[SlimNm]

I'm in a debate over the Constitutionality of the Civil Rights Act of 1964, and I'm trying to provide evidence to support my belief that it's not Constitutional because:

It derives it's authority to regulate employee-employer relations (restricts racial discrimination when hiring/firing), and
Commerce doesn't include employee-employer relations.

My opponent has put forth the following argument:

"The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository."[Federalist #17]

Hamilton states precisely that power over commerce ought to be lodged "In the national depository." Given this, it cannot be seriously argued that by "Private justice between citizens of the same state," which is what Hamilton says is not the proper province of the Federal Government, extends to commercial matters. Even if it did, Hamilton's opinion is not the Constitution. The power of Congress to regulate commerce is, as Mr. Justice Clark [3] states, 'Broad and Sweeping.'

Please help, I'm doing my best, but I'm stumped. For the full debate, you can go to http://debate.org/debates/The-Civil-Rig ... utional/1/

Thanks to anyone who tries to help!

[Joe Liberty]

I can't view the original debate (I'm at work and our web filters are notoriously stringent), so I can't help much. Since your opponent is proffering Hamilton's arguments, you could counter with Madison's (if you haven't already).

Everything I've read of the intent behind the Commerce Clause indicates that it was intended primarily to:
A) facilitate commerce with other nations, rather than allowing individual States to strike their own deals;
B) prevent States from charging levies or tariffs or other impositions on goods that crossed state lines.

In other words, it was to literally oversee commerce between States, not all commerce everywhere.

Nowhere do I find that the intent was, even on Hamilton's part, to grant Congress the power to regulate literally everything, which is how it has come to be viewed. That would fly in the face of the underlying philosophy on which the Constitution was based. It was intended to correct some of the perceived shortcomings of the Articles of Confederation, not to completely abandon the concept of federalism.

[SecretSquirrel]

I was going to write a post but Joe Liberty covered all the bases already

[Someone5]

I'm in a debate over the Constitutionality of the Civil Rights Act of 1964, and I'm trying to provide evidence to support my belief that it's not Constitutional because:

It derives it's authority to regulate employee-employer relations (restricts racial discrimination when hiring/firing), and
Commerce doesn't include employee-employer relations.

You do realize that the Supreme Court has, subsequent to 1964, established that equal protection under the law (i.e. the 14th amendment) applies to individual action within a public context, correct? It's therefore constitutional under the 14th amendment, not just the commerce clause (which was always a pretty thin justification). Your position has been out of place for decades.

Hamilton states precisely that power over commerce ought to be lodged "In the national depository."

The federalist papers have no legal weight whatsoever, except in as much as the courts choose to use them for guidance.

[Someone5]

Nowhere do I find that the intent was, even on Hamilton's part, to grant Congress the power to regulate literally everything, which is how it has come to be viewed. That would fly in the face of the underlying philosophy on which the Constitution was based. It was intended to correct some of the perceived shortcomings of the Articles of Confederation, not to completely abandon the concept of federalism.

The rather explicit intent of the framers was to expand federal power to do just that. They proposed a federal system that gives every ounce of power to the federal government they thought they could convince people to ratify. They certainly would not have balked at the idea that Congress ought to be able to regulate anything. They probably would have been thrilled by the idea, if they had thought to use the commerce clause for that purpose.

[Joe Liberty]

Nowhere do I find that the intent was, even on Hamilton's part, to grant Congress the power to regulate literally everything, which is how it has come to be viewed. That would fly in the face of the underlying philosophy on which the Constitution was based. It was intended to correct some of the perceived shortcomings of the Articles of Confederation, not to completely abandon the concept of federalism.

The rather explicit intent of the framers was to expand federal power to do just that.

I'd love to see some actual evidence of that. I've been reading up on the founders for over 20 years and I've never seen anything to indicate that, let alone anything that was "rather explicit".

[Eran]

Can't the 1964 Civil Right Act rely in its constitutionality on the 14th Amendment rather than the Commerce Clause?

[Someone5]

I'd love to see some actual evidence of that. I've been reading up on the founders for over 20 years and I've never seen anything to indicate that, let alone anything that was "rather explicit".

They took extensive notes of their discussions in the constitutional convention--and were quite clear that their intent was to establish a federal system that was not only supreme over the states, but also over the people. If you've been "reading up on them" you must have been limiting your reading materials harshly.

[Someone5]

Can't the 1964 Civil Right Act rely in its constitutionality on the 14th Amendment rather than the Commerce Clause?

Yes, though that was not the basis upon which Congress argued its constitutionality at the time; at the time it was passed that was an undetermined question, though the supreme court later ruled that the Fourteenth Amendment does indeed given that power to Congress.

