Posted by David Bernstein:
Rubenfeld on Lochner:
http://volokh.com/archives/archive_2009_01_25-2009_01_31.shtml#1232768981
In [1]Revolution by Judiciary, Yale Law professor Jed Rubenfeld notes
that the "Lochner era" Supreme Court invalidated several federal labor
statutes on the seemingly reasonable grounds that they were beyond
Congress' delegated power under the Commerce Clause. The Court held
that Congress was regulating intrastate labor, not interstate
commerce. But, Rubenfeld adds,
The embarrassment was that when the Lochner Court dealt with state
labor statutes of the very same kind, the Court would strike down
these measures too. The implication of the Lochner Court's
"federalism" cases was that the regulation of bargaining, of wages,
or of the hours of employment was constitutionally confided to
exclusive state legislative control. Yet when the states attempted
to exercise this control, the Lochner Court did not let them.
To support his claim, Rubenfeld cites Lochner itself, plus a case in
which the the Supreme Court invalidated a state ban on "yellow dog
contracts" (as it had also done to a similar federal law), and one in
which the Supreme Court invalidated a D.C. (not state) minimum wage
law.
Rubenfeld concludes that Lochner era jurisprudence was a
"constitutional joke" that "did not deserve to be taken seriously as
constitutional interpretation." Rather, the Court was simply
"anti-anti-capitalist," and especially fearful of the socialistic
tendencies of labor unions (something of an odd claim, given that few
successful American labor unions were ideologically socialist during
the AFL and Railroad Brotherhood-dominated Lochner era).
Rubenfeld's thesis is a bit of a challenge for me. I'm writing a book
on Lochner in which--while certainly not denying the influence of
ideology and historical circumstance on Supreme Court
decisionmaking--I do take the Lochner line of due process cases
seriously as constitutional interpretation, and in which I treat the
federalism cases as entirely jurisprudentially separate from that
line. Moreover, Rubenfeld's harsh view of Lochner era jurisprudence,
while perhaps expressed more pungently than others have, seems to be
reasonably common on both the liberal left and the conservative right.
[click below to continue reading]
([2]show)
To prove his case that the Court's jurisprudence was purely a mask for
a substantive political agenda, Rubenfeld needs to show not simply
that the Supreme Court invalidated an occasional state labor law on
due process grounds--there is, after all nothing inherently
inconsistent about holding certain federal labor laws are beyond the
commerce power, and certain state laws violate Due Process Clause.
Rather, he needs to show that just about any law that was considered
unconstitutional when passed by Congress to regulate the national
labor market would also have been unconstitutional when passed by a
state to regulate the state labor market.
There is at least one obvious counter-example to Rubenfeld's claim.
The Supreme Court twice invalidated, by 5-4 votes, attempts by
Congress to indirectly regulate child labor. But when the issue of
direct state regulation of child labor reached the Court, the Court
upheld it unanimously. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S.
320(1913).
Beyond that, after Lochner, the Supreme Court upheld many state labor
laws, sometimes unanimously, including, most prominently, workers'
compensation laws, laws regulating the hours of labor of women, and
maximum hours laws for all industrial workers. Less prominent state
labor laws upheld by the Court included laws requiring washhouses or
washrooms for mine employees; requiring that coal miners' pay be based
on the prescreened weight of the coal that they produced; requiring
railroads to pay their employees in orders redeemable for cash, not
scrip; requiring railroads to pay their employees semi-monthly and in
cash; requiring a minimum width pillar of coal between adjoining coal
properties for safety; requiring a minimum width for entries of
bituminous coal mines; requiring the enclosure of certain shafts or
openings of bin building during construction; requiring that coal
produced by miners be weighed for wage payment purposes before it
passes over a screen; and holding mining companies liable for the
negligent actions of their mine managers.
Congress did not pass analogous laws applying to the national labor
market, in part because it's likely that almost no one thought that
such laws would pass constitutional muster under the Commerce Clause.
And it's nearly certain that if Congress had passed such laws, the
Supreme Court would have invalidated them as beyond Congress's
commerce power, even though they upheld the state laws.
One could point to additional problems with Rubenfeld's thesis. For
example, Rubenfeld claims that the Lochner era Justices were not
motivated by general anti-statist (or libertarian) sympathies, yet the
most "Lochnerian" Justices were also the Justices most likely to argue
in the Insular Cases that residents of U.S. territories were entitled
to invoke the rights protected by the U.S. Constitution. Nor is it at
all obvious that Rubinfeld could explain such early "civil liberties"
cases as Meyer v. Nebraska or Pierce v. Society of Sisters via his
"anti-anti-capitalism" thesis.
In short, Rubenfeld can sneer at Lochner era jurisprudence all he
wants, and it certainly had its flaws. But the argue that Lochner era
constitutional doctrine was simply a mask for the sort of narrow
ideological considerations he identifies is not supported by the
historical evidence.
([3]hide)
References
1.
http://www.amazon.com/Revolution-Judiciary-Structure-American-Constitutional/dp/0674017153
2. file://localhost/var/www/powerblogs/volokh/posts/1232768981.html
3. file://localhost/var/www/powerblogs/volokh/posts/1232768981.html
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