Last week, President Joe Biden nominated David Chipman to be head of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the premier federal firearms enforcement agency. Biden complemented that announcement with a call for a national red flag law to entitle police to preemptively confiscate firearms from citizens suspected of being a threat to themselves or others.

Chipman was a 25-year ATF agent and a key official at the 1994 federal trial of the Branch Davidians who survived the ATF and FBI assaults the prior year. Many federal agents posed for grisly “victory photos” in the rubble of the Branch Davidians’ Waco, Texas, home after it burned to the ground during an FBI assault. One photo allegedly shows Chipman proudly holding a rifle in front of the wreckage where scores of children died shortly before. The White House and Chipman’s current employer, the antigun Giffords organization, did not respond to repeated email requests to confirm or deny that Chipman is the federal agent in that photo; the Daily Mail and many online sites have tagged Chipman as the agent. In a Reddit public question and answer session in 2019, Chipman sought to spur support for an assault weapons ban by falsely claiming that the Davidians shot down two federal helicopters that were attacking their compound.

Biden’s nomination of Chipman has thrust Waco back in the national spotlight. Millions of Americans permanently lost faith in the federal government after ATF and FBI attacks concluded with more than 80 civilians dead. But few Americans are aware of Biden’s role, first in helping cover up the debacle and later, after ample damning evidence had surfaced, exonerating federal law enforcement and instead blaming Americans who distrusted Washington. Biden’s behavior on Waco is a bad portent for anyone who expects federal agencies to be leashed during his reign.

Read the rest of this article at The American Conservative

Longtime antiwar activist Reese Erlich passed away on April 6 after a long battle with cancer. He was 73.

Reese was most recently a bi-weekly columnist at a number of publications, including Antiwar.com. He wrote his last column two weeks ago saying goodbye to his friends and readers.

I met Reese in 1980 when we worked together in the Bay Area Mobilization Against Militarism and the Draft.

Reese was arrested in 1969 as part of the “Oakland Seven,” for organizing anti-draft demonstrations. His arrest and trial (resulting in his acquittal) are the subject of a documentary,
Movement on Trial: The Oakland Seven.

Reese worked as a staff writer and research editor for Ramparts, a national investigative reporting magazine published in San Francisco. His magazine articles appeared in Vanity Fair online, San Francisco Magazine, California Monthly, Mother Jones, The Progressive, The Nation, and AARP’s Segunda Juventud.

Erlich’s book Target Iraq: What the News Media Didn’t Tell You, co-authored with Norman Solomon, became a best seller in 2003. His book The Iran Agenda: the Real Story of U.S. Policy and the Middle East Crisis was published in October 2007 with a foreword by Robert Scheer. In a San Francisco Chronicle book review, Ruth Rosen wrote, “Some people are treated as pariahs when they tell the truth; later, history lauds them for their courage and convictions. Reese Erlich is one of those truth tellers.”

Reese also published Dateline Havana: The Real Story of US Policy and the Future of Cuba in 2009, Inside Syria: the Backstory of Their Civil War and What the World Can Expect in 2014, and The Iran Agenda Today: the Real Story from Inside Iran and What’s Wrong with U.S. Policy in 2018.

Reese worked with Walter Cronkite on four public radio documentaries. Cronkite has written, “Reese Erlich is a great radio producer and a great friend.”

His passing is a great loss to the antiwar movement. He will be missed.

This article was originally featured at Antiwar.com and is republished with permission.

Have you ever wondered how the Supreme Court came to be seen as a distinctly political body, despite its clear constitutional role to be expressly non-political? There has certainly been a political ebb and flow on the Court over time. When a liberal president gets elected they tend to appoint liberal justices to the bench and the Supreme Court moves in a liberal direction. Likewise, when a conservative president gets elected they tend to appoint more conservative justices to the bench and the Supreme Court still moves in a more liberal direction.

Moreover, why do our friends on the left see politicized court packing as the solution to an as yet unidentified problem (following Trump sitting three justices in four years)? To understand how this came to be, and how a political judiciary came to be seen as an improvement (by some) compared with its original, limited role, we must trace it back to a grossly misunderstood event known as the Constitutional Revolution of 1937.

As with so many terrible things this story begins with Franklin Delano Roosevelt. After his election as president in 1932, his New Deal policies aimed to reform the entire American economy. During Roosevelt’s first and second terms in office the Supreme Court radically altered how it reviewed regulations of economic liberty. However, even to this day many lawyers do not know why and when this change occurred.

