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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.

Lochner v. New York:

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.

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.

Justice Peckam asked whether limiting a bakery worker's hours to 10 hours a day, 6 days a week, was:
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. . . .  

[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.

Dissent of Oliver Wendell Holmes (Justices Mckenna,Clarke, and Louis Brandeis, concurring:
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. . . .

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.

Dissent of Justice Ginsburg (joined by Sotomayor, Kagan and Breyer):  
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.  

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.


In December of 1944, a 6-3 SCOTUS majority upheld the government's internment of Japanese Americans in Korematsu v. United States.  Justice Robert Jackson  
would famously write in dissent:  

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.

Originally posted to Navy Vet Terp on Mon Jan 27, 2014 at 03:39 PM PST.

Also republished by History for Kossacks and Community Spotlight.


Should we fear that the SCOTUS majority will use the ACA decision to strike down other laws they don't like?

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Comment Preferences

  •  Truly the legacy of Karl Rove from his worship (10+ / 0-)

    of all things of the Gilded age of Rpbber Barons.

    Life is just a bowl of Cherries, that stain your hands and clothes and have pits that break your teeth.

    by OHdog on Mon Jan 27, 2014 at 04:07:49 PM PST

  •  Thanks for this summary (6+ / 0-)

    it provides some good background.

  •  Nicely done. (6+ / 0-)

    Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

    by TomP on Mon Jan 27, 2014 at 05:01:07 PM PST

  •  It was also in this period that Marbury was (8+ / 0-)

    trotted out as the justification for judicial supremacy, not so much before that, Marshall having been more respectful of Congress than how the gilded age justices later spun it.  It was Taney in Dred Scott who attemped to usurp, on behalf of the gilded slaveocracy, power for the Court over the elected branches. Lincoln responded in 1857 that Dred Scott was too obviously flawed to have any binding impact on the elected branches, insisting on departmentalism to contain a Court bid to crash the system. Lincoln's tests for such invalidity serve as a model today for Congressional pushback against Court violations of separation of powers. Congress has the power under the exceptions clause to strip the Court of appellate jurisdiction over restorative legislation, such as laws that would invalidatie Citizen's United. Lincoln's rule in case of Court attacks on democracy was that if several unelected judges can sink the republic then it is already an oligarchy.

    •  Have you seen conservatives' snit (3+ / 0-)

      over the warrant to arrest warrant Chief Justice Taney Lincoln supposedly had written in spring 1861? All based on conjecture, of course, but the conservatives love twisting history to suit their ideology. And there is a faction, notably around the von Mises Institute, that is rabid in its hatred of Lincoln. I call them "von Measles." Same for their Austrian economic ideas, such as the gold standard. They, hate, absolutely hate, the American republic, but love economic theories that always result in the creation of plutocracy.

      A conservative is a scab for the oligarchy.

      by NBBooks on Tue Jan 28, 2014 at 07:19:09 AM PST

      [ Parent ]

      •  Lincoln is their worst nightmare, (0+ / 0-)

        nobody today would dare consider it. One proposal is a procedure that if Congress determines its powers have been unconstitutionally violated by the Court, then it would send a remonstrance to the Court demanding reversal. If the Court declines to reverse itself on the offending question, then Congress would submit to voters whether the decision violated separation of powers, in a national referendum. If the nation rules yes, then the case is overruled and the president can institute dismissals of the guilty justices, who voted with the majority, for bad behavior.

        •  Teddy Roosevelt and Stephen A. Douglas (2+ / 0-)
          Recommended by:
          Musial, NBBooks

          Teddy Roosevelt, when he ran for President in 1912 as a Progressive with his "Bull Moose Party", proposed that Supreme Court decisions that declared statutes unconstitutional could be overridden by a voter referendum at the next election.  The proposal shocked his erstwhile friend, President Taft, and helped to lead to their "divorce."

          Stephen A. Douglas, during his 1858 debates with Lincoln, enunciated his "Freeport Doctrine" named for the town where that particular debate was held.  Douglas said that slavery can exist only where there is enforcing legislation, e.g. laws providing for the capture of runaways and criminalizing those who abet runaways, to name 2 examples.  If the people of Illinois didn't want slavery (assuming Taney and his justices extended Dred Scott from the territories to the states), they could refuse to enact such laws, or could even enact other laws that would make slavery impossible to survive, and there would be nothing the Supremes could do about it.

