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November 02, 2003

Bernstein's Shady Defense of Lochner

Bernstein at the Volokh Conspiracy is positively Bushist in choosing his words to defend the Lochner Court. Responding to criticism by myself and by Allen and others that the Lochner Court had struck down anti-child labor regulation, Bernstein argues that since the Court had upheld local state regulation, the Court was obviously friendly to children. "All" the Supreme Court did was overturn federal laws banning the practice:

The Court's critics basically wanted the Court to ignore the Constitution and precedent and uphold federal child labor laws because such laws were good social policy.

What Mr. Bernstein ignores is that the Lochner Court had made it clear it would strike down any state law barring the importation of goods produced with child labor-- such laws were seen as a violation of FEDERAL power over interstate commerce, the so-called dormant commerce power.

Responding to this limit on state power to prevent the shipping of goods made with child labor to states prohibiting the practice, the Congress in 1916 passed a law preventing states from shipping goods made with child labor, an act that protected states banning the practice from having the goods forced on them.

NOTE- the Congress did not even ban states from allowing child labor. States were still free to use child labor and consume such goods within their state borders. The Congress just did not allow them to use the Constitution to force states opposed to the practice to accept such goods into their state. States using child labor to undersell in-state manufacturers would not be allowed to do so against the will of the states banning child labor.

So to be clear-- the Supreme Court had used federal power to force states to accept the importation of goods made with child labor. Congress was respecting state sovereignty far more by disallowing such forced interstate traffic in child labor. But the Supreme Court, having denied states the power to block importation of goods made with child labor, then denied Congress the ability to regulate trade in such goods as well. As Justice Holmes said in dissent in this Dagenhart decision:

The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line they are no longer within their rights. If there were no Constitution and no Congress their power to cross the line would depend upon their neighbors. Under the Constitution such commerce belongs not to the States but to Congress to regulate.

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.

Stopping the "Race to the Bottom": Federal regulation was the only way for states to gain a level playing field. Otherwise, they faced pressure in a "race to the bottom" to lower labor standards and accept child labor or face the loss of manufacturing to states using such practices.

And the Lochner Court denied Congress the ability to establish that level playing field and, almost as often, denied states the ability to protect workers rights as well. This was a "federalism" that was used to terminate both state and federal power as well, all to the aggrandized power of a Supreme Court defending almost unregulated corporate power.

It was only the New Deal Supreme Court that restored sovereign power to both states and Congress over economic issues.

Fake Federalism: So don't buy this supposed defense of "state rights" by Bernstein. The Lochner Court was no friend of states rights in any meaningful way. It only used the rhetoric when it served business interests.

But this kind of fake "federalism" that has no real respect for states rights is the stock in trade of modern conservatives. Check out these posts for more examples: here, here, and here.

BTW as to Bernstein's point about any of the decent civil liberties cases under the Lochner Court, the first answer is they were few and far between. Condemning the vast body of Lochner Era decisions does not require saying that the Court never made a decent call on an issue, even if they often did so from the wrong motive. But the bottom-line was the Court was the defender of corporate power and the implacable enemy of unions and workers rights.

Allen Brill also responds to Volokh's response.

BTW Bernstein also makes the outrageous argument that the Lochner Court was some kind of friend of African-Americans. Let's remember that Lochner was decided in 1905, less than a decade after the 1896 Plessy v. Ferguson decision establishing the "separate but equal" doctrine of segregation. And in 1898, the Court in Williams v. Mississippi upheld the so-called "Mississippi Plan" to systematically disenfranchise black voters.

That Bernstein would cite the "Jim Crow" Court era as a friend of African Americans just shows how little credibility should be given his defense of the Court's economic doctrines.

Posted by Nathan at November 2, 2003 05:01 PM