December 14, 2004
WELL, IT DIDN'T WORK:
What's New in the Legal World? A Growing Campaign to Undo the New Deal (ADAM COHEN, 12/14/04, NY Times)
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.
True conservatives know that the Court first went wrong in Marbury v. Madison. Posted by Orrin Judd at December 14, 2004 6:45 PM
Or, maybe 1819's McCulloch v. Maryland, which held that Congress has broad "implied" powers. This too is a fearful thing, leading to Congress controlling many things the Founders never intended.
Steve Bragg
DOUBLE TOOTHPICKS
To liberals the only past worth preserving is the New Deal and the cultural 'achievements' of the 60's.
Posted by: carter at December 15, 2004 2:09 AMMr. Cohen is half right. The New Deal was a fascist abomination. And it was implimented largely by unconstitutional legislation.
Wickard was wrong. But Marbury was not the original sin -- it was a doctrine of abstention and modesty. It did not deprive the other Branches of the duty and power to follow the constitution.
The real sin came with the 14th amendment and the pernicious doctrines of substantive due process and incorporation of the bill of rights. The later was intended to displace the former, but now we have both and all of the damage they can do.
Posted by: Robert Schwartz at December 15, 2004 2:53 AMWe recall W.F. Buckley's remark about the Court confusing the power to regulate interstate commerce with the power to regulate the words used in interstate commerce.
Note that the cracks in the Commerce Clause doctrine are appearing in cases dealing with gun control laws. One of the secrets of Federal gun control is that, even at this early date in the re-establishment of federalism, there is no federal power to regulate firearms not actually still in interstate commerce.
Posted by: Lou Gots at December 15, 2004 7:20 AMWe recall W.F. Buckley's remark about the Court confusing the power to regulate interstate commerce with the power to regulate the words used in interstate commerce.
Note that the cracks in the Commerce Clause doctrine are appearing in cases dealing with gun control laws. One of the secrets of Federal gun control is that, even at this early date in the re-establishment of federalism, there is no federal power to regulate firearms not actually still in interstate commerce.
Posted by: Lou Gots at December 15, 2004 7:28 AMIf you believe in democracy, you do not want unelected star chambers striking down popular legislation willy-nilly. Courts should be loathe to intervene not on some kind of search-and-destroy mission like some demented gardener who, in a mad quest for perfection, destroys all the topiary.
Posted by: Bart at December 15, 2004 10:01 AMBart
The New Deal court is the primary example of what happens when elite feel themselves capable of perfecting the human condition. The constitution advocates nothing if not the acknowledgment that the power of a centarl authority is a power to be feared. Intellectual fasions come and go while the power of the state, if not checked, goes on growing forever.
Posted by: at December 15, 2004 4:39 PMThe New Deal saved this nation. Regardless of the dubious actual impact of the programs, it gave people faith in the system once again.
The Constitution manifests the FF's desire to keep any power from concentrating anywhere and I can't imagine they wanted an Imperial Judiciary that was capable of intellectual butchery like Roe v Wade. We need a check on judicial power just as we have on any other.
Posted by: Bart at December 15, 2004 9:13 PMHard to believe the illusion that something was being done to help, which instead prolonged it for ten years, worked out better than doing the things that would have fixed it, even if they'd been less dramatic.
Posted by: oj at December 15, 2004 9:34 PMI dunno, I think I'd rather go to the country as the 'party of sore losers' than as the 'party against workplace safety'
Posted by: Harry Eagar at December 16, 2004 1:30 AMWhy?
Posted by: oj at December 16, 2004 8:01 AMI'd be soliciting the votes of the productive people.
Posted by: Harry Eagar at December 16, 2004 2:01 PMIs there any electoral evidence that votes are moved by a party's level of support for greater OSHA restrictions?
Posted by: oj at December 16, 2004 2:23 PMIf people started dying in large numbers from workplace accidents due to shoddy safety conditions created by employer neglect, it would manifest itself in the political arena. You're not going to win too many elections in West Virginia arguing that the government should get out of the mine safety business and leave it to the good offices of the mine operators.
The elections of 1936 and 1940 I think are dispositive of the American people's verdict on the New Deal, regardless of what the actual growth figures were.
Posted by: Bart at December 16, 2004 8:56 PMBart:
You're kidding, right? By 1940 the Eastern Establishment had to steal the nomination for Willkie because FDr would have lost to a Republican and with him would have gone their chance to get in the war.
Posted by: oj at December 16, 2004 9:52 PM