Bomma and Hildebeast went to law school too. What the hell happened to them???
We had some very intense debates about the limits on government power, the right of government to restrict behavior or reward and punish behavior, the moral basis for such laws, and the inevitable unforeseen consequences. My Constitutional law professor was extremely good. He had clerked for the U.S. Supreme Court, was still pretty young (mid to late 30's), and told me years later during a reunion that our particular class was one of his favorites.
Most Americans don't know this, but a vast number of attempts by FDR to re-shape America were originally struck down as unconstitutional. A famous series of cases from the late 19th century, after adoption of the 14th amendment, held that the "privileges and immunities" clause was not meant to protect citizens of a state from state action, and instead was designed to protect citizens only of their rights as U.S. citizens. I know that today it is fundamentally impossible to think of a government where the Federal government had much, much more limited power than state governments, but that was precisely the scenario as of 1873. The Supreme Court held in part:
We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.
(
Slaughterhouse Cases, 83 U.S. 36, 73–74 (1873)
Congress thereby had no authority to regulate state commerce or interfere with the rights of state citizens of a single state between one another,[SUP]1[/SUP] and Federal Courts no jurisdiction to hear disputes among businesses in a single state.
The Supreme Court changed its approach quickly by deciding before the end of the 19th century that the 14th amendment had much greater application in terms of the "privileges and immunities" granted to state citizens. The worm had turned, as Shakespeare phrased it.
That revision as to the limits on Federal power continued unimpeded over the next 70 years. By 1964, the Supreme Court had extended the power of the Federal government to the point it could dictate behavior by private businesses that made no claim to interstate business. In a famous case called
Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) the Supreme Court held that the Article 1, Section 8 Commerce Clause gave the U.S. Congress power to force private businesses to abide by the Civil Rights Act of 1964. In that case, a racist motel owner sued the Federal government, arguing that the civil rights act could not be imposed on him to rent motel rooms to African-American customers. The motel owner argued that imposition of such requirements on his business violated the 5th amendment takings clause, and exceeded any reasonable reading of the power of Congress under the Commerce Clause.
The court rejected the plaintiff motel owner's argument, and held in part that the motel was located next to a freeway and thereby affected interstate commerce.
Business owners were not done. In another famous case from 1964 regarding the civil rights act,
Katzenbach v. McClung, 379 U.S. 294 (1964), the Court upheld the Civil Rights Act of 1964 applying even to a small local restaurant named Ollie's Barbeque. The Supreme Court unanimously held that even though the restaurant's customers were local, it bought much of its supplies through interstate commerce. The restaurant thereby had an "effect" on interstate commerce, and that was enough to bring it under the purview of the Commerce Clause. In point of fact, basically every business "affects" interstate commerce.
[SUP]1[/SUP] The modern view of the Commerce Clause stands very much askew from what the Commerce Clause was held to mean for decades. In fact, Attorney General Bobby Kennedy later testified before Congress on the scope of the Civil Rights Act, and in Constitutional law class we watched a video of 10 minutes or so of his testimony. Kennedy was asked if the Commerce Clause extended so broadly that basically every business in the United States, no matter how small, could be regulated by the Federal government under Article 1, Section 8. He said, "yes."
That was a monumental change in how we view government structure. For the next 50+ years, Americans lived with the knowledge that the Federal government held essentially unlimited power to regulate, punish, prod and promote state citizens and businesses. That is why the current fuss over "sanctuary cities" is so comedic to me. Jesus, that ship sailed in 1964. Get a grip.
