Jan 31, 2018

Radiolab Presents: More Perfect - One Nation, Under Money

An unassuming string of 16 words tucked into the Constitution grants Congress extensive power to make laws that impact the entire nation. The Commerce Clause has allowed Congress to intervene in all kinds of situations — from penalizing one man for growing too much wheat on his farm, to enforcing the end of racial segregation nationwide. That is, if the federal government can make an economic case for it. This seemingly all-powerful tool has the potential to unite the 50 states into one nation and protect the civil liberties of all. But it also challenges us to consider: when we make everything about money, what does it cost us?

The key voices: 

  • Roscoe Filbrun Jr., Son of Roscoe Filbrun Sr., respondent in Wickard v. Filburn
  • Ollie McClung Jr., Son of Ollie McClung Sr., respondent in Katzenbach v. McClung
  • James M. Chen, professor at Michigan State University College of Law
  • Jami Floyd, legal analyst and host of WNYC’s All Things Considered who, as a domestic policy advisor in the Clinton White House, worked on the Violence Against Women Act
  • Ari J. Savitzky, lawyer at WilmerHale 

The key cases:

 Additional production for this episode by Derek John and Louis Mitchell.

Special thanks to Jess Mador, Andrew Yeager, and Rachel Iacovone.                                                 

Leadership support for More Perfect is provided by The Joyce Foundation. Additional funding is provided by The Charles Evans Hughes Memorial Foundation.

Supreme Court archival audio comes from Oyez®, a free law project in collaboration with the Legal Information Institute at Cornell.

Support Radiolab today at Radiolab.org/donate.

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Speaker 1:

Hey, wait, you're listening ... (Laughs).

 

Speaker 2:

Okay.

 

Speaker 1:

All right.

 

Speaker 2:

Okay.

 

Speaker 1:

All right.

 

Speaker 3:

You're listening to Radiolab.

 

Speaker 4:

Radiolab.

 

Speaker 3:

From ...

 

Speaker 5:

WNYC. Yeah.

 

Jad Abumrad:

Okay, sorry, Robert? I was trying to- I'm gathering my thoughts as I'm speaking.

 

Robert:

You're collecting- yes, okay.

 

Jad Abumrad:

Uh, all right, Robert.

 

Robert:

Yes.

 

Jad Abumrad:

Season two finale of More Perfect-

 

Robert:

Yes.

 

Jad Abumrad:

... Long overdue.

 

Robert:

But much anticipated.

 

Jad Abumrad:

Maybe.

 

Robert:

Yeah. Well, among those who care-

 

Jad Abumrad:

Among those who care.

 

Robert:

... and there are a growing number.

 

Jad Abumrad:

One- one can hope.

 

Robert:

(Laughs). You're having a modest day today.

 

Jad Abumrad:

It's- you know, it- it's uh, it's Tuesday.

 

Robert:

It's Tuesday.

 

Jad Abumrad:

It's modesty Tuesday.

 

Robert:

Yes, modesty Tuesday.

 

Jad Abumrad:

Okay, so I wanna bring you a- a story from the- More Perfect, the final story of season two, because this story fulfills a promise I made to myself at the very beginning of More Perfect.

 

Robert:

Oh my god. This question of yours is that old and that deep?

 

Jad Abumrad:

It's only two years old. From the beginning of the show.

 

Robert:

But still, when people hear what the question is, they will- eyeballs will be rubbed.

 

Jad Abumrad:

I don't know.

 

Robert:

All right, go ahead, tell them.

 

Jad Abumrad:

It's modesty Tuesday.

 

Robert:

What was it two years ago that stuck you at that question you have never been able to let go?

 

Jad Abumrad:

Question I've never been able to let go, one of the first questions I bumped into in learning about the Supreme Court-

 

Robert:

Mm-hmm (affirmative).

 

Jad Abumrad:

... Was why does everybody keep talking about this thing called ...

 

Speaker 8:

The commerce clause ...

 

Speaker 9:

The commerce clause ...

 

Speaker 10:

The commerce clause ...

 

Speaker 11:

The commerce clause ...

 

Robert:

The commerce clause?

 

Jad Abumrad:

Yes.

 

Robert:

That had a dazzle for you?

 

Jad Abumrad:

No. I just wanted to know what the hell is it?

 

Speaker 12:

Well, it's article one, section eight, clause three of the constitution.

 

Jad Abumrad:

16 words, two commas.

 

Speaker 12:

Congress shall have the power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.

 

Speaker 13:

The power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.

 

Jad Abumrad:

Th- there are no more sexier words in the English language.

 

Speaker 13:

Yes. Better words for wooing were never written.

 

Jad Abumrad:

That's Jamie Floyd and Ari Savitzky, we'll meet them properly in just a second. Okay, so turns out that question of like, what is it, is pretty easy to answer. It's just these 16 words in the constitution that say co- Congress has the power to regulate commerce from one state to another.

 

Robert:

Yes.

 

Jad Abumrad:

Like, this assumes it goes between states, across state borders-

 

Robert:

Mm-hmm (affirmative).

 

Jad Abumrad:

... the feds can regulate it.

 

Robert:

I think that there [inaudible 00:02:19] would begin and end, and that would be the end of it. So, okay-

 

Jad Abumrad:

Well. Yes. But, here's the thing. Within that shell of boring is-

 

Robert:

I'm politely silent here.

 

Jad Abumrad:

... is an amazing story of a kind of cosmic power that develops from very li- humble beginnings to something truly extraordinary, and maybe troubling, depending on who you are.

 

Robert:

A cosmic power. You mean this phrase from the constitution has had consequences that surprised you?

 

Jad Abumrad:

Oh boy!

 

Robert:

Hm.

 

Jad Abumrad:

Oh boy. Here's how I've been thinking about it in the More Perfect story. Like, for me, the experience I had learning about the commerce clause was a little bit like watching the X-Men movies. Like, initially I was like ...

 

Speaker 15:

My name is Magneto.

 

Jad Abumrad:

Why is Magneto the head of the bad guys?

 

Speaker 15:

Will you join my Brotherhood and fight?

 

Jad Abumrad:

Like, why would they follow him? He has the most boring power?

 

Speaker 15:

Who will you stand with?

 

Jad Abumrad:

I mean, he can control metal. Okay, well like, Mystique can shift into any shape she wants. Storm can control lightning. Initially his powers seem like, you have the worst one.

 

Robert:

So we start with the commerce clause, and we ask the riddle of Magneto. I- I- I'm trying to cross the bridge to get-

 

Jad Abumrad:

No, no, I'm- I'm getting- I'm getting- I'm getting there. All I'm saying is that like, initially, I didn't understand the true deep nature of his power. But then you see these scenes where he's like, being attacked by a thousand policemen and he just kind of ... Makes their bullets freeze in midair. Or he picks up a whole bridge with- by just pointing at it. And then it hits you, oh, he has the best power. Because the whole world is made of metal. He can control the world. If we had built the world a different way, maybe not. But in this world ...

