|
<< "Bush Boom"- Bush Booming Debt | Main | If You Think RIAA Suits are Evil... >> November 01, 2003Rightwing Seek Overturning of New DealIf you want proof of the ultimate intentions of conservatives and why filibustering judges is needed, check out the post by David Bernstein defending the pre-New Deal Supreme Court at the The Volokh Conspiracy. Appeals Court nomine Janice Brown has refused to disavow decisions from this period, notably the Lochner decision, which struck down a state overtime law, so Bernstein sets off to defend the court era. The Right Christians has a good post on the issue, but let me add some points. For all conservatives talk about "judicial restraint", that pre-New Deal Court was incredibly activist, striking down overtime laws, destroying unions by court injunction, banning child labor laws and otherwise overturning a range of both state and federal economic regulations-- including overturning much of the early New Deal laws, which led to a massive court battle between FDR and the Supreme Court's rightwing. The result of that fight, both a few judges switching sides and new Justices being appointed, was a new era of judicial restraint by the Supreme Court of deferring to Congress and the states on matters of economic regulation. The rightwing wants that judicial deference to end and the emergence of new doctrines that will allow unelected judges to strike down any economic regulation that interferes with corporate or property interests. And lest you buy into Bernstein's crap that the Supreme Court at the turn of the century was anything other than a pro-corporate, anti-labor juggernaut, let me list off a few key decisions of that era: ADKINS v. CHILDREN'S HOSPITAL (1923)- struck down federal minimum wage law It took the post 1937 New Deal Court to restore to Congress and the states the constitutional right to regulate on behalf of workers rights. Bernstein defends the Court by the fact that they actually let some economic regulations stand, such as local zoning. Well, thank you so much Mr. Bernstein-- the Court forces children into mines, jails unionists, and leads an all-out assault on the New Deal, but, hey, at least they allowed cities to zone rich residential neighborhoods against the poor moving in. This "revisionism" about the pre-New Deal Court is equivalent to the racists who defend the Confederacy as not "really" being about slavery. It's a lie to deny the fundamental links of modern conservatism to undemocratic racist and anti-labor traditions. See Bernstein's response and my followup here. Posted by Nathan at November 1, 2003 07:43 AM Related posts:
Trackback PingsTrackBack URL for this entry: CommentsGood post, links and all. It's amazing how few people pay attentions to these judicial selections when they are perhaps the most important selections we make. Posted by: Benedict@Large at November 1, 2003 06:44 PM Does it bother you at all that the "minimum wage law" at issue in Adkins was explicitly applied only to women? The Lochner-era Court, apparently more feminist in orientation than the author of this site, disapproved of the paternalistic nature of the law: [quote]In the Muller Case the validity of an Oregon statute, forbidding the employment of any female in certain industries more than 10 hours during any one day was upheld. The decision proceeded upon the theory that the difference between the sexes may justify a different rule respecting hours of labor in the case of women than in the case of men. It is pointed out that these consist in differences of physical structure, especially in respect [261 U.S. 525, 553] of the maternal functions, and also in the fact that historically woman has always been dependent upon man, who has established his control by superior physical strength. The Cases of Riley, Miller, and Bosley follow in this respect the Muller Case. But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case ( 208 U.S. 421 , 28 Sup. Ct. 327, 13 Ann. Cas. 957) has continued 'with diminishing intensity.' In view of the great-not to say revolutionary- changes which have taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships. In passing, it may be noted that the instant statute applies in the case of a woman employer contracting with a woman employee as it does when the former is a man. [/quote] Adkins, 261 U.S. at 552-53.
