Flaws with the Constitution
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
corners.
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
grievances.
