Jan 31, 2018
Transcript
[RADIOLAB INTRO]
JAD ABUMRAD: All right, sorry. Robert? I was trying to—I'm gathering my thoughts as I'm speaking.
ROBERT KRULWICH: Yes, okay.
JAD: All right, Robert.
ROBERT: Yes.
JAD: Season two finale of More Perfect.
ROBERT: Yes.
JAD: Long overdue.
ROBERT: But much anticipated.
JAD: Maybe.
ROBERT: Yeah. Well, among those who care.
JAD: Among those who care.
ROBERT: Of whom there are a growing number.
JAD: One can hope.
ROBERT: [laughs] You're having a modest day today.
JAD: It's—you know—it's Tuesday.
ROBERT: It's Tuesday.
JAD: It's modesty Tuesday.
ROBERT: Yes, modesty Tuesday.
JAD: Okay, so I want to bring you a story from 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: It's only two years old. It's a two-year-old child.
ROBERT: But still, when people hear what the question is, they will—eyeballs will be rubbed.
JAD: I don't know.
ROBERT: All right. Go ahead, tell them.
JAD: 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: Question I've never been able to let go, one of the first questions I bumped into when learning about the Supreme Court ...
ROBERT: Mm-hmm.
JAD: ... was why does everybody keep talking about this thing called ...
[ARCHIVE CLIP: The commerce clause.]
[ARCHIVE CLIP: The commerce clause.]
[ARCHIVE CLIP: The commerce clause.]
[ARCHIVE CLIP: The commerce clause.]
ROBERT: The commerce clause.
JAD: Yes.
ROBERT: That had a dazzle for you?
JAD: No. I just wanted to know what the hell is it?
JAMI FLOYD: Well, it's Article I, Section 8, Clause 3 of the Constitution.
JAD: Sixteen words, two commas.
JAMI FLOYD: "Congress shall have the power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.
ARI SAVITZKY: The power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.
JAD: There are no more sexier words in the English language.
ARI SAVITZKY: Yes. Better words for wooing were never written.
ROBERT: [laughs]
JAD: That's Jami 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 Congress has the power to regulate commerce from one state to another.
ROBERT: Yes.
JAD: Like, as soon as it goes between states, across state borders ...
ROBERT: Mm-hmm.
JAD: ... the Feds can regulate it.
ROBERT: Right. I think that there with a sigh would begin and end, and that would be the end of it. So, okay ...
JAD: Well. Yes. But here's the thing. Within that shell of boring is ...
ROBERT: [laughs] I'm politely silent here.
JAD: ... is an amazing story of a kind of cosmic power that develops from very 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: Oh boy!
ROBERT: Hmm!
JAD: 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 ...
[ARCHIVE CLIP, X-Men: My name is Magneto.]
JAD: ... why is Magneto the head of the bad guys?
[ARCHIVE CLIP, X-Men: Will you join my brotherhood and fight?]
JAD: Like, why would they follow him? He has the most boring power.
[ARCHIVE CLIP, X-Men: Who will you stand with?]
JAD: 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'm trying to cross the bridge to get ...
JAD: No, no. 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—pew!—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 ...
[ARCHIVE CLIP, X-Men: Let's just say I'm Frankenstein's monster.]
ROBERT: Periodic table, baby! Periodic table, baby!
JAD: 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: ... 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: Wow. That is a question to which I simply must answer, yes.
ROBERT: [laughs]
JAD: 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: Yeah. I'm gonna tell you the story of the commerce clause. Everything we fight about in America is in these 16 words.
[MORE PERFECT INTRO: The honorable, the Chief Justice, and the associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez. All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention. The court is now sitting. God save the United States and this honorable Court.]
JAD: All right, I'm gonna—I'm gonna start. You good?
ROBERT: Yep.
JAD: To even explain why something like the commerce clause exists, just pull out a dollar bill.
JAMES CHEN: Go ahead and pull it out, right? It's issued by a central bank.
JAD: Are you looking at a dollar bill right now?
JAMES CHEN: I'm looking at a dollar bill.
JAD: Okay.
