Radiolab - Radiolab Presents: More Perfect - One Nation, Under Money

Episode Date: January 31, 2018

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?

Wait, you're listening. Okay. All right. You're listening to Radio Lab. Radio Lab. From W. N. Y. C. See?

All right. Sorry. Robert. I'm gathering my thoughts as I'm speaking. Yes. Okay. All right. Robert. Yes. Season two finale of more perfect. Yes. Long overdue. But much anticipated.

Maybe. Yeah. Well, among those who care. Among those who care. A growing number. One can hope. You're having a modest day today. It's, you know, it's Tuesday.

It's Tuesday. It's modesty Tuesday. Yes, modesty Tuesday. Okay, so I want to bring you 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. Oh, my God. This question of yours is that old and that deep? It's only two years old.

It's just a two-year-old show. But when people hear what the question is, they will, eyeballs will be rubbed. No, no, no. All right, go ahead, tell them. It's Modesty Tuesday. What was it two years ago that struck you at a question you have never been able to let go? Question of never been able to let go. One of the first questions I bumped into when learning about the Supreme Court.

Mm-hmm. Was why does everybody keep talking about this thing called the Commerce Clause? Commerce Clause. Commerce Clause. Yes. That had a dazzle for you? No, I just wanted to know what the hell is it. Well, it's Article 1, Section 8, Clause 3 of the Constitution.

16 words, two commas. Congress shall have the power to regulate commerce with foreign nations and among the several states and with the Indian tribes. The power to regulate commerce with foreign nations and among the several states and with the Indian tribes. There are no more sexier words in the English language. Yes, better words for wooing were never written. That's Jamie Floyd and Ari Savitsky. We'll meet them properly in just a second. Okay, so turns out that question of like, what is it? It's pretty easy to answer.

He's just these 16 words in the Constitution that say Congress has the power to regulate commerce from one state to another. Like as soon as it goes between states, across state borders, the feds can regulate. I think that there with a sigh would begin and end, and that would be the other end of it. Well, yes. But here's the thing. Within that shell of boring is... I'm politely silent here. is an amazing story of a kind of cosmic power

that develops from very humble beginnings to something truly extraordinary and may be troubling, depending on who you are. A cosmic power. You mean this phrase from the Constitution has had consequences that surprised you? Oh, boy. 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... My name is Magneto. Why is Magneto the head of the bad guys?

Will you join my brotherhood and fight? Why would they follow him? He has the most boring power. Who will you stand? I mean, he can control metal. Okay, well, like, mystique can shift into any shapes you want. Storm can control lightning. Initially, his powers seem like you have the worst one.

So, we start with the commerce class, and we ask the riddle of Magneto. I'm trying to cross the bridge. I'm getting there. All I'm saying is that, like, initially, I didn't understand the truth. 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 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'd built the world a different way, maybe not. But in this world... Let's just say I'm Frankenstein's monster. Periodic table, baby. Periodic table, baby. So that's for me what it was like to learn about the Commerce Clause.

What initially seems stupid and boring... I see. I see. ...extrondarily powerful once you understand the world in which it is situated. Does that mean you're about to take us on a journey which begins with something that feels utterly trivial and ends up with being something enormously powerful? Wow. That is a question to which I simply must answer yes. The question, way it all out there.

I don't do any work at that. Well, I guess we can get on with it then. Yeah, I'm going to tell you the story of the Commerce Clause. Everything we fight about in America is in these 16 words. The honorable, the chief justice and the associate justices of the Supreme Court of the United States before the honorable, the Supreme Court of the United States were admonished to draw a near and give honorable court. All right, I'm going to start. You good?

Yeah. To even explain why something like the Commerce Clause exists, just pull out a dollar bill. Go ahead and pull it out, right? It's issued by a central bank. Are you looking at a dollar bill right now? I'm looking at dollar bill. It says Federal Reserve. note, United States of America. That is James Chen, professor of law at Michigan State University.

Now, the thing about a dollar bill, the awesome, obvious thing is that you can take that dollar bill and buy some Sourbatch Kids or whatever a dollar buys these days anywhere in America. Right. But in the late 18th century, in fact, all the way through to the 20th century. Wasn't like that. No, no, no, no, no. All the states had their own banks and their own bills. Different sizes, colors. For example, there's 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.