[Kman]

They took extensive notes of their discussions in the constitutional convention--and were quite clear that their intent was to establish a federal system that was not only supreme over the states, but also over the people. If you've been "reading up on them" you must have been limiting your reading materials harshly.

:
Oh really? This is president Thomas Jefferson in 1816, 30 years after the revolution when some of the states wanted to leave because they didnt like some of the things Washington D.C was doing:

If any State in the Union will declare that it prefers separation with the first alternative, to a continuance in union without it, I have no hesitation in saying, 'let us separate'.

This was the mainstream view back then and if it had not been so the states would have never agreed to enter this union called the United States.

The idea that states didnt originally have a right to leave the union is nothing more than false history created by sycophants of the US federal government.

[Someone5]

Oh really? This is president Thomas Jefferson in 1816,

Thomas Jefferson was not a framer of the Constitution. He wasn't even in the United States when the Constitution was being written or ratified. In all probability he didn't even have an opportunity to vote on the question of ratification. Jefferson was nominally an antifederalist, but he was in France at the time the Constitution was being debated so his input wasn't really very relevant. Trying to use Jefferson's position on federalism to depict the federalist position on federalism is rather like trusting Wayne LaPierre as an example of a liberal proponent of gun control.

Try again.

This was the mainstream view back then and if it had not been so the states would have never agreed to enter this union called the United States.

It was a mainstream view; that was, in fact, the position taken by antifederalists. That's one of many reasons why Jefferson was able to win in 1800--his opposition to federalism enabled him to pull together a coalition that included the antifederalist groups who had opposed ratification.

The idea that states didnt originally have a right to leave the union is nothing more than false history created by sycophants of the US federal government.

There is actually no right for states to leave; it was never written in the Constitution, and the framers clearly would have been opposed to the idea given their positions on federal supremacy and territorial contiguity.

[Joe Liberty]

They took extensive notes of their discussions in the constitutional convention--and were quite clear that their intent was to establish a federal system that was not only supreme over the states, but also over the people. If you've been "reading up on them" you must have been limiting your reading materials harshly.

Interesting you should say that, you seem to have skipped over the Tenth Amendment.

You could provide some links. No offense, but your word isn't good enough. Show me.

Thomas Jefferson was not a framer of the Constitution.

He didn't write it, no, but his philosophy was a strong influence, even if he was in France. To pretend he and his ideas had nothing to do with it is disingenuous. Having said that, he did have some issues with it (lifetime appointment of Supreme Court justices was one big one).

Perhaps a quote from Madison (the guy who did write much of it) would help:

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government..."

Speaking of the supremacy of the federal government, Madison had this to say in Federalist #40:
"In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects."

...and...

"Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the constitution on the language in which it is defined. It has been urged and echoed, that the power 'to lay and collect taxes, duties, imposts, and excises, to pay debts, and provide for the common defence and general welfare of the United States,' amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction." [Emphasis mine]

[Soixante-Retard]

It derives it's authority to regulate employee-employer relations (restricts racial discrimination when hiring/firing), and
Commerce doesn't include employee-employer relations.

There is your argument. I can, or anyone else, can engage in commerce without the need for employees.

[Someone5]

Interesting you should say that, you seem to have skipped over the Tenth Amendment.

Because the framers of the constitution didn't include a Bill of Rights. Alexander Hamilton publicly argued against including a bill of rights in Federalist #84. I am not kidding. He explicitly argued that a bill of rights was unnecessary because the people would be electing the people in charge, therefore the people needed no further legal protections. The framers of the constitution certainly had no intention of including anything like the tenth amendment. Every single provision in the bill of rights was added as part of a compromise with antifederalists to secure ratification; because the federalists realized that getting most of what they wanted was worth giving up on some short-term excesses.

Imagine, if you will, a Constitution without a bill of rights. That is the sort of federal government envisioned by the framers of the Constitution. That is the federal government they wanted; not one that was required to respect any personal liberties, not one that was required to allow unstated rights to the states or to the people. What the framers of the Constitution wanted was a federal government that was explicitly granted some extremely broad and vague powers and absolute supremacy over state governments where they conflicted. They wanted a federal government with such broad yet vague powers precisely because they knew that they could use those powers to push their way into other matters.

You are confusing what the framers of the Constitution wanted with what we actually got out of a process or compromise, accommodation, and political tradition. Our government has been as limited as it has been primarily because the elected officials in the federal government kept getting slapped back when powerful people rejected overreaches of federal power. Not because of the Constitution. The federal government has been limited more by "judicial activism" on the Supreme Court than by anything the framers of the Constitution originally put in place.