JAMES CHEN: It says "Federal Reserve note. United States of America."
JAD: 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.
JAMES CHEN: Right. But in the late-18th century, in fact all the way through to the 20th century ...
JAD: It wasn't like that.
JAMES CHEN: No, no, no, no, no.
JAD: All the states had their own banks and their own bills.
JAMES CHEN: Different sizes, colors.
JAD: 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.
JAMES CHEN: Let's say that. And you've got to make payment somehow.
JAD: What do you do? Well you hand them your South Carolina bill.
JAMES CHEN: Well, the Rhode Islanders would look at that and say "Well, I don't know what this is. 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: They might look at that $10 and say, "That's only worth $8 to me."
JAMES CHEN: That's a horrible, horrible way to do business.
JAD: That sucks for the people holding the note.
JAMES CHEN: Right.
JAD: And so what the government decided to do 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 gonna 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.
JAMI FLOYD: And this is where the commerce clause comes in.
JAD: This is Jamie Floyd, journalist.
JAMI FLOYD: Sometimes legal analyst.
JAD: Host of All Things Considered.
JAMI FLOYD: Here at WNYC. It's early in the republic. Now we're at 1820s.
JAD: Now just to hit pause for one second. So the commerce clause is a pre-existing thing?
JAMI FLOYD: Oh, yeah.
JAD: Okay.
JAMI FLOYD: Oh, yeah. It's in the US Constitution.
JAD: It's in the Constitution, but it's never been really like, thought about, or where—where is it in the minds of people in 1820?
JAMI FLOYD: Nowhere.
JAD: Nowhere.
JAMI FLOYD: Pretty much where it is right now.
JAD: [laughs]
JAMI FLOYD: It's nowhere in the minds of people.
JAD: But she says 1824, two steamboat operators get into a thing.
JAMI FLOYD: It's a business dispute.
JAD: 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.
JAMI 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: And he decides ...
JAMI FLOYD: Pretty much for the first time.
JAD: ... that those words give Congress the ...
JAMI 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 control it.
JAD: 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 ...
JAMI 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: It was at that point that the commerce clause began to glow, but very faintly. For the next hundred 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 at a very specific moment around 1941 in a wheat field.
ROBERT: Well, what happened in the wheat field?
JAD: Okay, well let me introduce you to someone.
ROSCOE FILBURN: My father was a farmer I'd like to say, all of his life. Took pride in the fact that he never—he never worked for another man. He would tell me that.
JAD: Can you introduce yourself?
ROSCOE FILBURN: Well, my name is the same as my father. It's Roscoe Curtis Filburn. I'm a junior.
JAMES CHEN: Roscoe Filburn, as he was known at the time.
JAD: He was a fifth generation farmer.
JAMES CHEN: In Montgomery, Ohio.
ROSCOE FILBURN: Our farm was just right next to Dayton, Ohio.
JAMES CHEN: Roscoe is about a 40-year-old man at this point.
JAD: Again, we're talking about 1941, '42.
JAMES CHEN: Good looking, sturdy.
JAD: Fiercely independent.
JAMES CHEN: "I never worked for another man in my life."
JAD: Apparently, that was his motto.
ROSCOE FILBURN: 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: [laughs]
JAD: So Roscoe's got this farm, more than 100 cows on it.
ROSCOE FILBURN: He would milk cows until both of his arms went practically numb.
JAD: Wow!
JAD: He had chickens.
ROSCOE FILBURN: Two thousand chickens. And we had a very big garden. He would plant things, you know, like string beans, lima beans, pea, sweet corn, potatoes, carrots, radishes.
JAD: A couple different kinds of fruit trees.
ROSCOE FILBURN: Apples, cherry trees, peach trees, pears, strawberries and raspberries.
JAD: Oh, and of course they had crops.
ROSCOE FILBURN: We would grow corn, a couple different kinds of hay, oats, and of course wheat.
JAMES CHEN: Wheat.
JAD: Okay, set up out of the way, here's what happened. It's 1941, Roscoe Senior ...
ROSCOE FILBURN: My dad was out in the field, I think, on his tractor.
JAD: That day he was plowing the wheat or something.