Let's say that. And you've got to make payments somehow. What do you do? Well, you hand them your South Carolina bill. 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.

They might look at that $10 and say, that's only worth eight to me. That's a horrible, horrible way to do business. That sucks for the person holding the note. Right. And so what the government decided to do is to say, hey, we're just going to use one bill. Just one bill. It's going to be so much easier. This is one of the ways the government was going to pull all these different states together.

They were going to regulate the currency. And not just the currency itself. They were going to regulate the flow of that currency. And this is where the Commerce Clause comes in. This is Jamie Floyd, journalist, sometimes legal analyst, host of all things considered. Here at WMYC. It's early in the Republic. Now we're at 1820s.

Now, just to hit pause for one second. So the Commerce Clause is a pre-existing thing? Oh, yeah. Oh, yeah. It's in the U.S. Constitution. It's in the Constitution. But it's never been really, like, thought about, or where is it in the minds of people in 1824? Nowhere.

No way. Pretty much where it is right now. It's nowhere in the minds of people. But she says 1824, two steamboat operators get into a thing. It's a business dispute. 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. And it makes its way, as we say, all the way to the...

U.S. Supreme Court. And who's 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 in a period. And he decides, pretty much for the first time, that those words give Congress 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. 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, 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 going to fall apart. 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 at a very specific moment around 1941 in a wheat field. Well, what happened in the wheat wheel? Okay, well, let me introduce you to someone. My father was a farmer, I'd like to say, all of his life, took pride in the fact that he never worked for another man. He would tell me that. Can you introduce yourself?

Well, my name is the same as my father. It's Roscoe Curtis Philbrun. I'm a junior. Roscoe Philburn, as he was known at the time. He was a fifth generation farmer in Montgomery, Ohio. Our farm was just right next to Dayton, Ohio. Roscoe is about a 40-year-old man at this point. Ken, we're talking about 1941, 42.

Good looking, sturdy, fiercely independent. I never worked for another man in my life. Apparently, that was his motto. He would tell me that many times over the years. If you had to put like Captain America with a pitchfork, this is him. So, Roscoe's got this farm, more than a hundred cows on it. He would milk cows until both of his arms went practically numb. Wow.

Had chickens? 2,000 chickens. And we had a very big garden. He would plant things, you know, like string beans, lima beans, peas, sweet corn, potatoes, carrots, radishes. A couple different kinds of fruit trees. Apples, cherry trees, peach trees, pears, strawberries and raspberries. Oh, and of course they had crops. We would grow corn, a couple different kinds of hay, oats, and of course, wheat.

Wheat. Okay, set up out of the way. Here's what happened. It's 1941. Rasko Sr. My dad was out in the field, I think, on his tractor. That day he was plowing the weed or something. 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 date, this government gentleman came out into the field. He looked around and he said, Roscoe, by my calculations,

You've got 22 acres of wheat on this farm. You're over, your quota. He was 11.1 acres over what was permitted. Roughly. And so the guy tells him, You have to pay a fine. A really big fine. My dad looked over and he was just as sober as a judge in a courtroom on a murder case.

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, my name is Ari Civitsky and I'm an attorney. Let me bring in a friend of the show, man of the law. You know, an important thing to understand is that, you know, when our story starts, with Roscoe Philburn. Agriculture is a huge percentage of the economy.

The Great Depression is happening. A financial panic grips the world. And the dust bowl. The great dust storms of the mid-1930s has happened, too. Reached havoc through America's great plans. And so you have a lot of people who rely on selling crops and buying crops, and so wheat prices. It's a matter of life and death.

For millions of Americans. This nation is asking for action and action now. So look, so 1938 Congress enacts What's called the Agricultural Adjustment Act To reboot the economy So the 1938 Agricultural Adjustment Act Got the Federal Government into the business

Regulating wheat Basically what the government did was they said to the Farmers of America We are going to give you essentially a loan We're going to guarantee you a certain minimum price for wheat We're going to 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. You know, wheat is sort of a collective action problem, right? Everyone's going to sell as much wheat as they can, but that means prices go down and everyone makes less. So what the government decided to do in addition to giving out loans is that, They placed a cap on how much wheat a person could grow. So, quote a straight up quota. That way you ensure that the supply of wheat is steady.

