Eugene Volokh's Blog, page 2573
April 4, 2012
Rush Limbaugh Cheers Judge Smith For Being Part of "The Team That's Opposing This President, and Attempting to Make Him a One-termer This November At The Ballot Box"
Today Rush Limbaugh had a segment cheering on Judge Jerry Smith of the Fifth Circuit for joining the "team" that is trying to make President Obama "a one-termer this November at the ballot box":
Now, yesterday afternoon a federal judge by the name of Jerry Smith at the Fifth Circuit Court of Appeals in Houston had had enough, and he demanded that the Justice Department give him a three-page memo on whether or not this administration understands the concept of judicial review. Now, I saw this and I started cheering. I started laughing. Because it's about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that's opposing this president, and attempting to make him a one-termer this November at the ballot box. It's great to have this response.
After playing the audio recording of Judge Smith's statements at oral argument yesterday, Rush adds:
By the way, I love the fact that [Judge Smith] called it "Obamacare" from the bench. And he tells this lawyer: You go back to your boss and I want three pages on this. This is like a college professor punishing a student who doesn't quite understand what's going on. You go back, and you get me three pages, no less, single-spaced. I can't believe it. Single-spaced! He gets that specific. And it needs to be specific, because he wants these people on record. Obama's out saying, "There is no such thing; that's never happened." Judge Smith wants Obama's Justice Department to have it on paper from their office that essentially the president either doesn't know what he's talking about or is lying. That's what's going on here. These judges, folks, they serve for life. Their egos aren't chump change, either. They have just the same kind of self-importance Obama does, and they're gonna sit around here and be belittled like this?
I think the court's order was highly inappropriate, and Rush's comments are an excellent example of why. Whatever the judges were thinking, their order was inevitably going to be interpreted as the product of three conservative judges trying to enter the political fray and take on a Democratic President. As Rush and many others saw it, the judges were joining the GOP "team," trying to "punish" Obama and make him a "one-termer." Rush Limbaugh celebrates that political role for the Fifth Circuit. Others condemn it. But given that the President's statement at the press conference was not at issue in the case, and the court's order was based on a very strained reading of a single sentence in the press conference, it was inevitable that the order would be interpreted in that way on the national political stage.
Rush Limbaugh Cheers Judge Jerry Smith For Being Part of "The Team That's Opposing This President, and Attempting to Make Him a One-termer This November At The Ballot Box"
Today Rush Limbaugh had a segment cheering on Judge Jerry Smith of the Fifth Circuit for joining the "team" that is trying to make President Obama "a one-termer this November at the ballot box":
Now, yesterday afternoon a federal judge by the name of Jerry Smith at the Fifth Circuit Court of Appeals in Houston had had enough, and he demanded that the Justice Department give him a three-page memo on whether or not this administration understands the concept of judicial review. Now, I saw this and I started cheering. I started laughing. Because it's about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that's opposing this president, and attempting to make him a one-termer this November at the ballot box. It's great to have this response.
After playing the audio recording of Judge Smith's statements at oral argument yesterday, Rush adds:
By the way, I love the fact that [Judge Smith] called it "Obamacare" from the bench. And he tells this lawyer: You go back to your boss and I want three pages on this. This is like a college professor punishing a student who doesn't quite understand what's going on. You go back, and you get me three pages, no less, single-spaced. I can't believe it. Single-spaced! He gets that specific. And it needs to be specific, because he wants these people on record. Obama's out saying, "There is no such thing; that's never happened." Judge Smith wants Obama's Justice Department to have it on paper from their office that essentially the president either doesn't know what he's talking about or is lying. That's what's going on here. These judges, folks, they serve for life. Their egos aren't chump change, either. They have just the same kind of self-importance Obama does, and they're gonna sit around here and be belittled like this?
I think the court's order was highly inappropriate, and Rush's comments are an excellent example of why. Whatever the judges were thinking, their order was inevitably going to be interpreted as the product of three conservative judges trying to enter the political fray and take on a Democratic President. As Rush and many others saw it, the judges were joining the GOP "team," trying to "punish" Obama and make him a "one-termer." Rush Limbaugh celebrates that political role for the Fifth Circuit. Others condemn it. But given that the President's statement at the press conference was not at issue in the case, and the court's order was based on a very strained reading of a single sentence in the press conference, it was inevitable that the order would be interpreted in that way on the national political stage.