ROSCOE FILBURN: And there apparently must have been some guy from the Department of Agriculture locally, I guess going around to various farmers in our community, wanting the farmers to answer several pages, I think, of questions. And this particular day, this government gentleman came out into the field.
JAD: He looked around, and he said ...
JAMES CHEN: "Roscoe …"
JAD: "By my calculations …"
JAMES CHEN: "You've got 22 acres of wheat on this farm."
JAD: "You're over your quota."
JAMI FLOYD: He was 11.1 acres over what was permitted.
JAD: Roughly. And so the guy tells him ...
JAMI FLOYD: "You have to pay a fine."
JAD: A really big fine.
ROSCOE FILBURN: My dad looked over, and he was just as sober as a judge in a courtroom on a murder case.
JAD: 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 were even having this conversation. And to help me with that ...
ARI SAVITZKY: My name is Ari Savitzky, and I'm an attorney.
JAD: … let me bring in a friend of the show, man of the law.
ARI SAVITZKY: You know, an important thing to understand is that, you know, when our story starts with Roscoe Filburn, agriculture is a huge percentage of the economy, the Great Depression is happening.
[ARCHIVE CLIP: A financial panic grips the world.]
ARI SAVITZKY: And the dust bowl.
[ARCHIVE CLIP: The great dust storms of the mid-1930s …]
ARI SAVITZKY: ... has happened, too.
[ARCHIVE CLIP: ...wreaks havoc to America's Great Plains.]
ARI SAVITZKY: And so you have a lot of people who rely on selling crops and buying crops. And so wheat prices …
JAD: It's a matter of life and death.
ARI SAVITZKY: For millions of Americans.
[ARCHIVE CLIP: This nation is asking for action, and action now!]
ARI SAVITZKY: So look, so 1938 ...
JAMI FLOYD: Congress enacts ...
ARI SAVITZKY: What's called the Agricultural Adjustment Act.
JAMI FLOYD: To reboot the economy.
JAMES CHEN: So the 1938 Agricultural Adjustment Act got the federal government into the business of regulating wheat.
JAD: 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 SAVITZKY: 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: So what the government decided to do, in addition to giving out loans ...
ARI SAVITZKY: Is that they placed a cap on how much wheat a person could grow. So quota, straight up quota.
JAD: That way you ensure that the supply of wheat is steady.
ARI SAVITZKY: And you ensure that the prices don't crash.
JAD: 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 FILBURN: So my father having this ...
JAD: And this brings us back to Roscoe Filburn with that inspector on his farm. Inspector says, "Look, Roscoe, you've grown too much wheat."
ROSCOE FILBURN: My dad looked over, and he was just as sober as a judge in a courtroom on a murder case.
JAMI FLOYD: And what do you think he says back? He says, "Wait a minute!"
ROSCOE FILBURN: "I'm gonna tell you what—just exactly how I feel about that."
JAD: "No. That's how I feel. No, you government [bleep] ..."
JAMI FLOYD: I don't know, he might have been a family guy.
JAD: Yeah.
JAMI 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: 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.
JAMI FLOYD: He doesn't sell the wheat. He doesn't trade the wheat.
JAD: What's he doing with his wheat?
JAMI FLOYD: He uses all the wheat to feed his animals.
JAMES CHEN: He is feeding it to the farm animals.
ROSCOE FILBURN: The wheat, he fed some of the wheat to the steers. I really ...
JAD: So he's just keeping it on the farm.
JAMI FLOYD: Well, yes. So it's in a completely internal operation. Do I sound biased here? I mean, I feel like the poor guy gets kind of dragged into a national case.
JAD: In any case, he tells the inspector ...
JAMI FLOYD: I'm not—I have nothing to do with interstate commerce.
JAD: "Just growing a little extra wheat to feed my cows."
JAMI FLOYD: I'm on my farm, I'm doing my business. Big—big brother leave me alone.
JAD: 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: "Pay the fine."
ARI SAVITZKY: 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: In today's dollars, that's about two grand. Two grand.
ROSCOE FILBURN: My father, apparently 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: Huh!
