Bahr and Barnes on Proposition B and Constitutionality

Recovered from the Wayback Machine.

Representative Kurt Bahr is one of the reps who went against the people in his district. In his case, he voted for SB 113 over the wishes of over 61% of the people. Listen to what Sean at Fired Up! Missouri calls a train wreck of a radio interview between KTRS’s McGraw Milhaven and Bahr:

First, to address one falsehood: SB 113 repeals every last bit of Proposition B. When Jane Cunningham challenged Mike Parson on the floor of the Missouri Senate to show one part of Proposition B that wasn’t modified by SB 113, Parson couldn’t answer her. That’s because SB 113 changes everything.

As for the demand from state representatives to sign SB 113 first—so much for the so called “compromise”. There’s no incentive, at all, for the legislators to compromise once Nixon has signed SB 113. In addition, if he does so and the compromise isn’t passed, he looks like an idiot—something that would not break the Republican dominated legislature’s heart.

Of course, I’m not happy with either SB 113 or the so-called “Missouri solution”, Nixon’s compromise, but it is Bahr’s comments on the Constitution I want to specifically address in this writing. Representative Bahr made a comment that his job is to “protect the Constitution”. However, that is not his job, as an elected representative. His job is to represent the people in his district.

The Constitution framers established three branches of the government: Executive, Legislative, and Judicial. We mirror this form of government at the state level. It is Legislative branch that makes law, but it is the Judicial branch that determines what is, or is not, Constitutional. This form of government at both the national and state level has worked pretty good to this point.

It is up to the courts to determine the constitutionality of laws, not up to representatives who are inadequately trained in constitutional law. Anyone who feels that a new law impacts on their constitutionally guaranteed rights may bring about a lawsuit challenging the law. They can also ask the courts to block implementation of the law if such implementation could adversely impact on them, while the court challenge is under consideration.

When McGraw questioned Bahr on the fact that no judgment has been made on the constitutionality of Proposition B, in his defense, Bahr brought up an item in the Missouri Constitution, specifically Article 1 Section 2, which states:

That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.

(emph. mine)

Evidently the feeling is that a 50 breeding dog limit is a violation of the breeders rights to the “enjoyment of the gains of their own industry”. However, even a cursory examination of case law related to this specific section brings us to Fisher v. State Highway Commission of Missouri where an accident victim challenged the constitutionality of a law that limits awards levied against the state. Fisher claimed that the statute violated her rights under the Missouri State Constitution, specifically, “that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry”, with emphasis on the section reading, “and the enjoyment of the gains of their own industry”.

The judge, in ruling against Fisher’s claim, actually traced the history of this phrase back to its insertion in the State Constitution:

The Missouri Constitution of 1820 did not reference “the enjoyment of the gains of their own industry.”   This phrase first appeared in the Declaration of Rights of the Missouri Constitution of 1865 as “the enjoyment of the fruits of their own labor.”  Mo. Const. of 1865, art. I, sec. 1. Although the 1875 Constitution modified the wording to “the enjoyment of the gains of their own industry,” this was not a change in substance.  2 Debates of the Missouri Constitutional Convention of 1875, at 7 (Isidor Loeb & Floyd C. Shoemaker, eds., 1932);  Mo. Const. of 1875, art. II, sec. 4.   The language in the 1875 Constitution continued unchanged in the 1945 Constitution.   5 Debates of the Missouri Constitutional Convention 1945, at 1423 (1944).

Charles D. Drake, the author of the Constitution of 1865, studied the constitutions of other states, particularly the Maryland Constitution of 1864.   David D. March, Charles D. Drake and the Constitutional Convention of 1865, 47 Mo. Hist. Rev. 110, 112 (1953), citing Charles D. Drake, Autobiography of Charles D. Drake 1054-55 (date unknown) (unpublished manuscript, on file with Western Historical Manuscript Collection, Columbia, Missouri).   In fact, the language in the Missouri and Maryland constitutions is practically identical.   Compare Mo. Const. of 1865, art. I, sec. 1 (“the enjoyment of the fruits of their own labor”) with Md. Const. of 1864, art. 1 (“the enjoyment of the proceeds of their own labor”).   This provision was intended to apply to the condition of the slaves recently freed.   Edward Otis Hinkley, The Constitution of the State of Maryland 121 (John Murphy & Co. 1867).   The voters who approved the 1865 Constitution would have understood the provision on “fruits of their own labor” to apply to the recently freed slaves.   No other provision in the 1945 Missouri Constitution expressly prohibits slavery or involuntary servitude.   See 1 Journal of the Constitutional Convention of Missouri 1943-1944, at 13-14 (82d day, Feb. 14, 1944).