Ridiculous Supreme Court Pronouncements
All the talk from the left about how absurd it would be for the Supreme Court to invalidate the ACA on commerce clause grounds has made me think about ridiculous Supreme Court reasoning. And when I say ridiculous reasoning, I mean just that; not that I necessarily even object to the outcome of the case, just that I have a hard time keeping a straight face if I have to explain the reasoning to my students.
The penumbras and emanations line from Justice Willioam O. Douglas in Griswold is a perennial favorite, but I think Douglas outdid himself two years earlier in Gray v. Sanders. This was an extremely important case, because it announced the "one person one vote" rule, which soon led the Court to order virtually every state in the union to redistrict its legislature. Moreover, this was hardly an "apolitical" decision, because it forced states to reduce representation for (conservative) rural areas in favor of (liberal) urban areas, consistent with the political interests of the Court's majority.
So how did Douglas justify the one-person, one-vote principle, even though no (or maybe almost no) states complied with it previously, and even though the U.S. Senate is obviously not apportioned on that basis? "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote." I kid you not.
Readers favorite examples of similar addled reasoning are welcome in the comments.
UPDATE: I can't pick out one or two lines, but I have to admit not being able to follow the "reasoning" of Justice Holmes in Federal Baseball Club v. National League, 259 U.S. 200 (1922), in which he acknowledges that baseball teams cross state lines to play exhibitions for the purposes of making money, but that this nevertheless does not constitute "interstate commerce" for the purposes of federal antitrust law.
Further UPDATE: Judging from the comments, quite a few VC readers don't understand the distinction between criticizing a ruling's reasoning, and criticizing a ruling's outcome. For example, I think Douglas's Griswold opinion was quite poorly reasoned, but I don't have any problem with Goldberg or Harlan's concurrences, which reached the same result.
Judicial Activism for Me but Not for Thee
Guess who wrote the book described in this advertising blurb:
America's Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. ___ confounds the allegation of the Christian right that judicial activism is legally and morally unsound by tracing the roots of American judicial activism to the methods of legal and moral interpretation developed by the prophets of the Hebrew Bible. He claims that Isaiah, Amos, and Jesus are archetypal activist judges and, conversely, that modern activist judges are America's prophets. ___ argues that judicial restraint is a priestly method of adjudication and that it, not judicial activism, is the legally and morally unsound method.Race and gender discrimination, separation of church and state, privacy rights, and same-sex marriage are all issues that have divided our nation and required judicial intervention. Every time the courts address a hot-button issue and strike down entrenched bias or bigotry, critics accuse the justices of being judicial activists, whose decisions promote their personal biases and flout constitutional principles. This term, despite its widespread currency as a pejorative, has never been rigorously defined. Critics of judicial activism properly point out that when judges overturn laws that enforce popular norms they thwart the will of the majority. But ___ argues that so-called activist judges uphold two other American legal values that are as deeply embedded in American legal culture as majoritarianism: liberty and equality. He challenges the notion that judicial activism is unprincipled, and he provides a vocabulary and historical context for defending progressive decisions.
Answer: University of Houston law professor David Dow, who wants to impeach the Justices if they invalidate the ACA because that would prove them to be judicial activists, whose decisions promote their personal biases and flout constitutional principles.
H/T Instapundit
May "Jesus Is Not a Homophobe" T-Shirt Be Banned from Public High School as "Indecent" and "Sexual"?
That's what the Wayne (Ohio) Local School District Board of Education apparently believes. Waynesville High School Principal Randy Gebhardt barred high school student Maverick Couch from wearing this T-shirt, and when his action was challenged, the school district lawyer responded:
It is the position of Wayne Local School District Board of Education that the message communicated by the student's T-shirt was sexual in nature and therefore indecent and inappropriate in a school setting.
The lawyer cited Bethel School Dist. No. 403 v. Fraser (1986) as support for the proposition that the speech may be banned. But Fraser, which involved sexual innuendo in a speech to a student assembly, hardly suggested that all speech on political and religious questions related to sexuality and sexual orientation could be banned from public high schools. (The other case that the lawyer cited, Pyle v. South Hadley School Committee (D. Mass. 1994), also involved vulgarity and sexual innuendo.)
