Thursday, January 12, 2012

Thoughts on Private Property Rights and Judicial Interpretations of the 1964 Civil Rights Act.

Private Property Rights and Judicial and Congressional Interpretations of the 1964 Civil Rights Act.

I have recently been learning of cases concerning the Civil Rights Act of 1964 and the U.S. federal court’s interpretation of Congress’s authority to regulate interstate commerce.  What I have read concerning landmark cases like Katzenbach v. McClung (1964) and Heart of Atlanta Hotel v. United States (1964) and the court’s interpretations of Congress’s commercial authority to violate the private property rights of individuals is frightening and repugnant.  I thus was prompted to write this essay on private property rights and the wrongful uses of the Civil Rights Act of 1964 and Congress’s commercial authority via the “Commerce Clause” in the Constitution.  But, I must write a few concerns that arise to mind, concerns of readers jumping to imagined conclusions and thinking I oppose the entire Civil Rights Act of 1964 and that I condone discrimination and prejudice based of race, skin color, national origin, gender, age, disability, etc.  To this I reply that I most certainly do not!  I only oppose Title II of the Civil Rights Act of 1964, titled “The Injunctive Relief Against Discrimination in Places of Public Accommodation,” which states the following:

“SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.”

In other words, Title II of the Civil Rights Act of 1964 forces by law private property owners to dispose of their property or allow on their property anyone that seeks to buy such property and provide compensation for it or wishes to come on to the private property of the owner, even when one’s private property is meant for serving others, no matter the race, gender, color, national origin, or religion of a buyer or individual seeking to enter the domain of the private property.  I see this as a gross violation of one of the most sacred held and revered natural rights of the individual, the right to private property and to dispose of it to whomever the owner chooses or allow others to use.  For I see this right being violated in that the owner of private property can no longer be said to be the owner when his/her right to dispose of that property to whomever he chooses or the right to allow whomever he/she chooses to use his/her property according to his/her own judgment and rules when Congress can tell the private property owner to whom he can or cannot/must or must not dispose of his property to or allow to use and force the owner to do so by law.  Such private property under such authority by a legislature can be truly said to belong solely to the legislature and not to the actual possessor or guardian of the property, and the possessor is merely granted permission to possess of the property, but it’s not really his/hers.  And not only is this natural right of private property violated, but the civil right owed to every property owner by the government to be secure in their private property is violated as well under such circumstances.  Let it be known that I abhor discrimination and prejudice based on outward representations of one’s character and worth such as those labeled in the Civil Rights Act of 1964, as well as others.  It think it unwise and immoral for people to discriminate against others based on those outward representations, especially unwise in a business sense, and immoral in that we are all seen as equal before the eyes of our Creator.  But, it is an inviolable natural right of the owner of private property to be able to dispose of that property to whomever he pleases and to allow whomever he pleases to use that property in any manner deemed suitable to the owner.  And when Congress seeks to violate this right by regulating commerce, it violates the civil right to be secure in one’s property owed to the citizens and creators of the government by that government.  Seeing as property rights were of such importance to the Founders, evidence of such being plentiful, and that these rights were held sacred up until relatively recently in American society, it cannot be said that there was any power to violate these rights placed within the Commerce Clause of the U.S. Constitution.  I now proceed to explain my thoughts and feelings in greater detail:

If it can be said that a government, say Congress, through the Commerce Clause,
can dictate to whom private property owners can dispose of their property to, as
well as the when, the where, the why, and the how, inasmuch as no one's rights
are being violated, then can it be said that we has the right to private
property at all?  Of course Congress can dictate the manner in which property
can be transferred across state lines and across US boarders, but I do not
believe it can be said that the people of the United States have any rights to
property when Congress can dictate to private property owners as to whom they
can or cannot/must or must not by law dispose of their property to, or as to
when, why, where they can or cannot/must or must not dispose of their property.
The Commerce Clause cam only dictate the manner in Whig property can be disposed
of across state lines and national boarders, as well as what kind of items might
be prohibited if they pose enough of a danger to society as a whole, and even
the "what" may be disposed power is severely limited in the manner just stated.
I realize thus may not be the practice of Congress using it commerce powers to
make laws, nor has judicial precedent set this barrier in US case law.  Butthis
is where I believe it should be, so that the individual may be said to have,
maintain, and be secure in his/ her private property rights.  The individual is
free to discriminate against whom they will when they decide to whom they will
dispose if their property to, and when, where, an why they choose to do so.
Congress has no authority over these matters, even though it has asserted this
power, in connection with the federal courts, via the Civil Rights Act of 1964.
I do not believe such discrimination based upon race, gender, gender
identification, age, disability ( excepting cases where those with disabilities
are physcially or mentally incapable of performing a required task), religion,
ethnicity, skin color, etc. is ether moral, good for business, or all around a
good common sense idea, and I therefore recommend that each individual not
discriminate based upon these outward representations of our character and
worth.  But I do maintain that if it can be said the the individual in America
has private property rights, the Congress cannot by law, via clause of the
Constitution, much less the Commerce Clause, who private property owners can or
cannot/must or must not dispose of their property to, nor when, where, and why
they can dispose of their property; Congress can only dictate by law how private
property owners can dispose of and transport their property across state lines
and national boarders, via the Commerce Clause.  Congress has no authority also
to "make commerce happen" or prevent it from happening and still say it secures
our private property rights.  Congress coercing individuals to be commercial or
prohibiting them from doing so not only violates the free trade sentiments of
our founders and founding era and our entire history, but it makes insecure the
individual's right to their private property by giving a large amount of control
over that property to Congress such that the individual can no longer be said to
own or control that property solely, but either jointly with Congress or not at
all, in which Congress becomes the sole owner and controller of it.  This is
simple logic.  It is a violation of individual rights and it must seen and
called as such by all if we hold our private property rights sacred and dear to

Let us put these principles and ideas into some examples.  I say that Congress cannot, via the Commerce, coerce by law an individual to dispose of his property or prevent him from doing so, or by say dictate to whom an individual can or cannot dispose of his property to.  Nor can Congress legislate as to when, where, and why an individual may dispose of his/her private property.  Congress can only legislate concerning the “how” of private property disposal, or rather, it can dictate in what manner an individual may dispose of his/her property across state lines or national boarders.  Let’s say I have a hammer.  It’s a very good hammer; I made it myself.  I coated it with Gold plating and encrusted diamonds in the handle and metal head.  It is thus worth much.  But I need to sell this hammer because I owe some debts.  Thus, I choose to sell it to my next door. neighbor, who has the sufficient funds to purchase this hammer.  I am thus disposing of my private property, represented in the form of my extravagant hammer, to another individual of my choice.  Congress or any other government that professes to protect and secure to the individual his/her property rights may not prohibit me from disposing of this hammer to my neighbor except under one condition, where my disposing of it to him/her violates his/her rights. 

Congress or any of other government that protects and secures the private property rights of individuals to the individual, cannot, under any law, much less the Commerce Clause (with relation to Congress), force me to dispose of this hammer to my neighbor if I do not wish to do so, even if I didn’t wish to dispose of it to him/her based upon some outward characteristic like age, gender, gender identification, race, color, national origin, disability, etc.  Congress has claimed this usurped authority to coerce individuals to engage in a commercial action with someone they would prefer not to, regardless of their reasons, via the Commerce Clause, through the 1964 Civil Rights Act, and the US Supreme Court has unfortunately sanctioned this usurpation by Congress and violation of private property rights in Katzenbach v. McClung, 379 U.S. 294 (1964), all in the zealous name of curbing prejudice and racism.  To curb these two evils in society is indeed a commendable goal, but to do so by means that violate the private property rights to man, given to man by his Creator and allegedly protected by the same government that seeks to violate them in the name of a righteous act is hypocrisy and cannot be condoned by any American who holds his/her private property rights dear to his/her heart.   The 1964 Civil Rights Act, as ruled by the courts, allows Congress to force an individual to dispose of his private property to whomever they deem worthy of receiving it, if the property they are selling or disposing of was involved or connected with interstate commerce-namely that this property was at least once from another state and imported at some time, (even if recently) into a state in which A resides.  This property was imported lawfully, or in a lawful manner according to the manner prescribed by Congress, either from another American state or from abroad; it was imported by B, and A then buys said property from B. 

