Subscribe via RSS Feed

GOP Senator: Let’s Reinstate Particularly Discredited Supreme Court Decisions!

[ 11 ] January 14, 2011 |

I remember when I used to joke about Republicans bringing back Hammer v.Dagenhart. [Update: more explanation here.]  Senator Mike Lee provides the punchline himself.

It’s worth mentioning here that, Lee’s claims that Hammer was a regrettable outcome compelled by the Constitution notwithstanding, the majority’s reasoning was in fact remarkably specious.    The law struck down in Hammer wasn’t even a general ban; it merely prevented good made with child labor from being shipped across state lines.   As Holmes noted in his dissent, the idea that this regulation wasn’t an excerise of the federal government’s power to regulate interstate commerce was absurd, and moreover the Court’s conservatives were very inconsistent about applying this highly dubious constitutional requirement:

The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Congress is given power to regulate such commerce in unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid. At all events, it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out….So I repeat that this statute, in its immediate operation, is clearly within the Congress’ constitutional power. [cites omitted]

The question, then, is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control. I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State.

Hammer was not only a bad outcome, it was a bizarre reading of the Constitution. It’s amazing that a United States Senator would cite it as a model in 2011.


Comments (11)

Trackback URL | Comments RSS Feed

  1. R.Johnston says:

    Shorter Mike Lee:

    Republican Romneycare is tainted by Obama and therefore the epitome of all evil and must be overturned, but if that happens then child labor laws probably go too. I guess it’s time to make sure those eight year olds earn their paychecks.

  2. Josh E. says:

    Both links go to the case. I wanna see what Lee said!

  3. DrDick says:

    He is a Republican, so cheap child labor sounds good to him. Why should Asia and Latina America have all the sweatshops?

  4. Warren Terra says:

    The Wikipedia entry explains things a lot more clearly than the court’s summary that you linked.

  5. mattH says:

    Reading the Wiki article, it seems more an attack on United States v. Darby Lumber Co and it’s rejection of the 10th Amendment. They see the 10th Amendment as the “philosophical” and legal key to pretty much everything they want done to the relationship between the States and the Federal govt. Anything that gets in the way, no matter how regrettable, is just “the price we’ll have to pay to get the Federal government off our backs”. We’ll get to keep the road and military money flowing though.

  6. […] denying players any compensation is about competitive balance.   And Hammer v. Dagenhart is a children’s rights […]

  7. […] course, some Tea Partiers are indeed proud to say that the shoe made with child labor […]

  8. […] favorite example of the utter incoherence of reactionary jurisprudence of the early 20th century: Hammer v. Dagenhart. Sure, Congress might have limited itself to what the Court itself had repeatedly said was […]

Leave a Reply

You must be logged in to post a comment.