No business is local

I listened to another episode of More Perfect, stories about the Supreme Court. This is the last one of this season of episodes. It’s all about the Commerce Clause of the Constitution, which says Congress can regulate commerce between states. It got used in some interesting and unusual ways. This episode is 53 minutes.

At one point in our history (I don’t have a year) it was used to replace all state currencies with a national currency.

During the Great Depression the federal government offered price support for wheat, but also put a cap on how much wheat a farmer could grow. A farmer was fined for growing too many acres. He objected, saying he wasn’t going to sell the extra acres, only us the wheat on his own farm. The Supremes responded that the wheat he grew on his own farm was wheat he didn’t have to buy and that affected commerce between the states.

Ollie’s Barbecue Restaurant in Birmingham, Alabama during Jim Crow offered sit-down service for white people, but only carryout service for black people. The 14th Amendment about equal protection had been ratified nearly a hundred years before, but shortly afterward had been essentially gutted when the Supremes said that phrase about “no state shall make or enforce any law” means the state government, not local governments and not perhaps the Birmingham Restaurant Association.

When the Civil Rights law passed in 1964 owner Ollie McClung was sued and the case went to the Supremes. The gov’t lawyers said Ollie has violated the Commerce Clause. His lawyers said his business is entirely local. Gov’t lawyers said nope, your meat comes from other states. In addition, your refusal to serve black people means it is much harder for them to travel from state to state (black people had to be very careful when they traveled across the South to avoid car problems in hostile towns).

Ollie lost and began to serve black people in the restaurant (though the first few days were confusing to the black waitstaff). He still maintains that the Commerce Clause was used incorrectly.

In 1994 President Bill Clinton signed the Violence Against Women Act which provides a federal civil remedy for victims of gender-motivated violence. That year Christy Brzonkala was raped. In 1999 she used the VAWA to sue her rapists. The act claimed its authority through the Commerce Clause. Her lawyer argued that, similar to black people tended to stay home during Jim Crow, women’s value to commerce was also reduced after sexual violence. The Court said no. The act had nothing to do with commerce. It also said it had nothing to do with the 14th Amendment.

Though not mentioned in this program, by 2015 and case for same-sex marriage the Justices did rely on the 14th Amendment (now at full strength) and our right to marry wasn’t based on the amount of business we brought to the wedding industry. We didn’t have to plead our case on our monetary value.