 

Speaker 15:

Let's just say I'm Frankenstein's monster.

 

Robert:

Periodic table, baby! Periodic table, baby!

 

Jad Abumrad:

So that's, for me, what it was like to learn about the commerce clause. What initially seems stupid and boring-

 

Robert:

I see. I see.

 

Jad Abumrad:

... becomes extraordinarily powerful once you understand the world in which it is situated.

 

Robert:

Does that mean you're about to take us on a- on a journey which begins with something that feels utterly trivial, and ends up with being something enormously powerful?

 

Jad Abumrad:

Wow. That is a question to which I simply must answer, yes.

 

Robert:

(Laughs).

 

Jad Abumrad:

The question- get it all out there. I didn't have to do any work with that.

 

Robert:

Well- well, then we can- I guess we can get on with it then.

 

Jad Abumrad:

Yeah. I'm gonna tell you the story of the commerce clause. Everything we fight about in America is in these sixteen words.

 

Speaker 16:

The honorable, the Chief Justice, and the associate Justices of the Supreme Court of the United States. All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention.

 

Speaker 16:

The board is now sitting. God save the United States and this honorable Court.

 

Jad Abumrad:

All right, I'm gonna- I'm gonna start. You good?

 

Robert:

Yep.

 

Jad Abumrad:

To even explain why something like the commerce clause exists, just pull out a dollar bill.

 

Speaker 17:

Go ahead and pull it out, right? It- it's issued by a central bank.

 

Jad Abumrad:

Are you looking at a dollar bill right now?

 

Speaker 17:

I'm looking at a dollar bill.

 

Jad Abumrad:

Okay.

 

Speaker 17:

It says 'Federal Reserve note, United States of America.'

 

Jad Abumrad:

That is James Chen, professor of Law at Michigan State University. Now the thing about the dollar bill, the awesome, obvious thing, is that you can take that dollar bill and buy some sour patch kids or whatever a dollar buys these days, anywhere in America.

 

Speaker 17:

Right. But in the late 18th century, in fact all the way through to the 20th century ...

 

Jad Abumrad:

It wasn't like that.

 

Speaker 17:

No, no, no, no, no.

 

Jad Abumrad:

All the states had their own banks and their own bills.

 

Speaker 17:

Different sizes, colors.

 

Jad Abumrad:

For example, there was a moment when South Carolina has this pretty little green South Carolina bill. Same time, Rhode Island has this giant pink square thing and if you are a South Carolinian in Rhode Island trying to buy some carrots and potatoes, let's say-

 

Speaker 17:

Let's say that. And you've got to make payment somehow.

 

Jad Abumrad:

What do you do? Well you hand them your South Carolina bill-

 

Speaker 17:

Well the Rhode Islanders would look at that and say well, I don't know what this is. Who- who's to trust this bank, right? And so they would discount the note based on the distance from their own home. They would discount the note based on how it looked, how professionally drawn up it was.

 

Jad Abumrad:

They might look at that ten dollars and say that's only worth eight to me.

 

Speaker 17:

It's a horrible, horrible way to do business.

 

Jad Abumrad:

That sucks for the people holding the note.

 

Speaker 17:

Right.

 

Jad Abumrad:

And so what the government decided to do uh, is to say hey, we're just gonna use one bill. Just one bill. It's gonna be so much easier. This was one of the ways the government was going to pull all these different states together. They were gonna regulate the currency. And not just the currency itself, they were gonna regulate the flow of that currency.

 

Jamie Floyd:

And this is where the commerce clause comes in.

 

Jad Abumrad:

This is Jamie Floyd, journalist.

 

Jamie Floyd:

Sometimes legal analyst.

 

Jad Abumrad:

Host of All Things Considered.

 

Jamie Floyd:

Here at WNYC. It's early in the republic now, we're at 1820s.

 

Jad Abumrad:

Now, just to hit pause for one second. So the commerce clause was a pre-existing thing?

 

Jamie Floyd:

Oh, yeah.

 

Jad Abumrad:

Okay.

 

Jamie Floyd:

Oh, yeah. It's in the US Constitution.

 

Jad Abumrad:

It's in the Constitution, but it's never been really like, thought about or- or where- where is it in the minds of people in 1820?

 

Jamie Floyd:

Nowhere.

 

Jad Abumrad:

Nowhere.

 

Jamie Floyd:

Pretty much where it is right now.

 

Jad Abumrad:

(Laughs).

 

Jamie Floyd:

It's nowhere in the minds of people.

 

Jad Abumrad:

But she says 1824, two steamboat operators get into a thing.

 

Jamie Floyd:

It's a business dispute.

 

Jad Abumrad:

They're each going back and forth between New York and New Jersey, they each think they should be the only one allowed to do that.

 

Jamie Floyd:

And it makes its way, as we say, all the way to the US Supreme Court. And who is sitting up there? Well, a big bad dude named John Marshall. Marshall is the sort of Rambo of the court. He looks at those 16 words, Congress shall have the power to regulate commerce with foreign nations, and among the several states. He looks at those 16 words and a couple of commas and a period-

 

Jad Abumrad:

And he decides-

 

Jamie Floyd:

Pretty much for the first time-

 

Jad Abumrad:

That those words give Congress-

 

Jamie Floyd:

The power to regulate commerce between and among states. This boat is going from one state to the other, the only way to resolve that is for the federal government to come in and contr it.

 

Jad Abumrad:

Again, the idea is that this is the only way for the country to function as a unified thing. And John Marshall, when he writes his decision ...

 

Jamie Floyd:

He says, look, we have a United States of America. We don't have a divided states of America or independent states of America, or New Jersey and New York existing separately. We decided to organize as a United States. And so what John Marshall says is because of that, there has to be a power to regulate trade between those states and amongst those states when there are disputes. Otherwise it's all gonna fall apart.

 

Jad Abumrad:

It was at that point that the commerce clause began to glow. But very faintly. For the next 100 years the government would experiment with the commerce clause in cases involving trade with the Native American tribes, or navigation. But if you want to talk about power, like real, raw, weird power, that power got unleashed, uh, at a very specific moment around 1941 in a wheat field.

 

Robert:

Well what happened in the wheat field?

 

Jad Abumrad:

Okay, well let me introduce you to someone.

 

Roscoe:

My father was a farmer, uh, I'd like to say, all of his life. Took pride in the fact that he never- he never worked for another man. Uh, he would tell me that.

 

Jad Abumrad:

Can you introduce yourself?

 

Roscoe:

Well, my name is the same as my father. It's Roscoe Curtis Filbrun. I'm a junior.

 

James Chen:

Roscoe Filburn, as he was known at the time.

 

Jad Abumrad:

He was a fifth generation farmer.

 

James Chen:

In Montgomery, Ohio.

 

Roscoe:

Our- our farm was uh, just right next to Dayton, Ohio.

 

James Chen:

Roscoe is about a 40 year old man at this point.

 

Jad Abumrad:

Again, we're talking about 1941, '42.