Posted by: Stuart Buck at November 2, 2003 03:44 PM Stuart- You are either being an idiot or purposefully dishonest. In Muller, the Supreme Court declared that only minimum wage laws protecting women, not men, would be allowed. So the Congress passed a minimum wage-- following the Supreme Court's instructions -- to apply the minimum wage only to women. Then the Supreme Court strikes it down in Adkins-- essentially saying no one may be protected by a minimum wage. See my Have they no shame? post for how I feel about this kind of hypocritical arguments. The Court in this period routinely upheld all sorts of laws that denied women equal rights, but decides to use feminist language only in the case of a minimum wage law? This is about serving corporate interests, not womens rights. Posted by: Nathan at November 2, 2003 04:04 PM I'm not sure what you're talking about with regard to Muller. I don't see any discussion of minimum wage laws in that case at all, much less any suggestion that such laws would be constitutional only if applied to women alone. In any event, you err in speaking of "minimum wage laws protecting women." The law at issue in Adkins did not protect the woman who initially filed one of the lawsuits -- it had put her out of a job. She didn't particularly care for what you call the "protection" of that law. For a little more perspective, try reading some of Bernstein's extensive scholarship (e.g., this article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=414500) on the Lochner era. You might also find educational the book titled "The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights," by Hadley Arkes. You might be especially interested to learn that Sutherland, who wrote the Court's opinion in Adkins, had been an active suffragist who had campaigned vigorously on behalf of the 19th Amendment. It is baseless demagoguery to claim that Sutherland's invocation of women's rights in Adkins was intended to shill for corporate interests. Posted by: Stuart Buck at November 2, 2003 04:40 PM Actually Sutherland went on quite a bit about minimum wages, and the basis of his conclusion was NOT upholding women's right to contract or some other EP argument related to minimum wages between men and women. No protofeminists, I'm afraid. In fact, the chief justice found the most compelling argument for invalidation to be the essential nature of a minimum wage regulation--that it sets a minimum all employers must pay for labor based on the state's determination of the minimum needed to support a person. In other words, while there are two parties to every employment contract, the contractual freedom of the business was paramount--business interests could not be balanced with the right of a woman (or a man) to a living wage. The state could not step in on behalf of employees to improve the balance of power between the contracting parties. He essentially ridiculed the notion of a minimumn wage as we understand it today--part of the reason I suspect why Sutherland and the Lochner era cases are being rehabilitated...the arguments would be so useful in rolling back what remains of consumer and employee protections gained over the last century: The feature of this statute, which perhaps more than any other, puts upon it the stamp of invalidity, is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract or the work the employee engages to do. The declared basis, as already pointed out, is not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to insure her subsistence, health, and morals. ...[T]he fallacy of the proposed method of attaining it is that it assumes that every employer is bound at all events to furnish it. The moral requirement implicit in every contract of employment, viz. that the amount to be paid and the service to be rendered shall bear to each other some relation of just equivalence, is completely ignored. The necessities of the employee are alone considered, and these arise outside of the employment, are the same when there is no employment, and as great in one occupation as in another. Certainly the employer, by paying a fair equivalent for the service rendered, though not sufficient to support the - employee, has neither caused nor contributed to her poverty. On the contrary, to the extent of what he pays, he has relieved it. Yeah, that's really supportive of women. It reminds me of the recent story about Walmart contracting to pay agencies hiring illegal alien cleaners WAY LESS than the minimum wage...simply because the illegals have no recourse. He then goes on to argue that the minimumm wage requirement is unreasonable because is like telling a grocer that if a customer says they need more than what they have paid for the grocer must give it to them. And that since that would be a fallacy, therefore the minimum wage must fail also. [A] statute which prescribes payment ... solely with relation to circumstances apart from the contract of employment, the business affected by it, and the work done under it, is so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States. So much for deference to state regulation. His argument that it is irrational is profoundly strained--see Holmes' dissent. ...It is said that great benefits have resulted from the operation of minimum wage statutes] ... a mass of reports, opinions of special observers and students of the subject, and the like, has been brought before us in support of this statement, all of which we have found interesting, but only mildly persuasive. [Note: Frankfurter represented the appellant board.] That the earnings of women are now greater than they were formerly, and that conditions affecting women have become better in other respects, may be conceded; but convincing indications of the logical relation of these desirable changes to the law in question are significantly lacking. They may be, and quite probably are, due to other causes. He does not elaborate the causes, but earlier in the opinion he implies that it is unfair a minimum wage for women is unfair