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Radiolab Presents: More Perfect - One Nation, Under Money

Wednesday, January 31, 2018 - 03:00 AM

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

The key voices: 

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

The key cases:

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

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

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

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

Support Radiolab today at Radiolab.org/donate.

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Comments [28]

CL from San Francisco

I'm puzzled by the lack of logic in the episode's analysis.

The comparison of the wheat farmer growing wheat to feed to his own cows with a woman making her own dress is a false equivalence. The woman isn't specified to be a) a dressmaker working in b) a government-regulated dressmaking industry where she is c) guaranteed a certain price for every dress she makes provided she only makes so many dresses. Anyone participating in such a government-regulated industry where they are guaranteed an income as long as they obey the rules must obey the rules down to every detail to ensure that the beneficial regulation of the entire industry functions as intended: to their benefit. How could you miss the importance of this only slightly bigger picture, or the faulty analogy?

WRT the restaurant: the Commerce Clause was used specifically to counter the restaurant's argument that they were a local business and local businesses are not federally regulated. That specific argument had to be countered with an argument that made it clear why the federal government was right in regulating a local business. Again, the Commerce Clause argument was a bigger-picture argument countering the restaurant's smaller-picture argument, and as such, was both correct and appropriate. Decrying the stretching of the meaning of the Commerce Clause misses the fact that this racist restaurant owner was twisting all over the place trying to avoid desegregating. The stretch came from the restaurant itself, not the counterargument.

It also misses the fact that there is no state-specific commerce now, if there ever was. The courses and impact of commerce always stretch across state lines, and any legal argument nowadays (or 50 years ago) trying to restrict the impact of a business's bigotry to its immediate vicinity only is a false argument. The "massive shift" McClung talks about was a way overdue shift in perspective, from a narrow idea of what "state's rights" means to a bigger picture idea of what the impact of these kinds of states rights actually mean to our citizens.

As far as the final case goes, again, the decision was appropriate. It had nothing to do with commerce. Both of the previous cases were about what businessmen could and couldn't do with their businesses, which affected commercial matters across state lines. This was a case where a young woman was suing her college and her rapist for inadequately addressing the rape. It only brought in the Commerce Clause because the anti-violence law itself brought in the Commerce Clause, again, inappropriately. Why did you have to search all over for external reasons (backlash against the Commerce Clause arguments, an increasingly conservative court, etc.) to reject this argument, when anyone with half an ounce of logic in their brains would reject it as well? The law itself was passed on a faulty basis, which needed to be shored up using other logic.

I'm really disappointed. A legal podcast requires a logical mind.

Feb. 24 2018 09:03 PM
Plachy from California

In talking to Ollie McClung Jr. on the More Perfect podcast about the Commerce Clause, I have to say Jad did a very bad job of listening. Ollie was making the case that, although the goal of reducing/eliminating segregation was worthy, the stretching of the Commerce Clause to achieve that goal was unwise/wrong. The 14th Amendment would have been a better choice. Jad was so in love with the idea of acting against segregation that he fell into "the end justifies the means" trap. He simply could not hear Ollie's objections. Whatever Ollie said, Jad only heard him say that he wanted to preserve segregation. Surely one can object to the method chosen while applauding the goal. Many legal scholars have made it clear that they wish the Court had chosen a method that did less harm to the Constitution than distorting the Commerce Clause into something that not only was never intended by the framers but violates the plain language of the Clause. I wish Jad had listened better.

Feb. 23 2018 04:00 AM
Angie from Utah

Here is an idea for another episode that I thought this episode was going to be about when it started... "An unassuming string of 16 words..." Another unassuming string of 24 words that most people believe already is in included in our Constitution, but is not is the Equal Rights Amendment - giving women equality under the law. It is 2 states shy of being ratified, so is currently not included in our Constitution. But most American mistakenly believe it is. A twist to your creative storytelling would be telling the story of the ERA, highlighting what is currently NOT in the Constitution.

Top 6 reasons we still need the Equal Rights Amendment (E.R.A.):

1) Unlike race or religion, sexual discrimination is NOT protected by the equal protections clause of the 14th amendment.

2) Sex discrimination is held to a lower level of judicial scrutiny. This makes it very difficult to win cases, favors the discriminator, puts the burden of proof on the victim, leads to long and expensive legal battles on the backs of women already earning less than their male counterparts, and makes it difficult to file class action suits.