In February 1930 Chief Justice William Howard Taft resign from the Supreme Court due to illness. One month later, Justice Edward Terry Sanford suddenly passed away. President Herbert Hoover nominated Charles Evan Hughes and Owen Roberts to fill the two vacancies. Though a Republican, Hoover was a political progressive and his two appointment began to shift the court to the left.

Justice Roberts made an immediate impact on the Court in O’Gorman & Young vs Hartford Fire Insurance Company. Under New Jersey law, commissions on the sale of fire insurance policies are required to be reasonable. The O’Gorman firm sold Hartford fire insurance policies with a contract providing that the commissions would be priced at what such services were reasonably worth. O’Gorman asserted that its commission was reasonably worth 25% of the insurance premiums. Hartford however only paid a 20% commission. O’Gorman filed suit for breach of contract. The trial court found that under New Jersey law a 25% commission was unreasonable and could not be paid.

O’Gorman appealed the case to the Supreme Court. The firm argued that the regulation deprived the company of property—the extra commission—without the due process of law. In April 1930 the Court heard oral arguments when there were only eight justices on the bench. Apparently the court split 4-4 on whether the regulation was constitutional. Three weeks later Owen Roberts was confirmed. O’Gorman was re-argued the following term. And at that time Justice Roberts cast the fifth and deciding vote to uphold the statute.

Past Supreme Court precedent, including Lochner v New York (1905), recognized that the Fourteenth Amendment protected the liberty of contract. That right generally prohibited price regulations. But there was an exception to the general rule; legislators could set prices for a business affected with a public interest. Originally this category was limited to businesses with some kind of monopoly share of market power. But eventually the Supreme Court expanded the category to include any business the state wanted to regulate.

Justice Louis Brandeis wrote the majority opinion in O’Gorman. He found that the business of insurance is so far affected with a public interest that the state may regulate the rate and limit commissions to avoid the evils of an unreasonably high rate level. Therefore the New Jersey statute is clearly within the scope of the police power. Justice Brandeis explained that lower courts must presume the law is constitutional unless there is a factual foundation suggesting that the provision was not an appropriate remedy for the evils in the insurance industry. Nothing on the face of the New Jersey statute or the facts of the case, Brandeis wrote, could rebut this presumption of constitutionality. Therefore the regulation was reasonable.

Justice Willis Van Devanter wrote a dissent joined by Justices George Sutherland, Pierce Butler, and James Clark McReynolds. While the majority presumed the law was constitutional, the dissent required the government to justify why the law is necessary. Justice Van Devanter’s dissent offered the following test: the state could deny O’Gorman the right to make private contracts only if some special circumstances exist that are sufficient to indicate the necessity of a statute to eliminate evils in the marketplace. The key word is necessity.

Three years after O’Gorman was decided the Court considered another economic liberty case, Nebbia v. New York. The state of New York fixed the price of milk at 9 cents per quart. This law which was designed to help dairy farmers raise milk prices for everyone, including the poor. The biggest beneficiaries of the law however were large firms that delivered milk directly to homes. Their prices could be undercut by small mom-and-pop stores that did not incur delivery cost. In this way the minimum price for milk protected the profits of large milk distributors.

Grocer Leo Nebbia offered his customers a special deal to get around the New York law. If a customer bought two quarts of milk at the regulated price of $0.09 each—for a total of $0.18—Nebbia would throw in a free loaf of Italian bread which was worth $0.05. With this deal customers received $0.23 of groceries for only $0.18. New York charged Nebbia with violating the price control law, and convicted him of offering his customers a discount. He was sentenced to pay a criminal fine.

Nebbia argued that the law deprived him of liberty and property without the due process of law. The Court rejected his argument in a 5-4 decision. Once again, Justice Roberts was the swing vote, this time authoring the majority opinion. First he wrote that states can regulate businesses affected with a public interest. That category now included even the corner grocery store. As a result the state has the police power to fix the prices to be charged for the products or commodities that the store sells.

Second, the Court reviewed the New York law with the presumption of constitutionality that was articulated in O’Gorman. Under this approach the state was free to adopt whatever policy may reasonably be deemed to promote public welfare. The requirements of due process were satisfied, Justice Roberts observed, if the law had a reasonable relation to a proper legislative purpose and was neither arbitrary nor discriminatory. It was not the courts role to determine if the rule was unwise.

Third, the Court considered how the law accomplished its purpose; that is, the relationship between the means and the ends. What evils was the government trying to address? In this instance, ruthless competition from destroying the wholesale price structure on which the farmer depends for his livelihood. The Court concluded that the price control law was not unreasonable or arbitrary and it had a relation to this purpose. Therefore, Nebbia’s conviction was proper.