to employers since they might have other sources of income. An argument some private small business owners still make to their female employees in defending disparate pay scales for men and women. He then goes on to make his most outrageous argument: that if we permit minimum wage regulations, it would set a precedent for permitting maximum mage regulations...a logical non sequitur, rejected by both Justice Taft and Justice Holmes in their dissents. And he ends by specifically rejecting the notion that freedom of contract can be regulated in the interest of "social justice" if that regulation limits the employer's freedom to contract. This argument Justice Holmes soundly rejects by listing the many, many cases in which the Court had upheld states' regulation of the employer's freedom of contract to protect a variety of interests of employees. Posted by: scylla at November 2, 2003 08:57 PM Actually, Stuart didn't say that Sutherland never mentioned minimum wages; he said that Muller didn't discuss minimum wages. And a "logical non sequitur"? If minimum wage regulations are permitted, then either (a) there is no freedom to contract, in which case maximum wage regulations are also constitutional, or (b) legislatures have the authority to override that freedom if they think it's good for society for them to do so. In which case maximum wage regulations are also constitutional, as long as they can come up with some half-assed theory why such regulations are important for "social justice." (Or generally for the economy -- let's not forget Nixon's price and wage freezes.) If someone has a "right" to a living wage, then a business has the "right" to employ people at wages it can afford. Posted by: David Nieporent at November 2, 2003 10:04 PM David Nieporent: Businesses do not have a right to conduct business if they can not afford the costs of doing so. If they can not afford to pay the going price for raw materials, for example, which are determined by 1) the costs of their extraction, 2) the costs of repairing any damage their extraction might cause and 3) the constraints on their replenishment. Why should the costs of labor be any different? Why should the "freedom" of contract trump market generated externalities? Posted by: john c. halasz at November 2, 2003 10:44 PM ...he said that Muller didn't discuss minimum wages. Sheesh--you're so right. I guess I just REALLY wanted to read that case again. And a "logical non sequitur"? Taft's words, actually. And he seemed confident that the circumstances of such an opposite case would likely provide ample opportunity to distinguish it if that were warranted. Holmes went further. I agree with you--both contract "rights" -- to a living wage and to employ people at affordable wages -- are legitimate interests, but--in the nature of contract--also relative, which was Holmes' point, I think. He argued (rather languidly) that even IF a state were to impose maximum wage limits, as long as the state has a reasonably "half-assed" justification for regulating the relative positions of the parties, regardless of where the line is drawn, the Court would have no business interfering. I did think Sutherland's arguments verged on sophistry. And the way in which Taft and Holmes worded their dissents suggests they did too. Posted by: scylla at November 2, 2003 11:11 PM John: you mistake me. I wasn't arguing that businesses had a right to purchase supplies -- including labor -- that they couldn't afford. Of course they don't. I was pointing out only that such a "right" could be derived from the same principle from which the "right" to a living wage is derived. I was arguing that neither "right" exists, not that the former does. Posted by: David Nieporent at November 3, 2003 06:35 PM I was offering a minimal, but substantive rejoinder to legalistic sophistry. No mistake. You were arguing, in effect, the the "freedom" of contract gives employers the right to hire labor below its replacement costs, and that government had no right to regulate a socio-culturally minimum standard for what the actual cost of labor, in fact, is. Only if the productivity of labor were below this standard, would there be any actual interference with the capacity to conduct business profitably and competitively, but, if that were to be the case, economics dictates that the valorization of the capital assets that business employs would also be mistaken. Posted by: john c. halasz at November 4, 2003 12:46 AM John, I guess you're just more sophisticated than I am. I don't quite see how I was arguing any such thing, but I guess I'll defer to you on what I was saying. I thought I was saying that minimum and maximum wages are equally justifiable or unjustifiable. The freedom of contract gives employers and employees the right to contract with each other at what THEY decide is the appropriate price, without interference from outsiders. Posted by: David Nieporent at November 9, 2003 04:46 AM You go and hit those liberals hard REAL HARD and get out the truth we cant ever expect the main-stream media to ever tell the truth i no longer even watch the news it all lies they dont want the truth its a threat to their master plans Posted by: phoenix at July 26, 2004 12:51 PM You go and hit those liberals hard REAL HARD and get out the truth we cant ever expect the main-stream media to ever tell the truth i no longer even watch the news it all lies they dont want the truth its a threat to their master plans Posted by: phoenix at July 26, 2004 12:51 PM Post a comment
|
Series-
Social Security
Past Series
Current Weblog
January 04, 2005 January 03, 2005 January 02, 2005 January 01, 2005 ... and Why That's a Good Thing - Judge Richard Posner is guest blogging at Leiter Reports and has a post on why morality has to influence politics... MORE... December 31, 2004 December 30, 2004 December 29, 2004 December 28, 2004 December 24, 2004 December 22, 2004 December 21, 2004 December 20, 2004 December 18, 2004 December 17, 2004 December 16, 2004
Referrers to site
|