Indeed, even Morse v. Frederick (2007) acknowledged that Fraser "should not be read to encompass any speech that could fit under some definition of 'offensive.' After all, much political and religious speech might be perceived as offensive to some." This is precisely what's at issue here: religious speech that is perceived as offensive to some. That the speech deals with how people should view gays and lesbians surely does not strip it of protection.
To be sure, even political speech could be restricted under Tinker v. Des Moines Indep. School Dist. (1969) if it seems likely to materially disrupt the work of the school, for instance by triggering fights and the like. But the school district doesn't even claim that any such disruption has happened, or that there was evidence that it would be likely to happen. (At most, it says that there was "a highly charged atmosphere" in the school, a justification that's insufficient under Tinker.)
So this strikes me as pretty clearly unconstitutional, at least absent some showing of material disruption caused or likely to be caused by the T-shirt. An application for a temporary restraining order, aimed at setting aside the principal's decision, was filed yesterday in federal district court, and is now pending (Couch v. Wayne Local School Dist., No. 1:12-cv-00265-MRB). For more, see this Cincinnati Enquirer article. Thanks to Prof. Howard Friedman (Religion Clause) and Thomas Riebs for the pointer.
May the Government Force You to Print Ideological Materials You Don't Want to Print?
That's the question brewing in Lexington, Kentucky. The Gay and Lesbian Services Organization has filed the following complaint with the Lexington Human Rights Commission (paragraph breaks added):
The Pride Festival committee of the Gay and Lesbian Services Organization (GLSO) received a quote from Hands On Originals in December by phone (from an employee named Kaleb) to produce t-shirts for the 5th annual Pride Festival in Lexington. The quote from Hands On Originals was the lowest bid from a local company, and the committee intended to move forward with having them produce shirts. However, a committee member first called the business with the intention of finding out whether any lower price could be negotiated. He reached someone there who asked who he had previously talked to. At that moment, he could not remember their name, and when the name "Blaine" was suggested, he agreed. Numerous phone messages back and forth were exchanged before the committee member was finally able to speak with Blaine, who represented himself as an owner of Hands On Originals.
His inquiries were related to what the GLSO was, what our mission was, and what we were promoting. The committee member explained, including that the t-shirt would only contain a stylized number "5″ on the front and the name of the festival, and sponsors on the rear.
When Blaine learned that it was a gay pride festival, he asked, "You know we're a Christian organization, don't you?" He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival. He suggested that he could refer us to a different business who would print the shirts. Our committee member told them he would take that offer to the board, but that he felt that we would not want to do business with anyone who did business with Hands On Originals, based on their discrimination.
On March 25th, the GLSO board met in emergency session and agreed to file a complaint with the HRC under the Lexington Fairness Ordinance.
Here, by the way, is Blaine Adamson's side of the story, which seems factually consistent with the GLSO's allegations.
1. It seems to me that Hands On Originals didn't violate the ordinance. The ordinance does, among other things, ban public accommodations discrimination based on sexual orientation (cf. Ky. Rev. Stat. § 344.120 and Ky. Rev. Stat. § 344.130, which it incorporates by reference), and Kentucky public accommodations discrimination law would cover T-shirt shops (since it covers "any place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public"). But it defines "sexual orientation" to "mean an individual's actual or imputed heterosexuality, homosexuality, or bisexuality."
Hands On Originals was apparently discriminating based on the message on the T-shirt ("He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival"), not based on the sexual orientation of the individual who called in the order, or of other individuals in GLSO. That doesn't seem to be discrimination based on "an individual's actual or imputed heterosexuality, homosexuality, or bisexuality," and is thus not barred by the Ordinance.
2. But even if the Ordinance does prohibit what Hands On Originals did (for instance, if it's interpreted the way Massachusetts courts interpreted the public accommodations ordinance in Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995)), then the Ordinance unconstitutionally compels speech, because it requires printers to print material that they do not want to print. Abood v. Detroit Bd. of Ed. (1977) and Keller v. State Bar (1990) reaffirmed that the government generally may not compel someone to give over money to a private or even quasi-public entity when that money will be used for political or ideological speech. (There is an exception for when the government is acting as employer or regulator of the bar, and the compulsory payments are germane to the collective bargaining functions of a union or a bar association, but that does not apply here.) If so, then requiring someone to actually physically print political or ideological speech is an even clearer First Amendment violation.