3) Most of the Alt-Right fear-mongering scenarios about the "moral degradation" of society if the E.R.A. passed, have almost all already happened and we still don't have an E.R.A. (e.g., shared bathrooms, women working outside the home, gay marriage, women in military combat roles, etc.).

4) Pro-Women activists, legislators, and organizations have to divert all of their educational, financial, and lobbying efforts every single legislative session into each individual bill impacting women in every single state, rather than having consistent protections and rights guaranteed for all. As a result, equal pay, violence against women, access to reproductive healthcare, pregnancy rights, and all cases of sex discrimination, are subject to the whims of an executive order, an election cycle, and a judicial opinion, where the decision-makers are overwhelmingly male.

5) Only two countries in the entire world, Iran and the United States, have refused to sign the CEDAW (The Convention on the Elimination of all Forms of Discrimination Against Women). We are one of the only industrialized nation in the world without constitutional protections against sex discrimination and when we help other countries' write their constitutions we demand they include equal rights and protections for women-- despite not having it in our own.

6) We have seen a major sociocultural shift in attitudes about gender equality in the last four decades. Over 91% of Americans think that women and men should have equal rights confirmed in the constitution (however, more than 72% of Americans mistakenly think that we already do).

For more information about the ERA, please visit these websites:

www.equalrightsamendment.org
www.eraeducationproject.org
www.eraaction.org

Feb. 20 2018 03:07 PM
CK from Canada

The first part of this podcast was good. But when the host pressured Ollie Jr. to admit that, surely a misinterpretation or stretching of the law is fine if it ends segregation, he lost all credibility. I have enjoyed this podcast series because it has, for the most part, come across as impartial. This episode changed that for me. It's clear the narrative of this story was heavily influenced by the political ideologies of those who created it. An impartial telling of the story of the commerce clause does not lead to the conclusions presented here.

Feb. 16 2018 09:38 AM
Wallace Keith from Feather River Canyon

This is a small and trivial point, I know, except to the location involved. A commentator said the farmer, Roscoe Filbum was from Montgomery, Ohio. He was from Montgomery COUNTY, but his farm was just outside a suburb NW of Dayton called TROTWOOD.

This is important to some Trotwood residents, mostly Chamber of Commerce types because Roscoe is one of two claims to fame: 1.) Roscoe and his impact via the Supreme Court and 2.) that the town (now city) is the only one in America named after a character from Dickens.

Feb. 15 2018 05:40 PM
Tony McConnell from Pine Island, MN

The point missed is our Government being lazy. Instead of making a better law we bend and twist an existing law to a point it was not meant to go. Segregation was bad, but Ollie was right. Once you agree with a convoluted take on a law-where is the end point? If we had made a better law, we wouldn't have the problems with interpretation of the Commerce Clause we do today.

Feb. 12 2018 05:06 PM
Tim Jeffers from TN

I had heard this episode first from the More Perfect podcast and was quite disappointed in the bias at the end. When I saw it pop up on Radio Lab I thought that possibly Robert would bring in a bit of sanity. I mean, when the conclusion bemoans “Why is the Commerce Clause all about money?” it is clear someone lost their way in podcastland. But (sigh) my hope for enlightenment from RC was misplaced.
The courts took part of the constitution and stretched it so far from its actual meaning until it finally broke. It should have broken long ago. Just because the Commerce Clause had been used for good ends, does not mean it was the right thing to do. Any more than it NOT being used for an unrelated good end (punishing rape) is a bad thing.

Feb. 12 2018 04:00 PM
Marilyn Hoekstra from Naples, FL

-17:39 minutes into podcast "One Nation, under Money", Jad's interview of Ollie, Jr. the owner of Ollie's BBQ, mentions a waitress who, in Ollie's recollection, was "a little hesitant" to serve the black customers who had come in to the restaurant to be served after the Supreme Court decision. Jad asks if the waitress was black. Ollie replies, yes.

Was the waitress hesitant to serve these customers because she was afraid of the repercussions against herself from other white customers who watched her serve these new customers? I cannot believe she was unhappy to serve other black customers or was in any way against it. Much violence was done against people, white and black, who sided with the civil rights movement. My guess is she was afraid of violence against herself perhaps later, outside the restaurant.

