Flaws with the Constitution

From the Arizona Republic:

Three day laborers filed a lawsuit Tuesday that seeks to overturn a
suburb's law prohibiting people standing on public streets from
soliciting employment from occupants of cars.

The federal lawsuit alleges Cave Creek's law passed is unconstitutional
because it restricts the free speech rights of people trying to find
work as day laborers.

"Cave Creek does not have the right to pick and choose who has free
speech rights," said Monica Ramirez, an attorney for the American Civil
Liberties Union, one of the group's representing the day laborers. "The
town cannot bar people from peaceably standing in public areas and
expressing their availability to work."

The stated reason for the law is this, but don't believe it:

Mayor Vincent Francia said the law was a response to concerns raised by
residents over traffic being impeded by people congregating on street

If you followed the genesis of this law, it has less than zero to do with traffic.  It was crafted as a way to prevent people of Mexican birth, with or without the proper papers from the US government, from seeking work in Cave Creek.  Which explains why sheriff Joe Arpaio is so eager to help enforce the law, and why, by some statistical fluke, everyone arrested under the law seems to be of Mexican Latin descent  (the three laborers filing the suit are Mexican and Guatemalan and are in this country legally).

I am happy to see this suit get filed under whatever auspices that it can, and have in the past supported using the first amendment to protect free commerce.  Further, I am thrilled to see the ACLU, given its Stalinist origins, for once actively support the right to publicly advertise and conduct commerce.  However, it is sad to me that Thomas Jefferson and company did not think it necesary to enshrine the right to free commerce as an protected right up there with speech and association.

One might argue that the enumerated power concept and the 9th amendment should be protection enough, but obviously Jefferson did not think so or he would not have pushed for the Bill of Rights.   And saying the following may just prove that I am not a Constitutional expert, but it strikes me that another problem with the original Constitution that probably wasn't fixable at the time was the fact that the Bill of Rights did not originally restrain the states, only the Federal government.  Only with the beat-down of states rights concepts in the Civil War and the passage and later interpretation of the 14th amendment did the Supreme Court begin to apply the Bill of Rights to states and municipalities as well.  It is good that they have done so, but these protections enforced on states only tend to be the enumerated protections of the Bill of Rights.  In fact, in this context, the 9th is meaningless because it reserves unenumerated powers to the people or the states, so it contributes nothing to reigning in municipalities, only the Feds. 

All that being said, it should would have been nice to have three extra words such as "or conduct commerce" inserted after assembly:

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble [or conduct commerce], and to petition the Government for a redress of



  1. Ari:

    You've been reading too much Atlas Shrugged...

  2. Jim Collins:

    I don't agree with it being a free speech issue, but you do have a point. If it was just about traffic, the easiest way to cure it would to designate an area for day laborers. It would save problems at both ends. The day laborers would have a place that didn't interfere with traffic and people looking for them would know where to look.

    You know the last time I had a Civics class (quite a while ago, do they even teach Civics anymore?) we had a debate on the Constitution. The subject was "Who was protected by the US Constitution?". A good case can be made that only citizens of the US are protected by the Constitution. It all comes down to the definition of "the People". I think the US Supreme Court needs to drop everything else and determine that definition. It would resolve a lot of problems.

  3. anonNY:

    "A good case can be made that only citizens of the US are protected by the Constitution."

    This might apply to parts of the Constitution, but the First Amendment at least was written in the negative ("Congress shall make no law...."). Thus, it is pretty clear that this amendment protects non-citizens from Congress as well as citizens.

    Further, it can be argued that the founders took a "natural rights" view of these First Amendment rights, which would mean that "citizens" (however defined) would not be the only ones with those rights.

  4. Mark:

    If such a law is unconstitutional, then basically any police powers of local and state government can be objected to on the same grounds. THat is, if the police powers of local government cannot extend to maintaining safety of the local roads then other local ordinances regarding noise and zoning are unconstitutional on the same grounds.

    This would also extend to vagrancy and nudity laws too.

    THe libertarian arguments usually fail because they only take one parties rights into consideration. Frankly, the citizens of a city also have the right to drive on the public streets unmolested by street walkers of all sorts, and it is within local governments powers to create such public safety and public nuisance laws that will better the standard of living of all its citizens.

    "A good case can be made that only citizens of the US are protected by the Constitution. It all comes down to the definition of "the People". "

    This is true. What people do not realize is that there are several classes of people in the United States. In fact, the classification of "citizen" is not the highest right bearing "level" or "class" of people in the United States (if you don't believe me, ask your minor child how they voted in the last election).

    The Founders clearly recognized differing levels of "citizenship" within the Republic. Freeholding males had somewhat higher levels of "rights" than non free holding males. Males had higher levels of rights than women, who had more rights than free blacks, who had more rights than indentured servents who had more rights than minority slaves. As you went down the list, certain rights and privelages were lost.

  5. Doug:

    What if a group of prostitutes wanted to freely assemble outside one of your campground entrances for the purposes of commerce, Warren. And most of those customers were your campers. You would be good with that?

  6. Dale:

    The 9th Amendment is _in_ the Bill of Rights.

  7. John III:

    Isnt this covered in the contract clause of the constitution?

    The Contract Clause appears in the United States Constitution, Article I, section 10, clause 1. It states:

    “ No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, expost facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

    I know a lot of Tax avoidance champions use this clause to create contract trusts that are supposedly "unimpeachable" But I would think that it applies to any sort of work contract that you make.

    Or would this be read as the government cant overturn a legal contract, but can mess up any negtiations for contracts as it sees fit?

    (We'll just ignore that the US government has broken every OTHER clause in that statement, for the sake of argument )

  8. septagon49:

    I believe you are confusing the 9th and 10th amendments. As per the text below:

    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
    Amendment X
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    While the 10th amendment could not apply to the States the 9th amendment certainly could. The Slaughter House cases (1873) made sure that the 14th amendment had no teeth.

    Amendment XIV
    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    The SCOTUS came up with the strange notion that rights on a Federal level were somehow separate and different from rights at a State or local level. The majority feared that if the Feds extended their reach to nullify state laws as unconstitutional in this particular case that they would forever be entangled in state and local issues. The ruling is both silly and ironic. Silly that rights can be divided in such a manner between what the States can recognize versus what the Feds recognize since rights are not derived from government but from the people. Ironic that the SCOTUS routinely interferes in State laws today.
    The Founding Fathers believed that State and local governments being closer to the people would be less apt to tread on their rights. Many State governments already had Bill of Rights incorporated into their constitutions. They thought that the states would restrain the Federal government and provide greater protection for individual rights. They did not foresee the Progressive movement which infected all levels of government. At the state and local level they twisted the Police and Public Safety powers to justify their fascist intentions while at the Federal level they worked to remove the impediments through the 16th and 17th amendments as well as progressive SCOTUS decisions related to the commerce clause and the 10th amendment.
    Unfortunately for us the 9th amendment has been ignored since the ink dried on the parchment. It is the embodiment of the concept that rights are derived from the individual and governments are established amongst men to protect those rights. The constitution is not necessarily flawed. Rather, it has been under attack by Statist whom view as an obstacle to their anointed vision.