          The Freeport Doctrine enraged the Slavocracy and made his run for President in 1860 impossible and divided the Democratic party into North and South and made the election of Lincoln possible.

          "Corporations exist not for themselves, but for the people." Ida Tarbell 1908.

          by Navy Vet Terp on Tue Jan 28, 2014 at 02:09:14 PM PST

          [ Parent ]

  •  It's the part B of the ACA ruling (0+ / 0-)

    Striking down the Medicaid expansion would make it impossible to implement any new "Give it to the states" efforts the winger are now pushing. I suspect that's a feature not a bug

    I want 1 less Tiny Coffin, Why Don't You? Support The President's Gun Violence Plan.

    by JML9999 on Tue Jan 28, 2014 at 05:40:31 AM PST

  •  Ok I just have to say it (2+ / 0-)
    Recommended by:
    No Exit, jabney

    Because we're ALL thinking it.

    It's just a matter of time before some of these wingers die, and it will likely happen under a Democratic president, with a Democratically-controlled senate, that has not yet killed but which has explicitly retained the right to kill the judicial filibuster for SCOTUS nominees, if necessary.

    Meaning, of course, that it's just a matter of time before SCOTUS switches back to (relatively) liberal control, and stays that way for years. The wingers know that and are just trying to squeeze in as many rulings as they can before the lose SCOTUS for a generation or more. And they're doing it in increasingly more radical ways, whether out of arrogance or desperation or both.

    But it's all for naught, for their work will be undone in 5, 10, 20 years, and they will all be dust (their rulings and, eventually, them too, good riddance).

    Who still celebrates justices Taney, Fuller or Rehnquist, who is not an asshole?

    "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

    by kovie on Tue Jan 28, 2014 at 06:10:57 AM PST

    •  Who still celebrates Peckham and Day? (0+ / 0-)

      and why do we celebrate Harlan, Holmes and Brandeis?

      "Corporations exist not for themselves, but for the people." Ida Tarbell 1908.

      by Navy Vet Terp on Tue Jan 28, 2014 at 02:10:41 PM PST

      [ Parent ]

    •  send scalia another carton of smokes stat... (1+ / 0-)
      Recommended by:
      Josiah Bartlett

      it would be nice to get some more marshall, douglas, warren, brennan… hell, stevens got better with time… type appointees.

      i like sotomayor.

      i still hold a grudge against kagan for voting with the pubs that the states could opt out of the medicaid expansion.

      great analysis and use of quotes by nvt

      Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

      by No Exit on Tue Jan 28, 2014 at 05:55:35 PM PST

      [ Parent ]

  •  Excellent diary on subject too seldom considered! (5+ / 0-)

    And I highly recommend anyone interested get a copy of Jeff Sheshol's book, Supreme Power: Franklin Roosevelt vs. the Supreme Court. Shesol writes, on pages 29-30):

    The principal weapon in these internecine wars was a single phrase in the Fourteenth Amendment denying states the power to “deprive any person of life, liberty, or property without due process of law.” At the time the amendment was adopted, in 1868, the due process clause struck the Congress and the courts as unambiguous. The word “process” made plain its concern with the procedures by which a government acted: how laws were enacted, how fairly they were enforced. The Fifth Amendment, part of the Bill of Rights, had placed the same constraint on federal power; now it was being applied to the states, with the aim of protecting newly freed slaves from oppression.

    It was not long, however, before railroad lawyers, monopolists, and conservative thinkers, like Thomas M. Cooley, a prominent Michigan judge and legal professor, were arguing, – before increasingly receptive state and federal judges – that the guarantee of due process shielded individuals and corporations against the legislative restrictions of property rights. Reflecting this influence, and the sympathies of the elites, which were solidly behind the railroads and other new and massive corporations, courts in the 1880s began to scrutinize the substance of legislation, especially in the economic realm, Judges created standards by which to assess whether a challenged regulation was “just” and “reasonable” rather than “arbitrary” and “oppressive.”

