What is Liberty, and where can I find it?

Suppose that a farmer has planted wheat in his own field. He has tended that field and reaped the crop. Suppose further that the farmer has also raised some livestock. Moreover, some of the wheat that he has grown he has fed to his own livestock, some of it has sold on the open market, and some of it he has kept for his own use.

Who among us would begrudge him that?

Has not the farmer engaged in the exercise of his own liberty? Hasn't he the right to determine the fruits of his own labor? Isn't that the very essence of the promise of America, to each according to his work?

Not in this America, it isn't, because the US Congress has passed laws restricting how much wheat a farmer can grow on so many acres of land. According to the Supreme Court, because this farmer has grown wheat in excess of the amount allowed by the Federal Government, he has acted in violation of the very Constitution that guarantees his freedom.

How can that be, you ask? - It's the Commerce Clause

Because, in their wisdom (or because they bowed to the considerable political pressures of the day) the Court has ruled that because the farmer grew wheat for his own use that he otherwise would have had to buy from other wheat growers, he has acted in such a way as to deprive other growers of their ability to sell on the open market. He has thereby interfered with interstate commerce. Inasmuch as the regulation of interstate commerce is solely within the purview of the US Congress, the Congress can stop the farmer from growing "too much" wheat (Article I, Section 8, Clause 3).

So a small farmer, having acted in his own best interest is under the thumb of the Federal Government.

And along I labored under the delusion that "that which governs least governs best".

With all due respect to Jeffery Feldman, we cannot "Frame Shop" this. The Supreme Court, in this decision, has created a monster form which we must escape. If we are to stand for individual freedoms and the rights of man, we must find a way to achieve our goals while walking away from this insanity.

Why is this so important??

Because the Civil Rights Act of 1964 rests on the shoulders of the Commerce Clause, that's why. The first challenge to the Civil Rights Act of 1964 was based on the right of an individual hotel owner to refuse to serve blacks. The US Government argued successfully before the Court that the right to equal access to public accommodations is grounded in the role of the US Congress to regulate interstate commerce and equal access to trade.

Read the decision for yourself.

Isn't it jst possible that the Court overreached? Just because we agree with the outcome of the decision does it mean that we have to agree that the logic of decision itself is sound? The ends, afterall, don't justify the means.

So, supposing that the Commerce Clause can no longer be read to support the Civil Rights Act, then how can we justify that which know in our hearts is morally correct?

Can we not act at the state and local level? Is there not some other constitutional basis for the Civil Rights Act other than the Commerce Clause?

Surely we can protect the rights of the minority without trampling on the rights of the individual. Surely, as liberals, in the best sense the word, that is what we must do.

We've lost the NASCAR vote because we've relied far too long on tortured legal reasoning and overreaching Court decisions that defy common sense. It's time to reaffirm the principles of liberty in such a way that everyman can understand; in such a way that everyman can embrace.  

Liberalism isn't dead, it has just lost its way.

•  Freedom is on the march!

  Liberty is bringing up the rear. I would look around Samarra and Falludja, there should be some liberty showing up there any minute.

  Also, maybe the "General Welfare" thing should get some attention if the Commerce Clause is being targeted by the GOP and libertarian propaganda mills.

  by Cache on Wed Dec 15, 2004 at 09:06:15 PM PDT

•  Let us remember...

  that on the other side of this coin is the Lochner decision.  It says that a law restricting employees in a bakery to a maximum 10 hour workday is an unlawful interference with the liberty to contract.  It is a tough guess which the trend favors:  going back to a narrow view of the commerce clause, or a rush to the view that states can't interfere with the ability to contract.  

  It's hard to say which the right wants more.  

  The only things that enable us to take on these two threats are the careful selection of which cases are brought, and the realization that the judicial scene is going to be ugly to an extent yet to be determined.  That said, bring it on.  Just like seats in Congress, we have to fight it out one by one.  But unlike congressional races we have to remember that in the courts, today's loss is generally binding on the next race.  

  by Res Ipsa Loquitor on Wed Dec 15, 2004 at 10:35:09 PM PDT

  •  Contracts

    Orin Kerr, over at the Volokh Conspiracy argues that Federalism isn't coming back, which is what all this is really about. It's about the limits of the power of the Federal Government to impose its will over the individual states.

