Great post Nathan. Sorry for the multiple trackback pings, I don't know why it does that sometimes.

If you're going to talk about "Bushist" language, let's start right here with your words:

But conservatives like Bernstein discussing the Lochner Era routinely ignore this coercive federal power by the Court that forced states to accept goods produced through child labor or every other manner of abusive working conditions from other states.

Forced states to accept goods? States don't buy goods. People buy goods. Saying that Dagenhart forced states to accept goods is like saying that Roe forced states to have abortions.

David- by the states rights logic of Bernstein himself, states are supposed to be sovereign, and sovereign economic entities are supposed to control their borders. However, the Lochner Court had declared that, under threat of federal military power (the always existing threat of federal power), states could not stop transport of goods into their jurisdiction.

What is that other than "force"?

And of course Roe forced states to allow abortions, just as Dagenhart forced states to accept goods into their jurisdiction.

Why the semantic game? The question was whether the Lochner Court was upholding or infringing state sovereign power; my point was that contra Bernstein, it was Congress, not the Supreme Court, that was upholding the political will of the states.

Gibbons v. Ogden forced states to accept steamboats it didn't want, too. Big whoop. The Constitution created a system of dual soverignty, where the states gave up some of their rights, such as control over their borders, but retained others.

Gibbons v. Ogden forced states to accept steamboats it didn't want, too. Big whoop. The Constitution created a system of dual soverignty, where the states gave up some of their rights, such as control over their borders, but retained others.

You're missing Nathan's point, I believe. If the Court had simply said that the states didn't have any right to keep out goods produced with child labor, that would have been bad. Had it simply said that the federal government couldn't regulate child labor, that would have been bad. But, as Nathan points out, the Court said both of these things, meaning that no level of government could stop child labor so long as at least one of the 48 (as of 1912) states allowed it.

Now, if Gibbons had said that neither the states nor the federal government could regulate steamboat traffic at all, and if Nathan embraced that decision, then he would have a problem. But then again, if that was the principle on which our government worked, we'd all have problems--the public would be defenseless against whatever environmental, social, or economic damage corporations inflicted on it, irrespective of what policies were supported by a majority of voters in any state or in the nation as a whole. Which is exactly the problem with Lochner.

J. J. -- But the court didn't say both these things, as Bernstein points out, the court in Sturges & Burn Mfg. Co. v. Beauchamp upheld this right for the states (under hazardous conditions, at least). We have a system where the 10th amendment reservers some powers to the states, and the fourteenth limits the state powers in other areas, so of course any court will strike down some state laws and some federal laws. Nathan claims that they strike down laws they don't like, however Bernstein, (in his writings on Lockner, which are worth checking out) show that there is a substantial basis for these holdings.

Nathan,

1) You changed my words. I didn't say "force states to allow abortions." I said "force states to have abortions."

2) What's this "by the states rights logic of Bernstein" stuff? Since when did Bernstein talk about "states rights"? There may have been some some secessionists in the 1860s and segregationists in the 1960s who were states rightists, but Bernstein, as a matter of legal doctrine (as distinct from philosophical doctrine) is dicussing federalism, not "states rights." That is, there are some arenas that properly belong to the federal government, some that properly belong to the state government, and some that properly belong to neither.

3) J.J., But, as Nathan points out, the Court said both of these things, meaning that no level of government could stop child labor so long as at least one of the 48 (as of 1912) states allowed it.. The Court said that the federal government could not regulate child labor. It said that states could regulate child labor. It also said, in effect, that states couldn't regulate child labor in places outside their jurisdiction. If New York felt it appropriate to protect its children by forbidding them from working, it was allowed to do so. But New York had no business trying to outlaw, directly or indirectly, child labor in Maine. That was up to the government of Maine. (Of course, individual New Yorkers were free to choose not to buy products from Maine.) That was the effect of the Lochner-era rulings.

David-
1) Yes, I changed your phrase because you changed my words from states having to "accept" goods to states "buying" goods; the analogy to accepting goods made with child labor is allowing abortions-- both policies where states had to allow private actions within their jurisdictions that a majority opposed.

2) "State rights" and "federalism" are often used interchangeably in the legal context. Conservatives have always argues such states rights were not just about segregation, so why are you equating them?

3) You repeat the disingenuousness-- New York is not "regulating" child labor in other states when they refuse to accept goods from a state using child labor. That other state is free to use child labor and thereby forego the economic opportunity of selling goods to New York. It is the federal government, under the Lochner Court, that is regulating New York by forcing the state to accept goods that would be illegal if produced within state boundaries.

Which is the point-- the Lochner Court effectively destroyed the ability of states to regulate what was legal and illegal within their own boundardies. That's not federalism, but the promotion of child labor by judicial fiat.

Which is what the original point was. The Lochner Court promoted child labor. Without judicial action, the evils of child labor would have been eliminated in this country far earlier.

Can you documment a case of a "race to the bottom" ever happening? Did any state or nation ever repeal child labor laws because they were competing with places that still had child labor? Has any government increased the number of working hours? Has any government lowered the minimum wage?

