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PaperclipPerfector  1yr ago (text post)   36401 thread views

Culture War Roundup for the week of April 10, 2023

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Don't sleep on this excellent Caplan piece. The man is a national treasure.

In "Lawsuits are the Hitman of the State," Caplan makes the case that the Texas "Heartbeat Act" is functionally equivalent to workplace discrimination laws that punish racist or sexist remarks.

(One thing I would be interested to see further discussion from Caplan on is the development of the idea that having a "job" is a "right," but he doesn't go into that in this piece. Basically, the Constitution is a document of enumerated powers, meaning the federal government can't--in theory--do anything the Constitution doesn't explicitly allow it to do. But the judicially-crafted breadth of the Fourteenth Amendment, combined with loose interpretation of the Commerce and Tax-and-Spend clauses, metastasized through the 20th century into today's rather grabby American legal system. This has given rise to the idea that you haven't just got a right to your own labor, but that you have a right to personally profit from other people's capital, at their expense, even if you contribute nothing of value to the enterprise.)

Something I really like about Caplan is how concise he manages to be while making absolutely cutting points:

The government starts with the blatantly illegal goal of banning “bigots from expressing their opinions in a way that abuses or offends their co-workers.” Then instead of respecting those limits, the government’s judicial branch gets creative: “Murder’s illegal? Fine, we’ll hire hitmen instead.” By affirming liability, it dangles piles of cash in front of potential plaintiffs to terrorize employers into banning what the government, legally, must allow.

Precedent on what counts as "government action" is remarkably unhelpful in understanding these things. Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors. This, even though in virtually every other regard, as Justice O'Connor then noted, "our [past] decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions." Whether any particular action counts as "government action" proscribed by the Fourteenth Amendment does not seem to depend at all on who actually took the action, in other words, but only on how the Court wants the case to come out.

So I think Caplan is dead on, here--the Civil Rights movement basically shredded any kind of principled interpretation of the Fourteenth Amendment, in pursuit of socially-engineered results.

Civil rights wasn’t just a change in the 14th amendment. It basically was a new constitution. So many items (either explicitly or implicitly) under the CRA blatantly contradict the constitution (eg freedom of association, contract clause, 14th amendment as you note). CRA also dramatically expanded the scope of the executive and heavily reduced the scope of the State’s powers.

I can only think of the NRA and possibly the 17th amendment which committed such violence to the constitutional scheme.

It is a little unclear to me why the Commerce Clause does not give Congress the power to bar a practice that made it very difficult for millions of people to engage in interstate travel.

It is also unclear to me how the Civil Rights Act violates "freedom of association, contract clause, 14th amendment." Freedom of association is not a right listed in the Constitution. The Court has recognized a right to associate for the purpose of speaking, and a right of intimate association (eg, the right to raise children and the right to live with relatives), but a freestanding "freedom of association" would be as much an invention as the right to abortion. The contract clause simply forbids states from the common practice of passing laws eliminating the debts of particular individuals. It is not a right to enter into any contract you want. Finally, how does the 14th Amendment give anyone a right to engage in discrimination, racial or otherwise?

I'd point to Gustafson, but it's kinda in a weird limbo right now.

Finally, how does the 14th Amendment give anyone a right to engage in discrimination, racial or otherwise?

As a trivial matter, the 14th Amendment is how the 1st Amendment is incorporated, and I'll point again to the hat. And I use that case rather than a t-shirt because nobody talks about Dawson to the point where you can play Google Golf with it.

You've focused on 'discrimination' in the simple contract or refuse-to-contract sense, and to some extent that case is at least more arguable (though I'd quibble whether the modern contract clause jurisprudence is so clear an honest trim-back from Lochner invention), but under modern CRA jurisprudence that's no longer the boundaries and often not even the central example of modern-day discrimination. For employment discrimination purposes, allowing employees to play the wrong radio stations or tape up the wrong posters is part of the mainstream definition and just as clearly discrimination. So, for that matter post-Bostock, have the bounds of covered frameworks expanded: I emphasize Demkovich for throwing away the ministerial exception (overturned on appeal), but it was not overturned or even seriously questioned on the hostile work environment claim, separate from any employment action claims, despite the court finding explicitly that : "The conduct plaintiff alleges here is classic tortious harassment under Meritor Savings Bank, Harris, Ellerth, Faragher, and countless other cases: his supervisor allegedly subjected him to a campaign of verbal abuse based on his sex, sexual orientation, and disabilities, ultimately interfering with his job performance and mental and physical health."

This may have at one point been limited to actual conduct or conduct-enough-speech to have evaded normal First Amendment jurisprudence (the original hostile work environment in Meritor was serial rape, and Faragher v Boca Raton was handling a case with "unwanted touching" and threats of employment actions when it noted that it was not trying to produce a general civility code), but Faragher was 1998, and Reeves v. C.H. Robinson was 2010, and the law has not slowed. We have a civility code, and the extent employees may want to operate the same conventions independently is interesting but does little to evade the constitutional questions when there are routine actions by the EEOC.