The origin of the “enjoyment of the gains of their own industry” phrase is in workplace slavery.   Equally, the cases of this Court discussing this phrase concern labor, occupations, professions, and the marketplace.   See Appendix A.   Only three times has this Court invoked this phrase to invalidate a law:  twice when government forced individuals to work without compensation, State ex rel. Scott v. Roper, 688 S.W.2d 757, 768-69 (Mo. banc 1985);  Moler v. Whisman, 243 Mo. 571, 147 S.W. 985, 987-88 (1912);  and once when the state prevented individuals from selling a lawful product, State ex rel. Knese v. Kinsey, 314 Mo. 80, 282 S.W.2d 437, 439 (1926).   Cf. Baue v. Embalmers Federal Labor Union No. 21301, 376 S.W.2d 230, 234-35 (Mo. banc 1964) (picketing of funeral home for purpose of preventing owner-partners from embalming in their own establishment, held against public policy in article I, section 2).

(emph. mine)

In this decision, dated 1997, the judge notes that the courts have invoked the phrase, “enjoyment of the gains of their industry” three times when invalidating laws. Two of those cases came about because workers were being forced to labor without compensation, neither of which would apply to Proposition B and setting a limit of number of breeding adult dogs. However, there is one decision, State ex rel. Knese v. Kinsey, 314 Mo. 80, 282 S.W. 437, 439 (Mo. banc 1926), which was related to the “selling of a lawful product”, and could possibly be considered in relation to Proposition B.

State ex rel. Knese v. Kinsey was a case about selling raw milk and whether the state could enact laws against the selling of raw milk. From a paper written in 1926, Law and Legislation (PDF) by James A. Tobey L.L.B, we find the following about this case and the judge’s decision:

Pasteurization laws have come before the courts on at least 6 occasions and in 5 instances have been sustained. In April of this year the Supreme Court of Missouri refused to uphold an ordinance of the City of St. Louis requiring all milk to be pasteurized, unless certified. State ex rel. Knese vs. Kinsey, 282 S. W. 437. The reason for this decision was that the state law, in the opinion of the court, authorized the sale of raw milk. The court further decided from the evidence that “raw milk is healthful, nutritious food, particularly for children, and this is not disputed,” also that ” it is plain that raw milk as a getneral thing is more nutritious, easier assimilated, and better food, especially for children, than pasteurized milk, though it is probable that some individuals may thrive better on pasteurized and boiled milk, than on raw milk.

The ordinance was consequently held unreasonable and a writ of mandamus was allowed requiring the board of public service to issue permits to various dealers to sell milk, the permits having been refused by the board because the milk in question was not pasteurized.

Tobey went on to write that the decision was not as groundbreaking as one can suppose, as the state lost because it presented a lousy case. For one, it attempted to prove that the farm, itself, was unsanitary (“geese and chickens roamed freely about”) rather than address the known safety concerns of raw milk at the time.

Tobey’s assertion was born out in later cases, such as City of Rolla, Missouri v. Arthur R. Ridden. Ridden was charged with violating a city ordinance against selling milk without a permit. The jury found him not guilty, a ruling the city appealed. Ridden then subsequently filed a motion to dismiss the appeal, a dismissal that the circuit court upheld. The city then appealed the dismissal, and Riddle filed to dismiss this appeal, basing his request on the Knese v. Kinsey decision. The request for dismissal was denied. From the ruling:

Since the foregoing dictates the necessity of a remand, these comments are added only in the interest of minimizing the possibility of error in further proceedings. As the city attorney points out, defendant is charged with having sold, or offered for sale, milk in the City of Rolla “without then and there possessing a permit from the Health Officer of the municipality of Rolla, Missouri.” He was not charged with having sold or offered milk which had not been pasteurized, and we find no agreement of counsel or admission by the city that defendant did not have the required permit because the milk sold or offered by him had not been pasteurized. Thus, on the complaint and motion to dismiss it cannot be known whether the charge involves, depends upon, or is related to the pasteurization of milk. Contrast State ex rel. Knese v. Kinsey, 314 Mo. 80, 86, 282 S.W. 437, 438.

But if, as is suggested dehors the record, the instant case may, in the final analysis, turn upon validity of the prohibition in Section 8 of Ordinance 1063 against sale to the ultimate consumer of any milk “except Grade A pasteurized,” we do not read the Knese case, supra, as requiring determination of such validity vel non on a naked motion to dismiss or as suggesting the impropriety of hearing evidence bearing upon whether such prohibition constitutes a reasonable or an unreasonable regulation of “milk dairies and the sale of milk.” V.A.M.S. § 71.720. On the contrary, “(a) great volume of evidence” [314 Mo.loc.cit. 84, 92, 282 S.W.loc.cit. 438, 440] was taken in the Knese case, on the basis of which the court reached certain Conclusions. Perhaps significantly the court wrote that “(it) might be shown that under conditions existing in St. Louis raw milk cannot be safely used, that to allow dairymen to sell it and deal in it is likely to be injurious to the health of the inhabitants of the city, and therefore the regulation requiring milk to be pasteurized is a reasonable regulation,” although “the soundness of that proposition” was not conceded or ruled because it was not supported by the evidence taken in that case [314 Mo.loc.cit. 90, 282 S.W.loc.cit. 440]. As in most areas of human inquiry and learning, there have been revolutionary discoveries, spectacular advances and changed concepts in the field of public health during the span of thirty-five years since the Knese decision in 1926. It would be brash and improper, as well as idle and useless, for us to engage in speculation and surmise as to what informed witnesses might say today concerning the reasonableness of a requirement for pasteurization of milk sold to ultimate consumers in densely-populated urban areas. Whatever such evidence might be, courts should not stop their ears and close their minds to it; and, entertaining no preconceived notion concerning the merits of the instant case, we nevertheless think that attempted determination of the reasonableness of the prohibition in Section 8 on defendant’s naked motion to dismiss would be premature.

