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07 February 2018

14th Amendment vs. the Commerce Clause

More Perfect, a podcast about SCotUS from the Radiolab folks, has a recent episode that really got me thinking. (I highly recommend this podcast, by the way.) The short of it is that progressives have had a lot more success invoking the Commerce Clause than the Equal Protection Clause. In case you've forgotten your high school civics, here are the two excerpts of the Constitution:
Commerce Clause (Article I, Section 8, Clause 3)
The Congress shall have power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes....
Equal Protection Clause (Section 1 of the Fourteenth Amendment)
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.
It occurs to me that only under Capitalism would we find more success arguing for social justice using a call to economic harms rather than calling on basic human rights and dignity directly. Capitalism alienates humans from those very things that make us human, including from the products of our work but also our humanity itself. Moreover, there is a great, though understandable, risk in relying on capitalistic strategies instead of human strategies. Justice delayed, after all, is justice denied. Our dreams should not be deferred. However, a moral demand for dignity is not easily overcome. Once you have convinced others that people should be treated justly because they are humans, the only way to remove that justice would be to argue that some people are not, in fact, humans or that humans have no right to justice. Tortured arguments based on economics are vulnerable to the changing fashions of textual interpretation. In short, our use of the Commerce Clause is risky, even if expedient.

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