On Originalism

Originalism can roll back a frightening amount of legislation — New Deal, civil rights, food safety, etc. There’s even a school of thought that says the 14th amendment doesn’t mean stuff like the bill of rights doesn’t limit state government. Just Congress. Which would mean a *state* is free to enact limits that abrogate our federally ensured rights. The illogic of the argument is, I assume, why originalists inconsistently apply their beliefs rulings. Think of the 11th Amendment interpretation that “by Citizens of another State” includes ‘citizens of *that* state’, for instance. Or the purported Second Amendment right to weaponry that hadn’t been imagined in the late 1700’s. Originalists make decisions contrary to the founders’ understanding of what they wrote.
And originalism seems to invalidate itself — was the understanding at the time the Constitution was adopted that most legislation requires a Constitutional amendment?

ORC Agricultural Exemption and Commerce

While at a recent Zoning Commission meeting, they discussed how a use was judged to be (or not to be) agriculture vis-à-vis Township not having a right to regulate agriculture per ORC 519.21. The example of a greenhouse used to grow flowers was given — not agriculture. Which got me thinking about the false association between ‘commerce’ and ‘agriculture’ — flowers are absolutely included in Ohio’s list of agriculture. ORC 303.01 reads:

agriculture" includes 
 farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture;
 horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising 
    of livestock, equine, and fur-bearing animals;
 poultry husbandry and the production of poultry and poultry products;
 dairy production; the production of field crops,
 tobacco, fruits, vegetables, nursery stock,
 ornamental shrubs, ornamental trees, flowers,
 sod, or mushrooms; timber; pasturage;
 any combination of the foregoing; and the processing, drying, storage, and marketing
 of agricultural products when those activities are conducted in conjunction with,
 but are secondary to, such husbandry or production.

So why wouldn’t a greenhouse used to grow flowers count as an agricultural use? Wickard v. Filburn, 317 U.S. 111 (1942) — a fairly wide reaching case — found that Mr. Filburn producing wheat for his own use (i.e. not selling it) still counted as commerce because he would have otherwise bought the wheat on the open market. Which is to say his wheat production was commerce because it was grown to allow him to avoid commerce. While Mr. Filburn’s production was not substantial, the cumulative action of personal-use growers would have a substantial impact on the market. Which was enough commerce to grant the federal government power to regulate his wheat production.

Same holds true here — and I think flowers were used an an example because it’s easy enough to say “eh, it’s just flowers”. But my concern is that the Township is going to want to use the same logic to regulate other agricultural activities. The personal production of poultry products may not be substantial, but the cumulative production of everyone who has some egg layers in their yard would be substantial. Thus egg laying chickens that produce for personal use would still be considered commerce by the logic of WIckard v. Filburn. I think someone claiming agricultural use for flowers might have a bigger hurdle, but a sufficiently motivated individual may be able to use this argument to substantiate the agricultural exemption for their greenhouse.

Hopefully this is one of those situations where the government doesn’t try to have it both ways — if personal production is commerce in one case, it should be commerce in other (very similar) cases.

Red Herrings

To everyone discussing whether a 17 year old kid who sexually assaults someone at a party (whilst high/drunk/whatever) should have said event preclude them from [promotions, government service, appointment to the Supreme Court] … that’s a red herring. The question is if someone who lies to Congress under oath (possibly repeatedly) should be confirmed to the Court. And that would be a resounding NO regardless of the individual’s politics.

There’s a big difference between elusive “I do not recall X” testimony where you’re not denying the action itself but rather recollection of said action and “I did not do X”. When someone pretty convincingly testifies that you did do X. Be X receiving stolen e-mails or sexually assaulting a woman … well, there are *lots* of things I’ve done but do not recall (although I’m not sure what kind of life you lead when stolen e-mails to advance judicial nominations are so every day that they simply slip your mind). But outright denying it happened?!?

Bigoted Bakers

The Supreme Court decision in the Masterpiece Cakeshop case clarifies exactly nothing — maybe the ruling would have stood if the review had not disparaged the baker’s religious beliefs. I’m not sure I’d want a baker who hates me (or something I do) to bake me a cake — too many ways to accidentially ruin a cake. Same with the photographer — why risk accidental overexposure or data loss destroying your wedding photos?

But I can see being offended when someone refuses you service based on your sexual orientation (or religion, or ethnicity, or …). I had a whole host of medical problems — eventually learned that my body does not process sugars/carbohydrates well and simply limiting sugars and simple carbohydrates eliminated most of these problems. But a decade before that discovery, the only thing that sorted amenorrhea and fibromyalgia-like symptoms was hormonal birth control pills. My insurance copay was the same amount regardless of where I purchased medication, so I used a small, privately owned pharmacy in a boutique part of town. Until my state passed a law that permitted pharmacists to refuse to distribute anything that contravened their religious beliefs. Shortly thereafter, I got lectured about my sinful promiscuity instead of picking up my prescription. I’m sure there was some way to get the pills from that pharmacy, but frankly I was insulted and more than a little embarrassed. Not that it was the least bit of their business, but I was absolutely celibate. Just didn’t enjoy being chronically exhausted and in pain. Wasn’t worth arguing about, I transferred my prescription to a chain that wasn’t staffed by people who want to pass judgement on my medical prescriptions.

Thinking back to that embarrassment, I hope these anti-discrimination laws get tested by a case where the local officials don’t editorialize — just state the action violates the law and be done with it.