As they had in O’Gorman, Justices Van Devanter, Sutherland, Butler, and McReynolds dissented together. And as you know, the O’Gorman quartet rejected the presumption of constitutionality. In his dissent Justice McReynolds observed that the stated purpose of the New York law was to increase milk prices at the farm. Yet the milk distributors were not required to share their increased revenue with dairy farmers. For this reason he questioned whether the means adopted—being the price controls—bore a reasonable relation to the stated purpose of assisting dairy farmers. Justice McReynolds did not assess the legislator’s motives directly. Instead he concluded that the law was arbitrary because the means adopted did not fit the purported ends of the legislation. In other words, the law seemed to be designed to protect large milk distributors from competition rather than to help farmers.

Between 1931 and 1937 Justices Van Devanter, Sutherland, Butler, and McReynolds consistently voted as a block to declare progressive federal and state legislation unconstitutional. This conservative quartet was dubbed by their critics as “Four Horsemen,” an allusion to the Four Horsemen of the Apocalypse from the New Testament’s Book of Revelation. During the same period, Justice Roberts was often the swing vote. In some cases he would join the Four Forsemen to give the conservatives a majority, and in other cases like O’Gorman and Nebbia he voted to uphold progressive legislation. In our next case, West Coast Hotel Co. v. Parrish, Justice Roberts would once again join the liberal bloc.

Washington State had imposed a minimum wage for women and children but not for men. Elsie Parrish worked as a chambermaid at the West Coast Hotel in Wenatchee, Washington. Her employer failed to pay her the minimum wage and she filed suit to recover back pay. The hotel’s owner argued that the labor regulation deprived him of the liberty of contract without due process of law.

Over the previous three decades the Supreme Court had decided several cases concerning economic liberty for women. In Muller v. Oregon (1908) the Court upheld a law that limited the hours women could work. It was deemed reasonable because of the physical differences between the two genders. However, fifteen years later in Adkins v. Children’s Hospital (1923), the Court declared unconstitutional a minimum wage law for women, ruling that the federal statute violated the liberty of contract protected by the Fifth Amendment’s due process clause. Thirteen years later in Morehead v. New York (1936) the Court reaffirmed Adkins. That 5-4 decision found that New York’s minimum wage law for women was unconstitutional, with Justice Roberts joining the Four Horsemen. Critically, however, in Morehead the Court was not asked to overrule Adkins.

But in West Coast Hotel Co v. Parrish, the plaintiff had asked the Court to expressly overrule Adkins. And by a 5-4 decision the Court did exactly that. Justice Roberts once again cast the deciding vote. Chief Justice Hughes, the other Hoover appointee, wrote the majority opinion. He explained that Adkins, decided only thirteen years earlier, was a departure from the true application of the principles governing the regulations by the state between employers and employees. Furthermore, cases decided since Adkins (including O’Gorman and Nebbia) applied those principles properly through the presumption of constitutionality. Chief justice Hughes could not reconcile Adkins with O’Gorman and Nebbia, therefore the court overruled the former.

With Adkins out of the way it was easy for the Court to uphold Washington’s minimum wage law. “If the protection of women is a legitimate end of the exercise of state power,” Chief Justice Hughes asked, “how can it be said that the requirement of the payment of a minimum wage, fairly fixed in order to meet the very necessities of existence is not an admissible means to that end?” He added, even if the wisdom of the policy was debatable and its effects uncertain, the legislature is still entitled to its judgment. This deference is especially appropriate, the majority noted, in light of the unparalleled demand for relief which arose during the recent period of depression. Therefore the law did not violate the Fourteenth Amendment.

For one of the last times, the Four Horsemen dissented together. Justice Sutherland, who wrote the Atkins majority opinion, also wrote the West Coast dissent, questioning the presumption of constitutionality. The dissent explained that a judge has an independent duty to make up his own mind and judge accordingly whether a law is constitutional. A deferential judge who automatically accept the views of others, he lamented, has surrendered his deliberate judgment.

Justin Sutherland further contended that the Court should not base its ruling on the exigencies of the Great Depression. The meaning of the Constitution as stated does not change with the ebb and flow of economic events. Rather, he added the words of the Constitution must mean today what they meant when they were written. A contrary rule would rob that instrument of the essential element which continues it in force.

Finally, Justice Sutherland attacked the law because it imposed a minimum wage for women but not for men. As a senator from Utha, Sutherland had supported the Nineteenth Amendment and women’s suffrage. In his dissent, he stated:

There is no longer any reason why they should be put in different classes in respect of their legal right to make contracts; nor should they be denied, in effect, the right to compete with men for work paying lower wages which men may be willing to accept. And it is an arbitrary exercise of the legislative power to do so.

