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Shayana Kadidal: Conflict over “Commerce Clause” led to New Deal and Civil Rights legislation

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Washington. And in Washington on Thursday, the Republicans in the House led the reading of the American Constitution. Now joining us for his take on these events and the significance thereof is Shane Kadidal. He’s the senior managing attorney for the Guantanamo Global Justice Initiative at the Center for Constitutional Rights in New York. Thanks for joining us, Shane.


JAY: Just to refresh myself, I went to read the Constitution–yesterday, I guess. It took me about 15 minutes to read the Constitution, the Bill of Rights, the other amendments. This is not a lengthy, detailed document. You know, if you went and bought a house, your long-form purchase agreement would have way more words than the Constitution does, and it would be very specific what to do if this happens, what to do if that happens. And even then, in contract law, if you’re doing company-to-company deals–and this Constitution to a large extent was that type of a commercial contract (the Bill of Rights had to be added later)–you would sign the contract, and then circumstances would change, and you’d go to court and you’d spend lots of money fighting about what the contract really meant. So how is this any different for the Constitution?

KADIDAL: Yeah, it’s absolutely not. You’re right. I mean, the reason that it’s persevered for such a long time, you know, 220-odd years, is that it’s, you know, quote-unquote, “a living document”. The founders wrote something very general that really was addressed to the structure of government more than the specifics, and they wanted to write a document that created a very strong federal government, right, because the Articles of Confederation had created a weak federal government, and they felt that it just wasn’t enough to protect their security and their economic interests. You know, as Bruce Ackerman said, this was written as a product of a pro-tax rebellion. People wanted to be able to pay off the debts from the Revolution that the government had incurred then, and they wanted a strong central federal government to be able to ensure economic prosperity. So that’s something that the Tea Partiers, who were behind the reading of this document at the beginning of the House session, will probably learn from actually reading the document.

JAY: And not only that, there was great controversy at the time, you know, whether there should be representation based on population. They come to this, you know, compromise where you’ll have that in the House but not in the Senate. They developed the electoral college. And there’s a great conflict of interest at the time. And this is a compromise amongst the various interests in society who had some kind of power and they come out with a deal. And then those interests fight over it for the next, you know, 100, 150, 200, 300 years. But let’s talk about some very specific part of the fight, and especially in the 20th century. There’s one section that talks about the federal government having the right to regulate interstate commerce. And when FDR institutes the New Deal, a lot of the opponents to the New Deal said, hold on, you’re telling individual states, inside the states, what should go on, and you can’t do that. So what happened during that fight?

KADIDAL: If you’ll remember, during the Depression one of the big problems was constantly falling prices, right? And so one of the things the government wanted to do was to sort of, you know, for instance, allow farmers to limit their production, pay them to not produce crops, right, and then also generally to be able to get industry and government on the same page and set minimum prices, so that we would avoid this specter of something you hear about now, deflation, falling prices, which, you know, is just a catastrophe in a modern economic environment. Right? So, you know, the government passed all these sort of, you know, laws allowing for new regulatory agencies to be created, independent agencies that would regulate prices and production and so forth. And, of course, they had to reach all production, including, you know, sometimes things that were produced just for consumption inside a state–intrastate commerce rather than interstate commerce. And so a whole series of cases went up to the Supreme Court, which was very conservative when FDR reached office, about whether or not the federal government really had the power to exercise such broad power over commercial activities in the United States, even when they only had an indirect effect on interstate commerce, you know, for instance, by changing the pricing of a commodity. And so a series of cases went up, and at first they were disastrously decided against the administration. But what happened was, you know, both the Congress got a little smarter about the regulation it was passing and the political winds changed. And then FDR also started to threaten to pack the Supreme Court, since the Constitution doesn’t say how many justices need to be on the Court. And eventually all the 70-something-year-old super-conservative justices, the Four Horsemen, changed their minds [inaudible] they came around.

JAY: Yeah, this is under threat by Roosevelt that he would increase the number of justices to 15, and all the new ones were going to be on his side ’cause he’s making the appointments. So they cave after that.

KADIDAL: Right, packing the Court, or as Roosevelt put it, bringing new blood onto the Court, getting, you know, new voices on there along with the 70-year-old who didn’t think the federal government had anything near this power, because they didn’t grow up in an environment where the US was an international power with a huge national economy.

JAY: Just as a question of curiosity, ’cause I don’t know this, is there anything stopping a president from packing the Court now?

