I would say Wickard v. Filburn was obviously wrongly decided, and I have called it the worst Supreme Court decision in history (and I am not the only one). Moreover, Scalia himself said Filburn was wrongly decided in his book. He went against the precedent of Filburn in other cases where the connection to interstate commerce was tenuous. He just didn't like states legalizing weed and he was not going to stand for it. The Civil Rights Act was blatantly unconstitutional and should have been struck down. Operating a hotel or restaurant s not Interstate Commerce. You can tell by the way the hotel or restaurant never crosses state lines (it doesn't even move). It they wanted to federally outlaw private discrimination, they should have done it through the amendment process, where all novel rights and restrictions should come from. Instead, they just said that the Interstate Commerce Clause doesn't really mean interstate commerce, it means any activity that might, in combination with other people engaging in similar activities, affect interstate commerce maybe. Wickard v. Filburn and its progeny said that despite the clear intention to have a government of enumerated powers, what the Constitution really means is that the Federal government is essentially without meaningful limits (because ANY law can be said to somehow have the potential of affecting interstate commerce). Thomas's dissent in Mahanoy Area School District v. B.L. was essentially just him saying the Supreme Court shouldn't just make **** up. The whole thing is about how there have been expansive powers of the schools to limit the speech of students as long as there have been public schools (specifically speech which would harm or denigrate the school or the staff), that the majority just ignored all of it, and that they didn't do any sort of actual Constitutional analysis when they did so. He even says that there may be Constitutional support for overturning the school's discipline of B.L., but since the majority didn't bother trying to make an argument from the Constitution, he wasn't going to join their opinion.
The Constitution was changed during reconstruction. The entire protection of rights was incorporated to the states via the privileges and immunities clause of the 14th Amendment; however, SCOTUS dismantled it in Slaughter-House and Cruikshank. I mean, there was a whole Civil War about what state's were allowed to do. An expansive reading of Article I powers was just novel in that commerce regard at the time, but it was as novel era. Other Article I powers have been stretched prior to that because the language allows it to do so. And CRA was upheld 9-0 in the Heart of Atlanta case. Wait, are you basically saying that if Hotels and Restaurants don't want to serve people based on their skin color or religion, then that's legal? And creating a national law regulating that is unconstitutional? That fits with Thomas, I guess, and the Waite Court. As for making *** up, that's what substantive rights are, if connected to other parts of the constitution. It just comes from what premise you believe in. Do rights only exist where States and Congress pass them, or do they exist from the Constitution whether or not they are enumerated? The 9th Amendment is pretty expansive in that sense. Also, every federal court and appeals court ruled against Mahanoy because school powers were in loco parentis, not beyond the reach of its borders. SCOTUS only gave an out because they wanted a bullying/major danger exception, but didn't see her actions as crossing that threshold. Thomas also said iirc something like, "what happened to just defering to the coach?"
Yes, there were three amendments to the Constitution. The 13th, 14th, and 15th. The 13th disallowed involuntary servitude except as criminal punishment, the 14th (as relevant to this discussion, there are other unrelated provisions) makes people born in the US citizens (essentially about making slaves citizens) and restrains states from denying American citizens the rights protected by the Constitution. The 15th says citizens can't be denied the right to vote based on race or having been a slave. None of these amendments regarded how private citizens or institutions treat each other. The whole point is that it limits STATES, not people or businesses. State mandated segregation certainly runs afoul of the 14th amendment. There is a ton of jurisprudence about whether something is state action. There is a reason it was 100 years later that private discrimination was outlawed, instead of happening in 1865. So yes, the Constitution was changed, but it wasn't changed to disallow private discrimination. I am saying the law that makes it illegal is unconstitutional. Not that it is currently legal. I believe there are rights that are not enumerated in the Constitution. I DON'T believe Congress has POWERS not enumerated in the Constitution. You have the right to parent your children, to eat whatever food and drink whatever water you can afford, etc. even though there is nothing in the bill of rights that says you are entitled to more than a subsistence level of food. The 9th Amendment says that the rights of the citizens are not limited to those enumerated in the Constitution. Some of the Framers didn't want a Bill of Rights, because they didn't want to give the impression those were the only rights protected. This was Madison's attempt to avoid that problem (that largely failed). I would say it is very difficult to make a reasonable argument that something which was illegal under English Common Law or under the laws of the US or any of the states was a protected right under the 9th Amendment. Abortion, for example. Thomas addressed this at length, relying on this source of powers and providing multiple historical examples of where the schools powers extended beyond the bounds of the school. No, not really. MAHANOY AREA SCHOOL DISTRICT v. B. L. - DocumentCloud
Will reply later, bc you know, football. But you really have like an ultra conservative view about the Constitution in its limited powers. Not necessarily wrong, but that's just not been the way things have been like 80 years now.