And you ensure that the prices don't crash. And the whole reason the government could do this regulate the entire wheat market was by hinging it on the commerce clause. So those 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, cross-state lines. Well, that's interstate commerce. That's something that Congress can regulate. So my father having this.

And this brings us back to Roscoe Philburn with that inspector on his farm. Inspector says, look, Roscoe, you've grown too much wheat. My dad looked over and he was just as sober as a judge in a courtroom on a murder case. And what do you think he says back? He says, wait a minute. I'm going to tell you just exactly how I feel about that. No, that's how I feel. No, you government.

I don't know. He might have been a family guy. Yeah. He says I don't get it. I'm not, I have nothing to do with interstate commerce. And this is the key. 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.

He doesn't sell the wheat. He doesn't trade the wheat. What's he doing with his wheat? He uses all the wheat to feed his animals. He is feeding it to the farm animals. The wheat, he fed some of the wheat to the steers. So she's just keeping it on the farm. 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. In case, he tells the inspector. I have nothing to do with interstate commerce. I'm just growing a little extra wheat to feed my cows. I'm on my farm. I'm doing my business.

Big brother leave me alone. But big brother does not leave him alone. The inspector says, We're the government, that's the law. Please uphold it. Pay the fine. 50 cents for every excess bushel, I think it is. He had 239 excess bushels of wheat, for which he was fined about $117. In today's dollars, it's about $2,000.

Two grand. 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. Huh. His argument was like, look, I'm just trying to feed my cows. Come on. I guess it went to our court in Dayton, Ohio.

That was the first stop. And I believe that he won. Round one to Roscoe. The Ohio court agreed. There's no commerce of any kind going on here. unlike the original case with the boat. I believe I even remember him, my sister telling me that he came home, and he was just delighted that he did win.

But then, the government appeals the case? And, of course, when it got to the Supreme Court of the United States, he lost. 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 Philburn, 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. The idea is that if you need more wheat than the quota, you go on the market and buy it. Even though you can grow it yourself, you've got to buy it. Because if everyone can produce their quota and then whatever extra they need,

I mean, pretty soon the regulation breaks down. 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. See, that is so weird. It's such a mind-fri-frankly. It's like, he's not doing anything. All right.

Well, this is literally non-behavior. This is Obamacare. It's very much like the health care case. It's getting heated over health care. Today's issue, the individual mandate. Just to explain, that's a reference to Barack Obama's health care plan. It was hotly debated a couple years ago, still hotly debated. One of the key ideas of that plan is that in order for health care to be affordable for everyone,

everyone should have to buy it. So we're going to require people to buy insurance, where else you pay a penalty. Which made a lot of people mad because they're like, hey, the government's forced me to buy something I don't want. My decision not to get health care is not participation in interstate commerce. It's not even economic activity.

I'm sitting here on my couch not buying health care. I'm just sitting here. 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. 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.

Obamacare makes sense to me in some spiritual way. But getting back to Roscoe, like we're regulating the things you're not doing. Because there's no farmer. No farmer is an island. This is the case in which Congress receives a tremendous amount of power from the U.S. 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. Did anyone sort of raised 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. 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 address 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. Would not the housewife who makes herself address do so. Yeah, it's like 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? Oh my gosh. If you made your kids do it and now you violate some child labor laws even. So like what happened here essentially, Robert, is that 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. It was the not buying and selling of stuff. Yeah, it was your negative commercial activity.

And that is all the things you don't do is a much bigger territory than the things you do do. Yeah. It's a massive extension of power. 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. You mean like people hating on it? other, people trusting people being brave, people. All will become clear after the break, my friend.

All right now. And after the break. Excuse me while I get myself a, this sizzling drink and settle down in my black leather couch. Ooh, yeah. All right, season two finale of More Perfect here on Radio Lab. We'll continue in a moment. This is Nicole from Corning, New York.

Radio Lab 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. I'm Jedd. I boomrod. I'm Robert Krollwitch. This is, well, we're featuring the final episode of More Perfect Season 2 here on Radio Lab. A strange and heartfelt salute to the Commerce Clause of the U.S. Constitution. Yes.

