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> 
> http://www.nytimes.com/2004/12/14/opinion/14tue4.html?th
> 
> EDITORIAL OBSERVER 
> What's New in the Legal World? A Growing Campaign to Undo the New Deal
> By ADAM COHEN 
> 
> Published: December 14, 2004
> 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 unconstitutional.
> 
> 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."