From the end of Reconstruction in 1876 to 1896, the political power of the Robber Barons was virtually unchallenged. And the Robber Barons found their Prophet in Herbert Spencer, whose Social Statics, first published in 1851 and substantially revised in 1892, expounded the theory of Social Darwinism - that the strong become rich and powerful and the weak are condemned to poverty, and government has no business doing anything to alter natural selection. From the end of Reconstruction to 1896 the Robber Barons controlled both political parties and the doctrines of Laissez Faire and Social Darwinism reigned. But in 1896, the Populists led by William Jennings Bryan captured the Democratic Party. The Robber Barons saved themselves from a hostile Bryan presidency by telling their workers they would cease all business operations in the United States the day after the election if Bryan is elected, but in 1901, in the words of Republican boss and ultra-conservative Mark Hanna, "that damned cowboy", Theodore Roosevelt became President. TR's moderate proposals to regulate monopoly capitalism, combined with Progressive victories in a number of states, was too much for the One Percenters, who, to protect their holdings of most of the nation's wealth, called upon a right wing judiciary to read Herbert Spencer's Social Statics into the Constitution.
This diary examines two Supreme Court decisions from that era, Lochner v. New York and Hammer v. Dagenhart, and the echos these once repudiated decisions reverberate in National Federation of Independent Business v. Sibelius (2012), where Chief Justice John Roberts joined his fellow right wingers in holding the ACA (a/k/a Obamacare) to be unconstitutional under the interstate commerce clause.
This was a challenge, brought by the owner of a bakery in Utica, to a New York law that regulated sanitary conditions in bakeries and limited the work hours of bakery workers to 10 hours a day and 60 hours a week.
Majority Opinion by Justice Rufus Peckham: Justice Peckham writing for the 5 justice majority, wrote that a state law limiting the hours an employee may work is unconstitutional, as it was:
an absolute prohibition upon the employer's permitting, under any circumstances, more than ten hours' work to be done in his establishment. The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it.Justice Peckam asked whether limiting a bakery worker's hours to 10 hours a day, 6 days a week, was:
The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. . . . Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right.
an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?Justice Peckham continued that bakery workers were just as intelligent as other workers, and were equally capable of contracting for their labor "without the protecting arm of the State interfering with their independence of judgment and action." Nor does the law pass constitutional muster as a protection of the public health - "Clean and wholesome bread does not depend on whether the baker works but ten hours a day or only sixty hours a week."
There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker. . . . It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty.After this pompous dissertation with his phony tears for the liberty of the laboring masses, Justice Peckham concluded:
It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees . . . in a private business, not being dangerous in any degree to morals or in any real and substantial degree to the health of employees. Under such circumstances, the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with without violating the Constitution.Dissent of John Marshall Harlan: Harlan was one of the great liberals to have served on SCOTUS, serving from 1877 until his death in 1911. Harlan, known as "The Great Dissenter" dissented in The Civil Rights Cases (1883) and Plessy v. Ferguson (1896), and in Pollock v. Farmers Loan & Trust Co., (1895), where the majority declared the federal income tax unconstitutional. And he dissented again in Lockner.
Harlan, joined by two of his colleagues, conceded that there may be a liberty of contract protected by the Constitution, but this constitutional "right" could be overcome where, as here, the health of the worker is at stake.
The labor of bakers is among the hardest and most laborious imaginable, because it has to be performed under conditions injurious to the health of those engaged in it. It is very hard work, not only because it requires a great deal of physical exertion in an overheated workshop . . . . The constant inhaling of flour dust causes inflamation of the lungs and of the bronchial tubes. The eyes also suffer through this dust, which is responsible for the many cases of running eyes among the bakers. The long hours of toil to which all bakers are subjected produce rheumatism, cramps and swollen legs. . . . The average age of a baker is below that of other workmen; they seldom live over their fiftieth year, most of them dying between the ages of forty and fifty.Dissent of Oliver Wendell Holmes, Jr: The Court's most junior justice provided his separate dissent, that was so radical not even Harlan would join. For Holmes wrote that he did not care whether this law was "a proper measure on the score of health," or "the first installment of a general regulation of the hours of work."
This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with this theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. . . . The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. [A] constitution is not intended to embody a particular economic theory, whether of paternalism . . . or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.Hammer v. Dagenhart:
At issue in Hammer was a federal law, enacted and signed into law by President Wilson in 1916, that prohibited transporting in interstate commerce goods manufactured at factories employing children under the age of 14; or children between the ages of 14 and 16 who worked more than 8 hours a day, or more than 6 days a week, or between the hours of 7 p.m. and 6 a.m.