Indeed, speech on T-shirts is as protected as speech in books. Under the GLSO's view, a book publisher that is opposed to (say) Scientology could be required to print pro-Scientology books. Likewise, a printer that hates Nazi ideology could be required to print pro-Nazi leaflets in those jurisdictions — such as Washington, D.C. and Seattle — that ban public accommodations discrimination based on political affiliation. That, it seems to me, can't be constitutional: Though the publishers (or the T-shirt printer) would be required to produce speech, rather than utter or display it himself, the creation of speech is itself speech, and compelled creation of speech is a speech compulsion.
Readers of the blog might recognize this as much the same issue involved in Elane Photography v. Willock, the New Mexico wedding photographer case that is still pending before the New Mexico Court of Appeals. There, though, some people argued that such photographs aren't sufficiently ideologically significant, and that therefore there isn't a First Amendment problem with requiring a wedding photographer to photograph same-sex commitment ceremonies. Here, the printer is being required to produce T-shirts — or, as I said, it could just as well be books or leaflets — that express support for a clearly ideological event. I think both the photographer and the T-shirt printer should win, but in any event the T-shirt printer's case strikes me as especially strong.
3. What about the free exercise of religion, assuming that Blaine Adamson sincerely believes that it would violate his religious obligations to print T-shirts that promote a gay pride event?
Employment Division v. Smith (1990) held that the Free Exercise Clause does not generally require the government to give religious exemptions from generally applicable laws. But there's language in the case that suggests such exemptions might be required when there's also some sort of other constitutional claim involved (that's the so-called hybrid rights theory). Some courts have therefore concluded that a Free Exercise Clause claim combined with some other claim — here, a compelled speech claim — might prevail even if each claim separately wouldn't. I doubt that this makes sense, but there is some authority for this, including in Kentucky, see Triplett v. Livingston County Bd. of Ed. (Ky. Ct. App. 1997).
Moreover, the Kentucky Supreme Court is now considering whether it should read the Kentucky Constitution as generally requiring religious exemptions from generally applicable laws. I've blogged before about such state constitutional protections, and about a dozen states have indeed read their state constitutional religious freedom guarantees as providing more protection from generally applicable laws than the Free Exercise Clause does.
If such a presumptive right to a religious exemption is recognized, whether under the Free Exercise Clause "hybrid rights" theory or a state constitutional theory, then the question is whether the government can rebut that presumption, by showing that denying the exemption is narrowly tailored to a compelling government interest. I discussed this in some measure as to the wedding photographer case (which is similar to this case in this respect), and I don't want to make this long post even longer.
But the short summary is that (1) this "strict scrutiny" test is quite mushy in religious exemption cases, and is much more pro-government than the "strict scrutiny" applied to content-based speech restrictions or race classifications, but (2) there's a strong argument that the law can't pass strict scrutiny in this situation: It's not at all clear that the government has a compelling interest in preventing private discrimination against ideological messages associated with gay rights (even if it does have a compelling interest in preventing private discrimination against individuals).
In any event, though, I think that Hands On Originals' compelled speech claim should be sufficient here, even independently of any religious exemption claim. Any printer, whether religious or not, has a First Amendment right to choose what messages it will print and what messages it won't print.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
Can Congress Mandate the Japanese to Buy Detroit Cars? – The Commerce Clause and Foreign Commerce
One aspect of the ACA litigation that has not received due attention is the effect of the Court's ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of "Commerce" would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard to have a limiting principle for the latter.
Under the logic of the government's approach, Congress could regulate or mandate transactions purely between foreigners with no direct U.S. nexus. This is because these foreigners could have – should have! – engaged in transactions with the U.S instead. Purely foreign transactions affect the price of things in the U.S. If insurance would be cheaper if more people bought it, the same could be said about American cars. It makes no difference if the recalcitrant non-purchaser is foreign or domestic. Can the Japanese be required to buy U.S. cars? Certainly such a law would be closely related a major economic sector, as defenders of the ACA like to put it. (I am of course holding aside issues of enforceability to focus on the Commerce power.)