And previously, we had the Big Bang and the Wheatfield, but that was still about markets and commerce and all that, right? Yeah. There was a moment. about two decades after the wheat case, where you might say the Commerce Clause got weaponized. Hmm.

Hello. Hey, can you hear me? Yes. This is Jad from Radio Lab and More Perfect in New York. Jack. Jad, J-A-D. J-A-D. Okay, well, Andrew is here and he's recording.

To really understand what I mean, you have to meet this guy. Can you introduce yourself? Tell me who you are, your name? Yes, it's Olly McClong, Jr. And how old are you? 77. And where are you speaking to us from right now? I'm in Birmingham, Alabama. You were born in Birmingham?

Yes. Aside from some time at college in Florida and a stint in the coast card, 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 barbecue joint named Ollie's. So this is your dad's business, from what I understand, right? Yes, my grandfather actually had founded it. Oh, really? When was that?

1926. So this was passed to your dad who passed it to you? Yes. But we were in business together until he died. Ollie's barbecue was located on Birmingham Southside. The building we were in at the time you're talking about from 1949 until 68. It was concrete block. Big sign outside said world's best barbecue. Pretty good for its day. Apparently during lunch, the line would stretch out the door. Allie's was famous for its slow-cooked pork and chicken and for its spicy. see vinegar barbecue sauce and the pie baking

chocolate pies we always did a lot of pies but Ollie's was also famous or would become famous

for something else entirely well because of the times and the way things were at that time of course

throughout the south in Birmingham we had a carryout business as well as sit down

business and and those of our black customers came in and ordered from the carryout 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. What he's saying is that Ollie's barbecue was segregated. If you were white, you could eat inside.

If you were black, you couldn't. I mean, that was the way it worked. 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 Ali's barbecue. But their hands were sort of tied. I mean, we have this thing called the 14th Amendment, which says, No state shall deprive any person of life liberty or property without the impressive of law,

nor shall any state deny equal protection of the laws to any person. 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 and 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. 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. The problem is when a restaurant owner like Ali McClung denies service to black patrons, it's not Alabama doing the damage. It's just a private business. It's not as if Alabama ordered the McClung family to discriminate against black patrons.

They just did it. So if the 14th Amendment can only get to states, well here it has no reach. Because there's no state action. There is nothing to regulate at the state level. So, with the Fed's decided to do, to do in a fascinating bit of legal gymnastics as they decided to use the Commerce Clause. Congress passes the most sweeping civil rights bill ever to be written into the law.

Giving all Americans the right to be served in facilities which are open to the public. 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, just a second. But first, just to get us to that point. So 1964 Civil Rights Act is passed. Did you desegregate right away? No. No.

We were not happy with it, obviously. I want to read to you something that you said in 1964. I believe this is sort of your account of something that happened in your restaurant. 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 comes back with a young girl for other black people they sit down at the counter they want to know Why you why all these wouldn't serve them and they were taking notes and You're quoted as saying they seem like agitators Yeah, in fact they were they they were folks that came

and went around several places just to test the law basically yeah And you were and you were turning those folks away? Yes, you kicked them out Mm-hmm. And why? We 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. But, you know, from their perspective, they're there because the law's been changed. Yeah. Yes. Ollie says right after the Civil Rights Act was passed, sort of an emergency meeting was called of the Birmingham Restaurant Association.

and he and his dad went. And we discussed with them and with the executive of it that this was going to be such a potentially harmful to the restaurant businesses. Like you would lose all your white customers? Is that what you worried about? 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, i.e. file the suit. So they filed a suit basically saying to the federal government, you have no right to barge into our small, independent, local business. The 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. The case went to the U.S. District Court for the Northern District of Alabama. At the lower court level, the three-judge special panel, we had a unanimous decision in our favor.

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. And we were optimistic about that. 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. Chief Justice, bad place in Clark. October 5th, 1964.

The second case involving... 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 all these barbecue. Appalachians operate a restaurant in Birmingham, Alabama, specializing in barbecue meat. He says this is a business that sells and buys a lot of meat. In the 12-month period, prior to July 1, 1964, the Appalachians purchased about $70,000. worth of meat. $69,683, to be exact.