KADIDAL: No, only the weight of public opinion and the fact that it’s been set at 9 justices for such a long time. If you remember, it started out with 5 and varied over the years, up and down at some times, before settling into this current pattern. So, you know, one would worry that that would be seen as illegitimate, which in fact it was a little bit at FDR’s time too, but the important point being the Supreme Court sort of came around to the reality that in a modern world this Commerce Clause and the Necessary and Proper Clause that goes along with it should be read to enable the federal government to be able to manage a modern economy in a way that leads to, you know, the ultimate goals of ensuring prosperity and a strong national union.

JAY: And the specific argument is that what was going on in the state, even if it was just in the state, couldn’t be disconnected from the economy as a whole. Is that what the basic argument was?

KADIDAL: Right. Basically, even things that had indirect effects on interstate commerce, even production and consumption inside a state that only had–that had an indirect effect on the setting of prices or that kind of thing in an interstate market, those were within the fair field of federal regulation. And basically ever since the New Deal, the government has won about every single Commerce Clause case where someone has come in and said, you’re reading the clause too broadly, the federal government really shouldn’t have such broad power; the one, you know, notable loss being this Gun-Free School Zones Act, where the gun rights issues, I guess, came up against the Commerce Clause, and the Supreme Court said, you know, you really don’t have a strong case for why regulating, you know, the ability to bring guns near a school somehow damages, you know, the willingness of people to move to an area or something like that in a way that affects interstate commerce. It’s just too tenuous.

JAY: So the Civil Rights Act itself was caught up in this. Tell us how this fight had unfolded then.

KADIDAL: Sure. Well, you remember some of the earlier cases were about the ability of blacks to eat at, you know, sort of restaurants, or to get a room in a hotel, or, you know, even going back farther, to ride on a train carriage, right? And these were all sort of common accommodations that are necessary to allowing people to travel, which is something that’s necessary to maintaining the health of a sound national, you know, sort of trade zone, really [inaudible]

JAY: Just let me interrupt for sec. When Rand Paul was elected and went on The Rachel Maddow Show, she asked him: would you overturn this decision that allowed an African-American to go eat at a lunch counter–I think it was in his state, Kentucky–Anyway, he said that he didn’t agree with that decision. I think a lot of people tried to call him being as racist for that [sic], and I don’t think that is the point. He was being consistent, at the very least, in this strict constitutionalists argument that you can’t tell a local restaurant who to go into [sic]. Maybe a state could, but the feds couldn’t. But that was one of the decisions that sparked this Civil Rights Act.

KADIDAL: Right. I mean, well, there’s a continuum between allowing people to eat at a restaurant, you know, who can you admit and not admit to your restaurant, who do we serve or not serve, right, and, you know, who will you admit or not admit to run your Boy Scout troop. Right? So that’s–you know, there are lines to be drawn there, and surely that’s probably what was going through his mind, but, you know, the point being that, you know, those decisions, once they were made by the Supreme Court, they really foreclose the process of seeking a formal constitutional amendment, because, look, in 1938 the Democrats had 80 seats in the Senate–80–and, you know, they would have been able to pass any amendment that they wanted at that point if the Supreme Court hadn’t come around. So it’s really a little silly for people–and, you know, I’d count John Yoo in this category–all these sort of unitary executive people you hear about who wrote the torture memos and, you know, backed the president’s tremendously broad sort of powers in terms of national security and counterterrorism, those folks cut their academic teeth actually trying to overturn the New Deal, basically saying that independent agencies weren’t part of the original constitutional design, the president should run the entire administrative branch of the government, and therefore the courts ought to go back and say, you know, that all these New Deal cases that upheld the New Deal were actually wrongly decided. But it’s absurd to think that, given that there almost certainly would have been a constitutional amendment writing all this stuff into the text of the Constitution.

JAY: Well, it’s particularly ironic coming from people who violated the Bill of Rights in so many ways, in terms of illegal wiretapping, lack of habeas corpus, and so on and so on. On the one hand, they don’t mind violating the Constitution in the name of national security.

KADIDAL: Right–well, supposedly in the name of national security, right? I mean, their argument would be basically that Congress and the courts can’t even restrain the president in those limited fashions if he is trying to protect the nation.

JAY: So the point here is that like any contract, the Constitution is something people fight over, and it’s a reflection of the balance of forces at any given time in this society what that–how that document’s interpreted. So going forward now in this new Congress, what are you looking for in terms of how this battle might play out, from the Health Care Act, perhaps, to other issues?