 

James Chen:

Good looking, sturdy.

 

Jad Abumrad:

Fiercely independent.

 

James Chen:

I never worked for another man in my life.

 

Jad Abumrad:

Apparently, that was his motto.

 

Roscoe:

He would tell me that many times over the years.

 

James Chen:

If you had to put like, Captain America with a pitchfork, this is him.

 

Jad Abumrad:

So Roscoe's got this farm, more than 100 cows on it.

 

Roscoe:

He would milk cows until both of his arms went practically numb.

 

Jad Abumrad:

Wow.

 

Jad Abumrad:

He had chickens.

 

Roscoe:

2,000 chickens. And uh, we had um, a very big garden. He would plant things, you know, like string beans, lima beans, pea, sweetcorn, potatoes, carrots, radishes.

 

Jad Abumrad:

A couple different kinds of fruit trees.

 

Roscoe:

Apples, cherry trees, peach trees, pears, strawberries and raspberries.

 

Jad Abumrad:

Oh, and of course they had crops.

 

Roscoe:

We would grow corn, a couple different kinds of hay, oats, and of course wheat.

 

James Chen:

Wheat.

 

Jad Abumrad:

Okay, set up out of the way, here's what happened. Um, it's 1941, Roscoe senior ...

 

Roscoe:

My dad was out in the field, I think on his tractor.

 

Jad Abumrad:

That day he was plowing the wheat or something.

 

Roscoe:

And there apparently must have been, uh, some guy from the department of agriculture, locally, I guess going around to various farmers in our community, uh, wanting the farmers to answer several pages, I think, of questions. And this particular day, this government uh, uh, gentleman came out into the field.

 

Jad Abumrad:

He looked around, and he said ...

 

James Chen:

Roscoe-

 

Jad Abumrad:

By my calculations-

 

James Chen:

You've got 22 acres of wheat on this farm.

 

Jad Abumrad:

You're over your quota.

 

Jamie Floyd:

He was 11.1 acres over what was permitted.

 

Jad Abumrad:

Roughly. And so the guy tells him-

 

Jamie Floyd:

You have to pay a fine.

 

Jad Abumrad:

A really big fine.

 

Roscoe:

My dad looked over and he was just as sober as a judge in a courtroom on a murder case.

 

Jad Abumrad:

And what happened next would change the country forever in ways that we are still literally living with. But let me just sort of fill in the gaps here, tell you what you need to know about why they- they were even having this conversation. And to help me with that ...

 

Ari:

My name is Ari Savitzky, and I'm an attorney.

 

Jad Abumrad:

Let me bring in a friend of the show, man of the law.

 

Ari:

You know, an important thing to understand is that, you know, when our story starts with Roscoe Filbrun, agriculture is a huge percentage of the economy, the great Depression is happening. And the dust bowl has happened, too. And so you have a lot of people who rely on selling crops and buying crops, and so wheat prices-

 

Jad Abumrad:

It's a matter of life and death.

 

Ari:

... for millions of Americans.

 

Speaker 22:

This nation is asking for action, and action now.

 

Ari:

So look, so, 1938-

 

Jamie Floyd:

Congress enacts-

 

Ari:

What's called the agricultural adjustment act.

 

Jamie Floyd:

To reboot the economy.

 

James Chen:

So the 1938 agricultural adjustment act got the federal government into the business of regulating wheat.

 

Jad Abumrad:

Basically what the government did was they said to the farmers of America, we are going to give you, essentially, a loan. We're gonna guarantee you a certain minimum price for wheat. We're gonna give you x number of dollars per bushel or whatever it is, and that will help lift you out of poverty. In exchange for that, you have to promise us to only grow a certain amount. So the big fear was that if they grew too much, there would be this flood of supply on the wheat market, prices would crash, and that would be bad for everyone.

 

Ari:

You know, wheat is sort of a collective action problem, right? Everyone's gonna sell as much wheat as they can, but that means prices go down and everyone makes less.

 

Jad Abumrad:

So what the government decided to do in addition to giving out loans ...

 

Ari:

Is that they placed a cap on how much wheat a person could grow. So quota. Straight up quota.

 

Jad Abumrad:

That way you ensure that the supply of wheat is steady-

 

Ari:

And you ensure that uh, that the prices don't crash.

 

Jad Abumrad:

And the whole reason the government could do this, regulate the entire wheat market, was by hinging it on the commerce clause. So the 16 words that basically said that when something like wheat is bought and sold and moved from one place to another, one state to another, across state lines, well that's interstate commerce, and that's something that Congress can regulate.

 

Roscoe:

So my father uh, having this ...

 

Jad Abumrad:

And this brings us back to Roscoe Filbrun with that inspector on his farm. Inspector says, look, Roscoe, you've grown too much wheat.

 

Roscoe:

My dad looked over and he was just as sober as a judge in a courtroom on a murder case.

 

Jamie Floyd:

And what do you think he says back? He says, wait a minute.

 

Roscoe:

I'm gonna tell you what- just exactly how I feel about that.

 

Jad Abumrad:

No. That's how I feel. No, you government ...

 

Jamie Floyd:

I don't know, he might have been a family guy.

 

Jad Abumrad:

Yeah.

 

Jamie Floyd:

He says, I don't get it. I'm not- I'm not- I have nothing to do with interstate commerce. And this is the key.

 

Jad Abumrad:

He explains to the inspector that yes, according to the government quota, I am only supposed to grow about 11 acres of wheat, and I am growing 23. But that extra 12, I'm not selling it to anybody.

 

Jamie Floyd:

He doesn't sell the wheat. He doesn't trade the wheat.

 

Jad Abumrad:

What's he doing with his wheat?

 

Jamie Floyd:

He uses all the wheat to feed his animals.

 

James Chen:

He is feeding it to the farm animals.

 

Roscoe:

The wheat, he fed some of the wheat to the steers. I- I really ...

 

Jad Abumrad:

So he's just keeping it on the farm.

 

Jamie Floyd:

Well, yes. So it's in a completely internal operation. I- do I sound biased here? I mean, I feel like the poor guy gets kind of dragged into a national case.

 

Jad Abumrad:

In any case, he tells the inspector ...

 

Jamie Floyd:

I'm not- I have nothing to do with interstate commerce.

 

Jad Abumrad:

Just growing a little extra wheat to feed my cows.

 

Jamie Floyd:

I'm on my farm, I'm doing my business. Big- big brother leave me alone.

 

Jad Abumrad:

But big brother does not leave him alone. The inspector says-

 

James Chen:

We're the government, that's the law. Please uphold it.

 

Jad Abumrad:

Pay the fine.

 

Ari:

50 cents for every excess bushel, I think it is. He had 239 excess bushels of wheat for which he was, you know, fined about 117 bucks.

 

Jad Abumrad:

In today's dollars, that's about two grand. Two grand.

 

Roscoe:

My- my father, apparently he- he wasn't real crazy about that, and I guess he didn't like that too much. If I'd have been 20 or 25 years old, I would have probably advised my father not to do what he did, but I guess he sued the federal government.

