Saturday, August 3, 2013

The Grand Old Plan

Once upon a time in America the bankers and Wall Street tycoons got so greedy that they wrecked the economy.  Their greed precipitated a time called the Great Depression.  In response to hunger, homelessness, and hopelessness America elected a Democratic President named Franklin Delano Roosevelt.
Prior to Roosevelt the Supreme Court followed a judicial theory called Substantive Due Process, or in terms of the Lochner Era economic due process.  During this time, the Lochner Era, courts struck down laws regulating the workplace as violating the substance of the Contract Clause. 
In Allgeyer v. Louisiana, 165 U.S. 578 (1897), which is considered the foundation of the Lochner Era cases, the Supreme Court ruled that a state may not legislate in a manner designed to deprive its citizens of the rights guaranteed under the Due Process Clause of the 14th Amendment.  The Louisiana Constitution prohibited foreign corporations from doing business in Louisiana, unless they had a place of business and an authorized agent within the state.  A New York Company was selling policies in Louisiana. Allgeyer bought a policy to cover goods being shipped by sea from the port of New Orleans.  He was convicted in the state court.  In this case the Supreme Court chose to address the problem by ruling on behalf of the citizen, not the state or the corporation.  Hence, Allgeyer, while providing a basis for Lochnerism is distinguishable from that case.

Lochner v. New York, 198 U.S. 45 (1905) is about a state law passed by New York which said bakery employees could not work more than 60 hours a week or 10 hours a day.  The state justified this law, as a valid exercise of the Police Powers, because it protects the health of the workers.  The Police Powers stem from the Tenth Amendment and is used by the states and local governments to preserve and protect the safety, health, welfare, and morals of the community.  

The Supreme Court sided with the bakery owner and said the law violated the bakery owner's right to contract protected by the 14th Amendment.  The Court held that the law was not justified on the basis of protecting the health of the employees.

Adair v. United States, 208 U.S. 161 (1907) is a case in which the Court struck down a federal law prohibiting Yellow Dog Contracts.  These contracts were used by railroad companies and required, as a condition of employment, that the prospective employee agree not to join a union.  Here the Court sided with the railroads saying the law was an "invasion of personal liberty, as well as of the right of property, guaranteed by the Fifth Amendment to the Constitution of the United States, and is therefore unenforceable as repugnant to the declaration of that amendment that no person shall be deprived of liberty or property without due process of law."

Another Yellow Dog Contract case, this time striking down a state law, came from the Sunflower State.  In Coppage v. Kansas, 236 U.S. 1 (1915) Kansas found the Yellow Dog Contracts to be coercive.  The Supreme Court did not agree.  The Court said, in part, "since a state may not strike down the rights of liberty or property directly, it may not do so indirectly, as by declaring in effect that the public good requires the removal of those inequalities that are but the normal and inevitable result of the exercise of those rights, and then invoking the police power in order to remove the inequalities, without other object in view."

Next the Court struck down a Washington state law, written with the support of the Department of Labor, that prevented privately owned employment agencies from assessing fees for their services.  The Court, in Adams v. Tanner, 244 U.S. 590 (1917) held that the Washington law "is arbitrary and oppressive, and that it unduly restricts the liberty of appellants, guaranteed by the Fourteenth Amendment, to engage in a useful business."

Child Labor Laws were ruled unconstitutional in Hammer v. Dagenhart, 247 U.S. 251 (1918).  And here boys and girls is where today's Republican Party wants to return, pay close attention.  Congress passed a law prohibiting "transportation in interstate commerce of goods made at a factory in which, within thirty days prior to their removal there from, children under the age of 14 years have been employed or permitted to work, or children between the ages of 14 and 16 years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of 7 P.M. or before the hour of 6 A.M." 
In a world view repugnant to our contemporary view of humanity, citizenship, and decency the Supreme Court said "In our view, the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus, the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend. The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that, if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed."

Attacking Unions was the theme of Duplex Printing Press Co. v. Deering, 41 S. Ct. 172 (1921).  Here the Court examined the Clayton Antitrust Act and determined that a prior ruling in Lowe v. Lawlor, 208 U.S. 274 (1908) which prohibited secondary economic boycotts to violate the Sherman Antitrust Act.  The Union and its members were held collectively and individually accountable.  Mr. Justice Brandeis saw it differently in his dissent, which in part he said: "The voluntary adoption of a rule not to work on nonunion made material and its enforcement differs only in degree from such voluntary rule and its enforcement in a particular case. Such a determination also differs entirely from a general boycott of a particular dealer or manufacturer with a malicious intent and purpose to destroy the good will or business of such dealer or manufacturer."