In another note, it strikes as arrogant of this restaurant to have black employees (clearly, the restaurant is NOT segregated from a workforce standpoint). Yet, this same establishment did not allow that same employee to re-enter their establishment as a customer? Why did the Supreme Court not note the duplicity of this situation and mention that in their decision?

Thank you for an excellent and well-researched program, Jad and team at Radiolab!

Feb. 10 2018 11:12 AM
Ted from Chicago

I have posted before about your inclusion of political leaning dialogues and I feel like it hurts the show. This was such a great episode and I felt you handled the segment with the farmer great even when tying it to insurance, thought you played the middle well.
But with the second and third segment I felt your political bias coming in. It is not an issue of any disagreement with your views, racists and rapist should be locked in the darkest hole hell has to to offer, it is just whenever picks a side openly politically my mind immediately jumps to, "what're they slipping by/hiding from me? What agenda are they pushing?".
Like with the second segment the outcome is clearly positive, but the means are still in question. For one, I openly do not think that every private establishment should have to cater to every individual who wants business from them. For instance, If the cake case was instead, "I want you to put a aborted fetus on my cake, we just got rid of our baby, we were not ready to have childern, Thank god!", if the cake owner was not ok with that even though it is a mostly legal practice, I do not think the government should make them use their artistic ability completely against their will. That customer should have to find somewhere else that is ok with that.
Another example, believe you guys covered Barton Lidice Benes in an episode. (the artist who suffered from HIV/AIDS and made Lethal Weapon, the art exhibit with his blood). Since it is his work, and it is an individuals choice whether or not to see it, I don't think any government should be able to restrict his work and say "you cannot use your blood in your exhibit". I just think that is over stepping their bounds.

I think the main differential I am making is, you're looking at it entirely as "Government should be able to make sure everyone is accepted and business cannot refuse people on who they are".
I am looking at it as, "Government should not be able to force people to produce a good against their will".

Last example. If you go down that road, and say the ends justify the means, and completely forgive the means then you start walking down a mental path that for me goes like this,
- Nazi requests a swastika cake from a Jewish baker - clearly service should be refused
- Person requests aborted fetus cake from Christian baker - clearly service should be refused
- Conservative requests "Wall" cake from Mexican baker - should service be refused?
-Conservative asks for Trump cake from liberal baker - should service be refused?
-Japanese person requests Japanese flag cake from Chinese baker (whos dad happens to have been alive during WWII) unbeknownst to customer - to me, huge grey area. Clearly there was huge animosity between the people of those generation and very very rightly deserved. But does that still apply today? Should it? Should the government push for either side in that case?
Basically, where is the cut-off. In the end it will be subjective with tons of issues

Feb. 05 2018 08:59 PM
Jennifer from Yooper

Very interesting episode. I texted my son to get him to ask his 8th grade history teacher about this.

Feb. 05 2018 12:12 PM
Andrew from Florida

A lot of missing analysis in this episode. As David Cohen pointed out above, an explanation of the Court's Lochner-era caselaw is necessary to understand why the Court swung so hard the other way in Wickard. I also felt the discussion of U.S. v. Morrison was one-sided - just because there is no federal civil remedy doesn't mean that there is no recourse for women suffering from violence.

Feb. 05 2018 09:59 AM
Martin from Shaanxi, China


Your first case is total different from later ones. Individual farmer didn't join the wheat market which participated and regulated by the government. On that case, government fined the farmer on wheat production not involved with government participation and regulatation. BTW, the Commerce is not subject, should not be subject of government involvement either. It's the Market under government involvement, like wheat market, oil market, financial market, insurance market etc.

Your later cases are all about social relation between people, state, federal government. Commerce is part of the relation for sure. However, those racist businessman made serious mistakes there. In capitalism society, people supposed to be equal; in business relation, money is always first priority. Those south states businessman put race relation above money relation, which means race society is anti capitalism at fundamental level. This is why, those south states are still economic backwater today, which means they are still race baesd society now. Long live racialism!

Feb. 05 2018 08:19 AM
Dude from Rust Belt

Why can't we used the commerce clause to ban guns abortion? I mean if it takes people out of the economy, as guns an abortion do by 10's of thousands per year, how is that not "causing loss of commerce.

