[Paleopsych] NYT Editorial Observer: What's New in the Legal World? A Growing Campaign to Undo the New Deal

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Editorial Observer: What's New in the Legal World? A Growing Campaign to Undo 
the New Deal
NYT December 14, 2004

[But do we need a Posner Court to reverse the New Deal Court?]

The New Deal made an unexpected appearance at the Supreme
Court recently - in the form of a 1942 case about wheat.
Some prominent states' rights conservatives were asking the
court to overturn Wickard v. Filburn, a landmark ruling
that laid out an expansive view of Congress's power to
legislate in the public interest.

Supporters of states' rights have always blamed Wickard,
and a few other cases of the same era, for paving the way
for strong federal action on workplace safety, civil rights
and the environment. Although they are unlikely to reverse
Wickard soon, states' rights conservatives are making
progress in their drive to restore the narrow view of
federal power that predated the New Deal - and render
Congress too weak to protect Americans on many fronts.

We take for granted today the idea that Congress can adopt
a national minimum wage or require safety standards in
factories. That's because the Supreme Court, in modern
times, has always held that it can.

But the court once had a far more limited view of
Congress's power. In the early 1900's, justices routinely
struck down laws protecting workers and discouraging child
labor. The court reversed itself starting in 1937, in cases
that led to Wickard, and began upholding these same laws.

States' rights conservatives have always been nostalgic for
the pre-1937 doctrines, which they have lately taken to
calling the Constitution-in-Exile. They argue - at
conferences like "Rolling Back the New Deal" and in papers
like "Was the New Deal Constitutional?" - that Congress
lacks the power to do things like forcing employers to
participate in Social Security. Given how entrenched New
Deal programs have become in more than half a century,
these plans for reversing history have always seemed more
than a bit quixotic.

But that may be about to change. The attacks on the
post-1937 view of the Constitution are becoming more
mainstream among Republicans. One of President Bush's
nominees to the United States Court of Appeals for the
Ninth Circuit, Janice Rogers Brown, has called the
"revolution of 1937" a disaster. And last month in the
Supreme Court - in a case about medical marijuana - the
justices found themselves having to decide whether to stand
by Wickard.

In that case, two Californians who use marijuana for
medical reasons argued that Congress, which passed the
Controlled Substances Act, did not have the constitutional
power to stop them. To pass a law, Congress needs a
constitutional hook, and the Controlled Substances Act
relied on one of the most important ones, the Commerce
Clause, which authorizes Congress to "regulate Commerce ...
among the several States." The Californians argued that
their marijuana did not involve interstate commerce because
it never left their state.

That is where Wickard v. Filburn comes in. Roscoe Filburn
was a farmer who argued that his wheat crop should not fall
under federal production quotas because much of it was
consumed on his own farm. The Supreme Court held that even
if that wheat did not enter interstate commerce, wheat
grown for use on a farm altered supply and demand in the
national market. The decision gave Congress broad power to
regulate things that are located in one state, like
factories and employer-employee relationships.

Some leading conservatives want the court to overturn
Wickard and replace it with a pair of decisions from the
1800's that one brief filed in the case said would return
"Commerce Clause jurisprudence to its settled limits prior
to the New Deal." That would be a bold move, but the court
has already been heading down this path. In recent years,
it has struck down the Gun-Free School Zones Act and a
crucial part of the Violence Against Women Act for
exceeding Congress's power.

If the Supreme Court drifts rightward in the next four
years, as seems likely, it could not only roll back
Congress's Commerce Clause powers, but also revive other
dangerous doctrines. Before 1937, the court invoked
"liberty of contract" to strike down a Nebraska law
regulating the weight of bread loaves, which kept buyers
from being cheated, and a New York law setting a maximum
10-hour workday. Randy Barnett, the law professor who
represented the medical marijuana users, argues in a new
book that minimum wage laws infringe on "the fundamental
natural right of freedom of contract."

In pre-1937 America, workers were exploited, factories were
free to pollute, and old people were generally poor when
they retired. This is not an agenda the public would be
likely to sign onto today if it were debated in an
election. But conservatives, who like to complain about
activist liberal judges, could achieve their anti-New Deal
agenda through judicial activism on the right. Judges could
use the so-called Constitution-in-Exile to declare laws on
workplace safety, environmental protection and civil rights

Getting rid of Wickard would be an important first step. At
last month's argument, that did not appear likely. Justice
Antonin Scalia, a leading states' rights champions, said he
"always used to laugh at Wickard," but he seemed prepared
to stick with it. It may be, however, that the justices are
quicker to limit Congress's power when it does things they
don't like (like gun regulation) than when it does things
they do (like drug regulation). They may be waiting for a
more congenial case.

The court will not return to the pre-1937 Constitution in a
single case, but it seems likely to keep whittling away
Congressional power and federally protected rights. If it
does, what President Franklin Roosevelt declared in 1936 -
after two key New Deal programs were struck down - will
again be true: "It was not the wage earners who cheered
when these laws were declared invalid."


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