Yes, almost like FDR threatened to pack the court if they didn't reverse course and allow his New Deal nonsense to pass by, even though it has no textual support in the Constitution. I, gasp, believe that the words in the Constitution mean what they say and that the way to change it is written right into the document, not by "interpreting" it to mean the opposite of what it says.
That you believe the CRA of '64 is "blatantly" unconstitutional tells us all we need to know about your constitutional bona fides and political bent. If you believe the constitution was not written to be a "living" document, you might want to go back to the beginning and re-read Marbury v Madison.
The Constitution was written to be a living document through the Amendment process. That is why that process was included in the text. Marbury v. Madison explicitly rejects the idea that the Constitution should change as new laws are enacted by congress and in fact stands for the proposition that the Federal Courts are empowered to strike down laws passed by Congress that do not comply with the Constitution (establishing judicial review).
LOL LOL LOL "The Civil Rights Bill was blatantly unconstitutional." I've got news for you what is Constitutional is whatever, at the size of the Court nowadays, 5 unelected judges say is Unconstitutional.
The Constitution is not a collection of golden plates that can only be deciphered with Urim and Thummim, it is a relatively short document written in English. I encourage you to read it for yourself. There is a prohibition against the government interfering with contracts, but nothing about Congress having the power to force business owners against their will to serve customers they don't want. Congress has 18 powers which fall generally into the categories of money and borrowing, copyright/patent, foreign affairs and the military, regulation of commerce between the states, setting up postal services and federal courts below the Supreme Court, and governing Washington, DC. They are not supposed to do anything unrelated to those powers. Not control private businesses, not outlaw drugs, guns, prostitution, not forgive debts or set minimum wages, not control whether or not states can outlaw abortion, etc
So, I'm skimming the Thomas decision on Mahanoy and the first page has 150 historical precedent of supporting the coach, for a guy who doesn't believe in precedent. He does agree that school power is less of campus than on campus, but just doesn't agree in this situation. I mean, less Congress create a standard of school power off campus, there has to be some judicial discretion involved in a decision. Just because he thinks the standard isn't clear, doesn't mean her Constitutional 1st Amendment rights don't exist shen she posted the snapchat that had her saying, "F school, F cheer, F everything" and she gets the boot off the team. It's not a terrible decision, but he's considered wrong 8-1 in SCOTUS here and like vastly outnumbered by every federal judge (appeals and district) below SCOTUS. Basically, he's on island with that opinion and I don't think this guy is always correct, especially not in that case. As for the power of the 14th Amendment, I don't think your inpretation is like 180 degrees wrong, since many believed in that interpretation, but it isn't updated for Reconstruction. Congress purposefully made the 14th open and broad. They CRAs during Reconstruction was written by the same Congressional body that forced the South to pass the Reconstruction Amendments. The Radical Republicans dominated Congress and used their power to redefine the role government and the rights of people. Now the Supreme Court said no, but those decisions were historically looked upon as incorrect. I mean, if the Constitution says Congress is allowed to change it, and here we have a Congress where many members abandoned it to form a different government, leaving one party to have extra power to change it, and they change it, along with adding new laws, then of course it's what they meant to do. The problem isn't with the CRAs, but the process to change the Constitution. That argument has a certain logic to it, but then again, you'd be siding with the George Wallace's of world saying segregation forever because the 14th wasn't following proper procedures when it was enacted.