Beautifully argued, but only vaguely related to the initial decision and the invocation of “enjoyment of the gains of their own industry”.

I could go on, tracing back and forth through case law for decisions related directly, or indirectly, to Knese v. Kinsey, and tangentially related to the Missouri Constitution Article 1 Section 2, but the point I want to make is that anyone with even a modicum of reading ability can read the Constitution, but the ability to read the Constitution means absolutely nothing in determining whether a law is constitutional or not. The determination of the constitutionality of a law is based on legal precedent and a history of decisions, some of which stretch back hundreds of years, many of which are obscure, complex, and buried in dusty tomes that may not have seen the light of day for decades.

So no, lawmakers can’t, for the most part, determine the constitutionality of a law—not and also fulfill their primary function, which is to represent the interests of the people who elected them as their representative. You can’t serve two masters.

Bahr isn’t the only representative who quotes a constitutional argument against Proposition B. Representative Jay Barnes, who, unlike Bahr, is a lawyer, has now weighed in with his two cents worth. Barnes joins with Bahr in invoking the Fifth Amendment of the US Constitution, specifically known as the “takings clause”, for their argument about the constitutionality of Proposition B. He refers to what is known as regulatory taking.

Under our federal Constitution, the Fifth Amendment Takings Clause provides a check on the actions of local, state, and the federal government to take private property without just compensation to the owner of that property. When people think of the Takings Clause, the usually think about eminent domain – where government takes someone’s home to build a new road – or, in some awful situations, to grow government revenue. But there’s also a strain of takings known as regulatory takings.

A regulatory taking occurs when a new government law or regulation prevents economically viable use of property or if its effect on a property owner’s ability to productive use is sufficiently severe.

If challenged in court, Prop B could very well fail all three parts of the test. The economic impact of the regulation is to put many breeders out of business. The interference with investment-backed expectations is high because Missouri breeders invested in their facilities with the reasonable expectation that they’d be able to continue operating if they treated their dogs well. Finally, the character of the government action is arbitrary and capricious because it does not include any consideration of a breeder’s actual practices. The vast majority of dog breeders who treat their animals well are treated the same as abusive rogues regardless of their actual business practices.

If a court found that Prop B was a regulatory taking, the next question is how much it would cost the state. The industry has estimated that Prop B would destroy the value of 20,000 dogs in the state in facilities with more than 50 dogs. With an average value of $1,000 per dog, the easy math reveals that Prop B could cost Missouri taxpayers $20 million in lawsuits in its first year.

If we implement Proposition B, he writes, the state will be sued for millions of dollars!

Hogwash. Tell it to Rose Acres. Or Chevron.

Or the large scale commercial dog breeders in Pennsylvania who sued that state for new regulations (PDF) that, among other things, gave the state the power to revoke the license of the breeder if they failed to meet the new regulations. The breeders asserted that an “unconstitutional taking occurs when a kennel is shut down for violations of the Dog Law.”

The judge ruled that, since no kennel had been shut down at the time of the lawsuit, the item was not ripe for judicial review (while giving a subtle opinion in footnote that the procedures in place would, most likely, invalidate this claim). However, the discussion does raise questions about the application of commercial dog breeding laws within Missouri. For instance, if the breeders were going to file a complaint alleging an unconstitutional taking on the part of the state, why haven’t they by now? After all, several licensed breeders have had their licenses revoked, and been prohibited from operating a kennel in the state—the very action that formed the basis of the complaint by the Pennsylvania breeders.

More importantly, if the breeders in Missouri allege that a cap of 50 adult dogs is an unconstitutional taking, then why haven’t they filed suit before now for the instances when every dog has been removed from the breeder? If a cap of 50 is unconstitutional, surely a cap of zero is even more so?

Interesting questions to which I have no answer, because I’m not a constitutional lawyer or judge. But then, neither are Bahr and Barnes, or any other member of the Missouri legislature, which is why we leave such questions to the judicial branch. However, I do want to remind the representatives of one bit of Constitutional writing which they seem to be ignoring. It’s Article 1 Section 1 in the Missouri Bill of Rights:

Source of political power–origin, basis and aim of government.

Section 1. That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.

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