 

Jad Abumrad:

Huh.

 

Jad Abumrad:

His argument was like, look, I'm just trying to feed my cows. Come on.

 

Roscoe:

I- I guess it went to uh, our court in Dayton, Ohio.

 

Jad Abumrad:

That was the first stop.

 

Roscoe:

And I believe that he won.

 

Jad Abumrad:

Round one to Roscoe. The Ohio court agreed ...

 

Jamie Floyd:

There's no commerce of any kind going on here, unlike the original case with the boat.

 

Roscoe:

I- I believe I even remember him uh, uh, my sister telling me that- that he came home and he was just uh, delighted at- that he did win.

 

Jad Abumrad:

But then, the government appeals the case-

 

Roscoe:

And uh, of course, when it got to uh, the Supreme Court of the United States, he- he- he lost.

 

Jad Abumrad:

He lost in a decision that I think it's fair to say still drives conservatives and libertarians bonkers. And I am neither one of those things, but I get it. What the Supreme Court said is that Roscoe Filbrun, growing that extra wheat and not selling it still counts as interstate commerce. Because having that extra wheat causes him to not buy it on the market. He needs less wheat from the market. And if all the farmers of America did that, then that would be really bad for the market.

 

Ari:

The idea is that if you need more wheat than the quota, you go on the market and buy it.

 

Jad Abumrad:

Even though you can grow it yourself. You've gotta buy it.

 

Ari:

Because if everyone can produce their quota and then whatever extra they need, I mean, pretty soon the- the regulation breaks down.

 

James Chen:

Which means that the government intervention in the wheat market will have failed. You will have defeated our attempt to regulate this market, therefore we have to regulate even the things you don't do.

 

Jad Abumrad:

See, that is so weird. It's such a mind ... frankly. It's like, he's not doing anything.

 

James Chen:

A- all right, well- well this becomes-

 

Jad Abumrad:

We can w- w- this is literally non behavior.

 

James Chen:

This is- this is Obamacare.

 

Jamie Floyd:

It's very much like the healthcare case.

 

Speaker 23:

It's getting heated over healthcare. Today's issue, the individual mandate.

 

Jad Abumrad:

Just to explain, that's a reference to uh, Barack Obama's healthcare plan, uh, that was hotly debated a couple years ago. Still hotly debated. One of the key ideas of that plan is that in order for healthcare to be affordable for everyone, everyone should have to buy it.

 

Ari:

So we're gonna require people to buy insurance, or else you pay a penalty.

 

Jad Abumrad:

Which made a lot of people made, because they're like, hey, the government's forcing me to buy something I don't want.

 

Ari:

My decision not to get healthcare is not participation in interstate commerce. It's not even economic activity. I'm sitting here on my couch not buying healthcare. I'm just sitting here.

 

Jad Abumrad:

From the individual perspective, that makes perfect sense. But, if you pan out, and Justice Kagan said this in court, it's not so simple.

 

Speaker 24:

And the aggregate of all these uninsured people are increasing uh, the normal family premium, Congress says, by $1000 a year. Those people are in commerce. They're making decisions that are uh, effecting uh, the price that everybody pays for this service.

 

Jad Abumrad:

Obamacare makes sense to me in some- in some spiritual way. But getting back to Roscoe, like, we're regulating the things you're not doing. There's like non-

 

James Chen:

Because there's no farmer- no farmer is an island.

 

Jamie Floyd:

This is the case in which Congress receives a tremendous amount of power from the US Supreme Court. Essentially this case says that Congress can regulate almost anything. And that is the single most significant precedent in the area of the commerce clause. The big bang.

 

Jad Abumrad:

Did anyone sort of raise their hand in the middle of this and be like, whoa, if you can regulate the non-behavior of this American farmer, then that's not even a slippery slope. That's like a cliff that goes right down. Like, there's no slope to that.

 

Ari:

Well, yeah. The New York Times editorial from November, 13, 1942 said, "If the farmer who grows feed for consumption on his own farm competes with commerce, would not the housewife who makes herself a dress do so equally? The net of the ruling, in short, seems to be that Congress can regulate every form of economic activity if it so decides."

 

Jad Abumrad:

Would not the housewife who makes herself a dress do so equally. Yeah- it's like- yeah.

 

Ari:

Yeah.

 

Jad Abumrad:

It's like you make- if you make something like shoot, my wife and I with our kids made these little like uh, miniature stuffed animals for them to play with the other day. Are we then in violation of some ... But that seems crazy to me that the government-

 

Ari:

Oh my gosh. If you- you made your kids do it, and now you've violated some child labor laws, even.

 

Jad Abumrad:

(Laughs). So like, what happened here essentially, Robert, is that the um, the definition of commerce uh, changed in a- in a sneaky but really powerful way. Because now it wasn't just like the buying and selling of stuff-

 

Robert:

It was the not buying and selling of stuff.

 

Jad Abumrad:

Yeah. It was your negative commercial activity.

 

Robert:

And that is like ... All the things you don't do is a much bigger territory than the things you do do.

 

Jad Abumrad:

Yeah.

 

Robert:

So that's a massive extension of power.

 

Jad Abumrad:

And that expansion would continue over the next few decades, and it would move from just wheat to something much deeper. To like, beyond markets into the- into matters of the heart.

 

Robert:

You mean like people hating on each other? Or people trusting- people being br- people ...

 

Jad Abumrad:

All will become clear after the break, my friend.

 

Robert:

Okay. All right, well ...

 

Jad Abumrad:

After the break.

 

Robert:

Excuse me while I get myself a- a sizzling drink and settle down in my black leather couch.

 

Jad Abumrad:

Ooh.

 

Robert:

Yeah.

 

Jad Abumrad:

All right. Season two finale of More Perfect, here on Radiolab. We'll continue in a moment.

 

Nicole:

This is Nicole from Corning, New York. Radiolab is supported in part by the Alfred P Sloan foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.

 

Ilya Marritz:

Hello, it's Ilya Marritz, co-host of Trump, Inc. Donald Trump is the only recent President to not release his tax returns. The only president you can pay directly by booking a room at his hotel. He shreds rules, sometimes literally.

 

Speaker 27:

He didn't care what records was. He tore up memos or things and just threw them in the trash. So it took somebody from the White House staff to tell him like, look, you can't do that.

 

Ilya Marritz:

Trump, Inc. an open investigation into the business of Trump, from ProPublica and WNYC. Subscribe wherever you get your podcasts.

 

Jad Abumrad:

I'm Jad Abumrad.

 

Robert:

I am Robert Krulwich.

 

Jad Abumrad:

This is- well, we're featuring the final episode of More Perfect, season two, uh, here on Radiolab.

 

Robert:

A strange and heart-filled salute to the commerce clause of the US Constitution.

 

Jad Abumrad:

Yes. And uh, previously we had the big bang in the wheat field, but that was still about markets and commerce and all that, right?

 

Robert:

Yeah.

