Deconstructing Doug Wardlow
Marching to the beat of a long dead drummer
I’d like to start off with a video.
That’s the end of a speech that Doug Wardlow delivered on the floor of the Minnesota House (recorded by House media services) during the 2011 session. Wardlow had been elected in 2010. You can watch the whole speech here.
If Doug Wardlow strikes you as a bit of a pedant, you are not alone. This brief video offers, though, a concise statement of what makes Wardlow tick: antipathy toward the Affordable Care Act and privacy rights and equal protection and — what really ought to give you the willies — an affinity for natural law.
The ACA and the Commerce Clause. In a joint appearance with Republican U.S. Senate candidate Karin Housley, Wardlow said that the Supreme Court has been screwed up since the New Deal. The reason he believes that is undoubtedly the 1937 Supreme Court case of NLRB v. Jones & Laughlin Steel. The Hughes Court, led by the Four Horsemen had struck down New Deal legislation in case after case on “substantive due process” grounds. FDR won re-election in 1936 — really, really big — and threatened to pack the Court which may have had the intended galvanizing effect.
At all events, the Court in Jones & Laughlin held that the Wagner Act, which prohibited discrimination against union workers, was a constitutional exercise by Congress of the Commerce Clause. Even though he wouldn’t be born for some forty years, it’s been all downhill for Doug Wardlow since then.
He’s like a little anti-progress beetle preserved in amber.
Or a high school kid with Bircher parents.
Many of you remember the Tea Party refrain, “The federal gubmint has overstepped its bounds!”
Ah, those were the good old days.
You heard Doug Wardlow say it in the video, right? The Commerce Clause is one of Wardlow’s personal enemies.
Wardlow was one term too late (he only got one term, by the way, which makes you wonder why the Republicans thought he’d be a good statewide candidate) to be a chief author of the Incandescent Light Bulb Freedom Act, which never actually came to be, but you can bet he’d have been right there, front and center.
When he was a representative, Doug Wardlow was a mover — and literally a shaker — for a constitutional amendment in Minnesota for the “right to work” (for less.) He never forgot the Jones & Laughlin case!
Which brings us to the Affordable Care Act, which then Rep. Wardlow claimed as unconstitutional in the video above. We know now that the Supreme Court didn’t agree with him.
His claim was nothing more than lipstick on a pig, a not-so-subtle effort to cloak right-wing BS — or should it be PS? — with a mantle of legitimacy. Wardlow didn’t care about the Constitution — his ilk never really does — he’s just trying to find a way to justify the prejudice and greed of the people he really cares for.
You will also note that the amendment that Doug Wardlow was advocating was for the state’s disobeying federal law. He’s squarely in the nullification camp, too. That’s the failure to recognize that federal law and the decisions of the Supreme Court are the law of the land. We had a civil war about that.
When he tells you he wants to bring law and order to the office of Attorney General, don’t believe him.
Privacy and equal protection. Even though it was a debate about the ACA, Wardlow managed in his remarks to take a swing at Roe v. Wade, too. He spits out words like “penumbra” and “unenumerated rights” like they were epithets. To him and his they are. (Be glad you weren’t sitting in front of Doug for this little tirade.)
A recent poll in Minnesota, though, shows broad support for Roe v. Wade and little support for overturning it.
But what does the public know, right?
There’s a current article in The Atlantic about the tendency of the present Supreme Court to, as the Reconstruction Supreme Court did, view rights in the abstract and without regard to the realities of life. An early example of that was United States v. Cruikshank, a case from shortly after the Civil War where a group of men in Louisiana where charged with slaughtering more than 100 black men:
Seventy-two men were ultimately indicted for their role in the Colfax massacre, charged under the Enforcement Acts of 1870 [legislation authorized by Sec. 5 of the 14th Amendment, but the Amendment was crippled by the Court, a consequence we’ve been living with ever since], which were passed to help the federal government suppress the Ku Klux Klan. But their convictions were overturned by the U.S. Supreme Court, which concluded that the federal government lacked the authority to charge the perpetrators. Justice Joseph Bradley, a Grant appointee, wrote that the United States had not clearly stated that the accused, in slaughtering more than 100 black men, had “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.” And it wouldn’t have mattered if they had, argued the Grant-appointed Chief Justice Morrison R. Waite, because the Fourteenth Amendment’s powers did not cover discrimination by individuals, only by the state. “The only obligation resting upon the United States is to see that the States do not deny the right,” Waite wrote. “This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.”
This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations. “The Colfax defendants would have had to announce their plan to violate their victims’ rights on account of the color of their skin in order to be culpable,” Goldstone wrote. “Justice Bradley had thus communicated to any Redeemer [the white goons] with violent intent that to avoid federal prosecution one need simply to keep one’s mouth shut before committing murder.”
The article continues:
The justices did not resurrect Dred Scott v. Sandford’s antebellum declaration that a black man had no rights that a white man was bound to respect. Rather, they carefully framed their arguments in terms of limited government and individual liberty, writing opinion after opinion that allowed the white South to create an oppressive society in which black Americans had almost no rights at all. Their commitment to freedom in the abstract, and only in the abstract, allowed a brutal despotism to take root in Southern soil.
And that’s what the Tenthers, Tea Partiers, Nullifiers, and Bounds Oversteppers, and Doug Wardlow do, too. Here’s one more graf from the article:
The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts’s June 2018 ruling to uphold President Donald Trump’s travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.
Wardlow is big on the Muslim ban.
Paying lip service to a principle but permitting or even promoting its destruction is the specialty of people like the Reconstruction Supreme Court, the current majority of the Court, and guys like Wardlow.
Wardlow dismisses the general right of privacy that Justice Goldberg wrote existed in the Ninth Amendment, and other Justices found to exist in the 14th Amendment as an extension of the other “privacies in the Bill of Rights,” in Griswold v. Conn., the birth control case. Griswold is the first in the line of cases that include Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges.
You all must have some idea what protection reproductive rights and same sex relations would have under a Wardlow regime, right?
Natural law. In spite of being so dismissive of what he claims are “unenumerated rights” in the Constitution, Wardlow is a big believer in “natural rights” or “natural law” which are not merely unenumerated, but really rather disclaimed in the Constitution.
We’ll save that for another story. (Here’s part two.)
Reader Alan observes: Doug Wardlow is scary. Something bad must have happened to him as a child.
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