Can it be said that an individual maintains his right to be secure his/her private property when society through Congress, by force of law, can coerce an individual to dispose of his/her property to whomever it deems worthy of receiving or engage in an act of commerce with whomever it deems worthy to participate in such commercial action, thus taking away the right of the individual to dispose of his/her property to whom he/she pleases?  Can it really be said that an individual is secure in his/her property when Congress essentially takes over the disposing of that private property, forcing by law the owner to dispose of it to whomever Congress wants to them to dispose of it to, even if in the name of a worthy goal of stamping out discrimination and prejudice?  I think that rational man or woman will look at this situation and say that such a right does not exist and security in private property does not exist when the such authority resides in the government, to whom it is given the responsibility to protect private property rights and secure an individual in his private property as well as in his right to this security.  If person A cannot lawfully force person B to engage in commercial activity with him/her or coerce B into disposing of his/her private property to A, then how is it that the government can have that power yet not face the criminal punishments of coercive theft that individual citizens would face upon being found guilty of such a crime?  Indeed, in a way, Congress has not only asserted such authority that is a violation to the Law of Nature, in depriving mankind of his/her property rights, but has also given that authority to every individual citizen no matter the race, skin color, religion, age, gender, disability and national origin (of course Congress has conveniently left out economic/wealth status, which is deemed appropriate to base one’s worth and one’s equality before the law on, in order to tax them at a higher rate or levy a tax solely on them, but not so as to give them authority to coerce an individual, through the laws of Congress, to engage in commercial activity with him/her or force the owner of property to dispose of that property to him/her like the other aforementioned outward representations of character and worth).  Indeed, almost every individual, thanks to Congress and the Civil Rights Act of 1964, as well as the U.S. federal courts, giving every individual, via Congress, the authority to force a private property owner to engage in commercial activity or dispose of his/her property to the demanding individual.  This is such a gross abuse and violation of the natural and civil rights concerning private property, that those rights can be said to no longer exist in the eyes of Congress and the eyes of society, even though they do indeed still exist in the eyes of the Author of Nature and Nature’s law; and they also exist in the founding documents of America, specifically in the Declaration of Independence and in the constitution, via the 5th Amendment’s “Eminent Domain Clause”, yet also implicitly existent in the Constitution in general, given the dearness of private property rights to the Founders and to the vast majority of Americans and even British during that age and well into the 19th and 20th centuries.

We must remember that, in the words of Paine in his “The Rights of Man,” all civil rights are derived from our natural rights as individuals, civil rights being rights guaranteed to the individual in a state of society and government, and natural rights being the rights of individuals in a state of nature.  And whatever did not/does not exist as a right in a state of nature can never be considered a right in a state of society, governed by a government that was established by the consent of the people freely gathered into society.   Thus, in a state of nature, it cannot be said that I have any inherent right to my neighbor’s possessions, nor can I demand and coerce him to dispose of them to me, even with just compensation for these possessions coming from me in exchange for them, because they are his property and his alone.  He alone controls who he chooses to dispose of them to, when, where, and why, and to a lesser extent, the manner in which he does so; for the manner can be regulated by Congress via the Commerce Clause when his property crosses state lines or national borders.  I have no claim on them, whatsoever by my mere existence, unless of course I contract with him/her to dispose of his possessions to me and I have compensated him/her for this disposal of his/her private property to me, equal to the worth of the thing disposed of to me or what we have contracted as equal payment for the transfer of his property to my possession where it then becomes my property.  Thus, if by my mere existence in a state of nature, I have no claim to the private property of others and can make no demand that he exchange his private property with my compensation for such exchange and have this demand be binding, then how could I say I have a civil right, in a state of society, that allows me to have a claim on the private property of another and demand he transfer it to me, with just compensation on my part, based purely upon my existence, let alone upon my race, skin color, national origin, gender (identification), age, religion, or economic status, etc.?  How could a government that protects the property rights of individuals and secures that individual in his/her private property as well as the right to such a security from the government, pass a law that states it has the authority to violate those property rights and coerce individuals to dispose of their property to others when those others ask it and offer just compensation for it, based upon any outward characteristic, when the individual has not such right in the first place?  How can a government pass such a law, say it protects private property rights of individuals from attack or violation by private citizens, but authorizes itself to attack or violate those rights using the collective force of society and go unpunished?  This is legal plunder, as Frederic Bastiat would say.  How can such a government say truthfully that it protects the private property rights of individuals and secures to them their property and their right to this private property when it allows itself to violate these rights and make them unsecure in these rights, thus asserting that the property now belongs concurrently or solely to the government, to be disposed of as the government sees fit?  It cannot, for mere common sense and justice opposes such outrageous assertions.  A man’s house is his castle, and neither government nor private citizen can rob this man of his property without just compensation, coerce him to dispose of it to someone else, even with just compensation, nor prohibit him from disposing of it to someone of his liking, when where, and for whatever reasons he chooses.  The only reasonable regulation a national government has over such commerce is when this commerce crosses state and national borders, or when such commerce violates the true, natural and civil rights of others. 