 

Jad Abumrad:

There was a moment, about two decades after the wheat case, where you might say the commerce clause got weaponized.

 

Robert:

Hm.

 

Ollie:

Hello?

 

Jad Abumrad:

Hey, can you hear me?

 

Ollie:

Yes.

 

Jad Abumrad:

This is Jad from uh, Radiolab and More Perfect, in New York.

 

Ollie:

Jack.

 

Jad Abumrad:

Jad, J-A-D.

 

Ollie:

Jad. J-A-D. Okay. Well, Andrew is here and he's recording.

 

Jad Abumrad:

To really understand what I mean, you have to meet this guy.

 

Jad Abumrad:

Can you introduce yourself, tell me who you are, your name?

 

Ollie:

Yes. It's Ollie McClough, Jr.

 

Jad Abumrad:

Uh, and how old are you?

 

Ollie:

77.

 

Jad Abumrad:

And where are you speaking to us from right now?

 

Ollie:

I'm in Birmingham, Alabama.

 

Jad Abumrad:

You were born in Birmingham.

 

Ollie:

Yes.

 

Jad Abumrad:

Aside from some time at college in Florida and a stint in the Coast Guard, Ollie Jr has lived in Birmingham his entire life. And the reason we called him up is that for 75 years, his family ran a famous BBQ joint named Ollie's.

 

Jad Abumrad:

So this is your dad's business, from what I understand, right?

 

Ollie:

Yes, my grandfather actually founded it.

 

Jad Abumrad:

Oh really? When was that?

 

Ollie:

1926.

 

Jad Abumrad:

So this was passed to your dad, who passed it to you.

 

Ollie:

Yes.

 

Jad Abumrad:

Okay.

 

Ollie:

But we were in business together until he died.

 

Jad Abumrad:

Ollie's BBQ was located on Birmingham, South Side.

 

Ollie:

The building we were in at the time you're talking about, from 1949 'till '68, it was concrete block. Uh-

 

Jad Abumrad:

Big sign outside said, "World's Best BBQ?"

 

Ollie:

Pretty good for its day.

 

Jad Abumrad:

Apparently during lunch, the line would stretch out the door. Ollie's was famous for its slow cooked pork and chicken, and for its, uh, spicy vinegar BBQ sauce.

 

Ollie:

Uh, and the pie baking.

 

Jad Abumrad:

Chocolate pies.

 

Ollie:

We always did a lot of pies.

 

Jad Abumrad:

But Ollie's was also famous, or would become famous, for something else entirely.

 

Ollie:

Well uh, because of the times, uh, and the way things were, uh, at that time ... of course, throughout the south, and Birmingham ... Uh, we had a carry out business as well as sit down business, and- and uh, those of our black customers came in and uh, ordered from the carryout counter and took their food out. And uh, you know, truth, fact, history, uh, they would take it on with them to eat as opposed to sitting down and eating.

 

Jad Abumrad:

What he's saying is that Ollie's BBQ was segregated. If you were white, you could eat inside. If you were black, you couldn't.

 

Ollie:

I mean that was the way it worked.

 

Jad Abumrad:

So what does this have to do with the commerce clause. Okay, so the federal government at the time - this would be the Kennedy administration, then LBJ - they wanted to come down on places like Ollie's BBQ. But their hands were sort of tied. I mean, we have this thing called the 14th amendment which says ...

 

James Chen:

No state shall deprive any person of life, liberty, or property, without due process of- of law, nor shall any state deny equal protection of the laws to any person.

 

Jad Abumrad:

James Chen again. Now those words, he says, which were ratified right after the civil war, were written to basically outlaw things like segregation. Of course, it didn't work, we'd have another 80+ years of Jim Crow, and the reason for that is that the Supreme Court, shortly after the 14th amendment was passed, kind of neutered it. Well, not kind of. They did. And one of the ways they did was by insisting that we read the 14th amendment as being targeted only at states.

 

James Chen:

If you look at that sentence, the second sentence of the 14th amendment, it says no state. No state shall deprive any person of life, liberty, or property without due precedent. The problem is, is when a restaurant owner like Ollie McClung denies service to black patrons. It's not Alabama doing the damage.

 

Jad Abumrad:

Just a private business.

 

James Chen:

It's not as if Alabama ordered the McClung family to discriminate against black patrons. They just did it.

 

Jad Abumrad:

So if the 14th amendment can only get to states, well here it has no reach.

 

James Chen:

Because there's no state action. There is nothing to regulate at the state level.

 

Jad Abumrad:

So what the feds decided to do, in a fascinating bit of legal gymnastics, is they decided to use the commerce clause.

 

Speaker 29:

Congress passes the most sweeping civil rights bill ever to be written into the law.

 

Speaker 30:

Giving all Americans the right to be served in facilities which are open to the public.

 

Jad Abumrad:

July 2nd, 1964, Congress passes a sweeping civil rights bill that was hinged on those 16 words. And I will explain to you how, because it's kind of fascinating, in just a second. But first, just to get us to that point ...

 

Jad Abumrad:

So 1964 civil rights-

 

Ollie:

Mm-hmm (affirmative).

 

Jad Abumrad:

... Act is passed. Did you desegregate right away?

 

Ollie:

No.

 

Jad Abumrad:

No.

 

Ollie:

No, we were- we were not happy with it, obviously.

 

Jad Abumrad:

I want to read to you something that you said in 1964. I believe these are- this is sort of your account of something that happened in- in your restaurant.

 

Jad Abumrad:

The day after the civil rights act was passed, a black man comes into the restaurant asking to be served, and uh, and you turn him away. 45 minutes later, he comes back with a young girl, four other black people. They sit down at the counter. They want to know why you- why Ollie's wouldn't serve them. And they were taking notes. And you're quoted as saying, "They seemed like agitators."

 

Ollie:

Yeah. In fact, they were. They, uh, they were folks that came, uh, and went around several places, uh, just to test the law, basically. Yeah.

 

Jad Abumrad:

And you were, uh, and you were turning those folks away.

 

Ollie:

Yes.

 

Jad Abumrad:

You kicked them out.

 

Ollie:

Mm-hmm (affirmative).

 

Jad Abumrad:

And why?

 

Ollie:

I mean, just because that's the way uh, we had always done. That's the way- until the law got adjudicated, uh, we weren't going to unilaterally uh, change things.

 

Jad Abumrad:

But they- you know, from their perspective, they're there because the law's been changed.

 

Ollie:

Yeah. Yes.

 

Jad Abumrad:

Ollie says right after the civil rights act was passed, sort of an emergency meeting was called of the uh, Birmingham Restaurants Association, and he and his dad went.

 

Ollie:

And we uh, discussed with the um, with them and with the executive of it that uh, this was going to be such a potentially um, harmful to the- to the restaurant businesses.

 

Jad Abumrad:

Like you would lose all your white customers, is that what you were worried about?

 

Ollie:

I mean, that- that was a possibility. And uh, somebody ought to do something, and uh, so we kind of ended up being the ones to do something, IE, fi- file the suit.