You could provide some links. No offense, but your word isn't good enough. Show me.

http://avalon.law.yale.edu/subject_menus/debcont.asp

http://thomas.loc.gov/home/histdox/fedpapers.html

http://www.thefederalistpapers.org/fede ... -dangerous

This is not "my word", it's their own words. This is not made up stuff, this is what they explicitly stated that they wanted.

He didn't write it, no,

It was, in fact, written by his political opponents. Did you think the enmity between Alexander Hamilton and Aaron Burr (Jefferson's VP pick) came out of nowhere? We're talking about a level of enmity between factions where members of each group would literally engage in fatal duels with the others over political differences. "He didn't write it, no" is a severe understatement of the level of political division we're talking about. The only reason that Jefferson was Adams' VP was because of an oversight in how the VP was elected which resulted in the runner up becoming VP; there are extensive records on this matter and how the Adams administration intentionally kept Jefferson isolated and out of anything even resembling power. The Federalists were so aghast at this oversight that they actually amended the Constitution to change the rules on electing the vice president to prevent if from happening again.

but his philosophy was a strong influence, even if he was in France.

Among antifederalists, yes. Those were the people who were opposing ratification. His philosophies certainly were not a strong influence on the Federalists--he founded the first credible party to oppose them! Let me put it this way, Jefferson and the federalists disagreed so vehemently that Jefferson created a political party specifically to oppose them. That is hardly strong agreement.

To pretend he and his ideas had nothing to do with it is disingenuous.

Certainly it isn't.

Having said that, he did have some issues with it (lifetime appointment of Supreme Court justices was one big one).

Yeah, like opposing the Constitution itself. He did have "some issues" with the entire document. He was pretty clear about wanting it rewritten; not just in his lifetime, but rewritten by every generation.

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government..."

Sure, because the federalist papers were a PR job. What was he supposed to say?

Another way of stating Madison's argument would be; "You can totally trust these guys, you may be giving them the power to do lots of bad things, but they promise they won't use it." Would you believe any politician who wrote that in an op-ed piece today? Because that's what the Federalist Papers were--politicians writing op-ed pieces advocating a comprehensive set of new powers for the federal government. Would you trust them for a minute that they didn't intend to use those powers to their fullest extent? The federalist papers rely on this trick quite a lot. "You elected the people who will hold these powers, so obviously you can trust them not to do something wrong with them." Yeah, right. They also had some bridges for sale (literally).

Speaking of the supremacy of the federal government, Madison had this to say in Federalist #40:
"In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects."

So, to paraphrase a bit, "Except for these massive and expansive new powers, which we totally won't abuse, the constitution doesn't infringe on state sovereignty. But as it relates to these incredibly vague and open-ended powers, well, in those matters obviously the federal government must be supreme. And look, there's nothing to worry about anyway, because we can always amend the Constitution to change the enumerated powers later."

Seriously, would you believe that coming from a politician today? I don't know why you assume that Madison wasn't trying to polish a turd.

"Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the constitution on the language in which it is defined. It has been urged and echoed, that the power 'to lay and collect taxes, duties, imposts, and excises, to pay debts, and provide for the common defence and general welfare of the United States,' amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction." [Emphasis mine]

Alright, let me ask you this; why don't you try to paraphrase Madison's defense here. Let me do it for you; "Our opponents are wrong... because they are wrong." He does not actually explain how the Constitution doesn't do as its opponents claimed. His opponents who turned out to be absolutely correct. There is literally no defense there. He is literally just stating that his opponents have some valid objections, but then notes that his opponents must be wrong because they are wrong. He presents absolutely nothing to back his assertion that the antifederalists are wrong. No quotes or language from the Constitution specifying the definition of common defense or general welfare, no formulas by which appropriate taxation might be calculated... nothing at all to suggest that the antifederalists are wrong. He just calls them liars. That's it.

It is an example of a politician writing many words but saying nothing--which Madison shows to be a trait extending all the way back to the debate over ratification.

[Kman]

Because the framers of the constitution didn't include a Bill of Rights. Alexander Hamilton publicly argued against including a bill of rights in Federalist #84. I am not kidding.

Alexander Hamilton was an ignorant and uneducated man that supported central banking and dictatorship. As for what the framers wanted, if they didnt want the bill of rights to be in there why did they pass the bill of rights?

[Someone5]

Alexander Hamilton was an ignorant and uneducated man that supported central banking and dictatorship.

And one of the three key publicists for the federalist faction; he would later come to shape federalist policies on the whole. It was his faction that wrote the Constitution; along with people who believed as he did.

As for what the framers wanted, if they didnt want the bill of rights to be in there why did they pass the bill of rights?