Child Labor Laws were again ruled unconstitutional in Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). At issue was the 1919 Child Labor Tax Law.  The law, in pertinent part said, SEC. 1200. That every person (other than a bona fide boys' or girls' canning club recognized by the Agricultural Department of a State and of the United States) operating (a) any mine or quarry situated in the United States in which children under the age of sixteen years have been employed or permitted to work during any portion of the taxable year; or (b) any mill, cannery, workshop, factory, or manufacturing establishment situated in the United States in which children under the age of fourteen years have been employed or permitted to work, or children between the ages of fourteen and sixteen have been employed or permitted to work more than eight hours in any day or more than six days in any week, or after the hour of seven o'clock post meridian, or before the hour of six o'clock ante meridian, during any portion of the taxable year, shall pay for each taxable year, in addition to all other taxes imposed by law, an excise tax equivalent to 10 percentum of the entire net profits received or accrued for such year from the sale or disposition of the product of such mine, quarry, mill, cannery, workshop, factory, or manufacturing establishment."

Harkening back to their ruling in Hammer v. Dagenhart the Court said Congress could not impose a penalty in an area in which they lacked authority to regulate.

Minimum Wage Laws for women and children were ruled unconstitutional in Adkins v. Children's Hospital, 261 U.S. 525 (1923).  Here the Court held the law violated the individual rights to contract and the liberties guaranteed to the parties under the 5th and 14th Amendments.  The Court neatly equated the bargaining positions of individual women and children as being comparable. Clearly they were not
Food Security wasn't even a notion, the way we consider it, when United States v. Butler, 297 U.S. 1 (1936).  Nonetheless, the Court ruled that "Regulation and control of agricultural production are beyond the powers delegated to the Federal Government." Can you imagine a world in which the USDA did not protect the food supply?
Minimum Wage was a main issue with the Bituminous Coal Conservation Act, also known as the 1935 Guffey Coal Act.  Congress  regulated prices, minimum wages, maximum hours, and "fair practices" of the coal industry. The Court ruled the mining of coal was not commerce and the establishment of minimum wages was a price fixing scheme.

The switch in time that saved nine refers to a Court-packing plan by President Roosevelt which would have added sufficient seats to the Supreme Court to change the jurisprudence of the Court.  It happened when Associate Justice Owen J. Roberts moved away from Substantive Due Process in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), a minimum wage case, which excluded men.

From the syllabus:
1. Deprivation of liberty to contract is forbidden by the Constitution if without due process of law, but restraint or regulation of this liberty, if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process.
2. In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.
3. The State has a special interest in protecting women against employment contracts which through poor working conditions, long hours or scant wages may leave them inadequately supported and undermine their health; because:

(1) The health of women is peculiarly related to the vigor of the race;

(2) Women are especially liable to be overreached and exploited by unscrupulous employers; and

(3) This exploitation and denial of a living wage is not only detrimental to the health and wellbeing of the women affected, but casts a direct burden for their support upon the community. Pp. 394, 398, et seq.
4. Judicial notice is taken of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved.
5. A state law for the setting of minimum wages for women is not an arbitrary discrimination because it does not extend to men.
6. A statute of the State of Washington (Laws, 1913, c. 174; Remington's Rev.Stats., 1932, § 7623 et seq.) providing for the establishment of minimum wages for women, held valid. Adkins v. Children's Hospital, 261 U.S. 525, is overruled; Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, distinguished. P. 400. 
And why you ask is this important now?

It is because Senator Tom Coburn has dropped his “Enumerated Powers Act of 2013,” into the hopper.  This bill is cosponsored by “Senators Ayotte (R-NH), Barrasso (R-WY), Blunt (R-MO), Boozman (R-AR), Burr (R-NC), Chambliss (R-GA), Coats (R-IN), Corker (R-TN), Cornyn (R-TX), Crapo (R-ID), Cruz (R-TX), Enzi (R-WY), Fischer (R-NE), Flake (R-AZ), Graham (R-SC), Grassley (R-IA), Hatch (R-UT), Heller (R-NV), Inhofe (R-OK), Isakson (R-GA), Johnson (R-WI), Lee (R-UT), McCain (R-AZ), McConnell (R-KY), Moran (R-KS), Risch (R-ID), Roberts (R-KS), Rubio (R-FL), Scott (R-SC), Sessions (R-AL), Thune (R-SD), Toomey (R-PA), Vitter (R-LA), and Wicker (R-MS).”

Think Progress has an excellent article which blueprints the Grand Old Plan to return to the days of Substantive Due Process.  They write: "To translate this language a bit, in the late 19th Century, the Supreme Court embraced an unusually narrow interpretation of the Constitution’s provision enabling Congress to 'regulate commerce . . . among the several states.' Under this narrow reading, which lasted less than half a century, the justices said that they would only permit federal laws that regulated the transport of goods for sale or a sale itself. Manufacturing, mining, production and agriculture were all held to be beyond federal regulation. This theory was the basis for several decisions striking down basic labor protections, including a 1918 decision declaring a child labor law unconstitutional.
The article is at

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