The government can do a lot of things now, including limiting racial discrimination in private transactions. None of that has anything to do with the original meaning of the Commerce Clause. The point is, the Commerce Clause was not written so that the government could tell one resident of a state which other residents of the same state to do (or not do) business with. Since the Commerce Clause was not written after the Civil War, any changes in view as to its meaning that occurred at that point would be (say it with me now) bastardizations of the Commerce Clause. The written word means something when it is written. It doesn't change because time has passed. If I say I like tacos now, it will not mean something else in 200 years, even if the then current understanding of the word taco is different. If taco means feces in 2210, that doesn't mean that I like feces, it means that the people reading my words need a better understanding of what I meant when I wrote that. It is the Federal government's responsibility to ensure that the states provide equal protection under their laws. The equal protection clause of the 14th amendment applies to state action. It is right there in the text. Did you read it again like I suggested? Is there a single case where the court has applied the equal protection clause of the 14th amendment to an individual? Carolene Products was about the legality of the Filled Milk Act. It had nothing to do with equal protection. Your referenced footnote was mere dicta, and it was Justice Stone stepping WAY outside the bounds of the case to make a policy point that had no basis in the Constitution. In addition to having nothing to do with equal protection, Carolene Products involved state action (again, the Filled Milk Act). Not true at all. There are a great many products that are shipped across state lines. Congress is well within their defined powers to regulate such products, as that would be (wait for it) commerce among the several states. Where Congress is outside of their Constitutional limitations is regulation of business that is completely within a state as was the case in Katzenbach v. McClung, or in activity that is non-commercial as was the case in Wickard. Because the court, cowed by FDR (the switch in time which saved nine which you referenced) radically expanded the Commerce Clause, we now have a bunch of case law that under any normal reading of the Constitution would be clearly erroneous. The new rules are that Congress can pass any law if there is a rational basis to believe that in the aggregate nation wide the regulated behavior could have an effect on interstate commerce. It looked like they were finally going to correct that following United States v. Lopez and United States v. Morrison, but they returned to the Wickard course with Raich v. Gonzales (because Scalia wanted to come down against pot). Hence my railing against the bastardization of the Commerce Clause. Of course it doesn't, Wickard was about a farmer growing his own wheat. The legal basis of outlawing private discrimination comes from Katzenbach v. McClung. But Wickard was where the courts really went off the rails with the Commerce Clause. There is no legal basis that I am aware of for using equal protection to outlaw private discrimination.
This is the problem with Originalism in that you essentially fossilize the Constitution in regard to what it was at 1789. Madison himself realized that things would change which is why we have an Amendment procedure and also a USSC. If you are arguing an original intent yes I will agree you have a point that our current interpretation of the Commerce Clause is different than what Madison probably thought but at the sametime you cannot pick and choose what parts of the Constitution you enforce. The 14th Amendment did alter how the rest of the Constitution was interpreted before. Also in regard to language I am glad you brought that up as even the English spoken by Madison was a bastardization of original English which is itself a bastardization of French and Anglo-Saxon. What you are missing though is that the state has a jurisdiction in order to enforce the equal protection of rights which means that yes it has a jurisdiction to enforce it on even individuals. WHat you are advocating would meant that if held kidnapped someone I couldn't be charged with a civil rights violation because False imprisonment only applies to the government. You are certainly free to feel that Justice Stone stepped way outside of the bounds but apparently most jurists haven't. And again you are entitled to your opinion but the bottom line is pretty much the rest of our legal establishment hasn't and for good reason. Let me ask you a philosophical question. If anti-discrimination laws applying to private businesses were left up to the states would you support that? Also do you think the government can tell the individual states to have anti-discrimination laws?
The part I bolded is how the constitution was meant to change. The Supreme court is supposed to decide cases based on the constitution including any amendments that exist at the time, and according to established precedent (though they are not bound by precedent if they think it is an incorrect application of the constitution). That is why cases like Wickard are so damaging. The effect of section one of the 14th amendment was not to change the interpretation of the Commerce Clause, but to apply constitutional limitations to the states. The court, under duress from FDR, radically expanded the powers of Congress without constitutional grounds, and as a result we have the rules that we use today. I would say that Old English has more Germanic influences than French, and that the Romance languages played more of a role in the evolution of Old English to modern English, but I am no philologist. Not from the 14th amendment it doesn't. The 14th amendment was a barrier to states making laws that treated people differently. It had no application to individuals. That was made very clear shortly after it was passed. A group of black citizens had their guns taken by private white citizens. They sued to have the second amendment applied through the 14th, and because there was no state action their suit failed. State action is the key in 14th amendment cases. False imprisonment is a common law tort. It predates the constitution. It can certainly be sued upon against an individual. Kidnapping is a criminal act defined by statute. Neither have anything to do with the equal protection clause of the 14th amendment. Many believe that very thing. The problem is that Supreme court justices sit for a very long time, and it is very hard to overturn decades of precedent. The legal establishment works with what they are given. The Supreme court is loathe to overturn precedent (stare decisis) and lower courts are bound by those precedents. I am not holding my breath for the day when these mistakes are rectified, but that doesn't mean that they were not mistakes, nor does the reliance on the prior rulings mean that even the current Supreme court justices agree with them. It would depend on the state constitutions. If the state legislature is empowered to have anti-discrimination law under their constitutions, then they can certainly make those laws. No.
Buck, doing my own search, I found one thread where you talked about the Estate tax. I never once in that thread made the claim to you that I could document that no farms/ranches had to be sold because of the estate tax. This response by Woofer was made to a post by you about ranches being sold due to the estate tax. Like I said, maybe you misremembered something, but looking through that thread, I never made the statement you claim I did.