Feb. 04 2018 08:36 AM
Jeff from Minneapolis

Fantastic job on this topic. I was glad to hear Jad struggle with some of the logical hoops that the SCOTUS had to jump through to make growing your own crops for your own consumption/use qualify as "interstate commerce". Yeah, as Phil from NYC pointed out, the ACA was a poor analogy since the ACA mandate was enforced through the IRS Roberts's opinion called the mandate a tax...although the four liberal justices did consider the commerce clause good enough while the other four justices (who are generally more conservative) didn't believe the ACA mandate was constitutional. After all, if the mandate for health insurance is constitutional so is any other mandate...just imagine a right leaning politician who believes gun ownership makes you safer, mandating gun ownership would now constitutional after the ACA mandate was determined to be constitutional.

It was good to talk to Ollie about his justification for bringing a case and to talk about his experiences in the case but I thought pushing him at the end was unnecessary...he isn't a legal expert and he confused the 4th and 14th Amendments as well as he was trying to justify segregation (and racism) by hiding behind tradition and fear of change, those aren't legal stances and he seemed to just ramble on about nonsense and states rights. I think it would have been more interesting to hear from a libertarian legal expert on the Civil Rights Act; perhaps they would have opened the door to the idea of having a Civil Rights Amendment to the US Constitution so secure those rights into our US Constitution instead of doing so through the courts and shaky legislation that could be overturned by a more conservative court.

David S. Cohen from Philidelphia makes a valid point too, perhaps it would have been good to talk about the "switch in time that saved nine", where FDR threatened to flood the SCOTUS with judges who would agree with him because the SCOTUS disagreed with his Social Security type policy laws. That might have been a good set up as to explain how the court was badgered into granting the federal government much more power than it had previous to FDR.

Anyway, great show on this topic, would have liked a tie in at the end that showed how this one little power which controlled international and interstate commerce had ballooned into justification (by four justices at least) for mandating us to buy a product against our will, preventing us from growing certain numbers of crops even for our own use and forcing us to provide services as business owners. Instead, it was spun as some kind of anti-capitalism tagline at the end, hence in the title of the episode.

Feb. 03 2018 08:15 PM
David S. Cohen from Philadelphia

Loved this episode, but it left out a major part of the story that explains your incredulity about these cases -- what happened from 1895 through 1937. The Court had the opposite interpretation - a narrow one - about interstate commerce and the country was almost destroyed as a result. Congress couldn't regulate anything and FDR threatened to end the Court as an independent institution (the court-packing plan).

What happened after 1937 (and still to this day in many ways) is a direct response to the lesson of pre-1937. When the Court messes with Congress on the economy, the country is worse off. The Court learned that lesson in 1937 and then let Congress, which has much more expertise in the area, do what it needed to do to regulate the economy. The Court was now going to be hands-off, which explains these rulings.

Without this context, your disbelief about these cases is understandable. But, with this context, it's hard to dispute what the Court was doing.

Feb. 03 2018 12:40 PM
Lindsay from Born in the SE, true child of the SW

I think you all missed the boat.

Does anyone else see a major, disconcerting connection between today’s right wing conservatism, the election of D Trump and the use of the commerce clause? I would hope that there would be a follow up episode that traces the effects of the inappropriate (in my opinion) use of the commerce clause as a band-aid solution to avoid proper enforcement of the 14th amendment.

I’m infuriated that we had to pussyfoot our way around the issue of segregation on the grounds that it was bad for business. On top of that, instead of over time trying to amend the situation as social norms changed to enforce harsher penalties on the grounds of the issue being a human rights violation, we used the same filthy bandaid we used almost 100 years ago. Obviously, as the final case in the story concerning sexual assault is concerned, it didn’t stick. If that girl had been assaulted and then forced into prostitution and trafficked across the country I would most certainly accept the use of the commerce clause as part of her defense, but that wasn’t the issue.

Instead of solving the problem from the ground up, the problem only got solved at the surface. Part of why conservatives and those who want to see big government get smaller have surfaced in such big way and have increased in number is because of the results of cases like that of Ollie’s.

