The language of Darby (to the extent we take it as dispositive) seems to support Bill's view of the case: "Is is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states." (which I take to be a reference to Hammer v. Dagnehart?)
My favorite passage from Darby, though, deals with the treatment of the Tenth Amendment: "The amendment states but a truism that all is retained which has not been surrendered." But doesn't there have to be something true about a truism? Post-Darby I don't know what that means. Richard Dougherty Bill Funk wrote: > Jack Balkin wrote: > > > This not only overrules Lochner on the question before the Court in > > that case (whether maximum hour laws were constitutional) but also > > repudiates the police power theory that justified the decision. For > > under that theory, not all (or even most) maximum hour laws would be > > constitutional; only those which promoted the health, safety and > > welfare of the citizenry. > > I don't believe Darby or any other case repudiates a police power basis > for enacting maximum hour laws. In Darby, of course, it is the federal > government regulating, so the government must rely on the Commerce > Clause, rather than a police power. The basis for state regulation, > however, can still be found in the classical theory of the reserved > police powers - to protect the health, safety, welfare, and morals of > the community. It is difficult for me to imagine a maximum hours law > that would not be thought to further the welfare of the community. It > was one of the errors of the Lochner majority to think the police powers > were limited to its particular conception of the general welfare -- > that a "labor law" could not be for the general welfare. If Holmes does > not say so in so many words, I would maintain that it is one of the > things he says. What constitutes the "welfare," much less the "morals," > of the community, is practically, if not absolutely, to be determined > by the legislature. This is essentially what Harlan says in his dissent. > Bill Funk > Lewis & Clark Law School