Or consider a rationale closer to the ACA case. If the mandate falls within Interstate Commerce, why not Foreign Commerce as well? Just as health people may get sick while uninsured, foreigners might come to the U.S. uninsured. At the time they come, no doubt Congress could require purchasing insurance as part of its Immigration powers. But by then it could be too late, they could be sick not insurable. So could Congress require foreigners to buy insurance or broccoli prior to coming to America on the theory that they might at some point come to America? Foreigners from countries where a sizable percentage visit the U.S.? Foreigners who have visited the U.S. in the past?
It is ironic that the liberal interpretation of the Commerce power would allow American exceptionalism and give Congress regulatory powers in excess of what would be allowed by international law. On the other hand, it is hard to doctrinally cabin disrespect for the domestic division of sovereignty from disrespect for the international division of sovereignty.
In Kiobel, the ATS case I have been blogging about, the Supreme Court has shown some skepticism about broad extraterritorial assertions of U.S. law (based proximately on statutory, not constitutional concerns, though in my forthcoming paper, I argue the Offenses Clause of the constitution and foreign commerce clause underpins the statutory issue. The justices might want to consider that a ruling for the government in the ACA case would open a whole world of extraterritorial legislation.
In Schecter Poultry, Justice Cardozo famously wrote:
Here is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center.
The point here is the "periphery" is not just internal; the periphery is also the world. That which obliterates the distinction between the local and national also tends to obliterate the distinction between global and national.
Impeach John Roberts?
Professor David Dow of the University of Houston argues that Supreme Court justices should be impeached if the individual mandate is struck down because "Supreme Court justices who undermine the principles of the Constitution ought to be impeached." According to Professor Dow, the case for impeachment would not be based solely on the Court's health care decision, but also on decisions upholding the federal partial-birth abortion law, limiting the use of race in school assignment, and Citizens United. These decisions, Professor Dow claims, are all part of a "sustained effort on the part of the Roberts Court to return the country to the Gilded Age" and that "if the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch." He concludes:
We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there's no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
Domestic Use of Drones
Although I am generally quite positive on the use of drones for targeted killing and such uses of forces abroad, I also think their use domestically raises many crucial privacy and other issues. While many of those domestic use issues are about privacy, in some instances the issue is privacy in relation to a government use of drones while in others the question is the use of drones by private parties in relation to other private parties. Drones are going to increase in their use and presence in many, many different ways – at all sizes and with many sensor configurations. Not to get back to April Fools or anything, but to judge by the enthusiasm for drones among hobbyists in California, I believe it will be legal requirement to live there that you have your own drone.
The Brookings Institution is running a panel on this topic – domestic uses of drones – this afternoon, Wednesday, 2-3:30 pm. You can register and attend in person, or you can catch the web streamed version. It has a stellar lineup, including folks from the ACLU, Heritage Foundation, and Brookings. I will be addressing something of particular interest to me – private party to private party uses of drones, and the questions that emerge from that for privacy. I don't think we have an adequate legal model for what I believe is our evolving social sense – which one would want to see reflect both in informal social norms as well as in some ways embedded in law – of when and where one has an expectation of privacy. Drones, particularly drones combined with sensor technologies and the ability to stream, identify people, and post to the web, have a strong potential – no, let me be stronger – inevitably will conflict with that social expectation of privacy in important ways.
There can be a limited but still appropriate criminal law role for regulating that expectation of privacy – essentially Peeping Tom laws or in extreme cases, criminal anti-stalking orders. But in private party to private party interactions, involving drones, surveillance, and privacy, I believe the appropriate responses largely come from existing bodies of law tweaked and updated – nuisance and the quiet enjoyment of property doctrines, for example. But I suppose I am particular interested in the changing perception of privacy, intimacy, broadcast, and dissemination, in which drones are an important new link in a chain of the exposure of a person, and perhaps the constant exposure of a person.
I often read that essentially the younger generation – and the older one – does not care at bottom about privacy, at least not enough to do anything about it, or to make tradeoffs in terms of new technologies and applications, such as FB or GPS tracking, etc. I'm not sure I think it's really that way – on the contrary, my sense of high school students and undergraduates – leave aside law students – is that they have a remarkably sophisticated "bundle of sticks" approach to privacy issues, and believe that it is deeply socially constructed. Meaning, that they should be able to have social and legal rules that say that something that is apparently in the "public" domain is there for one purpose legitimately but not another. The FB picture from the college trip to the beach is there for one kind of purpose, but not for purposes of employer surveillance.