The radical natural law and natural rights theorist of the 19th century, Lysander Spooner, has the following to say on the right of private property in his 1855 writing, "The Law of Intellectual Property; or an Essay on Right of Authors and Inventors to a Perpetual Property in Their Ideas:"

"The Right of property is simply the right of dominion.  It is the right, which one man has, as against all other men, to the exclusive control, dominion, use, and enjoyment of any particular thing.  The principle of property is, that a thing belongs to one man, and not to another-mine, and thine, and his, are the terms that convey the idea of property.  Others have no right to take it from him, against his will; nor to impede, nor obstruct him in the exercise of such dominion over it, as he chooses to exercise.  The legal idea of property, then, is that one thing belongs to one man, and another thing to another man; and that neither of these persons have a right to any voice in the control of disposal of what belongs to the other; that each is the sole lord of what is his own; that he is its sovereign; and has a right to use, enjoy, and dispose of it, at his pleasure, without giving any account, or being under any responsibility, to others, for his manner of using, enjoying, or disposing of it.  This right of property, which each man has, to what is his own, is a right, not merely against any one single individual, but it is a right against all other individuals, singly and collectively.  It is a right against the whole world.  The thing is his, and is not the world's.  And the world must leave it alone, or it does him a wrong; commits a trespass, or a robbery, against him.    It the whole world, or any one of the world, desire anything that is an individual's, they must obtain his free consent to part with it, by such inducements as they can offer him.  If they can offer him no inducements, sufficient to procure his free consent to part with it, they must leave him in the quiet enjoyment of what is his own.  The only limitation, which any or all others have a right to impose upon his use and disposal of it, is, that he shall not so use it as to invade, infringe, or impair the equal supremacy, dominion, and control of others, over what is their own."

Property belongs to the owner, and no one else, except of course the Creator.  The Creator created all there is in the world, with His own hands, therefore everything truly belongs to him, and we are merely stewards over what the Creator has created for us and freely given to us to use and enjoy.  But the Creator would never arbitrarily confiscate private property from the owners, because the Creator never goes back on His promises and gifts to mankind.  Rather, it is always us, the stewards, the imperfect human beings, who voluntarily give up or loose our property via our own stupid, selfish, greedy, and often statutorily and principally unlawful actions, viz violating the rights of others.  Private property rights are thus absolute, in as much as the right is considered with regards to humanity alone, except the case where the owner violates the true natural and civil rights of others.  No human being may violate the rights of property of another human being, without due process of law.  I will not suppose to say what the Creator, omnipotent and omniscient as He is, can or can't do, although reason can help an individual guess what the Creator will or will not do/would or would not do, based on His past, unchanging actions and His known attributes, such as justice, equality, and mercy.  I therefore hazard a guess that the Creator would never arbitrarily confiscate the private property of someone, unless by due process of law.  We are charged by the Creator to voluntarily take care of the poor and needy by voluntarily imparting of our substance, our property, to them.  We have this moral duty, this commandment, if you will, to do so.  But would the Creator confiscate our property if we did not do this?  I think it all depends on whether the use of one's property would violate the rights of others, specifically when such an instance involves monopoly of property and substance by one or a few individuals, while the rest of mankind has their right to life, liberty, and pursuit of happiness violated because those holding the monopoly of property will not impart of their substance to the poor and needy, and the poor and needy have no other means of acquiring property through their labor and inducements to the owners because their is no other property left to acquire, given the monopoly on property by the owner(s).  And even then, I think the Creator would let man dot he confiscating, via due process of law.  I think this would be the only situation the Creator would ever confiscate property from the owner or would condone mankind to confiscate property from the owner, and justly so because the monopolistic owner was in violation of the rights of others in monopolizing all property and in depriving others, who have nothing, of his excess of substance.  Thus, aristocracy and monarchy, where the one or the few are the owners of the realm is looked down upon as evil by the the Creator and enlightened mankind.  The same goes for the many that own property to the exclusion of the few, where the rights of the few are violated in that they are physically, and possibly lawfully barred from ACQUIRING property by their own sweat and labor, physically in that all the property is owned by the many and their is nothing left for the few to acquire, and is not imparted to the few via inducements from the poor, or if inducements are not in existence, then imparting to the poor as a freewill gift by the owner.  It must be remembered that even those who have absolutely nothing to offer as inducements for buying property do not have a claim on the property of others, except when their rights to life, liberty, and pursuit of happiness are violated.  But the property may be justly confiscated by the governing body of the society from the owner(s) if the actions of the property owners violate the rights of others to life, liberty, and pursuit of happiness, including property.  And such confiscation must come through due process of law.  But such as case as described above concerning a monopoly on all property, both landed and personal, is so rare, so unthinkable, and has yet to happen in America, in the very least, that such is not necessary to comment on any further.  Thus, society can only ever have a claim on the property of others when the owner violates the rights of others, such as life, liberty, and pursuit of happiness, and is found guilty of doing so by due process of law.  And even then, such property is to be distributed equally among those who have no property but are willing to labor to acquire property is property existed for them to acquire.  And in America, as in the whole world, there is property enough for all of mankind to acquire by individual labor, and this will ever be so, so long as a monopolistic individual, group of individuals, or a nation has not claimed it all to the exclusion of all others.

