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November 01, 2003

Rightwing Seek Overturning of New Deal

If 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:

  • IN RE DEBS (1895)- case jailing leaders of major railway strike, including Eugene Debs
  • DANBURY HATTERS (1908) and BUCKS STOVE (1911) - declared union-led consumer boycotts illegal conspiracies
  • DUPLEX PRINTING PRESS CO. v. DEERING- prohibited strikes interfering with interstate commerce
  • HAMMER v. DAGENHART (1918)- struck down federal law banning child labor.
    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