    This, as it emerged, was the doctrine of “substantive due process.” The Supreme Court was slower to embrace it than the state courts, but by the end of the nineteenth century took it up in earnest. Over the next three decades, if not with perfect consistency, it struck down an unprecedented number of state regulations on this basis. [Almost all these regulation were aimed at curbing child labor, long work hours, and similar abuses.] Between 1920 and 1926, the court voided more social and economic legislation on due process grounds than it had in the preceding half century. Judges had other tools to safeguard property rights among them the contracts and commerce clauses of Article I of the Constitutions and the takings clause of the Fifth Amendment. But it was only a slight exaggeration to suggest, as one legal scholar did in the 1930s, that substantive due process was “the hub around which the whole Constitution now revolves.”


    The rest of the book details the fight in the Court as the conservatives tried to rule that the entirety of Franklin Roosevelt’s New Deal was unconstitutional. Chief Justice Evans backed down, I believe, because of the huge protests against the first few court rulings reviving Lochner - in New York City there was a march of what some claim were a million people. Shesol mentions the march, but does not explore what effect it had on the justices. But at the time Evans began to side with the liberals, it was observed that "Evans has saved the court."

    I have to make one major quibble which is quite an important point, though it really does not touch on most of what you write. In the beginning, you mention in passing that the Populists captured the Democratic Party. That is not true. The Populists decided to endorse Jennings, rather than run their own candidate for President. Lawrence Goodwyn argues, in The Populist Moment: A Short History of the Agrarian Revolt in America, that this fusion with the Democrats in 1896 is what destroyed the Populist movement. Many populists in the South simply could not bring themselves to ally with local Democrats, who at the time were the worst bigots and racists, enthusiastically enforcing Jim Crow. In the North, many populists choked on the prospect have having to support Byran running mate, Arthur Sewall, a New England financier who was rabidly anti-labor. Sewall was so unacceptable, that while the Populists nominated Seward for President, they refused to accept Sewall and nominated their own vice-presidential candidate. You can imagine the havoc this caused in campaigning.

    More fundamentally, in the West, the Populists knew that many of their supporters were for Bryan because of his support for including silver along with gold as the bases of the monetary system. This was naturally in the self-interest of the many miners in the west, but it was a crippling abandonment of the Populists' of their Greenback economic principles. This acceptance of "hard money" doctrines was, Goodwyn argues, the end of the populist revolt, because it meant surrender to the bankers and financiers in the fight for a fully democratic reorganization of economic power in the US economy.

    "This sophisticated despair, grounded in the belief that hierarchical American society could, perhaps, be marginally "humanized" but could not be fundamentally democratized, became the operative premise of twentieth century reformers."
    After that 1896 surrender, Goodwyn writes, reformers would no longer seek to change the fundamental structure of American banking and finance, but instead busy themselves with tangential details, such as the creation of the Federal Reserve system.

    A conservative is a scab for the oligarchy.

    by NBBooks on Tue Jan 28, 2014 at 07:58:25 AM PST

    •  You are correct, of course (0+ / 0-)

      I thought about changing that line but hit the publish button instead - the diary was already too long to go into a side explanation.

      I do see the election of 1896 as one of the most important elections in our history, as it transformed the Democratic Party.  In every election since then, except arguably in 1904 and even more tenuously in 1924, the Democrats have fielded the more progressive candidate vis a vis the Republicans.  And much of the credit for the sea change that occurred in the Democratic party in 1896 can be credited to the Populists, who, as you point out, fused into the Democrats after 1896.  Despite their short lived existence, this accomplishment makes them one of the more successful 3rd parties in our history -  more successful than Ross Perot or George Wallace or TR in 1912 - parties that centered on a single person's ambitions.

      Bryan's Populist running mate in 1896 was Tom Watson, an admirable person until around 1900 or so, a despicable excuse for a human being thereafter.

      "Corporations exist not for themselves, but for the people." Ida Tarbell 1908.

      by Navy Vet Terp on Tue Jan 28, 2014 at 02:18:29 PM PST

      [ Parent ]

  •  Do you see a motive (4+ / 0-)

    behind Roberts' change of position? He is one of the most political Chief Justices ever, I think.