They proposed a Constitution with no bill of rights; the voters, who had to vote to ratify the new constitution, balked in large numbers because they (correctly) recognized that it was a massive expansion of federal power that would entirely upend the former principle of absolute state sovereignty. This opposition formed into a unified opposition known collectively as the antifederalists. The antifederalists rallied around the idea that the new constitution ought to include a bill of rights, and successfully negotiated a deal whereby the constitution would get ratified but a bill of rights would be passed as soon as the government was formed.

We got the bill of rights because the federalists were afraid that they weren't going to get the Constitution ratified if they couldn't placate the antifederalists, and we got the Constitution because the antifederalists were worried that they weren't going to be able to stop ratification and were willing to make a deal to prevent the excesses they feared. Why did they pass a bill of rights? Because they had no real choice if they wanted everything else the Constitution was offering for them. They were, as I said, willing to give up on some short-term excesses in order to secure an overall political victory.

[Kman]

We got the bill of rights because the federalists were afraid that they weren't going to get the Constitution ratified if they couldn't placate the antifederalists, and we got the Constitution because the antifederalists were worried that they weren't going to be able to stop ratification and were willing to make a deal to prevent the excesses they feared. Why did they pass a bill of rights? Because they had no real choice if they wanted everything else the Constitution was offering for them. They were, as I said, willing to give up on some short-term excesses in order to secure an overall political victory.

Yeah and I am sure the people who didnt like the constitution had to make the same kind of concessions, at the end of the day the fact remains that the bill of rights were passed by the framers, the reason is irrelevant it was passed and so was the tenth amendment dictating that the power of the federal government was very limited.

[Someone5]

Yeah and I am sure the people who didnt like the constitution had to make the same kind of concessions,

... Not really. The antifederalists were forced to settle for a surrender with terms; their terms were the bill of rights. It was a rather severe blow for people who liked personal liberty.

at the end of the day the fact remains that the bill of rights were passed by the framers,

More correctly, passed by a Congress that included more than framers. Some of the framers of the Constitution were in Congress, but others were not. Congress certainly included more people than merely the framers of the Constitution. And moreover they would not have passed a bill of rights if they had been given any choice.

the reason is irrelevant it was passed

It certainly is relevant when we're trying to discuss the intention of the commerce clause. The commerce clause was originally written for a document that included no protections for state sovereignty, among other things.

and so was the tenth amendment dictating that the power of the federal government was very limited.

Which was an amendment; the actual clause you're talking about predates the 10th amendment.

[Joe Liberty]

Because the framers of the constitution didn't include a Bill of Rights.

It wasn't in the document orginally, not because they didn't want to protect those rights, but because a large faction of them believed that protection was implicit, and the rest thought "implicit" wasn't good enough. Believing that they didn't want government restricted from infringing upon those rights at all is a brand-new argument that I've never heard before.

You are confusing what the framers of the Constitution wanted with what we actually got out of a process or compromise, accommodation, and political tradition.

I'm not confused in the least. I just don't decide which arguments to reject out of hand because I feel like they weren't honest.

The federal government has been limited more by "judicial activism" on the Supreme Court than by anything the framers of the Constitution originally put in place.

I'd argue that the situation is the exact opposite, that "judicial activism" is responsible for much more extra-constitutional power than it is for reining them in.

This is not "my word", it's their own words. This is not made up stuff, this is what they explicitly stated that they wanted.

I've read the Federalist Papers, thanks. I'm well aware that Hamilton was just short of a monarchist. I'm also aware that, as I said before, the BoR was born because many people thought the Constitution did not sufficiently contain government power.

So when you say things like "they" wanted a very powerful central government, you need to be very clear who "they" are, because "they" isn't all of them. And rather than assume that Hamilton's was the loudest voice, I defer to Madison, who actually crafted most of the document.

Sure, because the federalist papers were a PR job. What was he supposed to say?

So we're not supposed to accept Madison's arguments at all, because you claim he didn't really mean it? Honestly...if we are expected to utterly reject everything Madison had to say about it, we're done here because that's simply preposterous.

Alright, let me ask you this; why don't you try to paraphrase Madison's defense here.

I find paraphrasing unnecessary when the entire argument is presented, except to facilitate mischaracterization. I cannot guess at Madison's "true intent", I can only take him at his word, and his words indicate that the Commerce Clause was not to be used as a blank check to regulate everything. I can only assume that the eventual addition of the BoR meant that a majority of those involved found the Constitution inadequate when it came to preserving certain individual rights. To believe they debated and passed further restrictions on government power, but at the same time believed the Commerce Clause gave it unlimited power, is absurd. They were smart enough to understand that would've been a complete waste of time.