Indeed, Congress and the nation as a whole, in their zeal to stamp out discrimination and prejudice from society, have begun to drive private property rights from our shores, all in the name of anti-discrimination and civil rights, violating the private property rights of individuals without due process of law.  Thus, I believe Frederic Bastiat’s phrase is appropriate in this situation.  The driving away of and stamping out of discrimination and prejudice in society, exercised by an individual in disposing of his/her property to another/others, using force of law, is what is seen.  The driving away from this land of liberty and rights of private property rights and the eradicating of the security of an individual in his/her private property and one’s right to this security, owed to him/her by the government, all cause by congressional laws such as the Civil Rights Act of 1964 is what is not seen.

Congress has for too long abused it’s commercial authority granted by the Commerce Clause, in violation of the private property rights of American citizens and residents alike.  This is why I oppose the wrong interpretations and usurped authority by Congress as seen in their use of the 1964 Civil Rights Act and in the U.S. federal court’s interpretation of Congress’s commercial authority to regulate interstate commerce and all intrastate commerce as long as it is in some way connected to an affects interstate commerce.  I do not oppose the Civil Rights Act itself, in that it disallows all public and government agencies, entities and officers to discriminate based upon race, national origin, gender, religion, skin color, etc. in Americans utilizing public places and public privileges and rights.  This cannot be allowed to happen; the government shall not be allowed to discriminate based upon any outward appearance or characteristic as to one’s worth before the law and his/her deserving his /her rights and use of all government and public facilities.  But the Civil Rights Act cannot reasonably be construed by anyone, much less Congress and the courts or any other government branch or agency, to extend to the private property rights of the individual.  Thus, because of the American government’s abuse of private property rights via the 1964 Civil Rights Act, I propose the following amendment to the Constitution, concerning Congress’s authority to regulate interstate commerce.  I do not sanction or praise discrimination and prejudice by the individual toward others in their private actions toward others, for if we are all seen and loved equally by our Creator, all of us his creations and literal children of Him, then that ought to be enough for society.  If the Almighty Creator of the human race and of the earth and all the animals and plants and living organisms gives unto mankind the law of agency and secures that agency to every individual, and neither compels man to do His will nor the will of any other, but let’s each individual choose according to his/her individual desires; if such a system of agency is good enough for God, our Creator, then it ought to be good enough for his creation made in His image, namely, us, mankind!  If God does not compel and use coercion to make people do His will or the will of others, then neither should mankind do so!  What the Author of Nature does not condone, mankind, the creation of that Author, cannot condone either.  Rather, instead of supporting the evils of prejudice and discrimination, I wholeheartedly condemn these evils and seek with all my might, strength, and will-power to stamp them out of my own individual life first and foremost before asking others to stamp them out of their own individual lives.  For we cannot compel any individual to change; we can only persuade and leave the changing to where it belongs, to each individual, respectfully.  However, mankind indeed has his/her agency, and the choice to discriminate in disposing of his or her private property, even through commercial actions, belongs solely to that individual owner and it cannot be taken form him without violating his property rights and making him less secure in his private property and in his right to be secure in his property, owed to him by the government.  The government only secures the rights of man to each individual, including private property rights, and cannot in and of itself practice discrimination and prejudice in its actions and duties to the people.  But it cannot prevent the private individual from discriminating against another or being prejudiced against another, inasmuch as he/she doesn’t violate the actual and true rights of the other, even though such actions are disgusting and evil.  And when an individual decides to not dispose of his property to, or engage in a commercial action with someone, even when based upon outward characteristics and representations of human worth such as race, gender, religion, etc.  For such a right belongs to the individual owner of private property; and to say otherwise would deny that individual his private property rights.