    My question is: Even if the Court decided that the post-1937 rulings have gone to far in favor of the Federal Government, would the Civil Rights gains of the last 50 years be in any real danger within the individual states, and if so, is there another Constitutional basis for preserving those rights?

    by timerigger on Thu Dec 16, 2004 at 04:59:30 AM PDT

•  Inter-Ideological Dialogues

  A few points:

  (1) I agree that the Civil Rights Act should not be based on the Commerce Clause. It should be based on the 14th Amendment. But this would be as "intrusive on personal liberty" as the Commerce Clause.

  (2) The reason it's not based on the 14th Amendment is that liberal justices are far more respectful of precedent than conservative justices are (see Bush v. Gore to remove any lingering doubts). There was precedent--totally wrongheaded precedent, but precedent nonetheless--that said the 14th Amendment couldn't be used that way. Rather than directly overturn that precedent, the Court took the easy way out, building on the Commerce Clause precedent it had at hand. [I have no deep knowledge on this subject. I have read something about it years ago, but questions asking me to elaborate further will, alas, be met with pleas that I don't have the time.]

  (3) The way to overturn this whole mess would be a radical reframing of American law--which I would be all in favor of. But this would require that American politics become dominated by a dialogue between radicals and liberals, with conservatives basically consigned to the margins. Instead, we are faced with a conservative diatribe, with liberals trying to get a word in edgewise.

  (4) So, with all due respect, Frameshop is exactly what we need. Until we change the whole context of political discourse, longstanding leagal tangles like this can never be properly addressed. All you can do is make them worse by adding arbitrary zigs on top of arbitrary zags.

  (5) As pointed out above, the Lochner decision is the other side of this coin, and is a far more obvious and far-reaching outrage. Your example of a self-contained farmer is extremely marginal and/or theoretical in this day and age. It's hard to think of anything that would be more central than Lochner.

  (6) The concept of "liberty" presented here is ahistorical. If you read The Dictionary of the History of Ideas entry on Liberalism, you will find that our current notions of individual rights are actually a product of "intrusive government":

  The liberal idea of freedom arose slowly with the rise of the modern state and the gradual acceptance of religious diversity in a part of the world where the church was a unique institution and personal faith of peculiar importance.

  1. The Modern State. The modern state, as no political community before it, is both highly centralized and highly populated; its authority is extensive and pervasive. The modern state includes millions of persons....

  there are state officials everywhere, and the citizen has more to do with them than ever before. Though he rarely meets any of the men who take the important decisions, he sees pictures of them and reads or hears their words repeatedly. The "state" in one way or another is very present to him.

  This state, even where it is federal, is a tightly knit organization in which everyone's rights and duties are clearly defined. It is also quickly changing. To do what is expected of it, it must be highly adaptable and must have elaborate and precise rules for the guidance of its officers. It could not be adaptable unless procedures, powers, and obligations inside it were carefully defined.

  In the modern state the rights and obligations of the mere citizen, of the man without public authority, are also well defined. He has a variety of social roles; and his rights and duties in them, as a husband or father, as an employer or hired worker, as a man with a particular trade or profession, are defined not only?nor even principally?by custom but also by statute and by contract. He sees himself, and is seen by others, as a bearer of rights and obligations that are or ought to be definite and yet liable to change since he belongs to a changing society and his roles in it also change.

  Apart from the rights and duties attaching to some particular occupation or role, he has others that he shares with all citizens, or with all of his sex or age; or he has rights and obligations merely because he resides within the jurisdiction of the state.

  There's a lot more in this article that should modify your naive notion of what constitutes liberty.
  

  by Paul Rosenberg on Thu Dec 16, 2004 at 08:36:02 AM PDT

  •  thanks

    Thank you for taking the time to read and respond to my diary. You've given me much to think about.

    My intent in writing the diary was not to present any opinion of mine as authoritative but to enter into a dialogue such as this. I am happy to admit to my own naivete.

    Thanks as well for the recommeded reading list.  

    by timerigger on Thu Dec 16, 2004 at 11:11:33 AM PDT