JAD: His argument was like, "Look, I'm just trying to feed my cows. Come on!"
ROSCOE FILBURN: I guess it went to our court in Dayton, Ohio.
JAD: That was the first stop.
ROSCOE FILBURN: And I believe that he won.
JAD: Round one to Roscoe. The Ohio court agreed.
JAMI FLOYD: There's no commerce of any kind going on here, unlike the original case with the boat.
ROSCOE FILBURN: I believe I even remember him—my sister telling me that he came home and he was just delighted that he did win.
JAD: But then, the government appeals the case.
ROSCOE FILBURN: And of course, when it got to the Supreme Court of the United States, he lost.
JAD: 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 Filburn, 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 SAVITZKY: The idea is that if you need more wheat than the quota, you go on the market and buy it.
JAD: Even though you can grow it yourself. You gotta buy it.
ARI SAVITZKY: Because if everyone can produce their quota and then whatever extra they need, I mean, pretty soon 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: See, that is so weird! It's such a mind [bleep] frankly. It's like, he's not doing anything.
JAMES CHEN: All right, well this becomes ...
JAD: This is literally non behavior.
JAMES CHEN: This is—this is Obamacare.
JAMI FLOYD: It's very much like the healthcare case.
[NEWS CLIP: It's getting heated over healthcare. Today's issue, the individual mandate.]
JAD: Just to explain, that's a reference to Barack Obama's healthcare plan that was hotly debated 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 SAVITZKY: So we're gonna require people to buy insurance, or else you pay a penalty.
JAD: Which made a lot of people mad, because they're like, "Hey, the government's forcing me to buy something I don't want."
ARI SAVITZKY: 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: 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.
[ARCHIVE CLIP, Justice Elena Kagan: And the aggregate of all these uninsured people are increasing the normal family premium, Congress says, by $1,000 a year. Those people are in commerce. They're making decisions that are affecting the price that everybody pays for this service.]
JAD: 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 ...
JAMES CHEN: Because there's no farmer—no farmer is an island.
JAMI 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: 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 SAVITZKY: Well, yeah. A 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: "Would not the housewife who makes herself a dress do so equally." Yeah, it's like—yeah.
ARI SAVITZKY: Yeah.
JAD: If you make something—like, shoot, my wife and I with our kids made these little, like 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 SAVITZKY: Oh my gosh. If you made your kids do it, and now you've violated some child labor laws, even.
JAD: [laughs]
JAD: So, like, what happened here essentially, Robert, is that the—the definition of commerce changed 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: 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: Yeah.
ROBERT: So that's a massive extension of power.
JAD: 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 matters of the heart.
ROBERT: You mean like people hating on each other? Or people trusting—people being—people ...
JAD: All will become clear after the break, my friend.
ROBERT: Okay. All right, well ...
JAD: After the break.
ROBERT: Excuse me while I get myself a sizzling drink and settle down in my black leather couch.
JAD: Ooh!
ROBERT: Yeah.
JAD: All right. Season two finale of More Perfect here on Radiolab will continue in a moment.
[LISTENER: 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.]
JAD: I'm Jad Abumrad.
ROBERT: I'm Robert Krulwich.
JAD: This is—well, we're featuring the final episode of More Perfect, season two here on Radiolab.
ROBERT: A strange and heart-filled salute to the commerce clause of the US Constitution.
JAD: Yes. And 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: There was a moment about two decades after the wheat case, where you might say the commerce clause got weaponized.
ROBERT: Hmm.
[phone ringing]
OLLIE MCCLUNG, JR.: Hello?
JAD: Hey, can you hear me?
OLLIE MCCLUNG, JR.: Yes.
JAD: This is Jad from Radiolab and More Perfect in New York.
OLLIE MCCLUNG, JR.: Jack.
JAD: Jad. J-A-D.
OLLIE MCCLUNG, JR.: Jad. J-A-D. Okay. Well, Andrew is here and he's recording.
JAD: To really understand what I mean, you have to meet this guy.
JAD: Can you introduce yourself, tell me who you are, your name?
OLLIE MCCLUNG, JR.: Yes. It's Ollie McClung, Jr.