Freedom of association is not a right listed in the Constitution.

It doesn't have to be. This sort of reasoning is literally why we have the 10th amendment, so that someone can't go "well the right isn't enumerated in the Constitution so the government doesn't have to respect it".

Nevertheless, it is incumbent upon OP to make an argument, not merely an assertion, re the why broad "freedom of association" is one of those rights. After all, OP said that the law "blatantly contradict[s]" freedom of association.

  • -10

It is not on OP. The Constitution is an enumeration of powers for an otherwise-powerless government, not a listing of rights which one would not otherwise have. The burden of proof is on you to show why people would not have this right under the constitutional framework, not the other way around.

Also, the analysis under the tenth amendment heavily supports freedom of association. Going back to English common law, there was zero idea that you were forced to rent or hire a particular person. The exception was common carrier. Freedom of association is deeply rooted in our tradition

Yes, if OP claims that freedom of association is a right listed in the Constitution, it is indeed on OP to show that it is a right listed in the Constitution. The claim that something is not within the enumerated powers of the government is a completely different claim than that same something is forbidden. Lots of laws are within the powers of the government, yet are not permitted because they violate rights. An obvious example: racial discrimination in hiring postal workers was within the enumerated powers in 1860, and it still is today; however, today it is forbidden by the Fourteenth Amendment.

It is a little unclear to me why the Commerce Clause does not give Congress the power to bar a practice that made it very difficult for millions of people to engage in interstate travel.

Because by that standard, anything affects interstate travel.

Of course, the clause had already been interpreted that way anyway.

Yes, it has been interpreted very broadly. But I don't see why you think "by that standard, anything affects interstate travel." The outlawed practices seem awfully directly affecting interstate commerce to me.

If "interstate commerce" means "a person goes to another state and engages in commerce", then all commerce is interstate commerce except a couple of rare cases where you only have commerce with one or two pre-vetted people whose location you know. Otherwise it's impossible to keep out of state customers out of your store

It's much more fun then that. Interstate commerce means a person planted crops on their own property for their own consumption, because by doing so they have not bought these crops on the market, thus affecting interstate prices.

Yeah. Good old Wickard v Filburn, aka the dumbest fucking legal decision ever handed down. It truly makes my blood boil to think that the supreme court betrayed us to such an extent.

Freedom of association is not a right listed in the Constitution.

Yes it is.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since the power to force association is not delegated to the United States, and it is not prohibited by the States, it's right there in black and white that Freedom of Association is reserved to the States, or to the people, as the case may be.

If you want to claim otherwise, then you need to point to specifically enumerated powers.

Yes it is.

Where?

If you want to claim otherwise, then you need to point to specifically enumerated powers.

I did. The Commerce Clause, augmented as are all enumerated powers, by the Necessary and Proper Clause. And, of course, the CRA does not "force association." It prevents discrimination when engaged in commerce. No one is forcing anyone to put black people on their bowling team.

Isn't this his point? Since the constitution doesn't guarantee a freedom of association then you don't have that right, AKA there's no reason the states can't infringe upon it, which is what they did in quite extreme fashion during segregation - if I as an individual wanted to go to McDonalds with my friend of a different race I was deprived of that right and legally barred from doing so. By ending the State's ability to prevent people of different races from voluntarily comingling, surely the CRA represented one of our history's more dramatic expansions in freedom of association.

Since the constitution doesn't guarantee a freedom of association then you don't have that right, AKA there's no reason the states can't infringe upon it

Obviously, I'd have to be comically stupid to believe that the Ninth Amendment is anything other than a dead letter, but it's worth a mention anyway:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The founding principle of American governments was not intended to be that anything not explicitly called out falls under state power.

IANAL but my understanding is that the Ninth Amendment has never been held to confer substantive rights (which seems to be what the linked wiki page affirms as well). If it is supposed to do that, and Americans have always had a right to freedom of association, then surely segregation was always unconstitutional and the CRA just reestablished the right to association that we were supposed to have.

IANAL but my understanding is that the Ninth Amendment has never been held to confer substantive rights

Of course not. The ninth amendment assumes that people already have those rights and is affirming them. It doesn't confer rights, but the rights still exist according to the constitution.

Works for me, but doesn't change that the argument that freedom of association is listed in the constitution is incorrect, hence why the states were capable of infringing upon that right during segregation.

As best as I can tell, the first time the Courts ruled that we did have a right to freedom of association it was NAACP vs. Alabama, which is much my point above - that the Civil Rights Era was a legal expansion of freedom of association rather than a contraction of it.

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