There’s a deep, roiling underbelly of tension that got created a long time ago and never really got resolved. You heard Ollie, he didn’t want to admit to still probably being racist, his issue was how the situation was handled and that’s where his resentment was coming from. People are quick to take out their resentment on the person or thing in most direct proximity to themselves, which means it’s easier to be a racist than it is to be anti-government. A black person can be seen and heard and silenced but the government cannot.

They sign your social security checks and you still hate them and then the rest of us wonder why you voted for Donald Trump instead of considering the shaky foundation on which we base our well-intentioned liberalism.

Feb. 02 2018 07:01 PM
Andy from Wisconsin

I really want to listen to the info, and you offer many topics I’m interested in. However, your edits and cuts in the multiple episodes I’ve tried to listen to, drive me up the wall! Talking in the middle of sentences, cutting and splice, cross talk and mixing over your guest speakers is sloppy and erratic. Unlistenable to me. Maybe it works for the kids these days, but not for people over 40? Maybe I’m not your target audience.

Feb. 02 2018 01:58 PM
sasto from Texas

I thought it was strange the way the Jad concluded the matter was about money, and that is why the government's use of the Commerce Clause makes one feel uneasy. It's not about money; it's about overreach. I hear this story and feel uneasy because the federal government has clearly manufactured a way to regulate matters not contemplated by the Constitution by using the Commerce Clause. And the federal government did it unilaterally through the courts instead of going through the process of adding an amendment that would require the input from the governed. While his actions during a different time in our country are distasteful, the Alabama man made a good point that while the end of segregation was good, using the Commerce Clause to get it done had huge ramifications that made this country different, one in which the federal government is much more powerful and active in the lives of its citizens. It would have been to nice to have some commentary from an expert explaining whether or not there was alternative way to end segregation that did not involve the government and the courts twisting the Commerce Clause to fit their needs and at the same time increase its power exponentially.

Feb. 02 2018 11:10 AM
jader3rd from Monroe, WA

I've felt for a long time that the current interpretation of the Commerce Clause is too powerful. The sad thing is that I like a lot of things that it's justified. I like clean air and water (EPA), I like civil rights (Civil Rights act), I like Federal Minimum wage and OHSHA. But it's really killed the idea that the States are separate governments.
We really need an amendment which says that the Federal government can create laws governing shared resources, civil rights, and certain equal protections from public facing organizations; and in exchange for that neuter the commerce clause back down to commerce occurring only at the point in time that it is crossing state lines.

Feb. 01 2018 08:12 PM
The Rear Admiral from The Navy

I guess the science ship has sailed at RadioLab. Too bad. I loved this podcast 18 months ago but now not so much. Sad really.

Feb. 01 2018 04:07 PM
Dr JJ Walker from CORNING NU

I think the obvious question was missed. Are the people who don’t like how the 14th amendment was used to manage wheat and restaurants willing to give up its benefits. The farmer sold his wheat at the elevated government subsidized price. The restaurant took advantage of the better beef prices due to interstate commerce. The question to both should have been are you willing to not enjoy the benefits of laws to get your absolute freedom. Using a law when it benefits you and decrying it when you don’t is the issue.

Feb. 01 2018 01:02 PM
Andrew Sleeth from Raleigh, N.C.

Radiolab serves up the scintillating esoterica we've come to expect. Well done.

I am surprised Jad struggles to wrap his mind around the Wickard v. Filburn decision, which conundrum he essentially brings upon himself through the mischaracterization of the Court's ruling as "regulating the things you're NOT doing," or "non-behavior."

I'm sure Al Capone would've wished the IRS would buy into that specious equivalence when it came after him for unpaid taxes -- which is effectively where Filburn's guilt lay. The farmer actively sought and was granted an acreage quota for commodity production, and thus reaped the benefits of federal subsidy by participation in wheat sales. But then stepped outside the groundrules of market regulation by exempting himself as a consumer in that same commodity market.

How would Jad feel if it had been another subsidized crop, tobacco, that he couldn't feed to the cows, but instead used to make cigarettes for himself, his family, and his friends and neighbors? Consider what would be forfeit today in cigarette tax revenues under such black market behavior.

Or what about a home brewer? He'd be fine growing his own hops if it were only for himself. But suppose he starts up a craft beer label for retail sales. Production volumes demand exponentially more hops. He'll either have to buy on the open market, unless he insists on growing his own hops. Which means he's now not just a brewer, he's a farmer, too, subject to whatever regulations apply to hops farmers.

