Power Undermines Our Civil-Rights Laws and Makes Us Less Free

• Author: Chad DeVeaux
• Position: Associate Professor of Law, Concordia University School of Law; LL.M, Harvard University; J.D., University of Notre Dame; B.A., Bowling Green State University
• Pages: 49-80

PERVERTED LIBERTY: HOW THE SUPREME COURT’S

LIMITATION OF THE COMMERCE POWER

UNDERMINES OUR CIVIL-RIGHTS LAWS

AND MAKES US LESS FREE

CHAD DEVEAUX*

“I think that the word liberty . . . is perverted when it is held to prevent

the natural outcome of a dominant opinion, unless it can be said that a

rational and fair man necessarily would admit that the statute proposed

would infringe fundamental principles as they have been understood by the

traditions of our people and our law.”1

INTRODUCTION

“[G]ive me liberty or give me death!”2 Patrick Henry’s familiar slogan

became a shibboleth for those opposing dictators throughout history. But

tyranny comes in more than one form. While images of state-sponsored

despotism are familiar—Iran,3 Syria,4 North Korea,5 China6—a different,

Copyright © 2013, Chad DeVeaux.

* Associate Professor of Law, Concordia University School of Law; LL.M, Harvard

University; J.D., University of Notre Dame; B.A., Bowling Green State University. I

extend my deepest thanks to Professors Tenielle Fordyce-Ruff, Jack McMahon, Rebecca

Nickell, and Joe Tomain for providing thoughtful comments on earlier drafts of this Article.

I also thank Phillip Gragg and Con cordia’s Law Library staff for their assistance

researching this Article and to the editors and staff of the Capital University Law Review

for their hard work preparing it for publication. Any mistakes are mine.

1 Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).

2 Patrick Henry, Speech at the Virginia House of Delegat es (Mar. 23, 1775), in JOHN

BARTLETT, FAMILIAR QUOTATIONS 383 (Emily Morison Beck ed., 15th ed. 1980).

3 See Alison E. Graves, Women in Iran: Obstacles to Human Rights and Possible

Solutions, 5 AM. U. J. GENDER & L. 57, 78 (1996) (discussing Iran’s reinstitution of the

ancient practice of execution by stoning for supp osed crimes of immorality).

4 See Syria’s Nightmare: It Is Past Time for President Assad to “Get Out of th e Way,”

N.Y. TIMES, June 18, 2011, at A18 (noting “thousands of Syrians” have been “slaughtered,

jailed or forced to flee their country” by brutal Assad regi me).

5 See David Marcus, Famine Crimes in International Law, 97 AM. J. INT’L L. 245, 245–

46 (2003). Marcus explains how the North Korean regime deliberately exasperates ongoing

famine and argues that “North Korea may be the world ’s worst current human rights

catastrophe, as well as its most ignored.” Id.

6 See Keith Bradsher, China Fails to Dispel Mystery About Missing Dissident, N.Y.

TIMES, Mar. 17, 2010, at A10 (examining China’s acknowledged problem of “disappearing”

human-rights lawyers); Melinda Henneberger, Chen’s Fight Against Oppression of Women

(continued)

50 CAPITAL UNIVERSITY LAW REVIEW [41:49

yet equally vexing form of tyranny lurks under our noses: oppression by

private actors left unchecked by the state. A government that allows, or

worse, enables its most affluent constituents to bully the weak in the guise

of liberty, is no less tyrannical than one that commits that oppression

directly.

The 2008 economic collapse painfully demonstrated the degree of

control the private sector exerts over our daily lives. The misdeeds of a

handful of Wall Street miscreants brought the world’s financial system to

its knees.7 Their reckless acts cost eight million jobs,8 evaporated life

savings,9 cast unknown thousands into homelessness,10 and depleted our

collective treasure with costly bailouts11—all without triggering a single

federal prosecution.12

To historians, the 2008 fiasco should seem like déjà vu. We have been

here before. Repeated cycles of boom-and-bust punctuated the late

nineteenth and early twentieth centuries, culminating in the Great

Depression.13 The consequences of the Gilded Age’s laissez-faire

regulatory model extended far beyond the fortunes won and lost in the

Is Something We Should Be Able to Agree On, WASH. POST, May 19, 2012, at A2

(examining China’s use of forced abortions to enforce single-child policy); Yu Jie, The Iron

Fist that Guards China’s Stability, WASH. POST, May 30, 2012, at A15 (discussing China’s

imprisonment of Nobel Peace Prize winner Liu Xiaobo for advocating democratic reforms).

7 See generally MICHAEL LEWIS, THE BIG SHORT: INSID E THE DOOMSDAY MACHINE

(2011) (explaining how deregulation of financial markets led to the 2008 economic

collapse).

