No bad idea ever really goes away.
In 1937, after 32 years of trying, including FDR's ill-fated Court-Packing Plan, the Lochner-era finally met its hard-fought demise.
Now they want to bring it back, nibble by nibble, just the way it was created, and just the way it died, but see U.S. v. Carolene Products (1937) and its famous Footnote 4, allowing for certain exceptions in important classes of cases involving textual guarantees, minority rights, and interference with the fair functioning of the political process, all of which the Constitution is supposed to protect, with spotty results. Carolene held that from now on, the Court was going out of the business of acting as a super-legislature, second-guessing the judgments of the elected legislatures as to the wisdom of social and economic policy in ordinary cases, meaning the usual reform legislation falling outside of the Fn. 4 exceptions, since the latter are anything but ordinary.
During the Lochner-era, the Court acted as a superlegislature to strike down as unconstitutional legislation passed by Congress or the state legislatures that smelled too 'socialistic' (read 'communistic') for the Laissez-faire Old Court justices. Labor unions, minimum wage, maximum hours, child labor, workers comp, all bit the dust in the Supreme Court. Robber-baron capitalism ruled.
Today, of course, we fight between the extremes, describing ourselves as a regulated market economy. Enough greed to keep the investors coming back, and enough care-taking of the workers to keep them coming back, too. Pink on the edges, blue in the middle. We manage.
The pink comes from the New Deal of FDR.
The New Deal was controversial then, it died by the end of WWII, but we still maintain some of the programs, such as Social Security.
The White House, however, under Pres. Bush, with his reelection along with a Republican majority in Congress, wants to privatize Social Security. Let the workers invest just as the moguls do. If the market dives, however, we'll have old folks living under bridges just as we have moguls, only moreso.
Here's an article from the NYT illustrating what's really going on, according to Adam Cohen. This is the kind of article that let's you know what the Bloody Mongrels are really fighting about at the Supreme Court level. This helps you to understand the case. You always need a scorecard to understand the cases. This is what law professors do. Keep score, and shout it out. With the help of columnists like Mr. Cohen of course, and I thank him for the clarification.
 December 14, 2004EDITORIAL OBSERVER What's New in the Legal World? A Growing Campaign to Undo the New DealBy ADAM COHEN Supporters of states' rights have always blamed Wickard, and a few other cases of the same era, for paving the way for strong federal action on workplace safety, civil rights and the environment. Although they are unlikely to reverse Wickard soon, states' rights conservatives are making progress in their drive to restore the narrow view of federal power that predated the New Deal - and render Congress too weak to protect Americans on many fronts. We take for granted today the idea that Congress can adopt a national minimum wage or require safety standards in factories. That's because the Supreme Court, in modern times, has always held that it can. But the court once had a far more limited view of Congress's power. In the early 1900's, justices routinely struck down laws protecting workers and discouraging child labor. The court reversed itself starting in 1937, in cases that led to Wickard, and began upholding these same laws. States' rights conservatives have always been nostalgic for the pre-1937 doctrines, which they have lately taken to calling the Constitution-in-Exile. They argue - at conferences like "Rolling Back the New Deal" and in papers like "Was the New Deal Constitutional?" - that Congress lacks the power to do things like forcing employers to participate in Social Security. Given how entrenched New Deal programs have become in more than half a century, these plans for reversing history have always seemed more than a bit quixotic. But that may be about to change. The attacks on the post-1937 view
of the Constitution are becoming more mainstream among Republicans. One
of President Bush's nominees to the United States Court of Appeals for the Ninth Circuit, Janice Rogers Brown, has called the "revolution of 1937" a disaster. And last month in the Supreme Court - in a case about medical marijuana - the justices found themselves having to decide whether to stand by Wickard.
In that case, two Californians who use marijuana for medical reasons argued that Congress, which passed the Controlled Substances Act, did not have the constitutional power to stop them. To pass a law, Congress needs a constitutional hook, and the Controlled Substances Act relied on one of the most important ones, the Commerce Clause, which authorizes Congress to "regulate Commerce ... among the several States." The Californians argued that their marijuana did not involve interstate commerce because it never left their state. That is where Wickard v. Filburn comes in. Roscoe Filburn was a farmer who argued that his wheat crop should not fall under federal production quotas because much of it was consumed on his own farm. The Supreme Court held that even if that wheat did not enter interstate commerce, wheat grown for use on a farm altered supply and demand in the national market. The decision gave Congress broad power to regulate things that are located in one state, like factories and employer-employee relationships. Some leading conservatives want the court to overturn Wickard and replace it with a pair of decisions from the 1800's that one brief filed in the case said would return "Commerce Clause jurisprudence to its settled limits prior to the New Deal." That would be a bold move, but the court has already been heading down this path. In recent years, it has struck down the Gun-Free School Zones Act and a crucial part of the Violence Against Women Act for exceeding Congress's power. If the Supreme Court drifts rightward in the next four years, as
seems likely, it could not only roll back Congress's Commerce Clause
powers, but also revive other dangerous doctrines. Before 1937, the
court invoked "liberty of contract" to strike down a Nebraska law regulating the weight of bread loaves, which kept buyers from being cheated, and a New York law setting a maximum 10-hour workday. Randy Barnett, the law professor who represented the medical marijuana users, argues in a new book that minimum wage laws infringe on "the fundamental natural right of freedom of contract."
In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional. Getting rid of Wickard would be an important first step. At last month's argument, that did not appear likely. Justice Antonin Scalia, a leading states' rights champions, said he "always used to laugh at Wickard," but he seemed prepared to stick with it. It may be, however, that the justices are quicker to limit Congress's power when it does things they don't like (like gun regulation) than when it does things they do (like drug regulation). They may be waiting for a more congenial case. The court will not return to the pre-1937 Constitution in a single case, but it seems likely to keep whittling away Congressional power and federally protected rights. If it does, what President Franklin Roosevelt declared in 1936 - after two key New Deal programs were struck down - will again be true: "It was not the wage earners who cheered when these laws were declared invalid." Copyright 2004 The New York Times Company | Home | Privacy Policy | Search | Corrections | RSS | Help | Back to Top |
he
New Deal made an unexpected appearance at the Supreme Court recently -
in the form of a 1942 case about wheat. Some prominent states' rights
conservatives were asking the court to overturn Wickard v. Filburn, a
landmark ruling that laid out an expansive view of Congress's power to
legislate in the public interest.