And where do you think all that meat came from? It was purchased from the Hormel Company at its Birmingham, Alabama plant. All the meat sold at that plant came from other states so that it moved in interstate companies. In other words, you think you're a local business, but you're not. The meat is sourced from places other than Alabama. And what about your ketchup, hypothetically? Do you grow all your tomatoes in Alabama? No.

Salt. Salt. Not mine in Alabama. So even though we bought it from a local vendor. That local vendor probably bought it from somebody who bought it from somebody that got it from out of state. They were reaching beyond what it ever had been done before, basically. Government was basically telling the McClungs the same thing they told Roscoe Fulbrun. You are not an island. And that was only the government's first argument. They had another argument. Now there's a second and still more directly.

That was even more radical. 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. So here's the argument. 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.

You're limiting their ability to cross state lines and travel. 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 feelings. future interstate commerce. 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 in the car, because we did not want to have the car break down in a hostile southern town and get lynched. Right, right. It is an entire system of travel and commerce that's at stake here. Essentially, the argument was discrimination is bad for business. It's expensive. And ultimately, in a unanimous decision, the Supreme Court, same court that 100 years earlier had basically gutted the 14th Amendment. The Supreme Court agreed that discrimination in restaurants pose significant burdens on the, quote,

interstate flow of food and upon the movement of products generally. Do you remember that decision coming down? Oh, certainly. Where were you? I was at work. Can you tell me a little bit about how you and your dad processed that decision? We simply served anyone who came in after that, no problem. And there 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 in ate lunch. They got served as like anybody else. They came in and it was fine? Sure.

The law was decided, so that was it. Was it tense? No. other than the waitress who was waiting on them was she was a little antsy about it and was it this waitress was she a black woman yes i forget who it was now but uh she was like most of our employees have 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 don't say upsetting but different she was a little bit i don't say upsetting but different she was a little little hesitant at first. I told her just, you know, just go right hand and serve them. And she did and we did. And that was not a problem. After the ruling, it's not as if a lot of black customers

suddenly started coming into Ollie's barbecue. 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. 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. Now 53 years later, how do you think about that Supreme Court decision? Well, if you're asking me about segregation,

that's one thing, if you're asking about the Supreme Court and the decision and the Commerce Clause, I still disagree with... Let me put it real succinctly. I think what you had, in that decision was it 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 repeal the Tenth Amendment to the Constitution. The 10th Amendment basically says that the power is not given to the feds are reserved for the states and for the people. And that's about as succinct as I can say it. But do you understand how this is going to sound to a lot of our listeners? I mean, that you are making a state's 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 how it's going to sound to a lot of people. 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 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. So you still believe 53 years later that the Supreme Court got it wrong, that they should have never, use the commerce clause to make you desegregate alleys. 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. 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. Yes. And it could be a scary power.

So I grant you that. same time, you have a civil rights act that speaks to a different amendment in the Constitution and that you and your father were not willing to follow. So how is the government going to get you to pay attention and to get in line? They've got to use the Commerce Clause. So on some level, isn't the power present because the other principles that would otherwise regulate your behavior just aren't working? Well, that's the point. choose which which is the priority basically I don't understand you which is the priority how well which is the priority of those amendments and so for you the

tenth amendment the grant states rights for everything not enumerated outweighs the dignity of black people no no no well put so say it to me differently then Well, the 10th Amendment left that to the states. The Fourth Amendment, yes. I think you meant to say the 14th Amendment. It 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 there's still a balance and just which one you think.

think it's most important. Today's parlance, we call it zero sum. Ali's basic point, when 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 people 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 injustice.

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. That's what's weird, is it? Yeah. We have the 14th Amendment, and yet we go to the Commerce Clause for something that is so clearly stated in one of the amendments. So why? Well, lawyers are very tricky. This is Jamie Floyd, again, by the way.

And the lawyers in those cases that 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. Yeah, yeah. No, I mean, obviously, if the ends do justify the means in that case.