Ken- There are only so many states with minimum wage laws above the national average, but as someone who works in the politics of minimum wage a lot of the time, opponents always oppose any state minimum wage increase by citing the likely departure of jobs to states with a lower wage. When New Orleans passed a higher citywide minimum wage, the state government legislatively repealed it citing the danger of potential loss of jobs to out-of-state competition.

Just recently as Illinois voted to raise the minimum wage, the Chamber of Commerce argued "Increasing the minimum wage in Illinois, while our surrounding states remain at the current federal level, will create a disincentive for job growth here."

So of course there is a race to the bottom-- the real value of the minimum wage has dropped from $8.40 an hour back in 1968 (in today's dollars) to only $5.15 per hour. So there has been a de facto cutting of the minimum wage in states in the abscense of a strong national standard.

Uh, I think that was $7.40 an hour in 2000 dollars, so about $7.75 in today's dollars.

I was just estimating, but the minimum wage was $1.60 in 1968, which in 2003 dollars, is $8.51 (running the full calculation).

We are so far below the historic level of the minimum wage.

I was recalling a chart you posted a couple of months ago which had the 1968 minimum wage at $7.40 in 2000 $, if I recall correctly. More interesting, what has been the recorded increase of labor productivity and per capita GDP since 1968. And what are the same current figures for the U.K. compared to the U.S.A. today, when the U.K. minimum wage is 5 pounds?

Hm. We've been in this race to the bottom for some time now. When the other rollback objectives are achieved--getting rid of all government legal protections and provisions for "safety nets" except those that facilitate the unimpeded expression of non-human entities--corporations or so-called "free markets"--the speed with which we descend the last few feet to the bottom will kill many of us outright. I am afraid that a similar descent is being recorded in many other places around the world--with little hope of stopping it.

I am reminded often of how Enron was originally created to hold the water and other natural resources purchased for pennies from countries desperate for funds and then priced out of the reach of the people they used to belong to. And I have been amazed at the ability of so many otherwise intelligent people--and people who call themselves "Christians"-- to reject the (to me) obvious benefits and obligations of the community of Life in favor of ideas and constructs that can only lead to our destruction.

Lately, I've been thinking the original movie "Alien" is a perfect metaphor for where we are headed. Like the unseen human corporatists in "Alien", we have an almost erotic fascination with, unabashed admiration and preference for, and profound deference to entities whose only purpose is consume us relentlessly and without mercy.

It seems to me that the minimum wage slowly eroding over 35 years is not a "race" to the bottom. To respond to Nathan's specific points:

1) "Accept," "Buy," same difference. States don't do either. Only people do.

2) I'm equating the phenomenon which you seem to be describing with the phrase "states rights" with segregation. That is, you're accusing Bernstein of inconsistency because he opposes certain laws in the name of states while supporting others which infringed on state power. But there's no inconsistency, unless one defines states rights in the way segregationists did: the right of states to legislate without interference. But that's not what federalism is; federalism isn't about the "rights" of states, but about the legal role for states and the federal government. There's no inconsistency in arguing that under the constitution, states have certain powers and don't have certain other powers.

3) Of course New York was trying to (indirectly) regulate child labor in other states. That's the whole point of the laws we're discussing. You think that was a desireable goal, and therefore should have been allowed (regardless of what the constitution says.)

And, no, the Lochner court did not in any way "destroy[] the ability of states to regulate what was legal and illegal within their own boundardies." New York was free to outlaw child labor within its borders.

"Without judicial action, the evils of child labor would have been eliminated in this country far earlier." Nothing said by the Lochner court prevented any or every state from banning child labor.

The pre-Civil-War slavery promoters were just as duplicitous as the Lochner court. They called for "states' rights" when it benefited them -- secession, the "right" to allow slavery, the "right" to assume any black person was a slave unless they had proof that they weren't --
but they called for federal power when it benefited them. (Main case in point: the Fugitive Slave laws, which became progressively more extreme -- ending by allowing kidnapping of Black citizens in the North based on the mere claim that they were escaped slaves; the citizen had to refute the claim *while enslaved* or after escaping!) That was a *classic* example of phony federalism, and the Lochner court's rulings on child labor were exactly the same.

And of course the Northern states were trying to (indirectly) regulate slavery in the South, by, for instance, preventing slaves from being taken through Northern states. The Southern pro-slavers declared that this was interference with interstate commerce, and all states were obliged to allow slaves to be "transported" through them. But when federal limits on slavery were proposed, they declared that they violated "states' rights". Essentially, they were trying to force slavery on the whole country in this manner. Some of the most repugnant Supreme Court decisions ever upheld these arguments! If it were not for that line of decisions (which at least were mostly consistent pro-Federal-power decisions), black people in free states would have been safe from being kidnapped into slavery far earlier.

The Lochner court's arguments are precisely analagous.

Of couse, they are also totally untenable, and I'll repeat the logic. *Someone* has the right to regulate what goods come into New York. Either it's New York, or it's the Federal Government. Neither is not an acceptable answer; this is not one of the things which the Constitution declares to be unregulatable.

Our current Supreme Court has made equally untenable rulings on occasion: the ADA case is one of the ones I remember best. (The "logic": If you're unable to work, you're not covered, and if you're able to work, you're not disabled, so you're not covered. This contradicted the obvious intent of Congress that *somebody* be covered.)