This is an interesting Thomas dissent, because it is not so much that he disagrees with the conclusion that the majority came to, but was so offended by how they came to that conclusion that he felt he had to go the other way. The end of his dissent even hints that if they had come to the same conclusion using a more proper analysis, he would have joined the majority opinion, or would be open to ruling that way in a future case. Thomas doesn't think precedence has no place, he just thinks it should not override the Constitution. Most if not all of his opinions are going to cite precedent, not just the text of the Constitution. Thomas just thinks when prior decisions were WRONG they should not be followed just because of stare decisis. I think you are missing my argument a bit. The doctrine of state action was well understood to be a part of the 14th amendment. It is not about how the 13th, 14th, and 15th Amendments were enacted that I am taking issue with, it is the overly broad interpretation of the 14th Amendment to say that the privileges and immunities of being a citizen somehow relate to how individuals treat other individuals. The purpose of the Reconstruction Amendments was to prevent the former Confederate States from oppressing the newly freed slaves, not to make individuals treat everyone the same. So the 14th Amendment would prevent Mississippi from preventing black people from voting, but it wouldn't prevent Cletus Smyth the white guy from refusing to sell his car to Frank Washington the black guy because he is black. There is no privilege or immunity as a US citizen that would make Cletus sell you his car, so the 14th amendment protecting those privileges and immunities from interference by state action should not create such out of nothing. As to cases being disfavored historically: Dred Scott is probably the most historically disfavored decision there has ever been, but it was also correctly decided, loathsome though it may be. The 13th Amendment was the proper vehicle to say black people could not be considered property, because under the Constitution prior to the 13th Amendment, they could.
I get what you're saying, but I think availability of broad interpretation was left open purposefully. And there may be a better medium from the extremes of outlawing black people from owning guns vs not letting Cletus refuse to sell his car to a black person because he's black. I also don't think the latter was really a thing until the 1960's. The broader point is Southern states kept going cat mouse (the South being the mouse) with the feds for a century trying to outmaneuver the technical law with segregation, no blacks can testify against whites, voting tests, privatizing schools to prevent integration and so on. There were so many things done through "privatization" that was an obvious work-around trying to circumvent the spirit of the 14th. Add to that SCOTUS itself tearing down the 14th in the first place and we have this kind of arguable warped expansive 14th that in ways isn't what it was intended to be, but achieved things it intended to achieve. And nowadays, you really can't fight back against those substantive expansions because the broad interpretations have benefited both parties: equality rights, individual rights, corporation rights, Bush v Gore, etc. It's been like a shield and sword that both sides have used to force judges to make these tough decisions. If the 14th were interpreted correctly in the first place and the South didn't continue to rebel for 70 years after losing the war, the world could be very different. But who knows. As for Dred Scott, what I teach is that because the nature of the Constitution being a document of compromise, there are landmines everywhere that can defend or attack a judicial interpretation. The seven justices voting for the majority came from slave holding states - Lincoln changed regional representation on SCOTUS. But yeah, Taney definted citizenship as by blood in that decision. That was within his power, but not necessarily the only interpretation. For all the mentions of the word citizen in the Constitution, it was never defined. It's the type of judicial overreach that Justice Roberts preached against as what goes wrong when SCOTUS is allowed to do too much, which is part of his logic as to why things like gay marriage should be decided by Congress. Anyhow, good discussion. Tired, too much work, and then there's football. To be continued.
It will be interesting to see what the court does ultimately concerning Roe v Wade. I think it's going to be a huge boon to the Democrats in the midterms if they actually dismantle it. Most of the country supports abortion. I think they will be handing the dems the election on the platter if they dismantle it, way too many suburban white women care about this issue and this is a pretty key demo for the GOP, they NEED this demo in order to win a lot of races in close places. All that said I still think they won't have the guts to do it, especially with all that's going on here in Texas. I think Roberts pulls Kavanaugh over and Kavanaugh, based on what we know of him and how he values his public perception, would love to ironically be known as the guy that saved women's rights on this issue. We'll see what happens I guess.
Yeah, Kavanagh wants to be chief in case Roberts kicks it with a heart attack or Covid or something. So that scenario is possible. Another scenario is that the Court could affirm Roe and Casey and just redefine "undue burden" to allow Mississippi's law. Texas will get overturned. I can totally see Mississippi getting upheld and Texas getting overturned.