Indeed, it seems to me that the principles found in Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung, (1964) allow the government to violate the 5th, 14th, and 9th Amendment rights, particularly the substantive due process rights of the American people in the following ways:

To legislatively force a man to dispose of his property to one whom he may not wish to dispose of it to or at a time he may not want to dispose of it, under the guise of interstate commerce authority, and in promoting interstate commerce or attempting to prevent it from being affected negatively, is to in effect do two unconstitutional things: 1.) to confiscate or take one's property without just compensation and give it to another individual whom Congress deems as an appropriate or deserving receiver; 2.) to deprive him of his property without (substantive) due process of law.  Thus, in doing such, there is a violation of two provisions in the 5th Amendment.  For the right to private property is an ancient one, protected not only in the 5th and 14th Amendments, but also in the 9th Amendment, and includes the ability of the owner to dispose of private property to whomever he wishes or deems fit, whenever he wishes, in a lawful manner that does not violate the rights of others.

There is a legal doctrine called Substantive Due Process, and I believe the substantive due process rights of Americans are violated by the principals laid down in the two aforementioned Supreme Court cases and in the Civil Rights Act of 1964, where the government may force a person to dispose of his/her private property to whomever the government sees fit and whenever the government sees fit (in this case, people of different skin colors, race, age, gender, etc.), under the guise of promoting interstate commerce or protecting interstate commerce.  I do not believe promoting or protecting interstate commerce is justification enough for violating the property rights of individuals, for it makes us less secure in our private property at the hands of the government, and it makes our right to acquire private property and be secure in maintaining and holding it less secure as well, again at the hands of the government.  If a private individual sought to force me by coercion or duress to dispose of my private property to someone or at a time I as the owner did not see fit, even for good purposes, such as promoting or protecting interstate commerce or helping another person in need, this would be a crime and seen as immoral and illegal, theft, if you will.  And if so, then why should the government be allowed to do it?  If it's a crime for a private individual, it should be a crime for the government to commit the same act.  Government cannot exempt itself from the laws of the land.

Substantive Due Process is defined as the following, from two different sources:
-A requirement that laws and regulations must be related to a legitimate government interest (as crime prevention) and may not contain provisions that result in the unfair or arbitrary treatment of an individual
-Substantive due process is a limit on the government's power to enact laws or regulations that affect one's life, liberty, or property rights. It is a safeguard from governmental action that is not related to any legitimate government interest or that is unfair, irrational, or arbitrary in its furtherance of a government interest.

-The Doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective.
           -Black’s Law Dictionary, 9th Ed

A Proposed Amendment to the Commerce Clause of the Constitution.

The right of the individual to honestly and legally acquire, maintain, and
dispose of private property according to his/her liking, provided no one else's
rights are violated, being an essential and time-honored natural right; and the
right to be secure in one's private property being an essential and time honored
responsibility of the government and thus an essential and sacred civil right;
and given Congress's previous gross abuses of these rights of the individual via
the Commerce Clause, Congress's authority to regulate interstate commerce via
the Commerce Clause shall be amended in the following manner:

1.) Congress shall be limited to legislation related strictly and solely to how
interstate Commerce may nor may not proceed and occur; and Congress shall pass
no law in relation, whatsoever, to intrastate commerce, be it within one
individual state, a group of states, or all the states combined.  The authority
to regulate intrastate commerce belongs solely to the individual states, or to
the people where no such authority is vested in the state or local government by
the people of a state, via the 10th Amendment to this Constitution.

2.) Congress may also legislate concerning the protection of any one
individual's right to engage freely in interstate commerce; but such authority
shall not be construed to allow Congress to force, by law, any individual to
engage in any commercial activity whatsoever, be it intrastate or interstate.

3.) Congress shall have no authority under the Commerce Clause to pass laws
either mandating interstate or intrastate commerce happen, or prevent/prohibit
intrastate or interstate commerce from happening. 

4.) Congress shall have no authority under the Commerce Clause to pass laws
banning certain items or property from being engaged by the seller and buyer in
intrastate or interstate commerce, excepting those items/property that may
violate the rights of any one individual, in and of themselves, without the
involvement of human agency or action.  

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