 

Jad Abumrad:

So they filed a suit basically saying to the federal government, you have no right to barge into our small independent local business.

 

Ollie:

Thought was they can't really tell us what to do, because we're not an interstate business, and that's all that the federal government regulates. And up until that point, that was all they had regulated.

 

Jad Abumrad:

The case went to the US District Court for the northern district of Alabama.

 

Ollie:

Uh, at the lower court level, the three judge special panel, uh we had a unanimous decision in our favor.

 

Jad Abumrad:

The Alabama court agreed that there was no interstate commerce happening here, and that Ollie's did not have to desegregate, they could sell their ribs to whoever they wanted.

 

Ollie:

And we were optimistic about that.

 

Jad Abumrad:

The government then appeals, and the case, as they say, goes all the way to the Supreme Court.

 

Jad Abumrad:

All right, let me now explain to you how the government made this argument, because they made it in court.

 

Speaker 31:

May it please the court.

 

Jad Abumrad:

October 5th, 1964.

 

Speaker 31:

The second case involving ...

 

Jad Abumrad:

Solicitor General Archibald Cox gets up there and lays it out. Why the government should be allowed to use the commerce clause of all things to desegregate Ollie's BBQ.

 

Speaker 31:

[inaudible 00:33:11] operate a restaurant in Birmingham, Alabama, specializing in barbecuing meat.

 

Jad Abumrad:

He says this is a business that sells and buys a lot of meat.

 

Speaker 31:

In the 12 month period prior to July 1, 1964, [inaudible 00:33:32] purchased about $70,000 worth of meat.

 

Jad Abumrad:

$69,683 to be exactly. And where do you think all that meat came from?

 

Speaker 31:

Which was purchased from the Hormel company at its Birmingham, Alabama plant. Now all the meat sold at that plant came from other states, so that it moved in interstate travel.

 

Jad Abumrad:

In other words, you think you're a local business, but you're not.

 

James Chen:

The meat is sourced from places other than Alabama.

 

Jad Abumrad:

And what about your ketchup, hypothetically? Do you grow all your tomatoes in Alabama.

 

James Chen:

No.

 

Ollie:

Salt. Salt, not mined in Alabama, so even though we bought it from a local vendor ...

 

Jad Abumrad:

That local vendor probably bought it from somebody who bought it somebody that got it from out of state.

 

Ollie:

They were reaching beyond what had ever been done before, basically.

 

Jad Abumrad:

The government was basically telling the McClungs the same thing they told Roscoe Filbrun: you are not an island. And that was only the government's first argument. They had another argument.

 

Speaker 31:

There is a second and still more direct link.

 

Jad Abumrad:

That was even more radical.

 

Speaker 31:

Between racial discrimination in restaurants and interstate commerce, which is caused by the artificial narrowing of the consumer market, resulting from the exclusion of negro patrons.

 

James Chen:

So here's the argument.

 

Jad Abumrad:

Okay.

 

James Chen:

If you deny black people access to restaurants and hotels, you are effectively shutting down interstate travel by them in parts of the country where this practice is commonplace. The entire deep south.

 

Jad Abumrad:

You're limiting their ability to cross state lines and- and-

 

James Chen:

And travel.

 

Jad Abumrad:

The essential argument, says James Chen, is that when you discriminate against someone, you create downstream negative uh, commercial effects. Like- like you create a chilling effect because the person you're discriminating against is then less likely to travel across state lines and spend money. So, in effect, you are depressing their future interstate commerce.

 

James Chen:

If you ask black people with this experience from this time period, they will universally say we never left home unless every tire was triple checked, every belt was triple checked on the car, because we did not want to have the car break down in a hostile southern town and get lynched.

 

Jad Abumrad:

Right, right.

 

James Chen:

It is an entire system of travel and commerce that's at stake here.

 

Jad Abumrad:

Essentially the argument was discrimination is bad for business, it's expensive. And ultimately, in a unanimous decision, the Supreme Court, the same court that 100 years earlier had basically gutted the 14th amendment. The Supreme Court agreed that uh, discrimination in restaurants posed significant burdens on the quote, "interstate flow of food and upon the movement of products generally."

 

Jad Abumrad:

Do you remember that decision coming down?

 

Ollie:

Oh, certainly.

 

Jad Abumrad:

Where were you?

 

Ollie:

Oh, I was at work.

 

Jad Abumrad:

Can you tell me a little bit about how you and your dad processed that decision?

 

Ollie:

We simply served anyone who came in after that, no problem. And they were, uh, the very next day, there was a group of uh, local civil rights leaders who came in and ate lunch. I knew some of them by having seen them in the news, that sort of thing. They were not our regular customers before then, nor after, frankly. But uh, they celebrated or whatever you want to say, uh, tested, I don't know what their motive was. But they came and ate lunch. They got served just like anybody else.

 

Jad Abumrad:

They came in and it was fine.

 

Ollie:

Sure. The law was- was decided, so that was it.

 

Jad Abumrad:

Was it tense?

 

Ollie:

No. Other than waitress who was waiting on them was- she was a little antsy about it.

 

Jad Abumrad:

And- and was it- this waitress, was she a black woman?

 

Ollie:

Yes. I forget who it was now but uh, she was ... Like most of our employees, been there a very long time. And uh, had never served other black folks, uh, in a sit down situation. And- and of course, it was a little bit uh ... I won't say upsetting, but different. She was a little hesitant at first. I- you know, told her just, you know, just go right ahead and serve them. And she did, and we did, and that was not a problem.

 

Jad Abumrad:

After the ruling it's not as if a lot of black customers suddenly started coming into Ollie's BBQ. They didn't. Here's how uh, a guy named Nathan Turner Jr put it in 2014, uh, he was interviewed for an NPR piece. He grew up nearby Ollie's.

 

Nathan Turner:

Just the fact that Ollie's pushed it that far to take it to the Supreme Court, it left a bad taste, pun intended, in the mouths of a lot of black people in Birmingham.

 

Jad Abumrad:

And now, 53 years later-

 

Ollie:

Mm-hmm (affirmative).

 

Jad Abumrad:

... how do you think about that Supreme Court decision?

 

Ollie:

Well, you're- if you're asking me about segregation, that's one thing. But you're asking about the Supreme Court and the decision and uh, the commerce clause, I still disagree with uh, uh ... Let me put it real, real succinctly. Uh, I think what you had in that decision was that rather than ... And I think my civics is correct, but I don't know, rather than three quarters of the uh, Congress and three fifths of the states I believe it is, having to ... Or maybe two thirds of Congress, whichever it is. Having to vote to repeal an amendment to the constitution, uh, you had basically nine appointees who repealed the 10th amendment to the constitution.

 

Jad Abumrad:

The 10th amendment basically says that the powers not given to the feds are reserved for the states and for the people.

 

Ollie:

And that's about as succinct as I can say it.