JAD: And how old are you?
OLLIE MCCLUNG, JR.: 77.
JAD: And where are you speaking to us from right now?
OLLIE MCCLUNG, JR.: I'm in Birmingham, Alabama.
JAD: You were born in Birmingham.
OLLIE MCCLUNG, JR.: Yes.
JAD: 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: So this is your dad's business, from what I understand, right?
OLLIE MCCLUNG, JR.: Yes. My grandfather actually founded it.
JAD: Oh really? When was that?
OLLIE MCCLUNG, JR.: 1926.
JAD: So this was passed to your dad, who passed it to you.
OLLIE MCCLUNG, JR.: Yes.
JAD: Okay.
OLLIE MCCLUNG, JR.: But we were in business together until he died.
JAD: Ollie's BBQ was located on Birmingham's south side.
OLLIE MCCLUNG, JR.: The building we were in at the time you're talking about, from 1949 'til '68, it was concrete block.
JAD: Big sign outside said, "World's Best BBQ?"
OLLIE MCCLUNG, JR.: Pretty good for its day.
JAD: Apparently during lunch, the line would stretch out the door. Ollie's was famous for its slow cooked pork and chicken, and for its spicy vinegar BBQ sauce.
OLLIE MCCLUNG, JR.: And the pie baking.
JAD: Chocolate pies.
OLLIE MCCLUNG, JR.: We always did a lot of pies.
JAD: But Ollie's was also famous—or would become famous—for something else entirely.
OLLIE MCCLUNG, JR.: Well, because of the times and the way things were, at that time of course and throughout the South and Birmingham, we had a carry-out business as well as sit-down business. And—and those of our Black customers came in and ordered from the carry-out counter and took their food out. And, you know, truth, fact, history, they would take it on with them to eat as opposed to sitting down and eating.
JAD: 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 MCCLUNG, JR.: I mean, that was the way it worked.
JAD: 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 law, nor shall any state deny equal protection of the laws to any person."
JAD: 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-plus 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 precedence." The problem is is when a restaurant owner like Ollie McClung denies service to Black patrons, it's not Alabama doing the damage.
JAD: 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: 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: So what the feds decided to do, in a fascinating bit of legal gymnastics, is they decided to use the commerce clause.
[NEWS CLIP: Congress passes the most sweeping civil rights bill ever to be written into the law.]
[NEWS CLIP: Giving all Americans the right to be served in facilities which are open to the public.]
JAD: July 2, 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: So 1964 Civil Rights ...
OLLIE MCCLUNG, JR.: Mm-hmm.
JAD: ... Act is passed. Did you desegregate right away?
OLLIE MCCLUNG, JR.: No.
JAD: No.
OLLIE MCCLUNG, JR.: No, we were—we were not happy with it, obviously.
JAD: 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. The day after the Civil Rights Act was passed, a Black man comes into the restaurant asking to be served, 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 MCCLUNG, JR.: Yeah. In fact, they were. They—they were folks that came and went around several places just to test the law, basically. Yeah.
JAD: And you were—and you were turning those folks away.
OLLIE MCCLUNG, JR.: Yes.
JAD: You kicked them out.
OLLIE MCCLUNG, JR.: Mm-hmm.
JAD: And why?
OLLIE MCCLUNG, JR.: I mean, just because that's the way we had always done. That's the way—until the law got adjudicated, we weren't going to unilaterally change things.
JAD: But they—you know, from their perspective, they're there because the law's been changed.
OLLIE MCCLUNG, JR.: Yeah. Yes.
JAD: Ollie says right after the Civil Rights Act was passed, sort of an emergency meeting was called of the Birmingham Restaurants Association, and he and his dad went.
OLLIE MCCLUNG, JR.: And we discussed with the—with them and with the executive of it that this was going to be such a potentially harmful to the—to the restaurant businesses.
JAD: Like, you would lose all your white customers, is that what you were worried about?
OLLIE MCCLUNG, JR.: I mean, that was a possibility. And somebody ought to do something, and so we kind of ended up being the ones to do something, ie. file the suit.