No, I think the U.S. Supreme Court actually got it exactly right in that case.

Jan. 31 2018 08:21 PM
Michael from NYC

It amazes me how cowardly Ollie McClung's moral position is/was.

Today, 50 years after the SC decision, he is terrified of being called a racist or a supporter of segregation. He says that segregation was just "how things were done" back then and he wouldn't want to bring it back. But Ollie's BBQ was a business and they weren't about to take action "unilaterally" to end segregation even after the passage of the Civil Rights Act. There is something compelling about this position, however craven it might be. He suggests that their fear was of losing white customers if Ollie's went along with the Civil Rights Act while other restaurants resisted it. In effect, he's saying, "We weren't racist, but we had good reason to think that a large proportion of our clientele was racist. We were first and foremost a private business and it was not our responsibility to promote a progressive social agenda, especially when doing so might have cost us something." Ok, fine, let's say that it wasn't the McClungs' responsibility, and that it wasn't enough for the federal government to pass the Civil Rights Act - the government needed to prove that it was able and inclined to rigorously enforce the Act. After all, THIS IS WHY THE COMMERCE CLAUSE EXISTS - because the marketplace needs at least some central government regulation in order to function in everyone's best interest.

So if Ollie wants to disavow all agency and responsibility for the segregation of his business, he can go ahead and do that. He can go ahead and claim that his family was perfectly content to comply with the law as soon as it was made clear that they wouldn't be doing so "unilaterally." But then he can't come back and suggest that this was a "zero-sum game" and that he and his family lost something significant as a result of this decision. If anything, his craven excuses suggest that the McClung family NEEDED the Federal Government to provide reassurance that desegregation would be economically feasible - that the SC in effect did them a kind of FAVOR by handing down this decision. But the fact that Ollie clearly doesn't see the decision in such a light undermines his whole moral self-defense. He can't argue that the segregation of his business was somehow outside of his control and responsibility and then indicate that what he mourns is precisely the loss of that control and responsibility.

Jan. 31 2018 07:21 PM
Phil from NYC

Really good episode. However, it's worth noting that ACA was upheld by the supreme court NOT drawing on the Commerce Clause, but on Congress's power of taxation. I'm not a lawyer, but I understand that SCOTUS actually *rejected* the commerce clause reasoning, but upheld the law because it was essentially a tax in different clothes

Jan. 31 2018 03:03 PM
LKS from PA

Jad, seriously? you're mystified that this story came down to money? wtf do you think slavery was about? do a story on that issue and get back me. ditto for healthcare. for those folks mystified about why the mandate was so important- you tell me who pays for all those people who don't have health insurance? here's the answer- YOU DO. ever wonder why you pay car insurance? link the two together. this never gets talked about. take it further than someone claiming it should be their right to have the rest of us pay for their medical bills. because that IS the realty.

Jan. 31 2018 02:26 PM
Stanley H Kelley from Loganville, GA

I was puzzled as to why Jad and Ms Floyd were so puzzled as to why the McClung case was argued based on the commerce clause instead of on the 14th Amendment.The 14th Amendment mentions only States, as was pointed out, and the McClung restaurant was not a State nor was it required by the State of Alabama not to serve black people. In fact, I think that the Civil Rights Act's public accommodations section was explicitly based on the commerce clause.

Mr. McClung's argument that "rights" is a zero sum game so that giving a right to some ipso facto takes a right from someone else. Here, I think, there is a confusion between "rights" and "powers." Persons have "rights" while governments have "powers." This makes the idea of States' rights a confusing thing.

Jan. 31 2018 02:18 PM
Dan

Any chance that you can release the extended interview? I'm really really interested in getting a much more in depth justification for the zero sum commerce argument that he's making. I find the logic very confusing and wish there was more insight.

Jan. 31 2018 12:17 PM
PL from Boston

Great episode! Especially complicated by the third chapter. Something you may have thought about but not stated: I think the use of the commerce clause re:Ollie’s was warrented because of a quietly implied link between segregation and slavery in the arguments you sampled. Take the tomato argument—Ollie’s could be buying ketchup produced by laborers who are then denied access to the product and benefits associated on the basis of skin color. Not so different from the slavery economy, in theory.

Jan. 31 2018 10:49 AM

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