The View From the Back of the Colonial Bus

Steve Russell

Those of us who have experienced the knifeless brain surgery that is law school are constantly reminded that U.S. and Canadian law and politics owe a great deal to the English Common Law. In most of the United States, English Common Law is still controlling authority in any matter that has not been legislated.

Of course, racism can subvert even something as fundamental as U.S. debt to the Common Law, as we saw in the grossly misleading public debate over the public accommodations provision in the Civil Rights Act of 1964, a debate that resulted in signs going up all over the former Confederate states claiming, “We reserve the right to refuse service to anyone.”

This was the sanctity of private property argument against the Civil Rights Act, the reason Barry Goldwater and many others gave for opposing the entire bill.

Rand Paul, current senator from Kentucky and candidate for president, has expressed exactly that critique of the Civil Rights Act, a position that hijacked an early interview he gave to Rachel Maddow. Her persistence in seeking an answer to whether he could endorse the Civil Rights Act now made news and is probably the primary reason Sen. Paul does not grant any more interviews to Maddow.

The argument goes that it’s your private property and the government has no writ to tell you who you do or do not invite there to do business. The problem with the argument is that the Civil Rights Act only restated the Common Law, which said that when you hold yourself out as serving the public, you must serve all of the public, subject to exceptions such as dress codes or drunkenness or other obnoxious behavior.

Blackstone’s Commentaries—often the only law books possessed by lawyers in colonial America---explained that when you devote your private property to serve the public, you create a public interest in being served and you can be sued if you frustrate that public interest.

Blackstone never went near another theory that would have served as well, that there is a right to your private property but there is no right to engage in business with the public, and it is the public through government that sets the terms of that privilege to do business. This theory is superfluous under a monarchy but underlies business licensing, consumer protection laws, fire codes, pure food and drug laws, sanitation requirements, ad infinitum.

Religious devotion to private property could undermine virtually any regulation of business and few sane people would take that position until government decided to use its power to ban racial discrimination. Then, all of a sudden, the law had supposedly trespassed on some fundamental principle of capitalism…that never existed in England, the home of capitalism.

American law went off the rails in the so-called Lochner Era, roughly 1897 to 1937. Legal theory hit everybody in the pocketbook when the first wave of New Deal legislation got thrown out by the Supreme Court in its ongoing flirtation with the idea that the Constitution requires capitalism and enshrines private property among first principles, alongside a right to contract understood only as an individual right.

The Lochner Era was a time ignored in K-12 history, when joining a labor union was “criminal syndicalism” and collective bargaining agreements were conspiracies in restraint of trade, denying the right of every human to work longer hours at lower wages. Lochner v. New York held in 1905 that a law limiting the hours bakers could work violated the rights of the bakers, not the owners of bakeries.

If you think these ideas are dead, remember the argument against Obamacare that Republicans would replace it with a rule allowing insurance to be sold across state lines, so consumers in California would have the “right” to policies from Mississippi with very minimal coverage that would be unlawful in California.

During the Lochner Era, the SCOTUS found both federal and state bans on yellow dog contracts to be unconstitutional. Yellow dog contracts do not require watchdogs to wear yellow vests; they make employees promise not to join a union as a condition of employment. It’s a measure of their political death that they now require explanation.

In a 1918 case, Hammer v. Dagenhart, the Court struck down a ban on child labor. A ban on child labor would obstruct the “rights” of children to quit school and go to work. Four years later, Congress tried to attack child labor by taxing things made by child labor if they moved in interstate commerce. No dice—that was unconstitutional as well.

Minimum wage laws were struck down for similar reasons, that they interfered with the right of every worker to earn low wages. The SCOTUS swept all of the Lochner Era nonsense away after FDR got so frustrated with the demise of first wave New Deal legislation that he floated his infamous “court packing” scheme. Court packing was DOA at every editorial board in the nation, but either the proposal or something else caused the famous “switch in time that saved nine,” and second wave New Deal legislature was upheld, 5-4, by the same justices that had been 5-4 the other way.

The SCOTUS had the epiphany that the Constitution does not contain capitalism any more than it contains Christianity. Government regulations of business that had been unthinkable became commonplace, as they remain today. The Fair Labor Standards Act set minimum wages and maximum hours. Child labor was abolished. Some argue to this day that the New Deal saved capitalism from its own excesses.

Great Britain, the source of our law, has evolved in both law and politics on broadly parallel tracks.

England abolished slavery by law in 1833, but the law decreed an “apprenticeship” period for the freed slaves that kept them in effective bondage until 1838. The U.S. had to fight a Civil War to get rid of slavery in 1865.

British women over 30 got the right to vote in 1918, a right extended to all women 10 years later, after the 19th Amendment to the U.S. Constitution extended the franchise to women in 1920.

A New Deal law legalized labor unions in 1935. Britain had done so in 1825, another example of the U.S. tagging along behind its former colonial authority.

The worldwide pullback from progressive changes wrought by WWII veterans started in Britain with Margaret Thatcher in 1979 followed closely by Ronald Reagan in 1981.

Progressives on both sides of the pond moderated their policies to retake the reins of power. Bill Clinton pulled it off in the election of 1992 with a lot of help from the Donald Trump of those days, Ross Perot. Tony Blair began to plow the same field in British politics in 1997.

Now we have, in the U.S. and the United Kingdom, candidates running against the redistribution of wealth upwards under Thatcher and Reagan, a redistribution maintained by Clinton and Blair in the interest of moderation, and a redistribution that is destroying the middle class as a driver of the consumer economy.

The recently elected leader of the Labour Party in the UK, Jeremy Corbyn, represents a return to Labour’s roots at the same time Socialist Bernie Sanders is challenging the U.S. establishment’s choice, Hillary Clinton.

It’s too soon to know if Corbyn and Sanders are more than speed bumps on the road to concentrating economic and political power in what the Occupy Wall Street Movement called “the one percent” for rhetorical symmetry but in fact is one tenth of one percent.

Either way, the colonizers of American Indians remain joined to the laws and the politics of their Mother Country. We, the colonized, are along for the ride, and for that reason our interests are better pursued when we pay attention to who is driving the bus.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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