JAD: So they filed a suit basically saying to the federal government, "You have no right to barge into our small independent local business."
OLLIE MCCLUNG, JR.: 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: The case went to the US District Court for the Northern District of Alabama.
OLLIE MCCLUNG, JR.: At the lower court level, the three judge special panel, we had a unanimous decision in our favor.
JAD: 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 MCCLUNG, JR.: And we were optimistic about that.
JAD: The government then appeals, and the case, as they say, goes all the way to the Supreme Court. All right, let me now explain to you how the government made this argument, because they made it in court.
[ARCHIVE CLIP, Supreme Court: Chief Justice, and may it please the court.]
JAD: October 5, 1964.
[ARCHIVE CLIP, Supreme Court: The second case involving ...]
JAD: 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.
[ARCHIVE CLIP, Supreme Court: The appellees operate a restaurant in Birmingham, Alabama, specializing in barbecuing meat.]
JAD: He says this is a business that sells and buys a lot of meat.
[ARCHIVE CLIP, Supreme Court: In the 12 month period prior to July 1, 1964, the appellates purchased about $70,000 worth of meat.]
JAD: $69,683 to be exact. And where do you think all that meat came from?
[ARCHIVE CLIP, Supreme Court: 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: 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: And what about your ketchup, hypothetically? Do you grow all your tomatoes in Alabama.
JAMES CHEN: No.
OLLIE MCCLUNG, JR.: Salt. Salt not mined in Alabama, so even though we bought it from a local vendor ...
JAD: That local vendor probably bought it from somebody who bought it from somebody that got it from out of state.
OLLIE MCCLUNG, JR.: They were reaching beyond what had ever been done before, basically.
JAD: The government was basically telling the McClungs the same thing they told Roscoe Filburn: You are not an island. And that was only the government's first argument. They had another argument.
[ARCHIVE CLIP, Supreme Court: Now there is a second and still more direct link.]
JAD: That was even more radical.
[ARCHIVE CLIP, Supreme Court: 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: 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: You're limiting their ability to cross state lines, and ...
JAMES CHEN: And travel.
JAD: The essential argument, says James Chen, is that when you discriminate against someone, you create downstream negative commercial effects. 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: Right, right.
JAMES CHEN: It is an entire system of travel and commerce that's at stake here.
JAD: 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 a hundred years earlier had basically gutted the 14th Amendment, the Supreme Court agreed that discrimination in restaurants posed significant burdens on the quote, "interstate flow of food and upon the movement of products generally."
JAD: Do you remember that decision coming down?
OLLIE MCCLUNG, JR.: Oh, certainly.
JAD: Where were you?
OLLIE MCCLUNG, JR.: Oh, I was at work.
JAD: Can you tell me a little bit about how you and your dad processed that decision?
OLLIE MCCLUNG, JR.: We simply served anyone who came in after that, no problem. And they were—the very next day, there was a group of 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 they celebrated or whatever you want to say—tested, I don't know what their motive was. But they came and ate lunch. They got served just like anybody else.
JAD: They came in and it was fine?
OLLIE MCCLUNG, JR.: Sure. The law was—was decided, so that was it.
JAD: Was it tense?
OLLIE MCCLUNG, JR.: No. Other than the waitress who was waiting on them was—she was a little antsy about it.
JAD: And was this waitress, was she a Black woman?
OLLIE MCCLUNG, JR.: Yes. I forget who it was now, but she was, like most of our employees, been there a very long time, and had never served other Black folks in a sit-down situation. And of course, it was a little bit—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: 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 a guy named Nathan Turner Jr. put it in 2014. He was interviewed for an NPR piece. He grew up nearby Ollie's.
[ARCHIVE CLIP, Nathan Turner, Jr.: 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: And now, 53 years later ...
OLLIE MCCLUNG, JR.: Mm-hmm?
JAD: ... how do you think about that Supreme Court decision?
OLLIE MCCLUNG, JR.: Well, if you're asking me about segregation, that's one thing. But you're asking about the Supreme Court and the decision and the commerce clause, I still disagree with—let me put it real, real succinctly. 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 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, you had basically nine appointees who repealed the 10th Amendment to the Constitution.