On March 29, 1937, Justice Roberts joined the majority opinion in West Coast Hotel which overruled Adkins; however, only nine months earlier in Morehead Justice Roberts had agreed with the Four Horsemen that, in light of Adkins, New York’s minimum wage law for women was unconstitutional. How can we explain his change in position?

Four generations of law school students have learned that Justice Roberts changed his vote in response to President Franklin Roosevelt’s proposal to expand the size of the Supreme Court. On March 9, three weeks before the decision in West Coast Hotel was announced, President Roosevelt released his so-called court-packing plan. He explained:

Whenever a judge or justice of any federal court has reached the age of 70 and does not avail himself of the opportunity to retire on a pension a new member should be appointed by the president then in office with the approval as required by the Constitution of the Senate of the United States.

The size of the Supreme Court is not specified in the Constitution and has always been set by Congress. The number of justices has varied from as few as six to as many as ten. President Roosevelt was not concerned with the age or the workload of the Court; rather he was frustrated that conservative justices had declared unconstitutional federal and state progressive legislation. President Roosevelt called upon Congress to change the size of the Court for a very specific purpose of appointing new justices who were more amenable to his New Deal policy agenda and his vision of the Constitution.

Three weeks after the president’s announcement, West Coast Hotel was decided with Justice Roberts in the majority. His apparent reversal from Morehead created the appearance that the court-packing proposal influenced his decision. According to what has been the conventional narrative, Justice Roberts voted to uphold Washington’s minimum wage law in order to remove the incentives for President Roosevelt to pack the Supreme Court. Since that day Justice Roberts’ vote has been hailed as the so-called “Switch In Time That Saved Nine,” a play on the folksy aphorism that a stitch in time saves nine. In other words, if you mend a hole now you won’t need to mend a bigger hole later.

However, the conventional narrative that Justice Roberts changed his vote in response to the court-packing plan has been called into question. In December 1936, several of the justices recorded the votes cast at a private conference based upon the records in the docket books—we know that Justice Roberts voted to join the majority nearly three months before Roosevelt announced his court-packing plan.

There is a far more mundane explanation for Justice Roberts’ switch. In Morehead the Court was not asked to overrule Adkins. However, Elsie Parrish did make the request. And so it answered, relying on prior decisions Roberts had joined like O’Gorman and Nebbia.

Why does this history matter? According to the conventional narrative, Justice Roberts changed course for political reasons. Therefore the argument goes that the Supreme Court works as an inherently political institution. And because the conventional narrative applauds the switch in time, having a seemingly political Supreme Court is a good thing.

The actual history instead reveals how politics played a different, more subtle role.

President Herbert Hoover, a political progressive, appointed two progressives to the Supreme Court, Chief Justice Hughes and Justice Roberts. These appointments unsurprisingly moved the court in a progressive direction. Hughes and Roberts simply had different judicial philosophies about the Constitution than those held by the more conservative justices who comprised the Four Horsemen, previously appointed by more conservative presidents.

In this way, popular elections—not intimidation by political actors—changed the constitutional balance of the Supreme Court. The political process by which justices are selected allows for a justice with one principled vision of the Constitution to be replaced by a justice holding a different vision. West Coast Hotel was a byproduct of Herbert Hoover appointing two progressive justices in 1931—not President Roosevelt’s partisan tactics in 1937.

West Coast Hotel marked the commencement of what has come to be known as the Constitutional Revolution of 1937. Whenever and however it happened, there is no dispute that a constitutional sea change did occur. Recall that during the same period the Supreme Court also approved a vast expansion of Congress’ powers under the Commerce and Necessary and Proper clauses.

During his twelve years in office President Roosevelt made nine Supreme Court nominations. By 1943, during Roosevelt’s unprecedented third term, he had replaced all but one member of the once conservative court. Starting with O’Gorman in 1931, the New Deal era had revolutionized the public outlook on the Court and its role.

At the start, the presumption of constitutionality in O’Gorman, Nebbia, and West Coast Hotel was rebuttable. It was still feasible for a plaintiff to challenge the constitutionality of a law that restricted economic liberty. This history plays a big role in the expansion of implied powers under the Commerce and Necessary and Proper Clauses. Here, they could present evidence showing that the restriction was arbitrary. Eventually, however, the Warren Court would make the presumption of constitutionality irrefutable. And with that, the constitutional revolution was completed.

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.