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  • From: "Lynda" <lurine AT softcom.net>
  • To: <homestead AT lists.ibiblio.org>
  • Subject: [Homestead] NY Times article
  • Date: Tue, 14 Dec 2004 10:16:26 -0800

>
> 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."





  • [Homestead] NY Times article, Lynda, 12/14/2004

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