JAD: The 10th Amendment basically says that the powers not given to the feds are reserved for the states and for the people.
OLLIE MCCLUNG, JR.: And that's about as succinct as I can say it.
JAD: 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 MCCLUNG, JR.: Well, it may very well, but it's not the case. Was there segregation? Yes. Were we going to voluntarily 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 commerce clause and the constitutional issue, is still just what I said.
JAD: 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 MCCLUNG, JR.: 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: But is it separate, I guess is my question. You know, 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 MCCLUNG, JR.: Yes.
JAD: And it—and it could be a scary power. I grant you that. At the same time, you have a Civil Rights Act ...
OLLIE MCCLUNG, JR.: Mm-hmm.
JAD: ... that speaks to a different amendment in the Constitution.
OLLIE MCCLUNG, JR.: Right.
JAD: And that you and your father were not willing to follow. So how is the government gonna get you to pay attention and to get in line? They've gotta 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 MCCLUNG, JR.: Well, that's—that's the point. You choose which—which is the priority, basically.
JAD: I don't understand. Which is the priority? How ...
OLLIE MCCLUNG, JR.: Well, which is the priority of those amendments.
JAD: And so for you, the Tenth Amendment that grants states' rights for everything not enumerated outweighs the dignity of Black people?
OLLIE MCCLUNG, JR.: No. No, no.
JAD: No. Well, put—so say it to me differently then.
OLLIE MCCLUNG, JR.: Well, the Tenth Amendment left that to the states. The Fourth Amendment, yes ...
JAD: I think he meant to say the Fourteenth Amendment.
OLLIE MCCLUNG, JR.: ... gives people rights, everyone rights. But here's the thing about rights. It's kind of like the first law of thermodynamics. There's only a—and people don't realize this a lot of times. There are 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 and just which one you think is most important. Today's politics, we call it zero sum.
JAD: 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 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. 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.
JAMI FLOYD: And 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: That's what's weird, is that ...
JAMI FLOYD: Yeah.
JAD: ... we have the Fourteenth Amendment, and yet we go to the commerce clause for something ...
JAMI FLOYD: Yeah.
JAD: ... that is so clearly stated in one of the amendments. So why ...
JAMI FLOYD: Well, lawyers are very tricky.
JAD: This is Jami Floyd again, by the way.
JAMI 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 Fourteenth 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: Yeah. Yeah. No, I mean, obviously 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?
JAMI FLOYD: Yeah.
JAD: ... it's—it's a little strange. Because I do think, okay, we have—I mean, hopefully we're Americans with principles that matter, you know? That 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 pure principles they what, don't have teeth?
JAMI FLOYD: Well, it's deeply troubling that we have to use commerce to achieve our higher values.
JAD: That is weird to me. That is fundamentally weird to me. And it's kind of cynical.
JAMI FLOYD: Well, yeah. I mean, 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: Now that's an interesting way of looking at it.
JAMI FLOYD: Yeah, it's not all bad.
JAD: One of Jami'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 a hundred years you had the Fourteenth Amendment in place but it couldn't solve Ollie's BBQ. And here was a way for the government, without going at the moral question 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, many steps downstream, have a future effect on the buying and selling of things. So in that sense, Ollie McClung was right. His case ...
OLLIE MCCLUNG, JR.: That was a massive shift. It shifted totally the federal government's role beyond business even. 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 the country had been before that time.
JAD: After the McClung case, James Chen says the government's use of the commerce clause pretty much went wild.
JAMES CHEN: Yeah. There was just no real limit.
JAD: They began to wave those 16 words sort of like a magic wand to pass laws on everything from fair labor standards to ...
[ARCHIVE CLIP: Marijuana is a schedule one ...]
JAD: ... drugs.
[ARCHIVE CLIP: The gun control act of 1968.]
JAD: Guns.
[ARCHIVE CLIP: Is there justice for victims of trafficking acts?]
JAD: Sex trafficking.
[ARCHIVE CLIP: 19,000 African lions in the wild.]
JAD: Endangered species.
[ARCHIVE CLIP: ... 1992, Professional and Amateur ...]