Majority Opinion of Justice William R. Day: Justice William Day writing on behalf of the 5 justice majority, held that this law was an unconstitutional regulation of factories employing child labor. Justice Day reviewed precedents that upheld federal statutes prohibiting the interstate transportation of gambling materials, obscene literature, diseased cattle or persons, impure food and drugs, and women forced or enticed into prostitution.
In each of these instances, the use of interstate transportation was necessary to the accomplishment of harmful results. . . . The element is wanting in the present case. The thing intended to be accomplished by this statute is the denial of the facilities of interstate commerce to those manufacturers in the States who employ children within the prohibited ages. . . . . The goods shipped are, of themselves, harmless. . . .Dissent of Oliver Wendell Holmes (Justices Mckenna,Clarke, and Louis Brandeis, concurring:
[T]he production of articles intended for interstate commerce is a matter of local regulation. . . . The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the States in their exercise of the police power over local trade and manufacture. The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution. . . .
That there should be limitations upon the right to employ children in mines and factories in the interest of their own and the public welfare, all will admit. . . . [But] to sustain this statute would . . . sanction an invasion by the federal power of the control of a matter purely local in its character, and over which no authority has been delegated the Congress in conferring the power to regulate commerce among the States. . . .
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.
The objection [of the majority] is that the States have exclusive control over their methods of production, and that Congress cannot meddle with them, and, taking the proposition in the sense of direct intermeddling, I agree to it, and suppose no one denies it. . . . 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. . . . . The public policy of the United States is shaped with a view of the nation as a whole. . . . The national welfare, as understood by Congress, may require a different attitude within its sphere from that of some self-seeking State. It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command.National Federation of Independent Business v. Sibelius (2012):
We all know that Chief Justice Roberts joined the four liberals in upholding the ACA's individual mandate based on Congress's power to tax. But what I want to examine is the portion of the majority opinion in which Roberts joined with his fellow right wingers in holding the law unconstitutional under the interstate commerce clause, and Justice Ginsburg's dissent:
Chief Justice Roberts: Roberts conceded that the ACA's guarantee of coverage for those with pre-existing conditions would discourage healthy people from obtaining insurance until they became sick, thereby forcing insurance companies to hike rates for everyone, and that the individual mandate was Congress's solution to this problem.
The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and under the Government's theory empower Congress to make those decisions for him. . . .Dissent of Justice Ginsburg (joined by Sotomayor, Kagan and Breyer):
Many Americans do not eat a balanced diet. . . . Under the government's theory, Congress could address the diet problem by ordering everyone to buy vegetables. . . . That is not the country the Framers of our Constitution envisioned. . . . The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding. There is no reason to depart from that understanding now.
Since 1937, our precedent has recognized Congress' large authority to set the Nation's course in the economic and social welfare realm. See United States v. Darby . . (1941) (overruling Hammer v. Dagenhart (1918)) . . . . The Chief Justice's crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress' efforts to regulate the national economy in the interest of those who labor to sustain it.Conclusion:
Until today, this Court's pragmatic approach to judging whether Congress validly exercised its commerce power was guided by two familiar principles. First, Congress has the power to regulate economic activities "that substantially affect interstate commerce." . . . . Second, we owe a large measure of respect to Congress when it frames and enacts economic and social legislation. . . . Straightforward application of these principles would require the Court to hold that the minimum coverage provision is proper Commerce Clause legislation.
Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, the Chief Justice relies on a newly minted constitutional doctrine. The commerce power does not, the Chief Justice announces, permit Congress to "compel individuals to become active in commerce by purchasing a product." The Chief Justice's novel constraint on Congress' commerce power . . . finds no home in the text of the Constitution or our decisions. . . .
In the early 20th century, this Court regularly struck down economic regulation enacted by the people's representative in both the States and the Federal Government. See, e.g., [Hammer] v. Dagenhart and Lochner v. New York. The Chief Justice's Commerce clause opinion, and even more so the joint dissenters' reasoning, bear a disquieting resemblance to those long-overruled decisions.
The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic."I fear the old pre-1937 logic, the logic of Lockner v. New York and Hammer v. Dagenhart, has re-raised its ugly head among the five SCOTUS reactionaries. Although Chief Justice Roberts did his "switch in time" to save the law by ruling it constitutional under the taxing authority, the principle that any federal law that offend the ideology of the five SCOTUS judges has been revived, ready to be taken out "like a loaded gun". This is what Justice Ginsburg warned in her dissent - a dissent too many of us overlooked in our giddiness over the law's bare survival. This is why we must keep electing Democrats to the presidency and to the Senate, to ensure that this portion of the decision, and the Scalia and Thomas concurrences - are buried into the judicial oblivion that Lockner and Hammer were once consigned.