8 Rick Newman, Surviving the American Makeover, U.S. NEWS & WORLD REP., Mar.

2010, at 14, 15.

9 See Joyce Appleby, The Wealth Divide: The Bottom 60% in the U.S. Has Never Had

More than 11% of the Wealth, L.A. TIMES, Nov. 7, 2011, at A15.

10 Danné L. Johnson, Untwisting Lifeline Nonprofits in the Economic Crisis, 18 GEO. J.

ON POVERTY L. & POL’Y 201, 221–22 (2011).

11 Olufunmilayo B. Arewa, Risky Business: The Credit Crisis and Failure (Part III),

104 NW. U. L. REV. COLLOQUY 441, 441–42 (2010) (noting that the Wall Street bailout cost

taxpayers $700 billion), http://www.law.northwestern.edu/lawreview/colloquy/2010/16/LR

Coll2010n16Arewa.pdf.

12 Mimi Swartz, Enron Ever After, TEX. MONTHLY, Dec. 2011, http://www.texasmont

hly.com/2011-12-01/btl.php#.

13 See CHARLES WARREN, BANKRUPTCY IN UNITED STATES HISTORY 22, 52, 95, 117,

122, 131 (1935).

2013] PERVERTED LIBERTY 51

nation’s financial centers. Child labor,14 unfathomable levels of poverty,15

and endemic pollution of the environment16 and the food supply17 plagued

the country. Consumer fraud was rampant.18 Workplace safety laws,19 the

minimum wa ge,20 the forty-hour workweek,21 and even the weekend22

seemed but distant dreams. To twenty-first century sensibilities, life for

the average American worker in this era was a living hell.23 For African-

Americans and recent arrivals, it was even worse.24

14 Rebecca S. Trammell, Orphan Train Myths and Legal Reality, 5 MOD. AM. 3, 9

(2009) (noting that children were frequently employed in mining, fishing, lumber,

agriculture, and almost every other industry).

15 Barry C. Feld, The Juvenile Court Meets the Principle of the Offen se: Legislative

Changes in Juvenile Waiver Statutes, 78 J. CRIM. L. & CRIMINOLOGY 471, 473 (1987).

16 See Jonathan H. Adler, Fables of the Cuyahoga: Reconstructing a History of

Environmental Protection, 14 FORDHAM ENVTL. L. J. 89, 104–05 (2002).

17 BEE WILSON, SWINDLED: THE DARK HISTORY OF FOOD FRAUD, FROM POISONED

CANDY TO COUNTERFEIT COFFEE 152–53 (2008).

18 See, e.g., Katharine A. Van Tassel, Slaying the Hydra: the History of Quack

Medicine, the Obesity Epidemic, and the FDA’s Battle to Regulate Dietary Supplements

Marketed as Weight Loss Aids, 6 IND. HEALTH L. REV. 203, 216 (2009) (noting the growth

in marketing sham products for disease treatment during the late nineteenth and early

twentieth centuries).

19 Noga Morag-Levine, Common Law, Civil Law, and the Administrative State: From

Coke to Lochner, 24 CONST. COMMENT. 601, 652 (2007) (noting the “staggering” number of

workplace accidents during the era).

20 See Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201–219 (2006). This Act

established the federal minimum wage. Id. § 206.

21 Peggie R. Smith, Regulating Paid Household Work: Class, Gender, Race, and

Agendas of Reform, 48 AM. U. L. REV. 851, 887 n.226 (1999) (noting that the federal

National Industrial Recovery Act paved the way for the standard forty-hour workweek).

22 Seth D. Harris, Conceptions of Fairness and the Fair Labor Standards Act, 18

HOFSTRA LAB. & EMP. L.J. 19, 103–04 (2000) (discussing organized labor’s pursuit of five-

day work week) .

23 Elisabeth Cappuyns, Linking Labor Standards and Trade Sanctions: An Analysis of

Their Current Relationship, 36 COLUM. J. TRANSNAT’L L. 659, 671–72 (1998) (describing

nineteenth century factories as “satanic”).

24 Stephen Plass, Dualism and Overlooked Class Consciousness in American Labor

Laws, 37 HOUS. L. REV. 823, 843–46 (2000) (describing inferior working conditions

African-Americans faced in the nineteenth and early twentieth centuries); Hina B. Shah,

Broadening Low-Wage Workers’ Access to Justice: Guaranteeing Unpaid Wages in

Targeted Industries, 28 HOFSTRA LAB. & EMP. L.J. 9, 23–24 (2010) (discussing immigrant

working conditions in the nineteenth century).