remind us of her callous disregard for the people during this debate over the sequester is baffling.  She does not represent us, she represents the 1% and you waste your vote on them when you vote for her.

Cool Chicks from History, http://coolchicksfromhistory.tumblr.com/, posted the following Washington Post article on Tumblr. When I read the piece two things struck me. 

First, society has come a long way from the protective paternalism demonstrated here.  Men imposed their notions of protecting women by shielding them from obvious facts. Those were the days when such things were not discussed. The editor of the Honolulu-Star Bulletin did not publish the article because it might further frighten the women of Honolulu. He is oblivious to the reality that humans communicate, and for a newspaper editor that is irony. Those women were already finding a voice and sharing their common experiences. Having their story published would have given cohesion to their initiation to war, serving to make permanent the record of events from their perspective.

Second, at the end of the article the author, Elizabeth McIntosh, told another story, that of the women who had known war, World War I. Those women remained prepared against the day when terror came calling. They were able to jump right in and assist in the war effort. Why, I wonder, didn't the editor give the reporter instructions to expand on that effort?

Here is the link to the video that accompanied the article:

http://www.washingtonpost.com/video/thefold/a-reporter-remembers-the-vision-of-death-at-pearl-harbor/2012/12/05/a91c939a-3f3e-11e2-bca3-aadc9b7e29c5_video.html.

Here is the link to the article:

http://www.washingtonpost.com/opinions/honolulu-after-pearl-harbor-a-report-published-for-the-first-time-71-years-later/2012/12/06/e9029986-3d69-11e2-bca3-aadc9b7e29c5_story.html