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Creeping Lochnerism



Above: The victims of the Triangle Fire, i.e., the libertarian vision of America’s future

Brian Beutler’s piece on libertarians’ goal to return the U.S. to the Lochner Era through the courts should scare you. It’s hardly news to political junkies that libertarians seek to destroy a century of regulations that created what was great about the United States in the twentieth century. But because a lot of seemingly smart people take libertarianism seriously as an intellectual idea, their actual nefarious goals are often muted. Libertarians want to return this nation to an era of workplace deaths, of unlimited working hours, of low wages, of industry polluting wherever they want with whatever substances they choose, etc. They openly say that the nation went off the rails with the Progressive Era (Karl Rove and Glenn Beck have said this on top of the libertarian crew) and hope to return us to the Gilded Age. They’ve gone a long ways toward succeeding, as I have documented on this blog for the past four years.

They are also really close to the big coup. That would be a Republican victory in 2016 and the replacement of a couple of elderly Supreme Court justices with Thomas and Alito-types who are happy to do the bidding of corporations.

All libertarians want to fight federal regulations in Congress and the executive branch. But Barnett and his allies think courts should be empowered to throw regulations out even if political majorities support them. These Lochner revivalist professors have established beachheads at law schools across the country. In 2002, UCLA law professor Eugene Volokh founded a blog, The Volokh Conspiracy, as a hub for libertarian ideas, including Lochner revisionism. Today, it has become the most prominent academic legal blog in the country and now publishes under the auspices of The Washington Post. It boasts nearly two dozen contributing professors and mainlines detailed and informed libertarian legal arguments to thousands of the nation’s top lawyers, law students, clerks, judges, and opinion-makers every day.

The contributors to The Volokh Conspiracy teach at the University of Minnesota, Northwestern, Emory, Duke, and elsewhere. Several hold positions at George Mason University’s law school, which is famous for its conservative faculty and, in 36 short years, has rocketed to prominence as one of the 50 best law schools in the country. In 2011, GMU law professor and Volokh Conspiracy contributor David Bernstein published a book titled Rehabilitating Lochner, and that’s exactly what he, Barnett, and their contemporaries have been attempting to do.

Again, it drives me crazy that people respect what happens at Volokh Conspiracy because these are horrible people. They aren’t hiding it either:

To dismiss the debate between libertarians and traditional conservatives over Lochner as an academic sideshow is to misunderstand the stakes. “A full-fledged return to Lochner would put a constitutional cloud over a whole host of laws that we all take for granted today,” said Sam Bagenstos, a liberal constitutional scholar at the University of Michigan who has argued cases before the Supreme Court. “Laws guaranteeing workers the right to join a union without being fired, and the right to earn a minimum wage and receive overtime if working more than 40 hours a week, laws protecting worker safety, and laws protecting workers and customers against discrimination based on race or other protected statuses, just for starters.”

I asked Barnett whether the social welfare laws on the books today would be permitted under his reading of the Constitution. “Probably not at the federal level,” he said.

That’s why Barnett and his contemporaries prefer to root their arguments in specific injustices rather than categorical abstractions. Why shouldn’t bakers be allowed to work more than 60 hours a week, or individuals be allowed to remain uninsured? Why should the government be allowed to regulate out of existence my right to hail a driver or your right to rent a stranger’s house for a weekend?

These are people who actually want to return us to the the Gilded Age. Let’s look at the past to get a glimpse of the libertarian paradise. Allow me to quote from Empire of Timber.

Both camp and mill workers felt the pain and shock of severe injury in a dangerous and highly mechanized working environment and saw workers die horrible deaths. These technologies made logging a more dangerous and deadly job. Cables and machines broke, becoming deadly whipsaws. The flying logs of high-lead logging crushed workers’ heads. The state of Washington began collecting data on workplace injuries in 1912. Between that date and 1929, between 124 and 261 loggers died every year in the timber industry. In 1914, 63,350 people worked in the timber industry, thirty-five per cent of the state’s workforce. In the first five months of that year, there were 4,928 reported accidents that injured or killed timber workers.

Working in the region’s watery environment contributed to this death toll. The Northwest’s cold rain and snow made workers sick while the workers toiling on floating logs in log ponds or river drives risked their lives. At least nine loggers drowned on the job in 1906, including J.W. Roth of Springfield, Oregon and Ralph Leedy of Hoquiam, Washington who died in separate incidents on log ponds and J.K. Lynn who fell into a river near Hoquiam while rafting logs. Alfred Aasen fell into a cold river while working in the spring of 1916. He did not drown, but he caught pneumonia while riding on a rail car the ten miles back to camp in soaking clothes and soon died.

Machines killed far more workers than water and cold. On August 28, 1905, Clise Houston reached to clear an obstruction from his saw. He fell into it and died. Finnish immigrant John Koski found a job with the Simpson Logging Company in a camp near Matlock, Washington. On June 18, 1904 nearby tree fallers shouted “Timber!” He did not move and the tree landed directly on top of him, crushing him beyond recognition. Koski had no family in America and his co-workers had no way to inform his relations in Finland of his demise. The company paid for the burial. Karl Carlson worked in the Middleton mill in Aberdeen, Washington. In 1905, a belt fell off its course and Carlson tried to guide it back on to the pulley with a shovel. The shovel became entangled with the belt and he lost control of it. The machine tore the shovel from his hands and plunged it, handle first, through his body. Carlson lingered for a day before dying, leaving behind a wife and child.

The lucky workers were merely maimed. Morris Campbell worked in J.E. Nichols’ sawmill in La Conner, Washington. In the last days of 1899, he caught his arm in a mill saw. It was amputated at the shoulder. In 1900, Frank Lang lost most of his left hand running a band saw in the Centralia Shingle Mill in Centralia, Washington. In 1901, Martin Boyer’s foot got caught in machinery in a Centralia mill. Doctors amputated. In a nation without a social safety net, injured workers often fell through the cracks into a lifetime of poverty. Workers like Campbell, Lang, and Boyer faced grim futures as disabled persons, as did many people disabled on the job before the passage of the Civilian Vocational Rehabilitation Act in 1920, which provided occupational training and job placement for those injured on at the workplace. Many workers chose self-medication. Joseph Gillis of Seattle lost a leg while working at the McDougal and Jackson logging camp near Buckley, Washington. He sued for $10,000 but overdosed on the laudanum he used for pain the day before he lost his suit.

This was the reality of Lochner-era America. Workers could do little to nothing about these working conditions because the courts said they had agreed to work under those conditions and thus protecting them would be violating their freedom of contract. Things got so bad that during the years after Lochner, judges, juries, and politicians began pushing back against it. That’s why workers’ compensation was enacted in the 1910s, because juries began awarding benefits to workers and ignoring the freedom of contract ideas and this scared corporations into protecting themselves while still paying as little as possible to injured workers.

This is the America where Volokh writers hope to take us Even if they say that’s not what they foresee, that’s the reality. In calling for a return to Lochner-era policies, there is no guarantee the Supreme Court won’t rule, say, OSHA unconstitutional.

This future, which sounds hopelessly dystopian, is entirely possible if Republicans win the 2016 presidential election. And we need to be calling out libertarians for what they are–people who think dead workers is a form of freedom. People who think working 84-hour weeks in a steel mill is totally acceptable. People who want you to experience another Donora Smog in the name of liberty. People who want to eliminate OSHA and the EPA. People who want to tear apart everything that makes this nation livable. And they are this close to succeeding.

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