    What we need is not necessarily expressly liberal justices, but justices who are not expressly conservative, with a political agenda. Seeing the twisting of the concept of freedom to cover labor's right to work as long as possible to support their families was eerily familiar, denying the relative power of labor and capital. Like today's attempt to avoid raising the minimum wage - of course low-wage workers choose to work two or three jobs to support their families, right?

    Any court that equates money and speech denies the most basic concept that people with more money will have more free speech than those with less. The first amendment was not meant to be used so, any more than the fourteenth.

    Thanks NVT - interesting and concise.

    Being attentive to the needs of others might not be the point of life, but it is the work of life. It can be ... almost impossibly difficult. But it is not something we give. It is what we get in exchange for having to die. - Jonathan Safran Foer

    by ramara on Tue Jan 28, 2014 at 08:17:47 AM PST

    •  They struck down minimum wage laws too (1+ / 0-)
      Recommended by:

      See Adkins v. DC Children's Hospital (1923), with Chief Justice William Howard Taft and Oliver Wendell Holmes dissenting (for some reason Brandeis was absent).  Same freedom of contract BS.  This is another of the infamous decisions that were overturned in 1937 or shortly thereafter, that I fear may have a comeback.

      "Corporations exist not for themselves, but for the people." Ida Tarbell 1908.

      by Navy Vet Terp on Tue Jan 28, 2014 at 02:25:13 PM PST

      [ Parent ]

  •  Spencer opposed education women because (1+ / 0-)
    Recommended by:
    Navy Vet Terp

    his bizarre evolutionary theory was that if women put too much energy into their brains it would weaken their wombs and they would produce inferior children and England would suffer.

    I don't know what consciousness is or how it works, but I like it.

    by SocioSam on Tue Jan 28, 2014 at 10:05:31 AM PST

  •  Classic misuse of the 14th Amendment (2+ / 0-)
    Recommended by:
    Navy Vet Terp, Josiah Bartlett

    In Lochner and Hammer v. Dagenhart.
    It's worth noting that between the end of the Civil War (and the passage of the Civil War Amendments) and 1937, the Robber-Baron Supreme Court NEVER used the Equal Protection or Due Process clauses of the 14th Amendment to strike down a Jim Crow law discriminating against the freed slaves or their descendants (thus supporting the re-enslavement of southern black through the 13th Amendment's loophole).  However, the same court used the 14th Amendment to overturn no fewer than 100 state and federal laws governing worker safety, working conditions, wages and collective bargaining.  The current court is just a corrupt.

    •  There was one such decision (0+ / 0-)

      Strauder v. West Virginia (1880), which voided a West Virginia statute barring blacks from serving on juries.  Otherwise, you are absolutely correct.  The 14th Amendment became a dead letter as the class of persons whom it was designed to protect - newly freed slaves and blacks in general - and became a hammer to destroy progressive legislation and unions, something the authors of the 14th Amendment never imagined.  Fortunately, the original intent was revived by later Courts.

      "Corporations exist not for themselves, but for the people." Ida Tarbell 1908.

      by Navy Vet Terp on Tue Jan 28, 2014 at 02:31:20 PM PST

      [ Parent ]

  •  When you appoint nothing but (5+ / 0-)

    conservative reactionaries to the SCOTUS for decades (with the lone exception of a few moderates by Democratic presidents, and no liberals at all), this is what you get.

    None are so hopelessly enslaved, as those who falsely believe they are free. The truth has been kept from the depth of their minds by masters who rule them with lies. -Johann von Goethe

    by gjohnsit on Tue Jan 28, 2014 at 02:12:15 PM PST

  •  FDr went too far in trying to expand the court (0+ / 0-)

    to 15, however, had he simply moved the number slightly to 11, it likely would have passed Constitutional muster. the Constitution says nothing about the size of the Supreme Court, save that there must be one. going to 11 would have shifted the court 6--5 in his favor, and had there been 11 justices in 2000 I doubt Bush gets the stay of the Florida Supreme Court decision, and we likely have a President Gore. that leads to no war in Iraq and  John Roberts never gets nominated.

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