 

Jad Abumrad:

But do you understand how this is going to sound to a lot of our listeners? I mean, that you are making a states rights argument as a not so veiled way to continue to discriminate. That really in the end this is not about states rights. I think that's gonna- how it's gonna sound to a lot of people.

 

Ollie:

Well, it may very well, but it's not the case. Was there segregation? Yes. Uh, were- were we going to voluntarily uh, end that? Probably not. Would we go back and reinstate it if we could? No, absolutely not. But the issue that you're talking about with the uh, commerce clause and the constitutional issue, is still just what I said.

 

Jad Abumrad:

So you still believe, 53 years later, that the Supreme Court got it wrong, that they should have never used the commerce clause to make you desegregate Ollie's?

 

Ollie:

Yeah. That is correct. But don't hear me say that- I don't want to go back and have segregation again. That's a separate issue.

 

Jad Abumrad:

But is it separate I guess is my question. You know, uh, like I grant you, if you think of it in the abstract, a federal government being able to regulate commerce across all boundaries is an enormous power.

 

Ollie:

Yes.

 

Jad Abumrad:

And it- and it- and it could be a scary power. I grant you that. At the same time, you have a civil rights act-

 

Ollie:

Mm-hmm (affirmative).

 

Jad Abumrad:

... that- that speaks to a different amendment in the constitution-

 

Ollie:

Right.

 

Jad Abumrad:

... and that you and your father were not willing to follow. So how is the government gonna get you to- to pay attention and to get in line? They've got to use the commerce clause. So on some level, isn't it- isn't the power present because the other principles that would otherwise regulate your behavior just aren't working.

 

Ollie:

Well, that's- that's the point. You choose which- which is the priority, basically.

 

Jad Abumrad:

I don't understand. Wh- which is the priority? How-

 

Ollie:

Well, which is the priority of uh, those amendments, uh ...

 

Jad Abumrad:

And so for you, the 10th amendment that grants states rights for everything not enumerated outweighs the dignity of black people.

 

Ollie:

No, no, no.

 

Jad Abumrad:

No. Well we'll put- so say it to me differently then.

 

Ollie:

Well, the 10th amendment left that to the states. The 4th amendment, yes-

 

Jad Abumrad:

I think you meant to say the 14th amendment.

 

Ollie:

... gives people rights, everyone rights. But here's the thing about rights. It's got- kind of like the first law of thermodynamics. There's only a ... and people don't realize this a lot of times. There're only so many rights. There are only a finite number of rights. If you take some- give some to someone, they come from someone else, or somewhere else. Now it's very well to say that the end of segregation was a higher right and more important right than the misuse of the commerce clause, or whatever you want to say. But you- but there's still a balance in just which one you think is most important. Uh, today's politics, we call it zero sum.

 

Jad Abumrad:

Ollie's basic point, and we talked about this for another hour, was that in achieving desegregation that way ... And by the way, the civil rights act of '64 dramatically altered the south. It desegregated huge parts of the south. But by doing it that way, he says, with the commerce clause, something was it sacrificed. He calls it a zero sum. I wouldn't call it that. I don't think most people would call it that. Treating with dignity and equality is a net win. Period.

 

Jad Abumrad:

But it is legitimately strange that the government had to take such a roundabout ass-backward way to fix this. To fix this grave justice.

 

Jamie Floyd:

And what- what- what you would think would be the obvious- that you would go right to those civil rights parts of the constitution, but it wasn't. It was the commerce clause.

 

Jad Abumrad:

That's what's weird, is that-

 

Jamie Floyd:

Yeah.

 

Jad Abumrad:

... we have the 14th amendment, and yet we go to the commerce clause for something-

 

Jamie Floyd:

Yep.

 

Jad Abumrad:

... that is so clearly stated in one of the amendments. So why-

 

Jamie Floyd:

Well, lawyers are very tricky.

 

Jad Abumrad:

This is Jamie Floyd again, by the way.

 

Jamie Floyd:

And the lawyers in those cases that want- they wanted to win. They wanted to win more than they wanted to make a social statement about equal justice, equal rights, the 14th amendment. I mean, those things mattered, but most of all they wanted to win. They wanted to shut down discrimination at those lunch counters. And if Congress could shut them down or require them to open their doors to all Americans using those 16 words, I'm okay with that.

 

Jad Abumrad:

Yeah. Yeah. No, I mean obviously the- if- the ends do justify the means in that case. But it does make you ... If you sort of put that case and the wheat case in your mind as a kind of split screen-

 

Jamie Floyd:

Yeah.

 

Jad Abumrad:

... it's- it's a little strange. Because I do think, okay, we have I- I mean I- hopefully we're Americans with principles that matter, you know? That we- we believe in equality, we believe in racial justice. But really we just believe in money. And we can do all the other stuff by bootstrapping it to commerce, but somehow as- as pure principles, they what, don't have teeth?

 

Jamie Floyd:

Well, it's deeply troubling that we have to use commerce to achieve our higher values.

 

Jad Abumrad:

That is weird to me. That is fundamentally weird to me. And it's kind of cynical.

 

Jamie Floyd:

Well, yeah. I mean, I- I ... you are right. We are at least in large part about commerce in this country. But if that's who we are, then we should embrace it and use it to our advantage. And if we can use it to our advantage, perhaps it does take us to our higher principles.

 

Jad Abumrad:

Now that's an interesting way of looking at it.

 

Jamie Floyd:

Yeah, it's not all bad.

 

Jad Abumrad:

One of Jamie's points, which I hadn't actually thought of, was that legislating morality, legislating what is good and what is bad, doesn't always go well, because we very often don't agree. I mean, obviously there have been times where people kept slaves and thought that was just fine. That that was right. And for 100 years you had the 14th amendment in place but it couldn't solve Ollie's BBQ. And here was a way for the government, without going at the moral questions head on, government could reach its hand all the way into the BBQ joints and the hotels and the restaurants and the houses and now the cake shops of America, reach its hand all the way down into the local. And it was because of this increasingly expansive idea of commerce, that was now no longer the buying and selling of things, or the not buying and selling of things, it was now any behavior that could create a kind of butterfly effect that might one day, may steps downstream, have a future effect on the buying and selling of things. So in that sense, Ollie McClung was right. His case ...

 

Ollie:

That was a massive shift. It shifted totally the federal government's role beyond business even. Uh, if you think it's good, then that's fine, and it's for the better. But it just has to be realized that it was a massive shift from the way that uh, the country had been up before that time.

 

Jad Abumrad:

After the McClung case, James Chen says, the governments use of the commerce clause pretty much went wild.

 

James Chen:

Yeah. There was just no real limit.

 

Jad Abumrad:

They began to wave those 16 words sort of like a magic wand to pass laws on everything from fair labor standards to ...

 

Speaker 33:

Marijuana is a schedule one-

 

Jad Abumrad:

Drugs.

 

Speaker 34:

The gun control act of 1968.

 

Jad Abumrad:

Guns.

 

Speaker 35:

Is there justice for victims of trafficking acts?

 

Jad Abumrad:

Sex trafficking.

