"When they allow a talk show host to play them like a two-dollar banjo, they demonstrate what kind of backbone they'll bring to the job later on, if we elect them. After they get elected will they continue to allow Jeff Crank to put a nickel in them and wind them up every Saturday morning?"

Barry Noreen, former columnist, Colorado Springs Gazette

Tuesday, September 28, 2010

THE STRANGE CASE OF THE SICK CHICKEN


By ROBERT HARKINS


The New Dealers, in their ideological compulsion to regulate virtually all things American, legislated against the big and the small, the poor and the rich, the strong and the weak. In their confiscatory taxation of undistributed corporate profits they weakened corporate America’s ability to react to the economic crisis, caused massive layoffs, terminations, corporate bankruptcies and increased by years the misery of a struggling American people. They told farmers what they could and could not grow. They mandated the specific contents of macaroni. They served as acolytes to a political credo they believed transcended the powers and principles, the elegance and prohibitions of an American Constitution.

Sound familiar?

In The Strange Case of the Sick Chicken-- Schechter Poultry Corp. V. United States May 2, 1945—the Roosevelt Justice Department brought the full weight of the federal government against the Schechter Wholesale Chicken store. Mr. Schechter himself, an East European Jew, like Tevye the Milkman in Fiddler on the Roof, would meet the outrage of the charges against him with courage, wisdom and dry humor. Indeed, in some of his retorts under the pressure of cross-examination in federal court, he engaged in vintage Jewish shtick.

Amity Shlaes, in her tour de force, The Forgotten Man[1] tells us that the Justice Department was looking for a good case in which to establish the constitutional legitimacy of New Deal legislation. They believed they had found the perfect case at Mr. Schechter’s wholesale and kosher chicken store, and so sued him for various violations of a poorly conceived, written and labyrinthine federal regulations. Inspectors “swarmed the Schechters’ business” until finally one inspector, after searching crates containing hundreds of clucking spring chicks at last grasped triumphal in his gloved hand the very object of Mr. Schechter’s wrongdoing. The Justice Department prosecutor, scribbling down in a formal indictment the odious nature of Mr. Schechter’s shameful crime, alleged that he had,

‘knowingly, willfully and unlawfully sold for human consumption an unfit chicken’ to a buyer….

Mr. Schechter may well have exclaimed, “And this, this you’re telling me is a federal case?” Indeed, Mr. Schechter’s defense, in his own words, rings with the joyful cynicism of Fiddler on the Roof.

‘What I did, when I did it, was honest; now through changed conditions, what I did may or may not be called honest.’

Mr. Schechter was a savvy businessman. He spoke English with a Yiddish accent, and was I think a man made stoic by life and pain, by joy and his God. While the prosecutors would indict, prosecute and see him fined and sentenced to jail, Mr. Schechter would nevertheless prevail in the U.S. Supreme Court. We may recall Tevye the Milkman’s famous prayer so perfectly applicable to the 1930 depression, the Obama recession and to Mr. Schechter’s economic ruination at the hands of the New Dealers. Tevye, hands raised in frustration, prayed: God,

We are Your chosen people. But, once in a while can’t You choose someone else?

During the trial, Mr. Schechter was so brutally honest that his testimony in the U.S. District Court, was at once truthful and hilarious. Although New Dealer prosecutors and their court would destroy his chicken business, burden him with attorney fees, fine him over $7000,00, an enormous sum in 1945, and send him to jail, Mr. Schecter refused to back down, defied the federal government and destroyed President Roosevelt’s National Recovery Act. Not bad for a European Jew the muckraking journalist Drew Pearson characterized as an ignorant Yid with the face of a hawk. When cross-examined as to the competence of the triumphal inspector sent to search out a criminal offense at his chicken store Mr. Schechter answered with indomitable candor.

The inspector had been a ‘very nice boy [but] ‘He don’t know from a chicken. And I started in to teach him what a chicken is, and my man and myself teach him what a chicken is, what a rooster is, and what a Spring is.’

Mr. Schector, of course, knew what he was talking about. The New Dealers did not know from a chicken and neither did anyone in President Roosevelt’s brain trust. We may also conclude, in the same antique New York vernacular, that President Obama “don’t know from a chicken” neither.

In The Forgotten Man, Amity Shlaes writes that according to federal chicken law a customer must purchase the very first chicken out of the crate—and none other except at Seller’s peril. If the first chicken out of the box wasn’t so good, well, the seller was forbidden by law to reach into the crate, pull out another chicken and sell it to the buyer. Why did President Roosevelt tolerate such a crazy rule? Why? Don’t ask!

But what if a customer were to see a more desirable chicken—even if the chicken in his hand, the first chicken out of the box, were not so bad— say maybe a better looking chicken lingering shyly in the farthest reaches of the crate? Well, that chicken, that second chicken, the seller was forbidden by federal law to sell to him. Were seller to sell the shy chicken in the back of the crate to the buyer he would immediately be subject to federal indictment, prosecution, fine and imprisonment. I am not making this up.

Now, it may be that Mr. Schechter, particularly with old friends, may have violated the federal chicken law. But then, if he had been free to offer his client say, the shy and good looking chicken in the back of the crate, instead of the allegedly sick chicken the buyer held in his hands, maybe he wouldn’t have been thrown in jail for selling a “sick” chicken, to his customer.

In the Supreme Court, Mr. Schechter alleged that as his chickens were more or less local, that is, because he, Mr. Schecter did not engage in interstate commerce, the government’s effort to regulate his chicken business was unconstitutional. The Justices had a good time with the prosecutor, and their banter provoked hilarious laughter in an otherwise austere setting.

The Justices asked the prosecutor the naturally compelling constitutional questions which, with poetic license, I paraphrase: Like, what if the first chicken selected flew the coup so to speak just as you were handing it to the buyer, what then? Could you reach into the crate, take hold of another chicken and then sell this second chicken to the buyer? Or must the customer leave the premises without a chicken? But if you pull another chicken from the crate and sell it to buyer, are you not subjecting yourself to indictment, trial, fine and imprisonment under the federal chicken law?

The Supreme Court, tongue in cheek, held that as the chickens “came to rest” in New York so to speak (to which more laughter), Mr. Schlector did not engage in interstate commerce. Justice Hughes held therefore, that

‘Defendants do not sell poultry in interstate commerce,’ … thereby rejecting the authority of the NRA. ‘extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action, which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.’ The NRA had abused the Schechters, and other businesses, through unconstitutional’ coercive’ exercise of the law-making power.’

The U.S. Supreme Court would ultimately dismantle most of the New Deal legislation. However, as I read the prosecutor’s overbearing cross-examination of Mr. Schechter, and contemplated the vacuity of the federal law, Tevye the Milkman’s words seemed most relevant.

Tevye:

As the good book says, when a poor man eats a chicken, one of them is sick.

Mendel:

Where does the book say that?

Tevye:

Well, it doesn’t say that exactly, but somewhere there is something about a chicken.

Robert Harkins’ new book will be published later this year. You may find it at Amazon in e-book or hard cover, and at all major bookstores. Its title:

America, Sweet Land of Liberty. Of Thee I Sing.

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[1] Amity Shlaes, The Forgotten Man, (HarperCollinsPublishers,2007).

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