But it does make you, if you sort of put that case and the weak case in your mind as a kind of split screen. Yeah. it's a little strange because I do think, okay, we have idea. 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? Well, it's deeply troubling that we have to use commerce to achieve our high.

values. That is weird to me. That is fundamentally weird to me. And it's kind of cynical. 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. Well, that's an interesting way of looking at it. It's not all bad. 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. But that was right. And for 100 years, you had the 14th Amendment in place, but it couldn't solve Ollie's barbecue. 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 barbecue 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, Ali McClung was right. His case? 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 up before that time.

After the McClung case, James Chen says the government's use of the Commerce Clause pretty much went wild. Yeah, there's just no real limit. They began to wave those 16 words sort of like a magic. wand to pass laws on everything from fair labor standards to marijuana is a schedule one drugs gun control act of 1968 guns the justice for victims of trafficking sex trafficking 19000 African lions in the wild endangered species 1992 professional and amateur sports sports protection act which forbids state authorized sports gambling all kinds of things 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.

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. That's where we were. So we're arguing whether the government even has to argue. So you can see the McClun case as sort of a second Big Bang, but then you get to the mid-90s. At this point, in 1994, you have a Democratic president, Bill Clinton, Democratic majorities in both houses of Congress.

And together they pass the Violence Against Women Act. 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. I thank you all for being here. This is an important day. 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.

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. And the law was hinged on the Commerce Clause. Same essential argument as in the barbecue case. That same fall. My name is Christy Broncala. I am 19 years old and I have lived in Fairfax, Virginia most of my life. A woman named Christy Broncala starts her freshman year at Virginia Tech. And just weeks in. In mid-September, in 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.

These two football players, she alleged, had raped her repeatedly. On a single night in 1994, I was raped three times. She went to the local campus authorities. She told her story. College held their own hearings, didn't go to the police. They suspended one of the two students. He appealed one. And when he returned, Christy Brancala dropped out of school.

Christy Broncala 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. We'll hear argument now, number 995. Christy Brancala versus Antonio Morrison. When Christie's case got to the Supreme Court, her lawyer, Mr. Chief Justice, may it please the court, made the same argument about women that the government had made in the OLLIVA's barbecue case

about black people, that discrimination, or in this case outright violence, has a huge downstream effect on the economy. 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. And again, the court was given tons of evidence about the economic effects. For example, Congress heard from women whose batterers kept their partners from working.

They were shown data that every year this costs the country billions of dollars. And that economic downstream effect was not hard to prove in this case. She dropped out. Well, especially if you aggregate it, right? It's not just her. It's everyone else who's similarly situated. But in this case, as I understand it, this law doesn't apply to any...

The argument was happening at a very different time in the country, very different mood, and in front of an increasingly conservative Supreme Court, that just wasn't buying it anymore. Petitioner Berzankala's complaint alleges that she was the victim of a brutal assault. This is Chief Justice Rehnquist reading the majority opinion. 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.

In other words, we're very sorry for what may have happened to Christine Brancala, 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. We accordingly reject the argument that Congress may regulate non-economic, violent criminal conduct based solely on that conduct's remote effect on interstate commerce.

Chief Justice Rehnquist got his majority to start to chip away at the commerce power. Just a tiny teeny teeny teeny little bit. And Jamie Floyd says that attempt to roll it back continues. It's rolling back. It is rolling back. 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. Ali 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 Christine would be at least as bad. Totally. I mean, you see it. This is what this kind of absurd abstraction gets us to. And in a coherent ideal world can't be. right. I don't know. When you, when the, 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?

Yeah. For me, that's what happens when you make everything about money. Things get a little bit rotten at their core. All right, so I'm going to, before I, before I read the credits, Robert, thank you for being a party to this adventure. It's always my pleasure. All right, so this episode was produced by Sara Kari. More Perfect is produced by me, Jed Aboumron, and an amazing team, Susie Lechtenberg, Jenny Lawton, Julia Longoria, Kelly Prime, Alex Overington, and Sara Kari

with Ellie Mistal, Christian Farias, Linda Hirschman, David Gable, and Michelle Harris. We had production help from Derek John and Louis Mitchell. Supreme Court Audio is from Oye, 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. Time to say goodbye.

Time to say goodbye. I'm Chad, I'm Boomerad. I'm Robert Krowich. Thanks for listening.