 

Speaker 36:

19,000 African lions in the wild-

 

Jad Abumrad:

Endangered species.

 

Speaker 37:

1992, professional and amateur-

 

Jad Abumrad:

Sports.

 

Speaker 37:

... sports protection act, which forbids state authorized sports gambling.

 

Jad Abumrad:

All kinds of things.

 

James Chen:

And in fact, the only question was whether the government even had to make the argument itself. Whether the government even has to defend itself.

 

Jad Abumrad:

James Chen says there were times when the government would pass a law, it'd get taken to court, and the government would pr- basically not show up. And they would still win!

 

James Chen:

That's where we were. So we were arguing whether the government even has to argue!

 

Jad Abumrad:

So you can see the McClung case as sort of a second big bang, but then, you get to the mid '90s. At this point, 1994, you have a Democratic President, Bill Clinton, Democratic majorities in both houses of Congress, and together they pass the violence against women act.

 

Speaker 38:

Today is the first day of spring, and I think it's appropriate that we begin a new season of hope in the fight against domestic violence.

 

Speaker 39:

I thank you all for being here. Now this is an important day.

 

Jad Abumrad:

The act was sort of a sweeping rethink of the fed government's role in trying to prevent violence against women. It beefed up investigations, uh, of violent crimes against women, prosecutions. It allowed women to sue their alleged attackers in federal court.

 

Speaker 39:

We had to take responsibility. Domestic violence is now the number one health risk for women between the ages of 15 and 44 in our country.

 

Jad Abumrad:

And the law was hinged on the commerce clause. Same essential argument as in the BBQ case. That same fall ...

 

Christy:

My name is Christy Brzonkala. I'm 19 years old, and I have lived in Fairfax, Virginia most of my life.

 

Jad Abumrad:

A woman named Christy Brzonkala starts her freshman year at Virginia Tech, and just weeks in ...

 

Christy:

In mid September, 1994, I was raped by two football players in my own dorm. I had met them for the first time just 15 minutes before they assaulted me.

 

Jamie Floyd:

These two football players, she alleged, had raped her repeatedly.

 

Christy:

On a single night in 1994, I was raped three times.

 

Jamie Floyd:

She went to the local campus authorities, she told her story.

 

Jad Abumrad:

The college held their own hearings, didn't go to the police. They suspended one of the two students. He appealed, won, and when he returned ...

 

Jamie Floyd:

Christy Brzonkala dropped out of school.

 

Jad Abumrad:

Christ Brzonkala ultimately decides to sue her alleged attackers, and the school, under this new law, the violence against women act. And the case ultimately makes it to the Supreme Court.

 

Speaker 41:

We'll hear argument now number 99-5, Christy Brzonkala versus Antonio Morrison.

 

Jad Abumrad:

When Christy's case got to the Supreme court, her lawyer ...

 

Speaker 42:

Mr Chief Justice, may it please the court-

 

Jad Abumrad:

Made the same argument about women that the government had made in the Ollie's BBQ case about black people: that discrimination, or in this case outright violence, has a huge downstream effect on the economy.

 

Speaker 42:

A bipartisan Congress concluded that gender based violence substantially effects the national economy. Gender based violence, and the fear of that discriminatory violence, deters women's travel interstate, restricts women's choice of jobs and ability to perform those jobs, reduces national productivity, and increases medical and other costs.

 

Jad Abumrad:

And again, the court was given tons of evidence about the economic effects.

 

Speaker 42:

For example, Congress heard from women whose batterers kept their partners from working.

 

Jad Abumrad:

They were shown data that every year, this costs the country billions of dollars, and that economic downstream effect was not hard to prove with this case. She dropped out.

 

James Chen:

Well, especially if you aggregate it, right? It's not just here, it's everyone else who's similarly situated.

 

Jad Abumrad:

But in this case ...

 

Speaker 43:

As I understand, this law doesn't apply to any- to anything-

 

Jad Abumrad:

The argument was happening at a very different time in the country, a very different mood. And in front of an increasingly conservative Supreme Court that just wasn't buying it anymore.

 

Rhenquist:

Petitioner Brzonkala's complaint alleges that she was the victim of a brutal assault.

 

Jad Abumrad:

This is Chief Justice Rhenquist reading the uh, majority opinion.

 

Rhenquist:

If the allegations are true, no civilized system of justice could fail to provide her a remedy for Morrison's conduct. With gender motivated crimes of violence are not in any sense of the phrase, economic activity.

 

Jad Abumrad:

In other words, we're very sorry for what may have happened to Christy Brzonkala, but this is not commerce, this is violence. The suggestion was that at least in the Ollie's case, there was something being bought and sold. Here, they felt like the link to commerce was too thin.

 

Rhenquist:

We accordingly reject the argument that Congress may regulate non-economic violent criminal conduct based solely on that conduct's remote effect on the interstate commerce.

 

Jamie Floyd:

Chief Justice Rhenquist got his majority to start to chip away at the commerce power just a tiny, teeny weeny little bit.

 

Jad Abumrad:

And Jamie Floyd that attempt to roll it back continues.

 

Jamie Floyd:

It's rolling back.

 

Jad Abumrad:

It is.

 

Jamie Floyd:

it is rolling back.

 

Jad Abumrad:

Still pretty powerful, don't get us wrong, but where we're left at the end of the day is in a really confusing place.

 

James Chen:

Ollie McClung excluding black people from his dining room, yeah it's a commercial act, we consider it reprehensible, but I- I would like to think that raping Christy would be at least as bad.

 

Jad Abumrad:

Totally.

 

James Chen:

I mean, you see that- this is what this kind of like, absurd abstraction gets us to, and in a coherent ideal world, can't be right.

 

Robert:

I don't know, when you- when the- when the- the reasoning behind something gets a little rocky, then the soul of things gets- gets called into question. Like, what are you doing, judges?

 

Jad Abumrad:

Yeah. For me, that's what happens when you make everything about money.

 

Robert:

Yeah.

 

Jad Abumrad:

Things get a little bit rotten at their core.

 

Jad Abumrad:

All right, so I'm gonna- I- before I uh, uh, before I s- read the credits, Robert, thank you for being a party to this a- adventure.

 

Robert:

Yes, always my pleasure.

 

Jad Abumrad:

All right, so this episode was produced by Sarah Qari, uh, More Perfect is produced by me, Jed Abumrad, and an amazing team, Suzie Lechtenberg, Jenny Lawton, Julia Longoria, Kelly Prime, Alex Overington and Sarah Qari. With Ellie Mastall, Christian Farrious, Linda Hirschman, David Gebel, and Michelle Harris. We had production help from Derek John and Louie Mitchell. Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. Leadership support for More Perfect is provided by the Joyce foundation. Additional funding is provided by the Charles Evans Hughes memorial foundation.

 

Robert:

Time to say goodbye.

 

Jad Abumrad:

Time to say goodbye. I'm Jad Abumrad.

 

Robert:

I'm Robert Krulwich.

 

Jad Abumrad:

Thanks for listening. 



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