KADIDAL: Right. Well, people turn to judges when they can’t accomplish what they want through the political system. And sometimes that’s a good thing, because judges are there to protect political minorities whose voices are going to be crushed by the majority in a political system, right? I mean, when we talk about the heroic nature of judicial review, we think first about Brown v. Board of Education and other cases where minority rights were upheld against the majority. But, you know, it’s also the last resort of, you know, people who’ve lost the political battles, right? And so, you know, with the health-care reform passing and being, you know, pretty extraordinarily popular, I think you’ll probably see, you know, a lot of litigation. It’s already started, really, challenging the constitutionality of it on the sort of Commerce Clause grounds, saying basically the federal government doesn’t have the right to go in and mandate that people participate in commerce by buying health insurance, for instance. That seems to be the most–the favorite target of all the health-care provisions, this idea that everyone has to buy insurance, essentially, you know, and insurance is regulated state-by-state, so those are all going to be intrastate as opposed to interstate transactions.

JAY: And there’s been [a] crazy patchwork quilt of decisions. You have one federal court in Virginia 125 miles away from another federal court, reaching completely opposite conclusions on whether it’s constitutional or not.

KADIDAL: Right. And, you know, one suspects that in terms of Sotomayor and Kagan that Obama, you know, made his Supreme Court picks with the number one criteria being where he thought they would come out on the constitutionality of health care and on the breadth of the federal government’s Commerce Clause powers, essentially. Right? So, you know, I mean, it’s an interesting thing, right? I mean, I don’t think anyone thinks, for instance, that the federal government couldn’t create a health-care benefit and then allow people to opt out, whether they wanted to buy private insurance or just whether they wanted to have no insurance at all. Right? So if they could do that, you know, you wonder what the real sense is of saying that this sort of, you know, slightly convoluted way of doing it, where people are mandated to buy insurance, mostly from private insurers–.

JAY: And it’s kind of ironic. If they’d done a single-payer plan, a straight government Medicare-for-all, there really wouldn’t have been a constitutional argument against it. That clearly would’ve been interstate.

KADIDAL: Sure. Well, you know, the–I mean, it’s interesting, right, that, you know, there’s always some, you know, sort of gem of truth to be found in people’s objections, right? And I suppose one can argue that the mandate in some ways was a sop to insurance companies, right? It’s going to be something that’s going to be extraordinarily profitable for them, especially combined with the sort of added benefit of people getting subsidized to buy those insurance contracts.

JAY: Yeah, I think you’ll find a lot of critics of the health-care bill from the left may not be so unhappy if it’s–this current version is found unconstitutional.

KADIDAL: Sure, or if they’ve got to go back to the drawing table on it and rewrite in a little bit–sort of more rational fashion, perhaps.

JAY: Alright. Thanks for joining us. We’ll come back to you again in the next few weeks as this struggle over the Constitution unfolds. The Tea Party members of the House are saying each and every piece of legislation that gets discussed will have to be justified by a phrase in the Constitution. Of course, there obviously will be a phrase for everything, ’cause then they’re going to fight out over the interpretation of it. But, anyway, thanks for joining us, Shane.

KADIDAL: Thanks for having me.

JAY: And thank you for joining us on The Real News Network.

End of Transcript

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Shayana Kadidal is senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a 1994 graduate of Yale Law School and a former law clerk to Judge Kermit Lipez of the United States Court of Appeals for the First Circuit. In his twelve years at the Center, he has worked on a number of significant cases arising in the wake of 9/11, including the Center's challenges to the detention of prisoners at Guantánamo Bay (among them torture victim Mohammed al Qahtani and former CIA ghost detainee Majid Khan), which have twice reached the Supreme Court, and several cases arising out of the post-9/11 domestic immigration sweeps.

He was also counsel in CCR's legal challenges to the "material support" statute (Holder v. Humanitarian Law Project, decided by the Supreme Court in 2010), to the low rates of black firefighter hiring in New York City, and to the NSA's warrantless surveillance program. Along with others at the Center, he currently serves as U.S. counsel to WikiLeaks publisher Julian Assange. On behalf of plaintiffs including Assange, Glenn Greenwald, and other journalists, he led litigation that ultimately resulted in public release of over 550 previously-withheld documents during the court-martial of Pvt. Bradley (now Chelsea) Manning.