This can be regarded as sophisticated or naive, depending on how one sees the realism of constructing and enforcing legal rules that purport to distinguish single sticks in the bundle of sticks, so to speak. It can also be seen as wanting to have your cake and eat it too, in terms of being able to parse what was otherwise just public and private. But my sense of young people, particularly, is not that they think everything is or should be public for all to see, but instead that they have a highly differentiated sense of kinds of public and kinds of private, and that the law should catch up to that. I think in principle that they are right – being older and wiser, however, I have considerable doubts it will turn out that way.
More on Koppelman on Federalism
Andy Koppelman has another essay, this time in the New Republic, analogizing the litigation over the ACA to the Child Labor Cases. Of course, this is a tried and true rhetorical technique: find a case that is widely despised (Dred Scott, Lochner, Plessy), and analogize current litigation to that despised case.
Just a few points:
(1) Koppelman writes, with regard to child labor, "only the federal government could address the issue, since no state would act on its own." But I pointed out in response to his last article that every single state did in fact pass laws restricting child labor. Koppelman acknowledges the point, but responds, "This, however, ignores the enormous variation in child labor policy: Some laws were weak; others were ineffectively enforced." But saying that states chose not to have as strict laws as the federal government, or enforce them as vigorously as the federal government might, is quite different from saying that they couldn't act; rather, they chose not to act as vigorously as the federal government. That's what happens when you live in a federal system–sometimes you will think that states are being derelict in their legislative responsibilities; sometimes you will praise the states as laboratories of democracy for their innovations. I think I can safely assume, for example, that Koppelman opposes the federal Defense of Marriage Act but supports states that have recognized same-sex marriage. If the Republicans take control of the White House and Senate in 2013, would he want them to set a national policy on gay marriage via the commerce power? Merely pointing out that states don't always follow one's policy preferences is hardly a strong argument against federalism.
(2) Professor Logan Sawyer of the University of Georgia Law School coincidentally has an excellent piece out on SSRN about the origins of Court's holding in Hammer v. Dagenhart, the case in which the Supreme Court invalidated a federal child labor statute as beyond Congress' commerce power. The gist of the piece is that Hammer wasn't a battle between laissez-faireists and Progressive supporters of national regulation. Rather, after the Lottery Cases, which seemed to establish the federal police power, there was debate among Progressives as to whether there were any limits to this power. One side said no, while the other side insisted, for good "Progressive" reasons (in particular, that participation in local governance is a key to good citizenship), that Commerce Clause doctrine must put some limits on federal power. So there is, in fact, a parallel to 1918 today, but the parallel is not that the Supreme Court is poised to just make up some new doctrine while ignoring social conditions. Rather, the parallel is that there is sentiment among people who otherwise recognize a strong role for national government–as four of the five conservatives on the current Court surely do–that despite past precedents granting a broad commerce power, a significant role for state and local governance must be preserved.
(3) Koppelman suggests that Jonathan Adler and I think argue that child labor "isn't so bad." I won't speak for Jonathan, but I think child labor is bad, certainly if we're talking about pre-teens working in factories (which all the states banned in any event). [What I actually wrote was, "as one would expect, wealthier states, where parents were less likely to be dependent parents on the labor of their children to avoid starvation, passed earlier and stricter legislation, exactly as it should be in a federal system." (And even federal legislation left child labor on farms to parental discretion, in deference to the fact that family farms often couldn't survive without the children pitching in.)] But there's always the question of "compared to what?" I don't want to go off on a long digression about child labor, so I'll leave it at this. Child labor laws were not motivated solely by humanitarian considerations, and depending on context, could have significant anti-humanitarian consequences. Just consider that child labor laws, including the federal laws that came before the Supreme Court, were not typically accompanied by social welfare legislation providing income support to families whose children were working because the alternative was not having adequate food and housing. [So desperate families could either be malnourished or send their kids off to work in the black market; either way, many kids would be worse off, which provides an explanation of why the poorest states had less stringent child labor laws than what the federal government tried to impose.] Consider also that the wave of national sentiment favoring child labor laws corresponded with a wave of sentiment favoring legislation keeping women out of the workplace, and severely restricting immigration. This was not a coincidence. It shouldn't really come as a surprise that the history of these matters is rather more complicated than the morality tales we learned in civics class.
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