JAD: Sports.
[ARCHIVE CLIP: ... Sports Protection Act, which forbids state authorized sports gambling.]
JAD: 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: James Chen says there were times when the government would pass a law, it'd get taken to court, and the government would 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: 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.
[ARCHIVE CLIP: 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.]
[ARCHIVE CLIP, Bill Clinton: I thank you all for being here. Now this is an important day.]
JAD: The act was sort of a sweeping rethink of the federal government's role in trying to prevent violence against women. It beefed up investigations of violent crimes against women, prosecutions. It allowed women to sue their alleged attackers in federal court.
[ARCHIVE CLIP, Bill Clinton: 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: And the law was hinged on the commerce clause. Same essential argument as in the BBQ case. That same fall ...
[ARCHIVE CLIP, Christy Brzonkala: My name is Christy Brzonkala. I'm 19 years old, and I have lived in Fairfax, Virginia most of my life.]
JAD: ... a woman named Christy Brzonkala starts her freshman year at Virginia Tech, and just weeks in ...
[ARCHIVE CLIP, Christy Brzonkala: 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.]
JAMI FLOYD: These two football players, she alleged, had raped her repeatedly.
[ARCHIVE CLIP, Christy Brzonkala: On a single night in 1994, I was raped three times.]
JAMI FLOYD: She went to the local campus authorities, she told her story.
JAD: 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 ...
JAMI FLOYD: Christy Brzonkala dropped out of school.
JAD: Christy 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.
[ARCHIVE CLIP, Supreme Court: We'll hear argument now number 99-5, Christy Brzonkala versus Antonio Morrison.]
JAD: When Christy's case got to the Supreme court, her lawyer ...
[ARCHIVE CLIP, Supreme Court: Mr. Chief Justice, and may it please the court ...]
JAD: ... 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.
[ARCHIVE CLIP, Supreme Court: A bipartisan Congress concluded that gender-based violence substantially affects 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: And again, the court was given tons of evidence about the economic effects.
[ARCHIVE CLIP, Supreme Court: For example, Congress heard from women whose batterers kept their partners from working.]
JAD: 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 her, it's everyone else who's similarly situated.
JAD: But in this case ...
[ARCHIVE CLIP, Supreme Court: As I understand it, this law doesn't apply to anything ...]
JAD: ... 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.
[ARCHIVE CLIP, Supreme Court: Petitioner Brzonkala's complaint alleges that she was the victim of a brutal assault.]
JAD: This is Chief Justice Rhenquist reading the majority opinion.
[ARCHIVE CLIP, Supreme Court: If the allegations are true, no civilized system of justice could fail to provide her a remedy for Morrison's conduct. But gender-motivated crimes of violence are not in any sense of the phrase, "economic activity."]
JAD: 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.
[ARCHIVE CLIP, Supreme Court: 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.]
JAMI FLOYD: Chief Justice Rehnquist got his majority to start to chip away at the commerce power just a tiny, teeny weeny little bit.
JAD: And Jami Floyd says that attempt to roll it back continues.
JAMI FLOYD: It's rolling back.
JAD: It is.
JAMI FLOYD: It is rolling back.
JAD: It's 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 would like to think that raping Christy would be at least as bad.
JAD: Totally.
JAMES CHEN: I mean, you see it. 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 reasoning behind something gets a little rocky, then the soul of things gets—gets called into question. Like, what are you doing, judges?
JAD: Yeah. For me, that's what happens when you make everything about money.
ROBERT: Yeah.
JAD: Things get a little bit rotten at their core. All right, so I'm gonna—before I—before I read the credits, Robert, thank you for being a party to this adventure.
ROBERT: Yes, always my pleasure.
JAD: All right, so this episode was produced by Sarah Qari. More Perfect is produced by me, Jad Abumrad, and an amazing team: Suzie Lechtenberg, Jenny Lawton, Julia Longoria, Kelly Prime, Alex Overington and Sarah Qari. With Elie Mystal, 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: Time to say goodbye. I'm Jad Abumrad.
ROBERT: I'm Robert Krulwich.
JAD: Thanks for listening.
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